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2020 DIGILAW 127 (UTT)

Veerendra Singh Pundir v. State Of Uttarakhand

2020-02-25

R.C.KHULBE, RAMESH RANGANATHAN

body2020
JUDGMENT Ramesh Ranganathan, C.J. - Heard Sri Devesh Bishnoi, learned counsel for the petitioner, and Sri Vikas Pandey, learned Standing Counsel for the State Government and, with their consent, the writ petition is disposed of at the stage of admission. 2. The jurisdiction of this Court, under Article 226 of the Constitution of India, has been invoked by the petitioner seeking a writ of certiorari to quash the Office Memorandum dated 14.01.2020 passed by the first-respondent placing the petitioner under suspension, for financial irregularities, without causing an inquiry, and without any reason and involvement of the petitioner; a writ of mandamus directing the respondent authorities to conduct and conclude the departmental inquiry regarding the alleged financial irregularities within two months or prior to his superannuation due on 31.03.2020; and a writ of mandamus directing the respondent authorities to allow the petitioner to continue to work in the post of Executive Engineer In-charge, PWD, Uttarkashi where he had been working prior to his suspension. 3. Facts, to the limited extent necessary, are that, while the petitioner was working as an Executive Engineer In-Charge, in the Public Works Department in the Uttarkashi Division, he was placed under suspension by the first-respondent on charges of financial irregularities in the tender process, and in the award of contract with respect to the construction of the Dunda-Devidhar to Khattukhal motor road. The petitioner has, in the writ affidavit, given his version of the events, which took place, in justification of his claim that the allegations levelled against him, for placing him under suspension, are arbitrary and illegal. 4. It is appropriate, in this context, to take note of the reasons assigned in the impugned order for placing the petitioner under suspension. The impugned order dated 14.01.2020 refers to an inquiry caused by the District Magistrate, Uttarkashi on the issue of floating of tenders, and the tender process involved in allotting the subject work to the successful tenderers. 4. It is appropriate, in this context, to take note of the reasons assigned in the impugned order for placing the petitioner under suspension. The impugned order dated 14.01.2020 refers to an inquiry caused by the District Magistrate, Uttarkashi on the issue of floating of tenders, and the tender process involved in allotting the subject work to the successful tenderers. It then records that, after opening of the technical bid, relaxation was granted to the bidders in Condition No. 2.5; if relaxation had been given prior to issuance of the tender, total transparency would have been followed; a level playing field would also have been provided thereby; participation of a maximum number of bidders would also have been insured; this had resulted in violation of Rule 20 of the Uttarakhand Procurement Rules, 2017 in maintaining transparency, competitiveness, impartiality and to prevent arbitrariness in the procurement process; the tender document required technical staff to be appointed including an Environmental Engineer with the required qualification in Environmental Science / Engineering; on verification, it came to light that none of the tender participants had fulfilled Condition No. 2.6 of the tender; the District Magistrate had, by his letter dated 24.12.2019, directed the Superintending Engineer to cancel the departmental tender process; the Additional District Magistrate had, by his letter dated 29.11.2019, directed the Superintending Engineer to produce all files pertaining to the tender process in original, and not to take any further steps till the completion of inquiry; despite these directions, officers of the Public Works Department, Uttarkashi did not make available the original tender records; the SDM, Dunda had informed, by his letter dated 26.12.2019, that he had inspected the DundaDevidhar-Khattukhal motor-road; during inspection, he found that the motor-road had been cut for about 70 to 80 meters; the cutting work of the motor-road was stopped until further orders; the Executive Engineer had, by his letter dated 26.12.2019, sought permission to make a dumping yard to dispose of the excavation garbage; the District Magistrate, Uttarkashi had directed the Superintending Engineer to take necessary action to cancel the tender process prior to his seeking permission for the dumping yard for the motor-road; inspite