THE HONBLE SRI JUSTICE RAMESH RANGANATHAN AND THE HONBLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION No.7618 of 2015
01-06-2015
Buddana Venkata Murali Krishna.Petitioner
State of A.P. rep., by its Principal Secretary, TR & B Department, Secretariat
Buildings, Hyderabad and three others.. Respondents
Counsel for the petitioner: Sri B.S.N. Naidu.
Counsel for respondent: GP for Transport; GP for Services
<GIST:
>HEAD NOTE:
? Citations:
1) CDJ 215 SC 129 (Judgment of the Supreme Court in Civil Appeal No.1912 of
2015
(arising out of SLP) No.31761 of 2013 dated 16.02.2015)
2) (2013) 16 SCC 147
3) AIR 1958 A.P. 35
4) (1971) 1 SCC 734
5) (1970) 1 SCC 362
6) AIR 1968 SC 800
7) AIR 1964 SC 787
8) AIR 1959 SC 923 = 1959 Supp (2) SCR 836
9) (1994) 4 SCC 126
10) (1985) 2 SCC 65
11) AIR 1957 SC 246
12) (1987) 4 SCC 328
13) (1999) 3 SCC 679
14) AIR 1968 SC 800
15) (1961) 1 SCR 750 = AIR 1961 SC 276
16) AIR 1977 SC 1146
17) (1915) 1 KB 698
18) (1922) 2 KB 66
19) (1888) 39 Ch.D 339
20) AIR 1963 SC 687 = 1963 Supp (1) SCR 229
21) 1993 Supp (3) SCC 483
22) (2001) 3 SCC 414
23) [1983] 1 SCR 828 = (1983) 1 SCC 124
24) (1966) 3 SCR 682 = AIR 1966 SC 1942
25) AIR 1955 SC 549
26) (1975) 3 SCC 503 = AIR 1975 SC 984
27) (1968) 1 SCR 111 = AIR 1967 SC 1910
28) (1999) 6 SCC 257
29) 1998 (4) SCC 154
30) (1996) 3 SCC 157
31) (1997) 4 SCC 1
32) (2005) 2 SCC 673
33) (1989) 2 SCC 754
34) AIR 1989 SC 2027
35) AIR 1976 SC 2547
36) AIR 1976 SC 2433
37) 1993 (6) SLR 1 = 1993 (3) ALT 471 (FB)
38) 1993 (1) ALT 221 (D.B)
THE HONBLE SRI JUSTICE RAMESH RANGANATHAN
AND
THE HONBLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION No.7618 of 2015
ORDER: (per Honble Sri Justice Ramesh Ranganathan)
This Writ Petition is filed against the order passed by the A.P.
Administrative Tribunal (for short the Tribunal) in O.A. No.7241 of
2014 dated 26.02.2015. The Petitioner herein invoked the
jurisdiction of the Tribunal questioning the action of the disciplinary
authority in not taking steps, in the exercise of the enabling
provisions under Rule 8(2)(5)(a) and (c) of the Andhra Pradesh Civil
Services (Classification, Control and Appeal) Rules, 1991, as illegal
and arbitrary. By way of consequential relief he sought for a
direction to the respondents to revoke his suspension, and to
reinstate him to duty.
In its order, in O.A. No.7241 of 2014 dated 26.02.2015, the
Tribunal noted that a charge sheet had not yet been filed in the
criminal case registered against the petitioner; Rule 8(5)(a) provided
that the order of suspension, made by the competent authority, shall
continue to remain in force unless and until it is modified or revoked
by the authority; Rule 8(5)(c) stipulated that the competent authority
may, at any time, modify or revoke the suspension order; the State
Rules did not mandate the competent authority, who placed the
petitioner under suspension, to review or revoke the suspension
order soon after the material witnesses were examined; the State
Government had issued executive instructions which required the
Disciplinary Authority to review the cases of suspension after every
six months; the petitioners contention that the action of the 2nd
respondent, in not revoking his suspension, was against statutory
provisions was incorrect and invalid; it was clear from the averments
and pleadings, in the counter filed by the respondents, that the
criminal charge, under investigation, was connected with the
petitioners official position as a government servant, and it involved
moral turpitude; the continuation of the petitioner under suspension
was fully justified and warranted; and the 2nd respondent was at
liberty to review the petitioners suspension as per Rules, and the
executive instructions issued by the Government in this regard.
Aggrieved by the aforesaid order of the Tribunal, the petitioner has
filed the present Writ Petition.
Facts, to the extent relevant, are that the petitioner was
initially appointed as an Assistant Motor Vehicles Inspector in the
year 1994. He was subsequently promoted to the post of Motor
Vehicles Inspector. After obtaining permission from the Joint Director
(Andhra) ACB, Hyderabad, vide proceeding No.7/ACB-JD(A)/RCA-
2014 dated 12.06.2014 for registering a case and to conduct
investigation, the Anti Corruption Bureau conducted a search at the
petitioners office, residence and certain other places on 18.06.2014.
An inventory was made on 18.06.2014 at 11.30 hours. On the
ground that there was credible information, that he was in
possession of assets disproportionate to his known sources of
income, FIR No.11/RCA-EWG/2014 was registered against the
petitioner at ACB Range police station, Eluru on 16.06.2014 for
offences punishable under Section 13(2) read with 13(1)(e) of the
Prevention of Corruption Act, 1988. The petitioner was arrested on
17.07.2014, and was produced before the Special Judge for SPE &
ACB Cases. He was remanded to judicial custody on the same day.
Thereafter, on the ground that he was in judicial custody for more
than 48 hours, the 2nd respondent, vide proceedings dated
04.08.2014, placed the petitioner under suspension with effect from
17.07.2014. The petitioner filed Criminal Petition No.9880 of 2014
before this Court and, by order dated 27.11.2014, bail was granted to
him on certain conditions. The validity of the proceedings of the 2nd
respondent dated 04.08.2014 was questioned before the Tribunal
wherein the petitioner contended that, on facts, the assets found
were not disproportionate to his known sources of income; and the
order placing him under suspension was illegal. It is for the first time
before this Court has it been contended that the order of suspension
necessitates revocation as the Supreme Court, in Ajay Kumar
Choudhary v. Union of India , had held that suspension cannot be
continued beyond 90 days if no charge sheet is filed in the criminal
case, or if no charges are framed in the disciplinary proceedings by
then.
In the counter-affidavit, filed on behalf of the 2nd respondent, it
is stated that the ACB officials, vide Radio Message dated
19.06.2014, had informed that there was credible information to
show that the petitioner was in possession of assets disproportionate
to his known sources of income; a case was registered in Cr.
No.11/RCA-EWG/2014 on 18.06.2014 under Section 13(2) read with
13(1)(e) of the Prevention of Corruption Act; simultaneous searches
were conducted on 18.06.2014 at the office premises, the petitioners
residence and certain other places; the ACB officials, by their Radio
Message dated 17.07.2014, had informed that the petitioner was
arrested at his residence on 17.07.2014, and was produced before
the Special Judge for SPE & ACB Cases, Vijayawada on the same
day, and he was remanded to judicial custody upto 31.07.2014; since
the petitioner was under judicial custody for more than 48 hours he
was deemed to have been placed under suspension, with effect from
the date of his detention, under Rule 8(2) of the APCS (CC&A) Rules,
1991; accordingly he was placed under suspension by proceedings
dated 04.08.2014 with effect from 17.07.2014 (the date on which he
was arrested); continuation of an employee in service, even after a
criminal case is registered by the ACB officials, would neither be in
public interest nor in the interest of administration; the order of
suspension is not as a measure of punishment; placing the
government servant under suspension is to ensure that he is kept
away from duty till the investigation/enquiry is completed; the
offence is grave in nature, and it involves moral turpitude; the ACB is
still carrying out investigation; as the case is still under investigation,
it would not be proper for the suspension order to be revoked; the
petitioners suspension was reviewed on 26.06.2015 by the
Government; it was opined, vide memo dated 02.04.2014, that he
should be continued under suspension; and it was fair that he
should continue to remain under suspension until further review.
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 ).
Suspension, according to the Oxford Dictionary, means the action
of suspending or condition of being suspended; the action of
debarring or state of being debarred, especially for a time, from a
function or privilege; temporary deprivation of ones office or
position. One of the meaning of the word suspension as given in
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 ; Govt. of
India, Ministry of Home Affairs v. Tarak Nath Ghosh ; Halsburys
Laws of England, Third Edn., Vol. 25, Article 989, p. 518.).
Three kinds of suspension are known to law. 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. Lastly 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. (V.P. Gidroniya v. State of
M.P., ; B.R. Patel v. State of Maharashtra ; and R.P. Kapur v.
Union of India ). So far as suspension as a punishment is
concerned, it is a disciplinary matter. (R.P. Kapur7).
Suspension, in the present case, is not a substantive
punishment, and is an interim order pending enquiry/criminal
proceedings. (Sasa Musa Sugar Works (P) Ltd. v. Shobrati Khan ).
Suspension of this kind is not a punishment but 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 investigation or to win over
the witnesses, or affording the delinquent the opportunity in office to
impede the progress of the investigation or inquiry etc. (State of
Orissa v. Bhimal Kumar Mohanty ).
Clause (1) of Article 311 of the Constitution of India has no
application to a situation where a government servant has been
merely placed under suspension pending departmental enquiry since
such action does not constitute either dismissal or removal from
service. (State of Orissa v. Shiva Parashad Das ; and Mohammad
Ghouse v. State of Andhra ). In certain cases, suspension may
cause stigma, even after exoneration in the departmental proceedings
or acquittal by the criminal court, but it cannot, in the strict legal
sense and by any stretch of imagination, be treated as a punishment.
(Ashok Kumar Aggarwal2; O.P. Gupta v. Union of India ; and
Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. ).
An order of interim suspension can be passed against the
employee while an inquiry/investigation 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. (Balvantrai Ratilal
Patel v. State of Maharashtra ; T. Cajee v. U. Jormanik Siem ;
R. P. Kapur7; Bhimal Kumar Mohanty9; V.P. Gidroniya5; Jammu
University v. D.K. Rampal ). 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.
Patel6; Hanley v. Pease & Partners, Ltd. ; Wallwork v. Fielding
and Boston Deep Sea Fishing and Ice Co. v. Ansell ).
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.
(Jammu University16). As an employer can suspend an employee
pending an inquiry into his conduct, the only question that can arise
on such suspension will relate to the payment 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 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 or pending a
criminal proceeding, which may eventually result in a departmental
inquiry against him. (R.P. Kapur7; V.P. Girdroniya5; T. Cajee15; and
Balvantray Ratilal Patel14; Tarak Nath Ghosh4; Bhimal Kumar
Mohanty9).
