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2010 DIGILAW 458 (GAU)

Tinuwati v. State of Nagaland

2010-06-30

UTPALENDU BIKAS SAHA

body2010
JUDGMENT U.B. Saha, J. 1. The writ Petitioner namely, Shri Tinuwati filed the instant writ petition challenging the order of his suspension dated 4th August, 2005 issued by the Director, Directorate of Social Welfare, Nagaland. 2. Heard Mr. T.B. Jamir, learned Counsel for the Petitioner as well as Mr. N.M. Jamir, learned GA who appears at this motion stage on behalf of the Respondents. 3. As both the learned Counsel appearing for the parties agreed to as proposed by this Court for disposal of the instant writ petition at this motion stage, the matter is taken up thereof for final disposal. 4. The case of the Petitioner in a nut-shell is as follows: The Petitioner being AO/Naga Tribe was appointed to the post of Lower Divisional Assistant (LDA) in the Directorate of Social Welfare, Nagaland, Kohima in order of merit on temporary basis vide order No. SW/ESTT-1/88/Vol-11/684, dated 10.9.1996 (Annexure-A to the writ petition). While he was serving as LDA he was placed under Suspension vide order No. SW/ESTT/PF/96, dated 4.8.2005 (Annexure-B to the writ petition) issued by the Director, Directorate of Social Welfare, Nagaland, Respondent No. 3 herein, in contemplation of a disciplinary proceeding to be initiated against him. It is also contended in the writ petition that the disciplinary proceeding which has been contemplated against the Petitioner in connection with the alleged bribery scam in the Nagaland Public Service Commission in which the Petitioner is in no way involved. The grievance of the Petitioner as stated in the writ petition is that though the impugned order of suspension was issued on 4.8.2005 in contemplation of a disciplinary proceeding but till date no disciplinary proceeding has been initiated and the authority without initiating any disciplinary proceeding is prolonging the order of suspension without any reason. The Petitioner has submitted a representation before the Respondent No. 3, Director, Directorate of Social Welfare, Nagaland, with a prayer to revoke the order of suspension on the ground that the Petitioner is innocent and has been falsely implicated and moreover, no disciplinary proceeding has been initiated against the Petitioner till date but the said representation has neither been considered nor disposed by the authority till the filing of the instant writ petition. 5. 5. Being aggrieved by such action of the authority the Petitioner filed the instant writ petition for quashing the impugned order of suspension and to reinstate him forthwith giving all consequential service benefits. 6. Mr. T.B. Jamir, learned Counsel for the Petitioner while praying for quashing the order of suspension would contend that there is no doubt that the employer has the right to suspend its employee on the ground as prescribed in Rule 6 of the Nagaland Services (Discipline and Appeal) Rules, 1967 ('Rules') but that does not mean that in contemplation of disciplinary proceeding against an employee an order of suspension can be continued for years together, as in the instant case. 7. He further contended that the Petitioner's suspension in the attending facts and circumstances as available is penal in nature and being the Respondent authorities have failed to initiate any disciplinary proceeding within these five years it can be easily held by this Court that the inaction of the authority is nothing but display of lack of concern. 8. In support of his aforesaid submission he relied on a decision of this Court in Apurba Kr. Borthakur v. State of Assam and Ors., 2006 GLT 814, wherein this Court while considering the order of suspension held that suspension cannot be resorted to as a routine measure or imposed as a penalty and the delay of five years displays the lack of concern of the concerned authorities and ultimately set aside the order of suspension directing the Respondents of that case to reinstate the writ Petitioner of that case in service. He also placed reliance on a decision of this Court in Lalit Basumatary v. State of Arunachal Pradesh and Ors. 2003 (2) GLT 90, wherein this Court taking note of the decision of the Apex Court in State of Andhra Pradesh v. N. Radhakrishnan AIR 1988 SC 1833 held that when no reasons assigned for not holding disciplinary proceeding within a reasonable time the delinquent employee can be reinstated setting aside the order of suspension. In the said case while the order of suspension was quashed and direction for reinstatement of the Petitioner of that case in service was ordered the court also directed the disciplinary authority concerned to initiate departmental proceeding against the Petitioner within two months from the date of order, if deemed necessary. In the said case while the order of suspension was quashed and direction for reinstatement of the Petitioner of that case in service was ordered the court also directed the disciplinary authority concerned to initiate departmental proceeding against the Petitioner within two months from the date of order, if deemed necessary. According to him, in view of the aforesaid two decisions of this Court, the impugned order of suspension is liable to be quashed and the Petitioner is liable to be reinstated in service with all consequential benefits. 