of directions of the higher officials, and without providing the records pertaining to the tenders to the Inquiry Officer, new construction of the motor road was allowed to be started before completion of the inquiry by the Department, though status quo should have been maintained; by their failure to ensure transparency in the tender process, the officials concerned had acted arbitrarily and in a negligent manner; and commencing the work of construction of the motor road, despite the earlier directions, was in violation of the directions issued by the authorities concerned as well as the Uttarakhand Procurement Rules, 2017, the Uttarakhand Government Servant Conduct Rules, 2002, and the Uttarakhand Government Servant (Discipline and Appeal) (Amended) Rules, 2010. 5. The impugned order of suspension records that for these reasons, prima facie, the concerned Superintending Engineer and the Executive Engineer were guilty of allegations of a serious nature; while on the one hand a situation of financial loss as well as the quality of the construction work and delay had arisen, on the other, questions had been raised on the technical competence of the Public Works Department; the image of the State Government had also been adversely affected; and, in view of the above, departmental proceedings were contemplated against the petitioner who was, prima facie, guilty of committing irregularities in the tender process for road construction ignoring the orders, and in not co-operating with the Committee constituted to conduct the inquiry. The impugned order further records that charges of such a nature, if proved, may require the petitioner to be awarded a major penalty. The petitioner was also retained at his present place of posting during the inquiry proceedings. Aggrieved by the said order, the petitioner has invoked the jurisdiction of this Court. 6. Sri Devesh Bishnoi, learned counsel for the petitioner, would submit that the allegations leveled, in the impugned order of suspension, are false and are devoid of merit; the petitioner was on medical leave during the period these incidents are said to have taken place; he was not even on duty during the said period; the action of the respondents, in placing him under suspension, was arbitrary and illegal; blame, if any, could only be placed on the Superintending Engineer, and not on the petitioner who was the Executive Engineer; the petitioner, as a subordinate officer, was bound to comply with the directions of the Superintending Engineer; the order of suspension, passed on the eve of the petitioner's retirement from service on 31.03.2020, would cause undue financial hardship and misery to the petitioner; the possibility of his retiral dues not being released, because of the pendency of disciplinary proceedings, could not be ruled out; the action of the respondents in placing him under suspension was illegal; and the impugned order was liable to be set aside. 7. The Uttarakhand Government Servants (Discipline and Appeal) Rules, 2003 were made by the Governor in the exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. Rule 4 of the said Rules relates to 'suspension'. 7. The Uttarakhand Government Servants (Discipline and Appeal) Rules, 2003 were made by the Governor in the exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. Rule 4 of the said Rules relates to 'suspension'. Rule 4(1) was substituted by the Uttarakhand Government Servants (Discipline and Appeal) (Amendment) Rules, 2010, and the substituted Rule 4 reads as under: "(1) A government servant against whose conduct an enquiry is contemplated, or is proceeding, may be placed under suspension pending the conclusion of the enquiry at the discretion of the appointing authority. It will be clearly mentioned in the suspension order that the charges against the concerned government servant are so serious that in the event of these being established, major penalty would be inflicted: Provided that suspension should not be resorted to unless the allegations against the government servant are so serious that in the event of these being established may be normally the basis of major penalty; Provided further that the concerned Head of the Department empowered by the Governor by an order in this behalf may place a government servant or class of government servants belonging to Group 'A' and 'B' under suspension under this rule; Provided also that in case of government servant or class of government servants belonging to group 'C' and 'D' the appointing authority may delegate his power under this rule to the next lower authority." 