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 or trial of a
criminal charge. (Ashok Kumar Aggarwal2; Bimal Kumar Mohanty9;
R.P. Kapur7; and Balvantrai Ratilal Patel14). The importance and
necessity of proper disciplinary action being taken against
government servants 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 ).
Ordinarily, a government servant is placed under suspension to
restrain him from availing the further opportunity to perpetrate the
alleged misconduct or to scuttle the inquiry or investigation or to win
over the witnesses or to impede the progress of the investigation or
inquiry, etc. It would also remove the impression, among members of
the service, that dereliction of duty would pay. (Ashok Kumar
Aggarwal2 Bimal Kumar Mohanty9). 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 Ghosh4). 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 so in
the enquiry. (R.P. Kapur7).
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 the 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 any 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 counterclaims on factual issues. (Ashok Kumar
Aggarwal2). No conclusion can be arrived at without examining the
entire record. It is always advisable to allow disciplinary proceedings
to continue unhindered, and the concerned employee kept out of the
mischiefs range. If he is exonerated, he would 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 ; Bhimal Kumar
Mohanty9). The usual ground for suspension, pending a criminal
proceeding, is that the charge is connected with his position as a
government servant or is likely to embarrass him in the discharge of
his duties or involves moral turpitude. In such a case a public
servant may be suspended pending investigation, enquiry or trial
relating to a criminal charge. (R.P. Kapur7).
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 Aggarwal2). 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
Aggarwal2). It should be made after consideration of 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 Aggarwal2). 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 Aggarwal2; Bimal Kumar
Mohanty9).
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. Ordinarily, the Court should not interfere with
orders of suspension unless they are passed mala fide and without
there being even prima facie evidence on record connecting the
employee with the misconduct in question. (Sanjiv Rajan21). The
court cannot act as if it is an appellate forum de hors the power of
judicial review. (Ashok Kumar Aggarwal2). The Court or the
Tribunal 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 Aggarwal2; Bimal Kumar Mohanty9). 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 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 or trial of a criminal charge. (Bhimal Kumar Mohanty9).
Bearing these principles in mind, let us now examine the
submission of Sri M.S.Prasad, Learned Senior Counsel appearing on
behalf of the petitioner, that in view of the law declared by the
Supreme Court in Ajay Kumar Choudhary1, and since neither a
charge memo was issued to the petitioner nor a charge sheet filed in
the criminal case within 90 days of his being placed under
suspension, the order of suspension stands automatically revoked.
Before doing so, it is necessary to refer to the relevant rules and
executive instructions governing suspension of a government servant
pending disciplinary enquiry/criminal proceedings. Rule 10 of the
Central Civil Services (Classification, Control and Appeal) Rules, 1965
(hereinafter called the 1965 Rules) relates to suspension. Rule
10(2)(a) stipulates that a Government servant shall be deemed to
have been placed under suspension by an order of the appointing
authority (a) with effect from the date of his detention, if he is
detained in custody, whether on a criminal charge or otherwise, for a
period exceeding forty-eight hours. Rule 10(5)(a) stipulates that,
subject to the provisions contained in sub-rule (7), an order of
suspension made or deemed to have been made under Rule 10 shall
continue to remain in force until it is modified or revoked by the
authority competent to do so. Rule 10(5)(c) provides that an order of
suspension made or deemed to have been made under Rule 10 may
at any time be modified or revoked by the authority which made or is
deemed to have made the order or by any authority to which that
authority is subordinate. Rule 10(6) requires an order of suspension,
made or deemed to have been made under Rule 10, to be reviewed by
the authority competent to modify or revoke the suspension, before
expiry of ninety days from the effective date of suspension, on the
recommendation of the Review Committee constituted for the purpose
and pass orders either extending or revoking the suspension.
Subsequent reviews shall be made before expiry of the extended
period of suspension. Extension of suspension shall not be for a
period exceeding one hundred and eighty days at a time. Rule 10(7)
stipulates that an order of suspension made or deemed to have been
made under sub-rules (1) or (2) of Rule 10 shall not be valid after a
period of ninety days unless it is extended, after review, for a further
period before the expiry of ninety days. Under the proviso thereto, no
such review of suspension shall be necessary, in the case of deemed
suspension under sub-rule (2), if the Government servant continues
to be under suspension at the time of completion of ninety days of
suspension and the ninety days period, in such a case, will count
from the date the Government servant, detained in custody, is
released from detention or the date on which the fact of his release
from detention is intimated to his appointing authority, whichever is
later.
Rule 8, of the Andhra Pradesh Civil Services (Classification,
Control, and Appeal) Rules, 1991 (hereinafter called the State
Rules) relates to suspension. Rule 8(2)(a) stipulates that a
Government servant shall be deemed to have been placed under
suspension, by an order of the authority competent to place him
under suspension, with effect from the date of his detention, if he is
detained in custody, whether on a criminal charge or otherwise, for a
period exceeding forty eight hours. Rule 8(2)(c) stipulates that the
order of suspension shall cease to be operative as soon as the
criminal proceedings, on the basis of which the Government Servant
was arrested and released on bail, are terminated. Rule 8(5)(a)
provides that an order of suspension, made or deemed to have been
made under Rule 8, shall continue to remain in force until it is
modified or revoked by the authority which made, or is deemed to
have made, the order or by an authority to which that authority is
subordinate. Under Rule 8(5)(c), an order of suspension made or
deemed to have been made under Rule 8 may, at any time, be
modified or revoked by the authority which made or is deemed to
have made the order or by any authority to which that authority is
subordinate.
Where there is power to suspend under a statute or the rules
framed thereunder, the order of suspension has the effect of
temporarily suspending the relationship of master and servant.
(Balvantrai Ratilal Patel14 Bhimal Kumar Mohanty9). In the
present case, the order of suspension was passed in the exercise of
the power vested by Rule 8(2)(a) of the State Rules. The concerned
authority was well within its statutory power to keep the respondent
under suspension. (Union of India v. Sunil Kumar Sarkar ). Rule
8 of the State Rules is similar to Rule 10 of the 1965 Rules except
that, while the former does not provide for a periodic review of the
order of suspension, the latter does. Rule 10(6) requires the order of
suspension to be reviewed within 90 days, and for the order of
suspension not to exceed 180 days at a time. In Ashok Kumar
Aggarwal2 the Supreme Court held that the 1965 Rules are a self-
contained code, and the order of suspension should be examined in
the light of the statutory provisions to determine whether the
suspension order was justified. As the State rules are also a self-
contained code, the impugned order of suspension must be examined
in the light of the said Rules. It is the exigency of the conditions of
service which requires or calls for an order of suspension and there
can be no difference in regard to this matter as between a member of
an All India Service and a member of a State Service. (Tarak Nath
Ghosh4).
The legal fiction, created by Rule 8(2)(a) of the State Rules,
requires a government servant to be deemed to have been placed
under suspension from the date of his detention, if he is detained in
custody for a period exceeding 48 hours. The moment a government
servant is arrested, and is detained in custody for a period exceeding
48 hours, he is legally presumed to have been placed under
suspension. Suspension, in such a case, is automatic. The
government servant continues under suspension till the order of
suspension ceases to operate, as prescribed under Rule 8(2)(c), when
the criminal proceedings, on the basis of which the government
servant was arrested, are terminated. Rule 8(2)(c) provides for the
continuance of the deemed suspension, under Rule 8(2)(a), till
completion of the criminal proceedings. Rule 8(5)(a) stipulates that
the order of suspension shall continue to be in force till it is modified
by the competent authority and Rule 8(5)(c) confers power on the
competent authority to modify or revoke the order of suspension.
Unless the order of suspension is modified or revoked by the
competent authority, exercising power under Rule 8(5), a Government
servant continues to remain under suspension till completion of the
criminal proceedings.
Unlike the 1965 Rules, the State Rules do not specifically
prescribe the mode and manner in which the competent authority
may modify or revoke the order of suspension. It is, however, settled
law that conditions of service can be prescribed either in the
executive power of the State or its legislative power under the proviso
to Article 309 of the Constitution. Such rules/executive instructions
must, however, be reasonable and fair, and not grossly unjust. The
delinquent officer, when placed under suspension, is entitled to
represent that the departmental proceedings should be concluded
with reasonable diligence and within a reasonable period of time. If
such a principle were not to be recognised, it would imply that the
executive is vested with a totally arbitrary and unfettered power of
placing its officers under disability and distress for an indefinite
duration. (O.P. Gupta12; Board of Trustees of the Port of Bombay
v. Dilip Kumar Raghavendranath Nadkarni ).
Though the State Rules are silent regarding the duration of
suspension of a government servant, executive instructions have
been issued by the Government in this regard which in the absence
of any legislation either plenary or subordinate are required to be
followed. If there is a statutory rule, or an Act in the matter, the
executive must abide by that Act or Rule and it cannot, in exercise of
the executive power under Article 162 of the Constitution, ignore or
act contrary to that Rule or Act. (B.N. Nagarajan v. State of
Mysore ). It is, however, not necessary that there must be a law
already in existence before the executive is enabled to function, and
the powers of the executive are not limited merely to the carrying out
of these laws. There is nothing in Article 309 of the Constitution
which abridges the power of the executive to act under Article 162 of
the Constitution without a law. The State Government has executive
power, in relation to all matters with respect to which the Legislature
of the State has power, to make laws. (B.N. Nagarajan24; Ram
Jawaya Kapur v. State of Punjab ). Where no statutory rules are
made, regulating the conditions of service, the State Government can
always, in the exercise of its executive power, issue administrative
instructions laying down conditions of service. (Amarjit Singh
Ahluwalia (Dr) v. State of Punjab ; B.N. Nagarajan24; and Sant
Ram Sharma v. State of Rajasthan ). While the Government
cannot amend or supersede statutory rules by administrative
instructions, but if the rules are silent on any particular point, the
Government can fill up the gaps and supplement the rules and issue
instructions not inconsistent with the rules already framed. (Sant
Ram Sharma27).