9. Mr. Jamir further submits that though the provisions of Rule 6 of the Rules do not provide for periodical review of the order of suspension but then also it is the duty of the authority to review the order of suspension to examine whether prolonged suspension of an employee is necessary in public interest. 10. Per contra, Mr. N.M. Jamir, learned GA submits that vide his letter dated 28.6.2010 he requested the Respondent No. 3, Director, Directorate of Social Welfare to furnish the necessary instructions as the matter would be taken up for final disposal at the motion stage considering the nature of the prayer. But the Respondent No. 3, Director, Directorate of Social Welfare, in response to the said request, furnished only a letter dated 22nd March, 2006 written by the Secretary, Vigilance Commission, Nagaland to the Respondent No. 3 and except the said letter no such information has been placed before him. Therefore, he is not in a position to place the stand of the government. He also contended that from the aforesaid letter dated 22nd March, 2006 it appears that though the Secretary, Vigilance Commission requested the Director, Social Security and Welfare, which is at present the Directorate of Social Welfare for drawing up disciplinary proceeding against the Petitioner framing the charge and serving the same to him and also to provide him the opportunity to file written statement in his defence but the same has not yet been done. 11. He further contended that as the provisions of Rule 6 of the Rules do not provide any provision for review it is not necessary at all for the disciplinary authority to review the order of suspension as contended by the learned Counsel for the Petitioner. 11. He further contended that as the provisions of Rule 6 of the Rules do not provide any provision for review it is not necessary at all for the disciplinary authority to review the order of suspension as contended by the learned Counsel for the Petitioner. He also submitted that the order of suspension can be quashed only if the action of the employer is actuated by mala fide purpose or motive and not for any other reason. 12. In support of his aforesaid contention he placed reliance on a decision of this Court in Sri Bimalendu Bhagabati v. The Assam Government Construction Corporation Limited and 2 Ors. 1995 (2) GLT 378 :(1995) 3 GLR 405. Mr. Jamir fairly conceded to the fact that admittedly the Petitioner is on suspension for about five years without any disciplinary proceeding but mere non-initiation of disciplinary proceeding does not entitle the Petitioner ipso facto an order of revocation of suspension. At best he can ask for the subsistence allowance for the period of suspension as prescribed under law. 13. He finally contended that he is not in a position to submit that whether by this time the representation of the Petitioner dated 14.4.2010 (Annexure-C to the writ petition) has been disposed of or not as no instruction has been received by him from the concerned authority. 14. Having heard the learned Counsel for the parties and on going through the records as available this Court is of the considered opinion that it would be profitable to reproduce the relevant portion of the provisions of Rule 6 of the Rules as well as the impugned order of suspension as the Petitioner was suspended exercising the power under Sub-rule (1) of Rule 6 of the Rules. Accordingly the same are reproduced hereinunder: 6. Accordingly the same are reproduced hereinunder: 6. Suspension:(1) The Appointing authority or any authority to which it is a subordinate or any other authority empowered by the Governor in that behalf may place a Government servant under suspension (A) Standard form of order of suspension is specified in Schedule (II): (a) where a disciplinary proceeding against him is contemplated or is pending, or (b) Where a case against him in respect of any criminal offence involving moral turpitude is under investigation, inquiry or trial: Provided that where the order of suspension is made by an authority lower than the appointing authority such authority shall forthwith report to the Appointing Authority the circumstances in which the order was made. (2) ............. (a) ............. (b) ............. (3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders. (4) .............. (5) (a) An