8. In terms of the amended Rule 4(1), the order of suspension is required to mention that the charges against the concerned government servant are so serious that, in the event of these being established, a major penalty would be inflicted. It is in compliance with this Rule, that the order of suspension records reasons justifying the petitioner being placed under suspension. 9. The allegations levelled in the order of suspension are not conclusive as they merely reflect the prima facie views of the Department at a stage even prior to the issuance of a charge-sheet against the delinquent employee. It is only after a charge-sheet is issued, the petitioner's reply thereto is invited, and a departmental inquiry is held in compliance with the rules of natural justice, would the Disciplinary Authority, thereafter, impose punishment in case he is satisfied, on the basis of the evidence adduced in the inquiry, that the delinquent employee is guilty of the charges levelled against him. 10. As the order, impugned in this writ petition, is an order of suspension, let us examine what this expression means. Suspension means the action of debarring, for the time being, from a function or privilege or temporary deprivation of working in the office. ( Union of India v. Ashok Kumar Aggarwal, 2013 16 SCC 147 ). Suspension, according to the Oxford Dictionary, means the action of suspending, or the condition of being suspended; the action of debarring or the state of being debarred, especially for a time, from a function or privilege; temporary deprivation of one's office or position. One of the meaning of the word "suspension", as given in the Chambers 20th dictionary, is: to defer, to debar from any privilege, office, emolument etc., for a time. Suspension is, ordinarily, a temporary act. ( Dr. G. Thimma Reddy v. State of Andhra, 1958 AIR(AP) 35 ; Govt. of India, Ministry of Home Affairs v. Tarak Nath Ghosh, 1971 1 SCC 734 ; Halsbury's Laws of England, Third Edn., Vol. 25, Article 9895; Buddana Venkata Murali Krishna v. State of A.P. and Ors., 2016 3 ALT 727 ). 11. A public servant may be suspended as a mode of punishment, or he may be suspended during the pendency of an enquiry against him, if the order appointing him, or the statutory provisions governing his service, provide for such suspension. He may merely be forbidden from discharging his duties during the pendency of an enquiry against him, which act is also called suspension. The right to suspend as a measure of punishment, as well as the right to suspend the contract of service during the pendency of an enquiry, are both regulated by the contract of employment or the statutory provisions regulating the conditions of service. But the last category of suspension is the right of the master to forbid his servant from doing the work, which he had to do, under the terms of the contract of service or the provisions governing his conditions of service, at the same time keeping in force the masters' obligations under the contract. In other words the master may ask his servant to refrain from rendering his service, but he must fulfil his part of the contract. In other words the master may ask his servant to refrain from rendering his service, but he must fulfil his part of the contract. ( V.P. Gidroniya v. State of M.P., 1970 1 SCC 362 ; B.R. Patel v. State of Maharashtra, 1968 AIR(SC) 800 ; and R.P. Kapur v. Union of India[7]). So far as suspension as a punishment is concerned, it is a disciplinary matter. ( R.P. Kapur, 1964 AIR(SC) 787 ; and Buddana Venkata Murali Krishna, 2016 3 ALT 727 ). 12. Suspension, in the present case, is not a substantive punishment, and is an interim order pending disciplinary enquiry. ( Sasa Musa Sugar Works (P) Ltd. v. Shobrati Khan, 1959 AIR(SC) 923 ). Suspension of this kind only forbids or disables the petitioner from discharging the duties of his office or the post held by him. In other words it is to restrain him from availing further opportunities of perpetrating the alleged misconduct, or to remove the impression among members of the service that dereliction of duty would pay, and the offending employee can get away pending inquiry without any impediment, or to prevent an opportunity to the delinquent officer to scuttle the inquiry or to win over the witnesses, or affording the delinquent the opportunity in office to impede the progress of the inquiry etc. ( State of Orissa v. Bhimal Kumar Mohanty, 1994 4 SCC 126 ; and Buddana Venkata Murali Krishna, 2016 3 ALT 727 ). 