In the exercise of its executive power under Article 162 of the
Constitution of India the Government, vide G.O.Ms.No.86 General
Administration (Ser.C) Department dated 08.03.1994, directed that
the order of suspension against a government servant should be
reviewed at the end of every six months; the appropriate reviewing
authority should take a decision regarding continuance or otherwise
of the employee concerned under suspension, with reference to the
nature of charges, where delay in finalisation of the enquiry
proceedings cannot be attributed to the employee or when there is no
interference from the employee in facilitating the enquiry; an outer
limit be provided, as two years from the date of suspension, failing
which the public servant should be reinstated without prejudice to
the proceedings being pursued; however, in exceptional cases,
considering the gravity of the charges, one could be continued under
suspension even beyond a period of two years, especially in cases
where there is deliberate delay caused due to non-cooperation of the
employee concerned; the concerned Principal Secretary/Secretary of
the department should review suspension, in cases of their
department, at an interval of six months with the representative of
the Anti-Corruption Bureau, if the proceedings arose out of the
investigation conducted by the Anti-Corruption Bureau; and they
should make suitable recommendations as to the desirability or
otherwise of further continuance of the officers under suspension.
The executive instructions issued in G.O.Ms.No.86 dated 08.03.1994
were, more or less, reiterated in the subsequent instructions issued
in G.O.Ms.No.526 dated 19.08.2008.
After exercising its powers to review the order of suspension, in
terms of G.O.Ms.No.86 dated 08.03.1994 and G.O.Ms.No.526 dated
19.08.2008, the government, vide Memo No.9710/Vig-Tr/1/2014
dated 02.04.2015, informed the Transport Commissioner and the
Director General, Anti-Corruption Bureau, that suspension of the
petitioner was reviewed in its meeting held on 26.02.2015; in the
review meeting the Joint Director, Anti-Corruption Bureau had
mentioned that the case was under active investigation, and required
three months time for its completion; and, therefore, it was decided to
review the case again after three months. The government ordered
that the respondent should be continued under suspension until
further review.
The submission urged on behalf of the respondents that the
consequence of the judgment of the Supreme Court, in Ajay Kumar
Choudhary1, is that Rule 10(6) of the 1965 Rules and Rule 8(5) of the
State Rules and the executive instructions issued in this regard have
been rendered redundant, is not unfounded. As the law declared by
the Supreme Court is binding on the High Court, it would be
inappropriate to say anything more.
The Supreme Court, in Ajay Kumar Choudhary1, drew a
distinction between cases where a charge sheet is filed within 90 days
of the order of suspension and cases where it is not. The latter has
been held to result in putting to an end the order of suspension,
while the former has been held to require a reasoned order, extending
the period of suspension, to be passed by the Government. However,
in Tarak Nath Ghosh4, the Supreme Court held that, in principle,
there is no difference between the position of an officer against whom
definite charges have been framed to which he is required to put in
his written statement and a situation where, on receipt of allegations
of grave misconduct against him, the Government is of opinion that it
would not be proper to allow the officer concerned to function in the
ordinary way. Again, in Ashok Kumar Aggarwal2, the Supreme
Court held that the delinquent cannot be considered to be any better
of after the charge-sheet has been filed against him in the Court on
conclusion of the investigation than his position during the
investigation of the case itself.
After referring to the earlier Judgments in O.P. Gupta12, where
it was held that suspension of an employee was injurious to his
interests and must not be continued for an unreasonably long period
and, therefore, an order of suspension should not be lightly passed;
to K. Sukhendar Reddy v. State of A.P. which castigated selective
suspension perpetuated indefinitely in circumstances where other
persons involved had not been subjected to any scrutiny; and State
of A.P. v. N. Radhakishan wherein it was observed that it would be
fair to make the assumption of prejudice if there was unexplained
delay in the conclusion of proceedings; the Supreme Court, in Ajay
Kumar Choudhary1, observed: -
Suspension, specially preceding the formulation of charges,
is essentially transitory or temporary in nature, and must perforce be of short
duration. If it is for an indeterminate period or if its renewal is not based on
sound reasoning contemporaneously available on the record, this would
render it punitive in nature. Departmental/disciplinary proceedings invariably
commence with delay, are plagued with procrastination prior and post the drawing
up of the Memorandum of Charges, and eventually culminate after even longer
delay.
Protracted periods of suspension, repeated renewal thereof, have
regrettably become the norm and not the exception that they ought to be.
The suspended person suffering the ignominy of insinuations, the scorn of
society
and the derision of his Department, has to endure this excruciation even before
he
is formally charged with some misdemeanour, indiscretion or offence. His torment
is his knowledge that if and when charged, it will inexorably take an inordinate
time for the inquisition or inquiry to come to its culmination, that is to
determine
his innocence or iniquity. Much too often this has now become an accompaniment
to retirement..
.It will be useful to recall that prior to 1973 an accused could be
detained for continuous and consecutive periods of 15 days, albeit, after
judicial
scrutiny and supervision. The Cr.P.C. of 1973 contains a new proviso which has
the effect of circumscribing the power of the Magistrate to authorise detention
of an
accused person beyond period of 90 days where the investigation relates to an
offence punishable with death, imprisonment for life or imprisonment for a term
of
not less than 10 years, and beyond a period of 60 days where the investigation
relates to any other offence. Drawing support from the observations contained
of the Division Bench in Raghubir Singh vs. State of Bihar, 1986 (4) SCC 481,
and more so of the Constitution Bench in Antulay, we are spurred to
extrapolate the quintessence of the proviso of Section 167(2) of the Cr.P.C.
1973 to moderate Suspension Orders in cases of departmental/disciplinary
inquiries also. It seems to us that if Parliament considered it necessary that a
person be released from incarceration after the expiry of 90 days even though
accused of commission of the most heinous crimes, a fortiori suspension
should not be continued after the expiry of the similar period especially when
a Memorandum of Charges/Chargesheet has not been served on the
suspended person. It is true that the proviso to Section 167(2) Cr.P.C.
postulates personal freedom, but respect and preservation of human dignity
as well as the right to a speedy trial should also be placed on the same
pedestal.
We, therefore, direct that the currency of a Suspension Order should
not extend beyond three months if within this period the Memorandum of
Charges/Chargesheet is not served on the delinquent officer/employee; if the
Memorandum of Charges/Chargesheet is served a reasoned order must be
passed for the extension of the suspension. As in the case in hand, the
Government is free to transfer the concerned person to any Department in
any of its offices within or outside the State so as to sever any local or
personal contact that he may have and which he may misuse for obstructing
the investigation against him. The Government may also prohibit him from
contacting any person, or handling records and documents till the stage of his
having to prepare his defence. We think this will adequately safeguard the
universally recognized principle of human dignity and the right to a speedy
trial and shall also preserve the interest of the Government in the
prosecution. We recognize that previous Constitution Benches have been
reluctant to quash proceedings on the grounds of delay, and to set time limits
to their duration. However, the imposition of a limit on the period of
suspension has not been discussed in prior case law, and would not be
contrary to the interests of justice. Furthermore, the direction of the Central
Vigilance Commission that pending a criminal investigation departmental
proceedings are to be held in abeyance stands superseded in view of the stand
adopted by us (emphasis supplied).
As reliance was placed by the Supreme Court, in Ajay Kumar
Choudhary1, on the earlier decision in O.P.Gupta12, it is necessary to
take note of the law declared therein. In O.P. Gupta12, the Supreme
Court held that there is no presumption that the Government always
acts in a manner which is just and fair; there was no occasion to
protract the departmental inquiry for a period of 20 years, and
keeping the appellant under suspension for a period of nearly 11
years, unless it was actuated with the mala fide intention of
subjecting him to harassment; while the charge framed against the
appellant was serious enough to merit his dismissal from service, the
departmental authorities were not in a position to substantiate the
charge; but that was no reason for keeping the departmental
proceedings alive for a period of 20 years and not to have revoked the
order of suspension for over 11 years; an order of suspension of a
government servant does not put an end to his service under the
Government; and he continues to be a member of the service inspite
of the order of suspension.
Unlike in O.P. Gupta12 where the government servant was kept
under suspension for more than eleven years, in the case on hand
the petitioner was placed under suspension on 04.08.2014 less than
eleven months ago. Long period of suspension does not make the
order of suspension invalid. (Ashok Kumar Aggarwal2). Ordinarily,
when serious imputations are made against the conduct of an officer,
the disciplinary authority cannot immediately draw up the charges.
Considerable time may elapse between receipt of imputations against
an officer and a definite conclusion by a superior authority that the
circumstances are such that definite charges can be levelled against
the officer. Whether it is necessary or desirable to place the officer
under suspension, even before definite charges have been framed,
would depend upon the circumstances of the case and the view
which is taken by the Government concerned. (Tarak Nath Ghosh4).
It is possible that, in some cases, the authorities do not proceed with
the matter as expeditiously as they ought to, which results in
prolongation of the sufferings of the delinquent employee. But the
remedy in such cases is either to call for an explanation from the
authorities in the matter and, if it is found unsatisfactory, to direct
them to complete the inquiry within a stipulated period and to
increase the suspension allowance adequately. The Court has to
examine each case on its own facts and decide whether the delay in
serving the charge-sheet and completing the inquiry is justified or
not. (Sanjiv Rajan21).
Even if a criminal trial or enquiry takes a long time, it is
ordinarily not open to the court to interfere in case of suspension as
it is in the exclusive domain of the competent authority who can
always review the order of suspension. While exercising such a
power, the authority can consider the case of an employee for
revoking the suspension order, if satisfied that the criminal case
pending would be concluded after an unusual delay for no fault of the
employee concerned. In case the court comes to the conclusion that
the authority is not proceeding expeditiously as it ought to have been,
and it results in prolongation of suffering of the delinquent employee,
the court may issue directions. The court may, in case the authority
fails to furnish proper explanation for the delay in conclusion of the
enquiry, direct it to complete the enquiry within a stipulated period.
However mere delay, in conclusion of the enquiry or the trial, cannot
be a ground for quashing the suspension order, if the charges are
grave in nature. But, whether the employee should or should not
continue in his office during the period of enquiry is a matter to be
assessed by the disciplinary authority concerned and, ordinarily, the
Court should not interfere with the order of suspension unless they
are passed mala fide, and without there being even prima facie
evidence on record connecting the employee with the misconduct in
question. (Ashok Kumar Aggarwal2; Sanjiv Rajan21; Secretary to
Government, Prohibition and Excise Deptt. v. L. Srinivasan ;
and Allahabad Bank v. Deepak Kumar Bhola ).
On the question of the binding effect of the law declared by the
two judge bench of the Supreme Court in Ajay Kumar Choudhary1,
it must be borne in mind that the doctrine of binding precedents has
the merit of promoting certainty and consistency in judicial decisions,
and enables an organic development of the law, besides providing
assurance to the individual as to the consequence of transactions
forming part of his daily affairs. (Central Board of Dawoodi Bohra
Community v. State of Maharashtra ; Union of India v. Raghubir
Singh (dead) by Lrs. ). The law laid down by the Supreme Court in
a decision delivered by a Bench of larger strength is binding on any
subsequent Bench of lesser or co-equal strength. A Bench of lesser
quorum cannot doubt the correctness of the view of the law taken by
a Bench of larger quorum. (Central Board of Dawoodi Bohra
Community32).