order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so. (b) Where a Government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise), and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension, may, for reasons to be recorded by him in writing direct that the Government servant shall continue to be under suspension until the termination of all or any of such proceedings. (c) An order of suspension made or deemed to have been made under this rule may at any time be revoked by the authority which made or is deemed to have made the order or by an authority to which that authority is subordinate (a standard form of order for revocation suspension order is specified in Schedule-III.) GOVERNMENT OF NAGALAND DIRECTORATE OF SOCIAL WELFARE NAGALAND:: KOHIMA NO. SW/ESTT/PE-1/96 Dated Kohima, the 4th August, 2005 ORDER Whereas a disciplinary proceeding against Mr. SW/ESTT/PE-1/96 Dated Kohima, the 4th August, 2005 ORDER Whereas a disciplinary proceeding against Mr. Tinuwati, LDA in the Directorate of Social Welfare is contemplated and consequent upon prosecution sanction having been accorded for his alleged involvement in the NPSC examinations scam currently under investigation by the Vigilance and Anti-corruption. Now, therefore, the undersigned in exercise of the provision of Sub-rule (1) of Rule 6 of the Nagaland Service (Discipline and Appeal) Rules 7967, hereby place the said Mr. Tinuwati, LDA under suspension with effect from the date of issue of this order. It is further ordered that during the period of this suspension the head-quarter of Mr. Tinuwati LDA shall be at Kohima and Mr. Tinuwati shall not leave the head-quarter without obtaining the prior permission of the undersigned. During the period of his suspension Mr. Tinuwati, LDA is entitled to a subsistence allowance at the amount equal to the leave salary which he would have drawn on leave of half average pay in addition to dearness allowance under FR-53 (I)(II)(a). Sd/- (NOCHETAIER) Director 15. "Suspension" - What is? Whether an employee should or should not continue in office, pending departmental inquiry is a matter to be considered by the authority. An order of suspension is not an order imposing punishment on a delinquent servant, found to be guilty. It is an order made against him, before he is found guilty, to ensure smooth disposal of the proceedings, initiated against him, and such proceedings must be expeditiously concluded both in the interest of the public services of the Government as also the Government Servant. Although it is not a punishment under the civil service rules yet it should not be lightly passed in a routine manner. See Darshan Singh v. The State of Arunachal Pradesh and Ors. 1997 (1) GLT 30 : (1997 3 GLR 1). 16. In K. Sukhendar Reddy v. State of A.P and Anr., (1999) 6 SCC 257 the Apex Court while deciding the case of similar nature of suspension wherein an incumbent was placed under suspension in contemplation of disciplinary inquiry in view of prima facie involvement in a criminal case registered with the police station concerned under certain provisions of the Penal Code, held that when no departmental enquiry was contemplated the Appellant could not be kept under suspension indefinitely and accordingly ordered reinstatement of the Appellant. In paragraphs 6 and 7 of the said report it was held as follows: 6. The Appellant was placed under suspension on 6.2.7997 by an order passed by the Chief Secretary to the Government of Andhra Pradesh under Sub-rule (1) of Rule 3 till the completion of the disciplinary proceedings against him. This order was subsequently replaced by another order passed on 12.3.1997, in which it was clearly spelt out that disciplinary proceedings against the Appellant were not at all contemplated, but since he was involved in Crime Case No. 327 of 1996 registered under Sections 468, 477, etc., by Anakapalli town Police Station, he was being placed under suspension. This matter is still under investigation by the CID and a charge sheet has not yet been filed in the case. 7. Another vital fact which has come on record is that in the criminal case a number of senior IAS officers even senior to the Appellant, may be found involved, but nothing positive or definite can be said as yet as the investigation is likely to take time. The investigation has not been completed although about two-and-a-half years have passed. We do not know how long it will take to complete the investigation. That being so, the officer of the rank of the Appellant, against whom it has now come out that the disciplinary proceedings are not contemplated, cannot be kept under suspension for an indefinite period, particularly in a situation where many more senior officers may ultimately be found involved, but the Appellant alone has been placed under suspension. The Government cannot be permitted to resort to selective suspension. If cannot be permitted to place an officer under suspension just to exhibit and feign that action against the officers, irrespective of their high status in the service hierarchy, would be taken. 