13. An order of interim suspension can be passed against the employee while an inquiry is pending against him. Suspending an officer, and thereby disabling him from performing the duties of his office on the basis that the contract is subsisting, is always an implied term in every contract of service. When an officer is suspended, in this sense, it means that the Government merely issues a direction to the officer that, so long as the contract is subsisting and till the time the officer is legally dismissed, he must not do anything in the discharge of the duties of his office. In other words, the employer is regarded as issuing an order to the employee which, because the contract is subsisting, the employee must obey. In other words, the employer is regarded as issuing an order to the employee which, because the contract is subsisting, the employee must obey. ( B.R. Patel, 1968 AIR(SC) 800 ; T. Cajee v. U. Jormanik Siem, 1961 AIR(SC) 276 ; R.P. Kapur, 1964 AIR(SC) 787 ; Bhimal Kumar Mohanty, 1994 4 SCC 126 ; V.P. Gidroniya, 1970 1 SCC 362 ; Jammu University v. D.K. Rampal, 1977 AIR(SC) 1146 ; and Buddana Venkata Murali Krishna, 2016 3 ALT 727 ). Where the power to suspend is provided for either in the contract of employment or in the statute or the rules framed thereunder, the order of suspension has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service, and the master is not bound to pay his full salary and allowances. ( B.R. Patel, 1968 AIR(SC) 800 ; Hanley v. Pease & Partners Ltd.,1915 1 KB 698 ; Wallwork v. Fielding, 1922 2 KB 66 ; Boston Deep Sea Fishing and Ice Co. v. Ansell,1888 39 ChD 339 ; and Buddana Venkata Murali Krishna, 2016 3 ALT 727 . 14. If the order of suspension is a valid order, it has suspended the contract of service and the government servant is entitled to receive only such subsistence allowance as might be payable under the rules and regulations governing his terms and conditions of service. ( D.K. Rampal, 1977 AIR(SC) 1146 ). As an employer can suspend an employee pending an inquiry into his conduct, the only question that may arise, on such suspension, would relate to the payment to be made during the period of such suspension. If there is a provision in the Rules providing for the scale of payment during suspension, the payment would be made in accordance therewith. On general principles, therefore, the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental inquiry into his conduct. ( R.P. Kapur, 1964 AIR(SC) 787 ; V.P. Gidroniya, 1970 1 SCC 362 ; T. Cajee, 1961 AIR(SC) 276 ; B.R. Patel, 1968 AIR(SC) 800 ; Tarak Nath Ghosh, 1971 1 SCC 734 ; Bhimal Kumar Mohanty, 1994 4 SCC 126 ; and Buddana Venkata Murali Krishna, 2016 3 ALT 727 ). 15. ( R.P. Kapur, 1964 AIR(SC) 787 ; V.P. Gidroniya, 1970 1 SCC 362 ; T. Cajee, 1961 AIR(SC) 276 ; B.R. Patel, 1968 AIR(SC) 800 ; Tarak Nath Ghosh, 1971 1 SCC 734 ; Bhimal Kumar Mohanty, 1994 4 SCC 126 ; and Buddana Venkata Murali Krishna, 2016 3 ALT 727 ). 15. An order of suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority should also keep in mind the public interest of the impact of the delinquents' continuance in office while facing departmental inquiry. ( Ashok Kumar Aggarwal, 2013 16 SCC 147 ; Bhimal Kumar Mohanty, 1994 4 SCC 126 ; R.P. Kapur, 1964 AIR(SC) 787 ; B.R. Patel, 1968 AIR(SC) 800 ; and Buddana Venkata Murali Krishna, 2016 3 ALT 727 ). The importance and necessity of proper disciplinary action being taken against the government servant for inefficiency, dishonesty or other suitable reasons, cannot be over emphasised. While such action may be against the immediate interest of the government servant, yet it is absolutely necessary in the interests of the general public for serving whose interests the government machinery exists and functions. Suspension of a government servant, pending an enquiry, is a necessary part of the procedure for taking disciplinary action against him. ( Khem Chand v. Union of India, 1963 AIR(SC) 687 ). It would also remove the impression, among members of the service, that dereliction of duty would pay. ( Ashok Kumar Aggarwal, 2013 16 SCC 147 ; Bhimal Kumar Mohanty, 1994 4 SCC 126 ; and Buddana Venkata Murali Krishna, 2016 3 ALT 727 ). 