In Khem Chand20, the Constitution Bench of the Supreme
Court held that 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 the interest of the
general public for serving whose interests the government machinery
exits and functions. In V.P. Gidroniya5, the Constitution bench of
the Supreme Court held that suspending an employee from
performing the duties of his office, is an implied term in every
contract of employment; when an employee is suspended in this
sense, it means that the employer merely issues a direction to him
that he should not do the service required of him during a particular
period; 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 R.P. Kapur7, the Constitution Bench of the Supreme Court
held that the public servant may be suspended pending investigation,
enquiry or trial relating a criminal charge; if the trial of the criminal
charge results in conviction, disciplinary proceedings are bound to
follow against the public servant so convicted; even in case of
acquittal, disciplinary proceedings may follow where the acquittal is
other than honourable; the usual practice is that where a public
servant is being tried on a criminal charge, the Government
postpones holding a departmental enquiry and awaits the result of
the criminal trial and therefore suspension, during investigation,
enquiry or trial relating to a criminal charge, is intimately related to
disciplinary matters.
While taking note of the fact that the disciplinary proceedings
may commence after completion of the criminal proceedings, the
Constitution Bench in R.P. Kapur7 was of the view that suspension
during investigation, enquiry or trial relating a criminal charge is
intimately related to disciplinary matters. The fact that an order of
suspension could continue during trial of a criminal charge, and even
thereafter till completion of disciplinary proceedings, if any, initiated
against the Government servant was recognised in R.P.Kapur by the
Constitution bench of the Supreme Court. None of the aforesaid
Constitution bench judgments of the Supreme Court in Khem
Chand20, V.P. Gidroniya5, and R.P. Kapur7 were noticed in the latter
two bench judgment of the Supreme Court in Ajay Kumar
Choudhary1.
All subsequent decisions by benches comprised of lesser
number of Judges should be read in the light of the earlier
Constitution Bench decisions. (N. Meera Rani v. Govt. of T.N. ).
In cases where a High Court finds any conflict between the views
expressed by larger and smaller benches of the Supreme Court, it
cannot disregard or skirt the views expressed by the larger benches.
The proper course for a High Court, in such a case, is to try to find
out and follow the opinion expressed by larger benches of the
Supreme Court in preference to those expressed by smaller benches
of the Court which practice, hardened as it has into a rule of law, is
followed by the Supreme Court itself. (State of U.P. v. Ram Chandra
Trivedi ; Union of India v. K.S. Subramanian ). The legal
position is that, in the hierarchical set up of Courts, the High Court
is bound by the decisions of the Supreme Court. However, when a
smaller bench of the Supreme Court lays down a proposition contrary
to and without noticing the ratio decidendi of the earlier larger
Benches, such a decision will not become the law declared by the
Supreme Court so as to have a binding effect under Article 141 of the
Constitution on all the Courts within the country. (Sakinala
Harinath v. State of A.P. ). Judicial discipline requires that the
opinion expressed by larger benches of the Supreme Court, in
preference to those expressed by smaller benches of the Supreme
Court, should be followed. (K.S. Subramanian36; O.Ramachandra
Reddi v. The Director, DRDL, Hyderabad ).
In Ashok Kumar Aggarwal2 the Supreme Court held:-
.The scope of interference by the Court with the order of suspension
has been examined by the Court in a large number of cases, particularly in
State of M.P. v. Shardul Singh21, P.V. Srinivasa Sastry v. Comptroller &
Auditor General22, ESI v. T. Abdul Razak23, Kusheshwar Dubey v. Bharat
Coking Coal Ltd.24, Delhi Cloth & General Mills Ltd. v. Kushal Bhan25, U.P.
Rajya Krishi Utpadan Mandi Parishad v. Sanjiv Rajan26, State of Rajasthan
v. B.K. Meena27, Prohibition and Excise Deptt. v. L. Srinivasan28 and
Allahabad Bank v. Deepak Kumar Bhola29, wherein it has been observed
that even if a criminal trial or enquiry takes a long time, it is ordinarily not
open to the court to interfere in case of suspension as it is in the exclusive
domain of the competent authority who can always review its order of
suspension being an inherent power conferred upon them by the provisions of
Article 21 of the General Clauses Act, 1897 and while exercising such a
power, the authority can consider the case of an employee for revoking the
suspension order, if satisfied that the criminal case pending would be
concluded after an unusual delay for no fault of the employee concerned.
Where the charges are baseless, mala fide or vindictive and are framed only to
keep
the delinquent employee out of job, 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. In case the court comes to the conclusion that the
authority is not proceeding expeditiously as it ought to have been and it
results in
prolongation of sufferings for the delinquent employee, the court may issue
directions. The court may, in case the authority fails to furnish proper
explanation for delay in conclusion of the enquiry, direct to complete the
enquiry within a stipulated period. However, mere delay in conclusion of
enquiry or trial cannot be a ground for quashing the suspension order, if the
charges are grave in nature. But, whether the employee should or should not
continue in his office during the period of enquiry is a matter to be assessed
by the
disciplinary authority concerned and ordinarily the court should not interfere
with
the orders of suspension unless they are passed in mala fide and without there
being even a prima facie evidence on record connecting the employee with the
misconduct in question. . (emphasis
supplied)
In Sanjiv Rajan21 the respondent was suspended on May 3rd
1991. As the Learned Single Judge of the Allahabad High Court had
revoked the order of suspension, which order was affirmed by the
Division Bench, the appellant invoked the jurisdiction of the Supreme
Court. It is in this context that the Supreme Court, in its order dated
29.03.1993, observed:
..In matters of this kind, it is advisable that the concerned
employees are kept out of mischiefs range. If they are exonerated, they
would be entitled to all their benefits from the date of the order of
suspension. Whether the employees should or should not continue in their
office during the period of inquiry is a matter to be assessed by the authority
concerned and ordinarily, the Court should not interfere with the orders of
suspension unless they are passed mala fide and without there being even a
prima facie evidence on record connecting the employees with the
misconduct in question. In the present case, before the preliminary report was
received, the Director was impressed by the first respondent-employees
representation. However after the report, it was noticed that the employee could
not
be innocent. Since this is the conclusion arrived at by the management on the
basis of the material in their possession, no conclusions to the contrary could
be drawn by the Court at the interlocutory stage and without going through
the entire evidence on record. In the circumstances, there was no
justification for the High Court to revoke the order of suspension
In L. Srinivasan30 the respondent, while working as Assistant
Section Officer, Home, Prohibition and Excise Department, was
placed under suspension. Departmental inquiry was in process.
Charge-sheet was laid for prosecution and the trial of the case was
pending. The Tamil Nadu Administrative Tribunal set aside the
departmental enquiry and quashed the suspension and the charge-
sheet on the ground of delay in initiation of disciplinary proceedings.
It is in this context that the Supreme Court held:-
.. In the nature of the charges, it would take a long time to detect
embezzlement and fabrication of false records which should be done in
secrecy. It is not necessary to go into the merits and record any finding on the
charge levelled against the charged officer since any finding recorded by this
Court
would gravely prejudice the case of the parties at the enquiry and also at the
trial.
Therefore, we desist from expressing any opinion on merit or recording any of
the
contentions raised by the counsel on either side. Suffice it to state that the
Administrative Tribunal has committed grossest error in its exercise of the
judicial review. The member of the Administrative Tribunal appears to have
no knowledge of the jurisprudence of the service law and exercised power as if
he is an appellate forum dehors the limitation of judicial review. This is one
such instance where a member had exceeded his power of judicial review in
quashing the suspension order and charges even at the threshold. We are
coming across such orders frequently putting heavy pressure on this Court to
examine each case in detail. It is high time that it is remedied
(emphasis supplied)
In Deepak Kumar Bhola31, the Supreme Court observed:-
We are unable to agree with the contention of the learned counsel for
the respondent that there has been no application of mind or the objective
consideration of the facts by the appellant before it passed the orders of
suspension. As already observed, the very fact that the investigation was
conducted
by the CBI which resulted in the filing of a charge-sheet, alleging various
offences
having been committed by the respondent, was sufficient for the appellant to
conclude that pending prosecution the respondent should be suspended. It would
be indeed inconceivable that a bank should allow an employee to continue to
remain on duty when he is facing serious charges of corruption and
misappropriation of money. Allowing such an employee to remain in the seat
would result in giving him further opportunity to indulge in the acts for which
he was being prosecuted. Under the circumstances, it was the bounden duty of
the appellant to have taken recourse to the provisions of clause 19.3 of the
First
Bipartite Settlement, 1966. The mere fact that nearly 10 years have elapsed
since the charge-sheet was filed, can also be no ground for allowing the
respondent to come back to duty on a sensitive post in the Bank, unless he is
exonerated of the charge. (emphasis supplied)
The attention of the Supreme Court in Ajay Kumar
Choudhary1, was not drawn to its earlier judgments in Ashok
Kumar Aggarwal2; Sanjiv Rajan21; L. Srinivasan30; and Deepak
Kumar Bhola31, wherein it was held that mere delay in conclusion of
disciplinary proceedings or criminal cases or long period of
suspension would not render the order of suspension invalid.
This Court may not, therefore, be justified in quashing the
order of suspension following the judgment of the Supreme Court in
Ajay Kumar Choudhary1, as that would require it to ignore the
Constitution bench judgments of the Supreme Court in Khem
Chand20, R.P. Kapur7 and V.P. Girdroniya5; as also the other
judgments of the Supreme Court in Ashok Kumar Aggarwal2; Sanjiv
Rajan21; L. Srinivasan30; and Deepak Kumar Bhola31. The order of
the Tribunal does not, therefore, necessitate interference.
However, as it was decided in the review meeting held by the
Government on 26.02.2015 that the suspension would be reviewed
after 3 months i.e after 26.05.2015, the respondents are directed to
review the order of suspension and communicate their decision to the
petitioner at the earliest, in any event not later than one month from
the date of receipt of a copy of this order. Subject to the aforesaid
directions, the Writ Petition fails and is, accordingly, dismissed.
However, in the circumstances, without costs. Miscellaneous
Petitions, if any pending, shall also stand dismissed.
______________________________
RAMESH RANGANATHAN, J.
___________________________________
M.SATYANARAYANA MURTHY, J.
