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2012 DIGILAW 1744 (JHR)

Ganauri Mistry v. State of Jharkhand

2012-12-18

ALOK SINGH

body2012
Order Present petition is filed assailing the order dated 06.12.2012 (Annexure 5 to the writ petition), whereby petitioner was placed under suspension for noncompliance of the order passed by this Court in W.P.(S) No. 900 of 2005. 2. This case for the first time was taken on 14.12.2012 and learned counsel for the respondent State was directed to seek instruction on the averments made in the writ petition. Case was taken up again yesterday i.e. on 17.12.2012 and after hearing both the sides for quite sometime, it was adjourned for today. With the consent of the learned counsel for the parties, it is being heard and disposed of finally at the admission stage. 3. Undisputedly, this Court in W.P.(S) No. 900 of 2005, vide judgment dated 18.10.2008 had directed the respondents of that writ petition to pay the arrears of salary in favour of the petitioner and also to fix pay of the petitioner in the appropriate scale in consonance with the recommendations of the Fitment Committee. This exercise was to be undertaken by the respondents within four months from the date of receipt of a copy of that order. 4. Undisputedly, the present petitioner has joined as District Superintendent of Education, Hazaribagh on 05.07.2012. Undisputedly, for the first time, in the month of November, 2012, a representation (Annexure 1) was placed before the petitioner requesting him to make compliance of the judgment of this Court dated 18.10.2008 passed in W.P.(S) No. 900 of 2005. Undisputedly, a Contempt Case was also preferred before this Court for noncompliance of the judgment of this Court passed in W.P.(S) No. 900 of 2005. Undisputedly, the judgment of this Court passed in W.P.(S) No. 900 of 2005 has already been complied with and reply to the show cause issued in Contempt Case has already been filed by the petitioner. 5. Undisputedly, the judgment of this Court passed in W.P.(S) No. 900 of 2005 has already been complied with and reply to the show cause issued in Contempt Case has already been filed by the petitioner. 5. The contention of the petitioner is that after joining as District Superintendent of Education, Hazaribagh, on 05.07.2012, he has taken prompt action ensuring the compliance of the judgment of this Court dated 18.10.2008 passed in W.P.(S) No. 900 of 2005, and without wasting any time after receiving the representation (Annexure 1) on 06.11.2012, entire payment has been released in favour of the petitioner of W.P.(S) No. 900 of 2005 on 06.12.2012 i.e. within 30 days from the date of receiving the representation, therefore, placing the petitioner under suspension, vide impugned order dated 06.12.2012, is totally unjustified, arbitrary and result of non-application of mind. 6. Mr. D.K. Dubey, learned counsel appearing for the petitioner, has vehemently argued that order impugned does not show that any disciplinary enquiry is contemplated against the petitioner for any misconduct on the part of the petitioner. He further argues that although the Government servant can be placed under suspension in contemplation of the disciplinary action or during the pendency of the disciplinary enquiry, however, suspension order cannot be automatic and can only be passed when misconduct is so grave which can result in dismissal or any other major penalty or there is apprehension that while attending the duties, delinquent employee may influence the disciplinary action or may tamper with the evidence. He has placed reliance on the judgment of the Apex Court, in the case of State of Orissa Vs. Bimal Kumar Mohanty, reported in AIR 1994 SC 2296 . 7. On the other hand, Mr. Srijit Choudhary, learned Government Advocate, has submitted that in view of Rule 49A of Civil Services (Classification, Control and Appeal) Rules, the appointing authority or the Governor as the case may be, may place a Government servant under suspension in contemplation of the disciplinary proceeding or during the pendency of the disciplinary proceeding. Mr. Choudhary, while placing reliance on the judgment of the Apex Court, in the case of State of Haryana Vs. Mr. Choudhary, while placing reliance on the judgment of the Apex Court, in the case of State of Haryana Vs. Hari Ram Yadav & Ors., reported in AIR 1994 SC 1262 , has argued that there is no requirement that order of suspension must contain recital that Governor or appointing authority was satisfied that suspension of the delinquent employee is desirable in the peculiar facts and circumstances of the case. 8. In the present case on facts, there is no dispute that now judgment of this Court dated 18.10.2008 passed in W.P.(S) No. 900 of 2008, has already been complied with after receiving the representation (Annexure 1) on 06.11.2012 by the petitioner. It is also not in dispute that petitioner has joined as District Superintendent of Education at Hazaribagh on 05.07.2012. It is also not in dispute till date, no disciplinary proceeding has been initiated against the petitioner. Impugned order does not contain any recital that any disciplinary proceeding was contemplated against the petitioner on the day when impugned order of suspension was passed. 