16. When serious allegations of misconduct are imputed against a member of a service, normally it would not be desirable to allow him to continue in the post where he is functioning. The government may rightly take the view that an officer, against whom serious imputations are made, should not be allowed to function anywhere before the matter has been finally set at rest after proper scrutiny and holding of departmental proceedings. ( Tarak Nath Ghosh, 1971 1 SCC 734 ). The government may rightly take the view that an officer, against whom serious imputations are made, should not be allowed to function anywhere before the matter has been finally set at rest after proper scrutiny and holding of departmental proceedings. ( Tarak Nath Ghosh, 1971 1 SCC 734 ). The purpose of suspension is generally to facilitate a departmental enquiry and to ensure that, while such enquiry is going on - it may relate to serious lapses on the part of a public servant, he is not in a position to misuse his authority in the same way in which he might have been charged to have done in the enquiry. ( R.P. Kapur, 1964 AIR(SC) 787 ; and Buddana Venkata Murali Krishna, 2016 3 ALT 727 ). 17. Suspension of a government servant pending enquiry is a necessary part of the procedure for taking disciplinary action against him; and such action is necessary in public interest. ( Khem Chand, 1963 AIR(SC) 687 ). The effect on public interest, due to the employees' continuation in office, is also a relevant and determining factor. Suspension is a device to keep the delinquent out of mischief range. The purpose is to complete the proceedings unhindered. Suspension is an interim measure in the aid of disciplinary proceedings, so that the delinquent may not gain custody or control of papers or take advantage of his position. At this stage, it is not desirable for the Court to find out as to which version is true when there are claims and counter claims on factual issues. ( Ashok Kumar Aggarwal, 2013 16 SCC 147 ; and Buddana Venkata Murali Krishna, 2016 3 ALT 727 ). It is always advisable to allow disciplinary proceedings to continue unhindered. If he is exonerated, the Government servant may then be entitled to all the benefits from the date of the order of suspension. ( U.P. Rajya Krishi Utpadan Mandi Parishad v. Sanjiv Rajan, 1975 3 SCC 503 ; Bhimal Kumar Mohanty[9]; and Buddana Venkata Murali Krishna[4]). 18. The power of suspension should, however, not be exercised in an arbitrary manner and without any reasonable ground or as a vindictive misuse of power. A suspension order cannot be actuated by mala fides, arbitrariness, or be passed for an ulterior purpose. ( Ashok Kumar Aggarwal, 2013 16 SCC 147 ; and Buddana Venkata Murali Krishna, 2016 3 ALT 727 ). A suspension order cannot be actuated by mala fides, arbitrariness, or be passed for an ulterior purpose. ( Ashok Kumar Aggarwal, 2013 16 SCC 147 ; and Buddana Venkata Murali Krishna, 2016 3 ALT 727 ). An order of suspension should not be passed in a perfunctory or in a routine and casual manner, but with due care and caution after taking all factors into account. ( Ashok Kumar Aggarwal, 2013 16 SCC 147 ; and Buddana Venkata Murali Krishna, 2016 3 ALT 727 ). It should be made after considering the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The authority should also take into account all available material as to whether, in a given case, it is advisable to allow the delinquent to continue to perform his duties in the office or his retention in office is likely to hamper or frustrate the inquiry. ( Ashok Kumar Aggarwal, 2013 16 SCC 147 ; Buddana Venkata Murali Krishna, 2016 3 ALT 727 ). Ordinarily, an order of suspension is 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 it, on application of mind by the disciplinary authority. ( Ashok Kumar Aggarwal, 2013 16 SCC 147 ; Bhimal Kumar Mohanty, 1994 4 SCC 126 ; and Buddana Venkata Murali Krishna, 2016 3 ALT 727 ). 19. Whether the employee should or should not continue in office, during the period of inquiry, is a matter to be assessed by the concerned authority, as it is in his exclusive domain. The competent authority can always review its order of suspension being an inherent power conferred upon him under Section 21 of the General Clauses Act, 1897. Where the charges are baseless, malafide or vindictive, and are framed only to keep the delinquent employee out of office, a case for judicial review is made out. But in a case where no conclusion can be arrived at without examining the entire record in question, and in order that the disciplinary proceedings may continue unhindered, the Court may not interfere. But in a case where no conclusion can be arrived at without examining the entire record in question, and in order that the disciplinary proceedings may continue unhindered, the Court may not interfere. ( State of M.P. v. Shardul Singh, 1993 Supp3 SCC 483 ; P.V. Srinivasa Sastry v. Comptroller & Auditor General, 2001 3 SCC 414 ; ESI v. T. Abdul Razak, 1983 1 SCC 124 ; Kusheshwar Dubey v. Bharat Coking Coal Ltd., 1966 AIR(SC) 1942 ; Delhi Cloth & General Mills Ltd. v. Kushal Bhan, 1955 AIR(SC) 549 ; Sanjiv Rajan, 1975 3 SCC 503 ; State of Rajasthan v. B.K. Meena, 1967 AIR(SC) 1910 ; Prohibition and Excise Deptt. v. L. Srinivasan, 1996 3 SCC 157 ; Allahabad Bank v. Deepak Kumar Bhola, 1998 4 SCC 154 ; and Ashok Kumar Aggarwal, 2013 16 SCC 147 ). 