Date: 01.06.2015.
WRIT PETITION No.7618 of 2015
01-06-2015
Buddana Venkata Murali Krishna.Petitioner
State of A.P. rep., by its Principal Secretary, TR & B Department, Secretariat
Buildings, Hyderabad and three others.. Respondents
Counsel for the petitioner: Sri B.S.N. Naidu.
Counsel for respondent: GP for Transport; GP for Services
<GIST:
>HEAD NOTE:
? Citations:
1) CDJ 215 SC 129 (Judgment of the Supreme Court in Civil Appeal No.1912 of
2015
(arising out of SLP) No.31761 of 2013 dated 16.02.2015)
2) (2013) 16 SCC 147
3) AIR 1958 A.P. 35
4) (1971) 1 SCC 734
5) (1970) 1 SCC 362
6) AIR 1968 SC 800
7) AIR 1964 SC 787
8) AIR 1959 SC 923 = 1959 Supp (2) SCR 836
9) (1994) 4 SCC 126
10) (1985) 2 SCC 65
11) AIR 1957 SC 246
12) (1987) 4 SCC 328
13) (1999) 3 SCC 679
14) AIR 1968 SC 800
15) (1961) 1 SCR 750 = AIR 1961 SC 276
16) AIR 1977 SC 1146
17) (1915) 1 KB 698
18) (1922) 2 KB 66
19) (1888) 39 Ch.D 339
20) AIR 1963 SC 687 = 1963 Supp (1) SCR 229
21) 1993 Supp (3) SCC 483
22) (2001) 3 SCC 414
23) [1983] 1 SCR 828 = (1983) 1 SCC 124
24) (1966) 3 SCR 682 = AIR 1966 SC 1942
25) AIR 1955 SC 549
26) (1975) 3 SCC 503 = AIR 1975 SC 984
27) (1968) 1 SCR 111 = AIR 1967 SC 1910
28) (1999) 6 SCC 257
29) 1998 (4) SCC 154
30) (1996) 3 SCC 157
31) (1997) 4 SCC 1
32) (2005) 2 SCC 673
33) (1989) 2 SCC 754
34) AIR 1989 SC 2027
35) AIR 1976 SC 2547
36) AIR 1976 SC 2433
37) 1993 (6) SLR 1 = 1993 (3) ALT 471 (FB)
38) 1993 (1) ALT 221 (D.B)
THE HONBLE SRI JUSTICE RAMESH RANGANATHAN
AND
THE HONBLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION No.7618 of 2015
ORDER: (per Honble Sri Justice Ramesh Ranganathan)
This Writ Petition is filed against the order passed by the A.P.
Administrative Tribunal (for short the Tribunal) in O.A. No.7241 of
2014 dated 26.02.2015. The Petitioner herein invoked the
jurisdiction of the Tribunal questioning the action of the disciplinary
authority in not taking steps, in the exercise of the enabling
provisions under Rule 8(2)(5)(a) and (c) of the Andhra Pradesh Civil
Services (Classification, Control and Appeal) Rules, 1991, as illegal
and arbitrary. By way of consequential relief he sought for a
direction to the respondents to revoke his suspension, and to
reinstate him to duty.
In its order, in O.A. No.7241 of 2014 dated 26.02.2015, the
Tribunal noted that a charge sheet had not yet been filed in the
criminal case registered against the petitioner; Rule 8(5)(a) provided
that the order of suspension, made by the competent authority, shall
continue to remain in force unless and until it is modified or revoked
by the authority; Rule 8(5)(c) stipulated that the competent authority
may, at any time, modify or revoke the suspension order; the State
Rules did not mandate the competent authority, who placed the
petitioner under suspension, to review or revoke the suspension
order soon after the material witnesses were examined; the State
Government had issued executive instructions which required the
Disciplinary Authority to review the cases of suspension after every
six months; the petitioners contention that the action of the 2nd
respondent, in not revoking his suspension, was against statutory
provisions was incorrect and invalid; it was clear from the averments
and pleadings, in the counter filed by the respondents, that the
criminal charge, under investigation, was connected with the
petitioners official position as a government servant, and it involved
moral turpitude; the continuation of the petitioner under suspension
was fully justified and warranted; and the 2nd respondent was at
liberty to review the petitioners suspension as per Rules, and the
executive instructions issued by the Government in this regard.
Aggrieved by the aforesaid order of the Tribunal, the petitioner has
filed the present Writ Petition.
Facts, to the extent relevant, are that the petitioner was
initially appointed as an Assistant Motor Vehicles Inspector in the
year 1994. He was subsequently promoted to the post of Motor
Vehicles Inspector. After obtaining permission from the Joint Director
(Andhra) ACB, Hyderabad, vide proceeding No.7/ACB-JD(A)/RCA-
2014 dated 12.06.2014 for registering a case and to conduct
investigation, the Anti Corruption Bureau conducted a search at the
petitioners office, residence and certain other places on 18.06.2014.
An inventory was made on 18.06.2014 at 11.30 hours. On the
ground that there was credible information, that he was in
possession of assets disproportionate to his known sources of
income, FIR No.11/RCA-EWG/2014 was registered against the
petitioner at ACB Range police station, Eluru on 16.06.2014 for
offences punishable under Section 13(2) read with 13(1)(e) of the
Prevention of Corruption Act, 1988. The petitioner was arrested on
17.07.2014, and was produced before the Special Judge for SPE &
ACB Cases. He was remanded to judicial custody on the same day.
Thereafter, on the ground that he was in judicial custody for more
than 48 hours, the 2nd respondent, vide proceedings dated
04.08.2014, placed the petitioner under suspension with effect from
17.07.2014. The petitioner filed Criminal Petition No.9880 of 2014
before this Court and, by order dated 27.11.2014, bail was granted to
him on certain conditions. The validity of the proceedings of the 2nd
respondent dated 04.08.2014 was questioned before the Tribunal
wherein the petitioner contended that, on facts, the assets found
were not disproportionate to his known sources of income; and the
order placing him under suspension was illegal. It is for the first time
before this Court has it been contended that the order of suspension
necessitates revocation as the Supreme Court, in Ajay Kumar
Choudhary v. Union of India , had held that suspension cannot be
continued beyond 90 days if no charge sheet is filed in the criminal
case, or if no charges are framed in the disciplinary proceedings by
then.
In the counter-affidavit, filed on behalf of the 2nd respondent, it
is stated that the ACB officials, vide Radio Message dated
19.06.2014, had informed that there was credible information to
show that the petitioner was in possession of assets disproportionate
to his known sources of income; a case was registered in Cr.
No.11/RCA-EWG/2014 on 18.06.2014 under Section 13(2) read with
13(1)(e) of the Prevention of Corruption Act; simultaneous searches
were conducted on 18.06.2014 at the office premises, the petitioners
residence and certain other places; the ACB officials, by their Radio
Message dated 17.07.2014, had informed that the petitioner was
arrested at his residence on 17.07.2014, and was produced before
the Special Judge for SPE & ACB Cases, Vijayawada on the same
day, and he was remanded to judicial custody upto 31.07.2014; since
the petitioner was under judicial custody for more than 48 hours he
was deemed to have been placed under suspension, with effect from
the date of his detention, under Rule 8(2) of the APCS (CC&A) Rules,
1991; accordingly he was placed under suspension by proceedings
dated 04.08.2014 with effect from 17.07.2014 (the date on which he
was arrested); continuation of an employee in service, even after a
criminal case is registered by the ACB officials, would neither be in
public interest nor in the interest of administration; the order of
suspension is not as a measure of punishment; placing the
government servant under suspension is to ensure that he is kept
away from duty till the investigation/enquiry is completed; the
offence is grave in nature, and it involves moral turpitude; the ACB is
still carrying out investigation; as the case is still under investigation,
it would not be proper for the suspension order to be revoked; the
petitioners suspension was reviewed on 26.06.2015 by the
Government; it was opined, vide memo dated 02.04.2014, that he
should be continued under suspension; and it was fair that he
should continue to remain under suspension until further review.
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 ).
Suspension, according to the Oxford Dictionary, means the action
of suspending or condition of being suspended; the action of
debarring or state of being debarred, especially for a time, from a
function or privilege; temporary deprivation of ones office or
position. One of the meaning of the word suspension as given in
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 ; Govt. of
India, Ministry of Home Affairs v. Tarak Nath Ghosh ; Halsburys
Laws of England, Third Edn., Vol. 25, Article 989, p. 518.).
Three kinds of suspension are known to law. 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. Lastly 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. (V.P. Gidroniya v. State of
M.P., ; B.R. Patel v. State of Maharashtra ; and R.P. Kapur v.
Union of India ). So far as suspension as a punishment is
concerned, it is a disciplinary matter. (R.P. Kapur7).
Suspension, in the present case, is not a substantive
punishment, and is an interim order pending enquiry/criminal
proceedings. (Sasa Musa Sugar Works (P) Ltd. v. Shobrati Khan ).
Suspension of this kind is not a punishment but 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 investigation or to win over
the witnesses, or affording the delinquent the opportunity in office to
impede the progress of the investigation or inquiry etc. (State of
Orissa v. Bhimal Kumar Mohanty ).
Clause (1) of Article 311 of the Constitution of India has no
application to a situation where a government servant has been
merely placed under suspension pending departmental enquiry since
such action does not constitute either dismissal or removal from
service. (State of Orissa v. Shiva Parashad Das ; and Mohammad
Ghouse v. State of Andhra ). In certain cases, suspension may
cause stigma, even after exoneration in the departmental proceedings
or acquittal by the criminal court, but it cannot, in the strict legal
sense and by any stretch of imagination, be treated as a punishment.
(Ashok Kumar Aggarwal2; O.P. Gupta v. Union of India ; and
Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. ).
An order of interim suspension can be passed against the
employee while an inquiry/investigation 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. (Balvantrai Ratilal
Patel v. State of Maharashtra ; T. Cajee v. U. Jormanik Siem ;
R. P. Kapur7; Bhimal Kumar Mohanty9; V.P. Gidroniya5; Jammu
University v. D.K. Rampal ). 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.
Patel6; Hanley v. Pease & Partners, Ltd. ; Wallwork v. Fielding
and Boston Deep Sea Fishing and Ice Co. v. Ansell ).
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.
(Jammu University16). As an employer can suspend an employee
pending an inquiry into his conduct, the only question that can arise
on such suspension will relate to the payment 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 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 or pending a
criminal proceeding, which may eventually result in a departmental
inquiry against him. (R.P. Kapur7; V.P. Girdroniya5; T. Cajee15; and
Balvantray Ratilal Patel14; Tarak Nath Ghosh4; Bhimal Kumar
Mohanty9).