17. The aforesaid case of K. Sukhendar Reddy (supra) was considered by this Court in the case of Jinna Abdur Rahim v. State of Assam and Ors., 2002 (3) GLT 498 :(2002) 3 GLR 264 wherein this Court while considering the challenge of the Petitioner in that case on his order of suspension noted, inter alia, that the Petitioner being a LP School teacher has been put under suspension for more than four and a half years without any initiation of disciplinary proceeding which seems to be unjustified and improper. Such indefinite suspension of the Petitioner has definitely come to the Petitioner as mental torment resulting in his grave penury and scourge in maintaining the livelihood of his family including himself and ultimately quashed the order of suspension and consequent thereto the Petitioner was reinstated forthwith and allowed all arrears of salary up to date excluding the subsistence allowance, if any already paid to him. The court also granted liberty to the authority to taking necessary steps for initiation of the disciplinary proceeding subsequent to the decision of the criminal case, if so advised. 18. In Union of India v. Rajiv Kumar, AIR 2003 SC 2917 the Apex Court noted that the period of suspension should not unnecessarily prolonged but if plausible reasons exists and the authorities feel that the suspension needs to be continued, merely because it is for a long period that does not invalidate the suspension. 19. Though the Rules do not cast any duty on the disciplinary authority for reviewing an order of suspension periodically but according to this Court, it is the duty of the disciplinary authority to review the same periodically for the interest of public administration as due to suspension not only an incumbent is suffering but also the people at large even the employer of the incumbent is also not getting the service due to the order of suspension. There is no doubt that the disciplinary authority has the power to continue the suspension of an incumbent even for a long tenure but for that the disciplinary authority has to give some reason. More so, the disciplinary authority is bound to explain as to why the disciplinary proceeding has not been initiated against the incumbent though the same is contemplated and for which the incumbent was suspended. 20. As in the instant case this Court dealt with the submissions of the learned Counsel for the parties while disposing the matter at the motion stage and that too without the counter-affidavit from the Respondents, it would not be proper on the part of the court to make any specific observation against the action of the disciplinary authority. 20. As in the instant case this Court dealt with the submissions of the learned Counsel for the parties while disposing the matter at the motion stage and that too without the counter-affidavit from the Respondents, it would not be proper on the part of the court to make any specific observation against the action of the disciplinary authority. But, at the same time, when it is the admitted fact that the present Petitioner is on suspension for more than five years without any disciplinary proceeding being initiated against him and his representation dated 14.4.2010 is still pending with the authority and the Respondents also failed to explain the reasons for such prolonged suspension of the Petitioner, and such indefinite suspension without any disciplinary proceeding not only creates mental pressure on an employee, the same also disturbs his family life as the same has civil consequence, therefore, it would be proper for this Court, in view of the decision of the Apex Court as well as this Court, to direct the Respondent, particularly Respondent No. 3, Director, Directorate of Social Welfare for considering the representation of the Petitioner dated 14.4.2010 (Annexure-C to the writ petition) and to dispose of the same by a reasoned order within a period of 10 days from the date of receipt of the order of this Court failing which the impugned order of suspension will automatically stand revoked and the Petitioner shall be reinstated in service with all consequential benefits. 21. Ordered accordingly. Petitioner is also directed to submit a copy of this judgment and order within seven days from today along with a copy of the instant writ petition. 22. The aforesaid order of revocation and reinstatement would not be a bar for the disciplinary authority to proceed with the disciplinary proceeding against the Petitioner, within a period of two months from the date of receipt of this order, if so advised. 23. With the aforesaid observation and direction, the instant writ petition is disposed of. No order as to costs.