20. In matters involving grave and serious allegations, it is advisable that the concerned employee is kept out of mischief range. ( Sanjiv Rajan, 1975 3 SCC 503 ). Courts do not interfere, ordinarily, with orders of suspension unless they are passed without there being even prima facie evidence on record connecting the employee with the misconduct in question. ( Sanjiv Rajan, 1975 3 SCC 503 ). The court cannot act as an appellate forum de hors the power of judicial review. ( Ashok Kumar Aggarwal, 2013 16 SCC 147 ). The Court must consider each case on its own facts, and no general law or formula of universal application can be laid down in this regard. ( Ashok Kumar Aggarwal, 2013 16 SCC 147 ; Bhimal Kumar Mohanty, 1994 4 SCC 126 ; and Buddana Venkata Murali Krishna, 2016 3 ALT 727 ). 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 as a result of the continuance of the delinquent employee in office pending inquiry or contemplated inquiry or investigation. The authority should also keep in mind the public interest of the impact of the delinquent's continuance in office while facing departmental inquiry. ( Bhimal Kumar Mohanty, 1994 4 SCC 126 ; and Buddana Venkata Murali Krishna, 2016 3 ALT 727 ). 21. The authority should also keep in mind the public interest of the impact of the delinquent's continuance in office while facing departmental inquiry. ( Bhimal Kumar Mohanty, 1994 4 SCC 126 ; and Buddana Venkata Murali Krishna, 2016 3 ALT 727 ). 21. An order of suspension is, ordinarily, passed to keep an employee away from duty till a departmental inquiry is caused to determine whether or not the delinquent employee is guilty of the charges leveled against him. The findings recorded in the preliminary inquiry are taken into consideration only to decide whether or not the delinquent employee should be placed under suspension, and whether disciplinary proceedings should be initiated against him, and nothing more. At the present stage, even before a charge sheet is issued against the petitioner, it would be wholly inappropriate for this Court, in the exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution of India, to determine the guilt or otherwise of the petitioner with respect to the allegations levelled against him in the order of suspension. 22. The power to place him under suspension, pending conclusion of the inquiry, is conferred on the appointing authority in terms of the Rules made under the proviso to Article 309 of the Constitution of India. Such exercise of discretion by the appointing authority, to place the petitioner under suspension, would not warrant interference, save in cases where exercise of such a power is either mala fide or is manifestly arbitrary. The petitioner does not allege malice against the officials concerned. In the light of the reasons recorded in the order of suspension, we are satisfied that exercise of discretion, by the appointing authority under Rule 4, cannot be said either to be irrational or arbitrary warranting interference in proceedings under Article 226 of the Constitution of India. Viewed from any angle, we see no reason to interfere with the order of suspension. 23. The fact, however, remains that the petitioner is due to retire in less than two months from now i.e. on 31.03.2020, and his apprehension that his retiral benefits may not be released till the inquiry is completed, and in case the inquiry is unduly prolonged, he would suffer financial hardship, is not without merit. Failure of the authorities to proceed with the disciplinary enquiry expeditiously may result in prolonging the sufferings of the delinquent employee. Failure of the authorities to proceed with the disciplinary enquiry expeditiously may result in prolonging the sufferings of the delinquent employee. But the remedy in such cases is to direct them to complete the inquiry within a stipulated period, and not to revoke the order of suspension. ( Sanjiv Rajan, 1975 3 SCC 503 ). 24. We consider it appropriate, in such circumstances, to direct the first respondent to ensure that the disciplinary proceedings, initiated against the petitioner, are completed at the earliest, and in accordance with law, in any event, within a period of three months from the date of production of certified copy of this order. 25. The writ petition is disposed of accordingly. No costs.