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 or trial of a
criminal charge. (Ashok Kumar Aggarwal2; Bimal Kumar Mohanty9;
R.P. Kapur7; and Balvantrai Ratilal Patel14). The importance and
necessity of proper disciplinary action being taken against
government servants 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 ).
Ordinarily, a government servant is placed under suspension to
restrain him from availing the further opportunity to perpetrate the
alleged misconduct or to scuttle the inquiry or investigation or to win
over the witnesses or to impede the progress of the investigation or
inquiry, etc. It would also remove the impression, among members of
the service, that dereliction of duty would pay. (Ashok Kumar
Aggarwal2 Bimal Kumar Mohanty9). 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 Ghosh4). 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 so in
the enquiry. (R.P. Kapur7).
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 the 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 any 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 counterclaims on factual issues. (Ashok Kumar
Aggarwal2). No conclusion can be arrived at without examining the
entire record. It is always advisable to allow disciplinary proceedings
to continue unhindered, and the concerned employee kept out of the
mischiefs range. If he is exonerated, he would 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 ; Bhimal Kumar
Mohanty9). The usual ground for suspension, pending a criminal
proceeding, is that the charge is connected with his position as a
government servant or is likely to embarrass him in the discharge of
his duties or involves moral turpitude. In such a case a public
servant may be suspended pending investigation, enquiry or trial
relating to a criminal charge. (R.P. Kapur7).
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 Aggarwal2). 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
Aggarwal2). It should be made after consideration of 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 Aggarwal2). 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 Aggarwal2; Bimal Kumar
Mohanty9).
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. Ordinarily, the Court should not interfere with
orders of suspension unless they are passed mala fide and without
there being even prima facie evidence on record connecting the
employee with the misconduct in question. (Sanjiv Rajan21). The
court cannot act as if it is an appellate forum de hors the power of
judicial review. (Ashok Kumar Aggarwal2). The Court or the
Tribunal 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 Aggarwal2; Bimal Kumar Mohanty9). 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 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 or trial of a criminal charge. (Bhimal Kumar Mohanty9).
Bearing these principles in mind, let us now examine the
submission of Sri M.S.Prasad, Learned Senior Counsel appearing on
behalf of the petitioner, that in view of the law declared by the
Supreme Court in Ajay Kumar Choudhary1, and since neither a
charge memo was issued to the petitioner nor a charge sheet filed in
the criminal case within 90 days of his being placed under
suspension, the order of suspension stands automatically revoked.
Before doing so, it is necessary to refer to the relevant rules and
executive instructions governing suspension of a government servant
pending disciplinary enquiry/criminal proceedings. Rule 10 of the
Central Civil Services (Classification, Control and Appeal) Rules, 1965
(hereinafter called the 1965 Rules) relates to suspension. Rule
10(2)(a) stipulates that a Government servant shall be deemed to
have been placed under suspension by an order of the appointing
authority (a) with effect from the date of his detention, if he is
detained in custody, whether on a criminal charge or otherwise, for a
period exceeding forty-eight hours. Rule 10(5)(a) stipulates that,
subject to the provisions contained in sub-rule (7), an order of
suspension made or deemed to have been made under Rule 10 shall
continue to remain in force until it is modified or revoked by the
authority competent to do so. Rule 10(5)(c) provides that an order of
suspension made or deemed to have been made under Rule 10 may
at any time be modified or revoked by the authority which made or is
deemed to have made the order or by any authority to which that
authority is subordinate. Rule 10(6) requires an order of suspension,
made or deemed to have been made under Rule 10, to be reviewed by
the authority competent to modify or revoke the suspension, before
expiry of ninety days from the effective date of suspension, on the
recommendation of the Review Committee constituted for the purpose
and pass orders either extending or revoking the suspension.
Subsequent reviews shall be made before expiry of the extended
period of suspension. Extension of suspension shall not be for a
period exceeding one hundred and eighty days at a time. Rule 10(7)
stipulates that an order of suspension made or deemed to have been
made under sub-rules (1) or (2) of Rule 10 shall not be valid after a
period of ninety days unless it is extended, after review, for a further
period before the expiry of ninety days. Under the proviso thereto, no
such review of suspension shall be necessary, in the case of deemed
suspension under sub-rule (2), if the Government servant continues
to be under suspension at the time of completion of ninety days of
suspension and the ninety days period, in such a case, will count
from the date the Government servant, detained in custody, is
released from detention or the date on which the fact of his release
from detention is intimated to his appointing authority, whichever is
later.
Rule 8, of the Andhra Pradesh Civil Services (Classification,
Control, and Appeal) Rules, 1991 (hereinafter called the State
Rules) relates to suspension. Rule 8(2)(a) stipulates that a
Government servant shall be deemed to have been placed under
suspension, by an order of the authority competent to place him
under suspension, with effect from the date of his detention, if he is
detained in custody, whether on a criminal charge or otherwise, for a
period exceeding forty eight hours. Rule 8(2)(c) stipulates that the
order of suspension shall cease to be operative as soon as the
criminal proceedings, on the basis of which the Government Servant
was arrested and released on bail, are terminated. Rule 8(5)(a)
provides that an order of suspension, made or deemed to have been
made under Rule 8, shall continue to remain in force until it is
modified or revoked by the authority which made, or is deemed to
have made, the order or by an authority to which that authority is
subordinate. Under Rule 8(5)(c), an order of suspension made or
deemed to have been made under Rule 8 may, at any time, be
modified or revoked by the authority which made or is deemed to
have made the order or by any authority to which that authority is
subordinate.
Where there is power to suspend under a statute or the rules
framed thereunder, the order of suspension has the effect of
temporarily suspending the relationship of master and servant.
(Balvantrai Ratilal Patel14 Bhimal Kumar Mohanty9). In the
present case, the order of suspension was passed in the exercise of
the power vested by Rule 8(2)(a) of the State Rules. The concerned
authority was well within its statutory power to keep the respondent
under suspension. (Union of India v. Sunil Kumar Sarkar ). Rule
8 of the State Rules is similar to Rule 10 of the 1965 Rules except
that, while the former does not provide for a periodic review of the
order of suspension, the latter does. Rule 10(6) requires the order of
suspension to be reviewed within 90 days, and for the order of
suspension not to exceed 180 days at a time. In Ashok Kumar
Aggarwal2 the Supreme Court held that the 1965 Rules are a self-
contained code, and the order of suspension should be examined in
the light of the statutory provisions to determine whether the
suspension order was justified. As the State rules are also a self-
contained code, the impugned order of suspension must be examined
in the light of the said Rules. It is the exigency of the conditions of
service which requires or calls for an order of suspension and there
can be no difference in regard to this matter as between a member of
an All India Service and a member of a State Service. (Tarak Nath
Ghosh4).
The legal fiction, created by Rule 8(2)(a) of the State Rules,
requires a government servant to be deemed to have been placed
under suspension from the date of his detention, if he is detained in
custody for a period exceeding 48 hours. The moment a government
servant is arrested, and is detained in custody for a period exceeding
48 hours, he is legally presumed to have been placed under
suspension. Suspension, in such a case, is automatic. The
government servant continues under suspension till the order of
suspension ceases to operate, as prescribed under Rule 8(2)(c), when
the criminal proceedings, on the basis of which the government
servant was arrested, are terminated. Rule 8(2)(c) provides for the
continuance of the deemed suspension, under Rule 8(2)(a), till
completion of the criminal proceedings. Rule 8(5)(a) stipulates that
the order of suspension shall continue to be in force till it is modified
by the competent authority and Rule 8(5)(c) confers power on the
competent authority to modify or revoke the order of suspension.
Unless the order of suspension is modified or revoked by the
competent authority, exercising power under Rule 8(5), a Government
servant continues to remain under suspension till completion of the
criminal proceedings.
Unlike the 1965 Rules, the State Rules do not specifically
prescribe the mode and manner in which the competent authority
may modify or revoke the order of suspension. It is, however, settled
law that conditions of service can be prescribed either in the
executive power of the State or its legislative power under the proviso
to Article 309 of the Constitution. Such rules/executive instructions
must, however, be reasonable and fair, and not grossly unjust. The
delinquent officer, when placed under suspension, is entitled to
represent that the departmental proceedings should be concluded
with reasonable diligence and within a reasonable period of time. If
such a principle were not to be recognised, it would imply that the
executive is vested with a totally arbitrary and unfettered power of
placing its officers under disability and distress for an indefinite
duration. (O.P. Gupta12; Board of Trustees of the Port of Bombay
v. Dilip Kumar Raghavendranath Nadkarni ).
Though the State Rules are silent regarding the duration of
suspension of a government servant, executive instructions have
been issued by the Government in this regard which in the absence
of any legislation either plenary or subordinate are required to be
followed. If there is a statutory rule, or an Act in the matter, the
executive must abide by that Act or Rule and it cannot, in exercise of
the executive power under Article 162 of the Constitution, ignore or
act contrary to that Rule or Act. (B.N. Nagarajan v. State of
Mysore ). It is, however, not necessary that there must be a law
already in existence before the executive is enabled to function, and
the powers of the executive are not limited merely to the carrying out
of these laws. There is nothing in Article 309 of the Constitution
which abridges the power of the executive to act under Article 162 of
the Constitution without a law. The State Government has executive
power, in relation to all matters with respect to which the Legislature
of the State has power, to make laws. (B.N. Nagarajan24; Ram
Jawaya Kapur v. State of Punjab ). Where no statutory rules are
made, regulating the conditions of service, the State Government can
always, in the exercise of its executive power, issue administrative
instructions laying down conditions of service. (Amarjit Singh
Ahluwalia (Dr) v. State of Punjab ; B.N. Nagarajan24; and Sant
Ram Sharma v. State of Rajasthan ). While the Government
cannot amend or supersede statutory rules by administrative
instructions, but if the rules are silent on any particular point, the
Government can fill up the gaps and supplement the rules and issue
instructions not inconsistent with the rules already framed. (Sant
Ram Sharma27).