9. Since important question of law is involved in the present case as to whether suspension order should be automatic, the moment disciplinary enquiry is contemplated or commenced against the delinquent employee or it can be passed only when appointing authority is satisfied that misconduct is so grave which may result in the major punishment or there is an apprehension that delinquent employee may influence the disciplinary proceeding and his presence in the office is not desirable in the peculiar facts and circumstances of the case. 10. Hon'ble Apex Court, in the case of State of Haryana Vs. Hari Ram Yadav & Ors. (supra) in paragraph Nos. 10, has held as under :- “10. We find it difficult to agree with the said view of the Tribunal. The mere fact that the impugned order of suspension does not contain a recital that the Governor was satisfied that it is either necessary or desirable to place respondent No. 1 under suspension does not, in our opinion, render the said order invalid. We find it difficult to agree with the said view of the Tribunal. The mere fact that the impugned order of suspension does not contain a recital that the Governor was satisfied that it is either necessary or desirable to place respondent No. 1 under suspension does not, in our opinion, render the said order invalid. The law is well settled that in cases where the exercise of statutory power is subject to the fulfillment of a condition then the recital about the said condition having been fulfilled in the order raises a presumption about the fulfillment of the said condition, and the burden is on the person who challenges the validity of the order to show that the said condition was not fulfilled. In a case, where the order does not contain a recital about the condition being fulfilled, the burden to prove that the condition was fulfilled would be on the authority passing the order if the validity of the order is challenged on the ground that the said condition is not fulfilled. Reference, in this context, may be made to the decision of this Court in Swadeshi Cotton Mills Co. Ltd. Vs. State of U.P., (1962) 1 SCR 422 : ( AIR 1961 SC 1381 ) where it has been observed :- “The validity of the order therefore does not depend upon the recital of the formation of the opinion in the order but upon the actual formation of the opinion and the making of the order in consequence. It would therefore follow that if by inadvertence or otherwise the recital of the formation of the opinion is not mentioned in the preamble to the order the defect can be remedied by showing by other evidence in proceedings where challenge is made to the validity of the order, that in fact the order was made after such opinion had been formed and was thus a valid exercise of the power conferred by the law. The only exception to this course would be where the statute requires that there should be a recital in the order itself before it can be validly made.” 11. Hon'ble Apex Court, in the case of State of Orissa Vs. Bimal Kumar Mohanty (supra) in paragraph No. 12, has held as under : “12. The only exception to this course would be where the statute requires that there should be a recital in the order itself before it can be validly made.” 11. Hon'ble Apex Court, in the case of State of Orissa Vs. Bimal Kumar Mohanty (supra) in paragraph No. 12, has held as under : “12. It is thus settled law that normally when an appointed authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words, it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending enquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the enquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or enquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending enquiry or contemplated enquiry or investigation. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending enquiry or contemplated enquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or enquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental enquiry or trial of a criminal charge. 12. The Division Bench of Uttarakhand High Court, in the case of S.K. Goel Vs. State of Uttaranchal & Anr. in W.P. No. 210 of 2004 (S/B), decided on 05.05.2005, as reported in 2005 INDLAW UTT 83, has held as under : “It is not necessary to place a Government employee under suspension in every case where disciplinary proceedings are contemplated. The continuance of the employee in the same post or at the same station may be considered likely to influence or prejudice the enquiry and the disciplinary proceedings. Sometimes, in view of the nature of the post held by the officer and the nature of the irregularities alleged, the very continuance of the officer in service during the disciplinary proceedings may be considered undesirable. In the first case, the proper conduct of enquiry and disciplinary proceedings can be ensured by a mere transfer of the officer. Only in the second case the officer need be placed under suspension. Hence, it is incumbent upon the disciplinary authority to consider whether a transfer of the officer will be sufficient or whether suspension itself is required. Only when the disciplinary authority is satisfied that suspension itself is required, an officer can be placed under suspension. If and when the suspension is questioned in a Court of law, the disciplinary authority is bound to show that he had arrived at a satisfaction that a mere transfer was not sufficient and that suspension itself was required. If the disciplinary authority fails to show that he had properly considered the matter and was satisfied that suspension itself was required, the order of suspension is liable to be declared illegal and arbitrary and quashed on that basis. If the disciplinary authority fails to show that he had properly considered the matter and was satisfied that suspension itself was required, the order of suspension is liable to be declared illegal and arbitrary and quashed on that basis. It should be remembered that though suspension is not a punishment, it visits the employee with serious civil consequences and loss of reputation and prestige. Hence, an order of suspension should not be passed lightly, casually or without proper application of mind.” 13. The Division Bench of Uttarakhand High Court, in the case of Mahendra Kumar Tayal Vs. State of Uttaranchal in W.P. No. 129 of 2005 (S/B), decided