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2013 DIGILAW 281 (HP)

BALDEV SINGH v. STATE OF HIMACHAL PRADESH

2013-04-09

A.M.KHANWILKAR, R.B.MISRA

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JUDGEMENT A.M. KHANWILKAR, J. 1. HEARD counsel for the parties. Rule. Rule made returnable forthwith, by consent. Counsel for the respondents waives notice. Taken up for final disposal forthwith, by consent. 2. THE petitioner has sought two substantive reliefs. The first is to set-aside the order of suspension dated 6.12.2012 passed against him and the second is also dated 6.12.2012, whereby the Competent Authority has decided to initiate inquiry against the petitioner for his acts of commission and omission. The principal grievance of the petitioner, is that, the petitioner was called upon to offer explanation by issuance of show cause notice as to why the petitioner should not be placed under suspension with regard to the matters, referred to in the show cause notice. In response thereto, the petitioner filed his reply. Notably, the copy of the complaint nor the inquiry report of the Audit Accounts Officer (Panchayat), on the basis of which the action was initiated by the Competent Authority, was furnished to the petitioner. Further, no reference is found in the suspension order to those documents nor to the defence taken by the petitioner in the reply-affidavit. It is the case of the petitioner that the inquiry has been initiated as a consequence of suspension order dated 6.12.2012 and for that reason even the said inquiry proceeding should suffer the same consequence upon setting aside of the suspension order dated 6.12.2012. 3. THE respondents have filed reply-affidavit. We find that a curious stand has been taken in the reply-affidavit. In that, the petitioner was shown complaint along with documents against him during the preliminary inquiry. Further, the petitioner was aware about the contents of the said documents. In other words, the fact that the copy of the complaint as well as the inquiry report, referred to above, was not furnished to the petitioner along with the show cause notice is indisputable. In that case, it would necessarily follow that process of consideration of response of the petitioner and including the show cause notice itself is vitiated. Section 145(2)(A) of the Himachal Pradesh Panchayati Raj Act, 1994 postulates that no office bearer shall be placed under suspension unless he has been given an opportunity of being heard. In that case, it would necessarily follow that process of consideration of response of the petitioner and including the show cause notice itself is vitiated. Section 145(2)(A) of the Himachal Pradesh Panchayati Raj Act, 1994 postulates that no office bearer shall be placed under suspension unless he has been given an opportunity of being heard. That opportunity would have been meaningful only if the petitioner was to be furnished with copy of the complaint and the inquiry report, on which, reliance has been placed by the department and being the fulcrum of the proceedings initiated by the department. As a result, we are inclined to set aside the order of suspension while making it clear that this order would not come in the way of the department to consider the reply of the petitioner already filed in response to the show cause notice and giving him liberty to file further reply after copy of the complaint and the inquiry report is furnished to him. After considering all those documents and including the further reply to be filed by the petitioner, the department is free to take appropriate decision, as may be advised, in accordance with law to issue fresh order of suspension. 4. REVERTING to the challenge to the order initiating inquiry, the argument as canvassed by the petitioner does not commend to us. It is not possible to countenance the submission of the petitioner that the inquiry is initiated because of the suspension order and cannot proceed independent of the suspension order. In our opinion, the validity of order initiating the inquiry and the suspension order will have to be tested independently. The order of initiation of inquiry is not, stricto senso, consequence of the order of suspension. But the former is a substantive proceeding. On the order hand, the suspension of the officer during the said inquiry is the incidental power to be exercised by the Competent Authority, in appropriate cases. In view of the above, we are not inclined to interfere with the relief of setting aside of order of initiating inquiry against the petitioner. To that extent, the petition ought to fail. We are conscious of the fact that the petitioner could have resorted to remedy of appeal under Section 148 of the Act against the order of suspension. In view of the above, we are not inclined to interfere with the relief of setting aside of order of initiating inquiry against the petitioner. To that extent, the petition ought to fail. We are conscious of the fact that the petitioner could have resorted to remedy of appeal under Section 148 of the Act against the order of suspension. However, we find merits in the stand taken by the petitioner that since the order of suspension suffers from breach of principles of natural justice, it is open to the petitioner to approach this Court directly by invoking remedy of writ jurisdiction as is the settled legal position. 5. ACCORDINGLY, we partly allow this writ petition and set- aside only the order of suspension with liberty to the department to consider the entire matter on the issue of suspension afresh after giving fair opportunity to the petitioner in that behalf. In the event the department opts to proceed with the inquiry without suspending the petitioner, the department may continue with the inquiry on its own merits. In either case the department proceeding be decided expeditiously. 6. THE pending application(s), if any, also stand disposed of.