In the exercise of its executive power under Article 162 of the
Constitution of India the Government, vide G.O.Ms.No.86 General
Administration (Ser.C) Department dated 08.03.1994, directed that
the order of suspension against a government servant should be
reviewed at the end of every six months; the appropriate reviewing
authority should take a decision regarding continuance or otherwise
of the employee concerned under suspension, with reference to the
nature of charges, where delay in finalisation of the enquiry
proceedings cannot be attributed to the employee or when there is no
interference from the employee in facilitating the enquiry; an outer
limit be provided, as two years from the date of suspension, failing
which the public servant should be reinstated without prejudice to
the proceedings being pursued; however, in exceptional cases,
considering the gravity of the charges, one could be continued under
suspension even beyond a period of two years, especially in cases
where there is deliberate delay caused due to non-cooperation of the
employee concerned; the concerned Principal Secretary/Secretary of
the department should review suspension, in cases of their
department, at an interval of six months with the representative of
the Anti-Corruption Bureau, if the proceedings arose out of the
investigation conducted by the Anti-Corruption Bureau; and they
should make suitable recommendations as to the desirability or
otherwise of further continuance of the officers under suspension.
The executive instructions issued in G.O.Ms.No.86 dated 08.03.1994
were, more or less, reiterated in the subsequent instructions issued
in G.O.Ms.No.526 dated 19.08.2008.
After exercising its powers to review the order of suspension, in
terms of G.O.Ms.No.86 dated 08.03.1994 and G.O.Ms.No.526 dated
19.08.2008, the government, vide Memo No.9710/Vig-Tr/1/2014
dated 02.04.2015, informed the Transport Commissioner and the
Director General, Anti-Corruption Bureau, that suspension of the
petitioner was reviewed in its meeting held on 26.02.2015; in the
review meeting the Joint Director, Anti-Corruption Bureau had
mentioned that the case was under active investigation, and required
three months time for its completion; and, therefore, it was decided to
review the case again after three months. The government ordered
that the respondent should be continued under suspension until
further review.
The submission urged on behalf of the respondents that the
consequence of the judgment of the Supreme Court, in Ajay Kumar
Choudhary1, is that Rule 10(6) of the 1965 Rules and Rule 8(5) of the
State Rules and the executive instructions issued in this regard have
been rendered redundant, is not unfounded. As the law declared by
the Supreme Court is binding on the High Court, it would be
inappropriate to say anything more.
The Supreme Court, in Ajay Kumar Choudhary1, drew a
distinction between cases where a charge sheet is filed within 90 days
of the order of suspension and cases where it is not. The latter has
been held to result in putting to an end the order of suspension,
while the former has been held to require a reasoned order, extending
the period of suspension, to be passed by the Government. However,
in Tarak Nath Ghosh4, the Supreme Court held that, in principle,
there is no difference between the position of an officer against whom
definite charges have been framed to which he is required to put in
his written statement and a situation where, on receipt of allegations
of grave misconduct against him, the Government is of opinion that it
would not be proper to allow the officer concerned to function in the
ordinary way. Again, in Ashok Kumar Aggarwal2, the Supreme
Court held that the delinquent cannot be considered to be any better
of after the charge-sheet has been filed against him in the Court on
conclusion of the investigation than his position during the
investigation of the case itself.
After referring to the earlier Judgments in O.P. Gupta12, where
it was held that suspension of an employee was injurious to his
interests and must not be continued for an unreasonably long period
and, therefore, an order of suspension should not be lightly passed;
to K. Sukhendar Reddy v. State of A.P. which castigated selective
suspension perpetuated indefinitely in circumstances where other
persons involved had not been subjected to any scrutiny; and State
of A.P. v. N. Radhakishan wherein it was observed that it would be
fair to make the assumption of prejudice if there was unexplained
delay in the conclusion of proceedings; the Supreme Court, in Ajay
Kumar Choudhary1, observed: -
Suspension, specially preceding the formulation of charges,
is essentially transitory or temporary in nature, and must perforce be of short
duration. If it is for an indeterminate period or if its renewal is not based on
sound reasoning contemporaneously available on the record, this would
render it punitive in nature. Departmental/disciplinary proceedings invariably
commence with delay, are plagued with procrastination prior and post the drawing
up of the Memorandum of Charges, and eventually culminate after even longer
delay.
Protracted periods of suspension, repeated renewal thereof, have
regrettably become the norm and not the exception that they ought to be.
The suspended person suffering the ignominy of insinuations, the scorn of
society
and the derision of his Department, has to endure this excruciation even before
he
is formally charged with some misdemeanour, indiscretion or offence. His torment
is his knowledge that if and when charged, it will inexorably take an inordinate
time for the inquisition or inquiry to come to its culmination, that is to
determine
his innocence or iniquity. Much too often this has now become an accompaniment
to retirement..
.It will be useful to recall that prior to 1973 an accused could be
detained for continuous and consecutive periods of 15 days, albeit, after
judicial
scrutiny and supervision. The Cr.P.C. of 1973 contains a new proviso which has
the effect of circumscribing the power of the Magistrate to authorise detention
of an
accused person beyond period of 90 days where the investigation relates to an
offence punishable with death, imprisonment for life or imprisonment for a term
of
not less than 10 years, and beyond a period of 60 days where the investigation
relates to any other offence. Drawing support from the observations contained
of the Division Bench in Raghubir Singh vs. State of Bihar, 1986 (4) SCC 481,
and more so of the Constitution Bench in Antulay, we are spurred to
extrapolate the quintessence of the proviso of Section 167(2) of the Cr.P.C.
1973 to moderate Suspension Orders in cases of departmental/disciplinary
inquiries also. It seems to us that if Parliament considered it necessary that a
person be released from incarceration after the expiry of 90 days even though
accused of commission of the most heinous crimes, a fortiori suspension
should not be continued after the expiry of the similar period especially when
a Memorandum of Charges/Chargesheet has not been served on the
suspended person. It is true that the proviso to Section 167(2) Cr.P.C.
postulates personal freedom, but respect and preservation of human dignity
as well as the right to a speedy trial should also be placed on the same
pedestal.
We, therefore, direct that the currency of a Suspension Order should
not extend beyond three months if within this period the Memorandum of
Charges/Chargesheet is not served on the delinquent officer/employee; if the
Memorandum of Charges/Chargesheet is served a reasoned order must be
passed for the extension of the suspension. As in the case in hand, the
Government is free to transfer the concerned person to any Department in
any of its offices within or outside the State so as to sever any local or
personal contact that he may have and which he may misuse for obstructing
the investigation against him. The Government may also prohibit him from
contacting any person, or handling records and documents till the stage of his
having to prepare his defence. We think this will adequately safeguard the
universally recognized principle of human dignity and the right to a speedy
trial and shall also preserve the interest of the Government in the
prosecution. We recognize that previous Constitution Benches have been
reluctant to quash proceedings on the grounds of delay, and to set time limits
to their duration. However, the imposition of a limit on the period of
suspension has not been discussed in prior case law, and would not be
contrary to the interests of justice. Furthermore, the direction of the Central
Vigilance Commission that pending a criminal investigation departmental
proceedings are to be held in abeyance stands superseded in view of the stand
adopted by us (emphasis supplied).
As reliance was placed by the Supreme Court, in Ajay Kumar
Choudhary1, on the earlier decision in O.P.Gupta12, it is necessary to
take note of the law declared therein. In O.P. Gupta12, the Supreme
Court held that there is no presumption that the Government always
acts in a manner which is just and fair; there was no occasion to
protract the departmental inquiry for a period of 20 years, and
keeping the appellant under suspension for a period of nearly 11
years, unless it was actuated with the mala fide intention of
subjecting him to harassment; while the charge framed against the
appellant was serious enough to merit his dismissal from service, the
departmental authorities were not in a position to substantiate the
charge; but that was no reason for keeping the departmental
proceedings alive for a period of 20 years and not to have revoked the
order of suspension for over 11 years; an order of suspension of a
government servant does not put an end to his service under the
Government; and he continues to be a member of the service inspite
of the order of suspension.
Unlike in O.P. Gupta12 where the government servant was kept
under suspension for more than eleven years, in the case on hand
the petitioner was placed under suspension on 04.08.2014 less than
eleven months ago. Long period of suspension does not make the
order of suspension invalid. (Ashok Kumar Aggarwal2). Ordinarily,
when serious imputations are made against the conduct of an officer,
the disciplinary authority cannot immediately draw up the charges.
Considerable time may elapse between receipt of imputations against
an officer and a definite conclusion by a superior authority that the
circumstances are such that definite charges can be levelled against
the officer. Whether it is necessary or desirable to place the officer
under suspension, even before definite charges have been framed,
would depend upon the circumstances of the case and the view
which is taken by the Government concerned. (Tarak Nath Ghosh4).
It is possible that, in some cases, the authorities do not proceed with
the matter as expeditiously as they ought to, which results in
prolongation of the sufferings of the delinquent employee. But the
remedy in such cases is either to call for an explanation from the
authorities in the matter and, if it is found unsatisfactory, to direct
them to complete the inquiry within a stipulated period and to
increase the suspension allowance adequately. The Court has to
examine each case on its own facts and decide whether the delay in
serving the charge-sheet and completing the inquiry is justified or
not. (Sanjiv Rajan21).
Even if a criminal trial or enquiry takes a long time, it is
ordinarily not open to the court to interfere in case of suspension as
it is in the exclusive domain of the competent authority who can
always review the order of suspension. While exercising such a
power, the authority can consider the case of an employee for
revoking the suspension order, if satisfied that the criminal case
pending would be concluded after an unusual delay for no fault of the
employee concerned. In case the court comes to the conclusion that
the authority is not proceeding expeditiously as it ought to have been,
and it results in prolongation of suffering of the delinquent employee,
the court may issue directions. The court may, in case the authority
fails to furnish proper explanation for the delay in conclusion of the
enquiry, direct it to complete the enquiry within a stipulated period.
However mere delay, in conclusion of the enquiry or the trial, cannot
be a ground for quashing the suspension order, if the charges are
grave in nature. But, whether the employee should or should not
continue in his office during the period of enquiry is a matter to be
assessed by the disciplinary authority concerned and, ordinarily, the
Court should not interfere with the order of suspension unless they
are passed mala fide, and without there being even prima facie
evidence on record connecting the employee with the misconduct in
question. (Ashok Kumar Aggarwal2; Sanjiv Rajan21; Secretary to
Government, Prohibition and Excise Deptt. v. L. Srinivasan ;
and Allahabad Bank v. Deepak Kumar Bhola ).
On the question of the binding effect of the law declared by the
two judge bench of the Supreme Court in Ajay Kumar Choudhary1,
it must be borne in mind that the doctrine of binding precedents has
the merit of promoting certainty and consistency in judicial decisions,
and enables an organic development of the law, besides providing
assurance to the individual as to the consequence of transactions
forming part of his daily affairs. (Central Board of Dawoodi Bohra
Community v. State of Maharashtra ; Union of India v. Raghubir
Singh (dead) by Lrs. ). The law laid down by the Supreme Court in
a decision delivered by a Bench of larger strength is binding on any
subsequent Bench of lesser or co-equal strength. A Bench of lesser
quorum cannot doubt the correctness of the view of the law taken by
a Bench of larger quorum. (Central Board of Dawoodi Bohra
Community32).