on 15.12.2005, as reported in 2005 INDLAW UTT 220, has held as under : “It cannot be disputed that State Government being the appointing authority was competent to suspend the petitioner pending the disciplinary action. The State Govt./Disciplinary authority had the option to place him under suspension pending inquiry or to transfer him to another place. An employee can be suspended only when the disciplinary authority is of the opinion that it is necessary in the public interest to place him under suspension in order to maintain the discipline in service and keep up the morale of the honest and dutiful employees or to inspire confidence and trust in the minds of the public or to protect the image of the Department. Disciplinary authority while suspending an employee has to consider the nature of the allegations and the nature of the post held by him. An order of suspension visits the employees with serious evil consequences, monetary loss and loss of reputation. It is not necessary to place the employee under suspension in every case where the disciplinary proceedings are initiated. It has to be considered by the State Government whether the continuance of the employee in service at any other place in the State is likely to influence or prejudice the inquiry and disciplinary proceedings. Sometimes Government may feel that the nature of the irregularities alleged against the delinquent official are of serious nature or that he is holding such a sensitive post and hence his continuance in the service during the disciplinary proceedings is undesirable. If transfer will be sufficient to ensure proper and fair disciplinary inquiry, the State Government may only transfer the employee and may not place him under suspension. If transfer will be sufficient to ensure proper and fair disciplinary inquiry, the State Government may only transfer the employee and may not place him under suspension. The State Government should consider whether transfer or suspension is necessary in the given circumstances. The State Government has the discretion in the matter and the State Government has to exercise its discretion only after considering the relevant aspects of the matter fairly and judiciously and not arbitrarily. When the suspension order is challenged before the court, the disciplinary authority is bound to show that he had arrived at a satisfaction that suspension was necessary to proceed with the departmental inquiry and the continuance of the employee in service during the inquiry is undesirable and would influence or prejudice the enquiry. A proper exercise of the discretion by the State Government cannot be interfered with by the court. If the State Government fails to show that it had properly considered the matter and was satisfied that suspension itself was required, the order of suspension is liable to be held to be illegal and arbitrary and is liable to be quashed. It may not be necessary for the State Government to give detailed reasons in the order to suspend an employee, but the order of the State Government or the relevant file should reflect that the competent authority after applying its mind to all the relevant aspects of the matter had exercised its discretion.” 14. Having considered the dictum of the Apex Court and judgments of Division Bench of Uttarakhand High Court, the law of suspension is summarised as under : When an appointing authority proceeds to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and order of suspension should not be passed in a routine or automatic manner. It is not necessary to place a Government employee under suspension in every case where disciplinary proceedings are contemplated. Appointing authority must be satisfied that continuance of the employee in the same post or at the same station may cause a reasonable apprehension that it will influence or prejudice the enquiry and the disciplinary proceedings. It is not necessary to place a Government employee under suspension in every case where disciplinary proceedings are contemplated. Appointing authority must be satisfied that continuance of the employee in the same post or at the same station may cause a reasonable apprehension that it will influence or prejudice the enquiry and the disciplinary proceedings. It should always be kept in mind by the appointing authority that though suspension is not a punishment, however, it visits the employee with serious civil consequences and loss of reputation and prestige. Therefore, an order of suspension should not be passed lightly, casually or without proper application of mind. 15. Order of suspension need not contain the recital of the reasons which has resulted into the passing of the suspension order. If the suspension order is questioned before a Court of law, the appointing authority must show before the Court of law that before passing the suspension order the case of the delinquent employee was considered properly and suspension order was found to be desirable in the peculiar facts and circumstances of the case considering the gravity of the misconduct or continuance of the officer in the office may likely to influence the proceeding. If the appointing authority or the disciplinary authority fails to show that the grounds of suspension were considered before passing the suspension order, the suspension order so passed is liable to be quashed. 16. In the present case, since judgment has already been complied with and petitioner has taken every step to ensure the compliance of the judgment of this Court soon after receiving the representation, suspension order seems to be totally arbitrary, unjustified and result of non-application of mind. Therefore, order impugned does not sustain in the eyes of law. 17. Consequently, the writ petition is allowed. Order impugned is hereby quashed.