In Khem Chand20, the Constitution Bench of the Supreme
Court held that 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 the interest of the
general public for serving whose interests the government machinery
exits and functions. In V.P. Gidroniya5, the Constitution bench of
the Supreme Court held that suspending an employee from
performing the duties of his office, is an implied term in every
contract of employment; when an employee is suspended in this
sense, it means that the employer merely issues a direction to him
that he should not do the service required of him during a particular
period; 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 R.P. Kapur7, the Constitution Bench of the Supreme Court
held that the public servant may be suspended pending investigation,
enquiry or trial relating a criminal charge; if the trial of the criminal
charge results in conviction, disciplinary proceedings are bound to
follow against the public servant so convicted; even in case of
acquittal, disciplinary proceedings may follow where the acquittal is
other than honourable; the usual practice is that where a public
servant is being tried on a criminal charge, the Government
postpones holding a departmental enquiry and awaits the result of
the criminal trial and therefore suspension, during investigation,
enquiry or trial relating to a criminal charge, is intimately related to
disciplinary matters.
While taking note of the fact that the disciplinary proceedings
may commence after completion of the criminal proceedings, the
Constitution Bench in R.P. Kapur7 was of the view that suspension
during investigation, enquiry or trial relating a criminal charge is
intimately related to disciplinary matters. The fact that an order of
suspension could continue during trial of a criminal charge, and even
thereafter till completion of disciplinary proceedings, if any, initiated
against the Government servant was recognised in R.P.Kapur by the
Constitution bench of the Supreme Court. None of the aforesaid
Constitution bench judgments of the Supreme Court in Khem
Chand20, V.P. Gidroniya5, and R.P. Kapur7 were noticed in the latter
two bench judgment of the Supreme Court in Ajay Kumar
Choudhary1.
All subsequent decisions by benches comprised of lesser
number of Judges should be read in the light of the earlier
Constitution Bench decisions. (N. Meera Rani v. Govt. of T.N. ).
In cases where a High Court finds any conflict between the views
expressed by larger and smaller benches of the Supreme Court, it
cannot disregard or skirt the views expressed by the larger benches.
The proper course for a High Court, in such a case, is to try to find
out and follow the opinion expressed by larger benches of the
Supreme Court in preference to those expressed by smaller benches
of the Court which practice, hardened as it has into a rule of law, is
followed by the Supreme Court itself. (State of U.P. v. Ram Chandra
Trivedi ; Union of India v. K.S. Subramanian ). The legal
position is that, in the hierarchical set up of Courts, the High Court
is bound by the decisions of the Supreme Court. However, when a
smaller bench of the Supreme Court lays down a proposition contrary
to and without noticing the ratio decidendi of the earlier larger
Benches, such a decision will not become the law declared by the
Supreme Court so as to have a binding effect under Article 141 of the
Constitution on all the Courts within the country. (Sakinala
Harinath v. State of A.P. ). Judicial discipline requires that the
opinion expressed by larger benches of the Supreme Court, in
preference to those expressed by smaller benches of the Supreme
Court, should be followed. (K.S. Subramanian36; O.Ramachandra
Reddi v. The Director, DRDL, Hyderabad ).
In Ashok Kumar Aggarwal2 the Supreme Court held:-
.The scope of interference by the Court with the order of suspension
has been examined by the Court in a large number of cases, particularly in
State of M.P. v. Shardul Singh21, P.V. Srinivasa Sastry v. Comptroller &
Auditor General22, ESI v. T. Abdul Razak23, Kusheshwar Dubey v. Bharat
Coking Coal Ltd.24, Delhi Cloth & General Mills Ltd. v. Kushal Bhan25, U.P.
Rajya Krishi Utpadan Mandi Parishad v. Sanjiv Rajan26, State of Rajasthan
v. B.K. Meena27, Prohibition and Excise Deptt. v. L. Srinivasan28 and
Allahabad Bank v. Deepak Kumar Bhola29, wherein it has been observed
that even if a criminal trial or enquiry takes a long time, it is ordinarily not
open to the court to interfere in case of suspension as it is in the exclusive
domain of the competent authority who can always review its order of
suspension being an inherent power conferred upon them by the provisions of
Article 21 of the General Clauses Act, 1897 and while exercising such a
power, the authority can consider the case of an employee for revoking the
suspension order, if satisfied that the criminal case pending would be
concluded after an unusual delay for no fault of the employee concerned.
Where the charges are baseless, mala fide or vindictive and are framed only to
keep
the delinquent employee out of job, 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. In case the court comes to the conclusion that the
authority is not proceeding expeditiously as it ought to have been and it
results in
prolongation of sufferings for the delinquent employee, the court may issue
directions. The court may, in case the authority fails to furnish proper
explanation for delay in conclusion of the enquiry, direct to complete the
enquiry within a stipulated period. However, mere delay in conclusion of
enquiry or trial cannot be a ground for quashing the suspension order, if the
charges are grave in nature. But, whether the employee should or should not
continue in his office during the period of enquiry is a matter to be assessed
by the
disciplinary authority concerned and ordinarily the court should not interfere
with
the orders of suspension unless they are passed in mala fide and without there
being even a prima facie evidence on record connecting the employee with the
misconduct in question. . (emphasis
supplied)
In Sanjiv Rajan21 the respondent was suspended on May 3rd
1991. As the Learned Single Judge of the Allahabad High Court had
revoked the order of suspension, which order was affirmed by the
Division Bench, the appellant invoked the jurisdiction of the Supreme
Court. It is in this context that the Supreme Court, in its order dated
29.03.1993, observed:
..In matters of this kind, it is advisable that the concerned
employees are kept out of mischiefs range. If they are exonerated, they
would be entitled to all their benefits from the date of the order of
suspension. Whether the employees should or should not continue in their
office during the period of inquiry is a matter to be assessed by the authority
concerned and ordinarily, the Court should not interfere with the orders of
suspension unless they are passed mala fide and without there being even a
prima facie evidence on record connecting the employees with the
misconduct in question. In the present case, before the preliminary report was
received, the Director was impressed by the first respondent-employees
representation. However after the report, it was noticed that the employee could
not
be innocent. Since this is the conclusion arrived at by the management on the
basis of the material in their possession, no conclusions to the contrary could
be drawn by the Court at the interlocutory stage and without going through
the entire evidence on record. In the circumstances, there was no
justification for the High Court to revoke the order of suspension
In L. Srinivasan30 the respondent, while working as Assistant
Section Officer, Home, Prohibition and Excise Department, was
placed under suspension. Departmental inquiry was in process.
Charge-sheet was laid for prosecution and the trial of the case was
pending. The Tamil Nadu Administrative Tribunal set aside the
departmental enquiry and quashed the suspension and the charge-
sheet on the ground of delay in initiation of disciplinary proceedings.
It is in this context that the Supreme Court held:-
.. In the nature of the charges, it would take a long time to detect
embezzlement and fabrication of false records which should be done in
secrecy. It is not necessary to go into the merits and record any finding on the
charge levelled against the charged officer since any finding recorded by this
Court
would gravely prejudice the case of the parties at the enquiry and also at the
trial.
Therefore, we desist from expressing any opinion on merit or recording any of
the
contentions raised by the counsel on either side. Suffice it to state that the
Administrative Tribunal has committed grossest error in its exercise of the
judicial review. The member of the Administrative Tribunal appears to have
no knowledge of the jurisprudence of the service law and exercised power as if
he is an appellate forum dehors the limitation of judicial review. This is one
such instance where a member had exceeded his power of judicial review in
quashing the suspension order and charges even at the threshold. We are
coming across such orders frequently putting heavy pressure on this Court to
examine each case in detail. It is high time that it is remedied
(emphasis supplied)
In Deepak Kumar Bhola31, the Supreme Court observed:-
We are unable to agree with the contention of the learned counsel for
the respondent that there has been no application of mind or the objective
consideration of the facts by the appellant before it passed the orders of
suspension. As already observed, the very fact that the investigation was
conducted
by the CBI which resulted in the filing of a charge-sheet, alleging various
offences
having been committed by the respondent, was sufficient for the appellant to
conclude that pending prosecution the respondent should be suspended. It would
be indeed inconceivable that a bank should allow an employee to continue to
remain on duty when he is facing serious charges of corruption and
misappropriation of money. Allowing such an employee to remain in the seat
would result in giving him further opportunity to indulge in the acts for which
he was being prosecuted. Under the circumstances, it was the bounden duty of
the appellant to have taken recourse to the provisions of clause 19.3 of the
First
Bipartite Settlement, 1966. The mere fact that nearly 10 years have elapsed
since the charge-sheet was filed, can also be no ground for allowing the
respondent to come back to duty on a sensitive post in the Bank, unless he is
exonerated of the charge. (emphasis supplied)
The attention of the Supreme Court in Ajay Kumar
Choudhary1, was not drawn to its earlier judgments in Ashok
Kumar Aggarwal2; Sanjiv Rajan21; L. Srinivasan30; and Deepak
Kumar Bhola31, wherein it was held that mere delay in conclusion of
disciplinary proceedings or criminal cases or long period of
suspension would not render the order of suspension invalid.
This Court may not, therefore, be justified in quashing the
order of suspension following the judgment of the Supreme Court in
Ajay Kumar Choudhary1, as that would require it to ignore the
Constitution bench judgments of the Supreme Court in Khem
Chand20, R.P. Kapur7 and V.P. Girdroniya5; as also the other
judgments of the Supreme Court in Ashok Kumar Aggarwal2; Sanjiv
Rajan21; L. Srinivasan30; and Deepak Kumar Bhola31. The order of
the Tribunal does not, therefore, necessitate interference.
However, as it was decided in the review meeting held by the
Government on 26.02.2015 that the suspension would be reviewed
after 3 months i.e after 26.05.2015, the respondents are directed to
review the order of suspension and communicate their decision to the
petitioner at the earliest, in any event not later than one month from
the date of receipt of a copy of this order. Subject to the aforesaid
directions, the Writ Petition fails and is, accordingly, dismissed.
However, in the circumstances, without costs. Miscellaneous
Petitions, if any pending, shall also stand dismissed.
______________________________
RAMESH RANGANATHAN, J.
___________________________________
M.SATYANARAYANA MURTHY, J.
Date: 01.06.2015.
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.