Madhya Pradesh High Court
Jagdish Rathi vs State Of M.P. Through Department Of ... on 3 June, 2020
Equivalent citations: AIRONLINE 2020 MP 957
Author: S.C.Sharma
Bench: S.C.Sharma
Writ Petition No.7476/2020 1
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
Writ Petition No.7476/2020
Jagdish Rathi v/s The State of Madhya Pradesh & Others
Indore, dated 03.06.2020
Shri Amit Seth, learned counsel for the petitioner.
Shri Amol Shrivastava, learned Government
Advocate for respondent No.1 and 2 / State.
Shri Pushyamitra Bhargava, learned counsel for respondent No.3.
I.A. No.1390/2020 is an application for intervention. Arguments heard, the same stands allowed. I.A. No.1404/2020 is an application for vacating stay. All other I.As. also stand disposed of as the matter is finally disposed of this Court.
The petitioner before this Court has filed this present petition being aggrieved by the order dated 06.05.2020 passed by respondent No.1, by which, the petitioner has been placed under suspension.
The facts of the case reveal that the petitioner, who is Assistant Excise Commissioner, District - Ratlam has approached this Court being aggrieved by order dated 06.05.2020, by which, he has been placed under suspension. The reason assigned in the impugned order of suspension is that the death of four persons has taken place on account of consuming country made liquor (kachchi liquor).
The order of suspension, which is in Hindi, reads as under:-
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(,l-Mh-fjNkfj;k) mi lfpo e/;izns'k 'kklu] okf.kfT;d dj foHkkx In the aforesaid order, it has been mentioned that on account of carelessness on the part of the petitioner during the lockdown period, which has resulted in death of four persons, the petitioner has been placed under suspension. The order of suspension, undoubtedly, is a stigmatic order. Without conducting any enquiry, it has been observed by the State Government that the petitioner was careless in discharge of his duties during the lockdown period.
Learned counsel for the petitioner has vehemently argued before this Court that during the lockdown period, four persons have consumed country made liquor (kachchi liquor) in their house and the petitioner cannot be blamed for the same. The entire staff at Ratlam under the petitioner was sincerely working supporting the administration and was also checking illegal sale and consumption of liquor and the Writ Petition No.7476/2020 3 petitioner has been made a scapegoat.
He has further stated that the order of suspension is stigmatic in nature and suffers from total non-application of mind. The order of suspension does not reveal that any Departmental Enquiry is contemplated against the petitioner.
The petitioner, udisputedly, has been assigned emergent duty vide order dated 15.04.2020 to combat COVID
- 19 pandemic. He has been deputed at quarantine centre as stated in the writ petition and the entire Excise Department has been assigned duty at the quarantine centres. Out of the six vehicles belonging to Excise Department, three vehicles have been acquired by the Collector, Ratlam for COVID - 19 related work and the petitioner and his staff with minimum basic infrastructure are taking all possible steps to keep a check on illegal sell of liquor during the lockdown period right from 25.03.2020.
Learned counsel for the State as well as learned counsel for intervenor has argued before this Court that the intervenor has submitted his joining.
The interim order passed by this Court dated 26.05.2020 reads as under:-
Learned counsel for the petitioner has argued before this Court that the petitioner is working on the post of Excise Commissioner, Distt. Ratlam and by order dated 6/5/2020 he has been placed under suspension as four persons have succumbed to death by consuming country made liquor (Kachachi liquor / raw alcohol). He has stated that there is a complete lock down in the township of Ratlam and no liquor shop is open, however, on account of non-availability of liquor, four persons have succumbed to death by consuming spirit / sanitizer. It has been further argued that on account of death of four persons, the petitioner has been placed under suspension and, therefore, the impugned order deserves to be stayed. He has also argued that there is no remedy of appeal as the order has been Writ Petition No.7476/2020 4 passed in the name of Governor, State of Madhya Pradesh.
On the other hand, learned counsel for the respondent State has vehemently argued before this Court that the petitioner was certainly responsible for sale and purchase of alcohol in the township of Ratlam. It was his duty to supervise and monitor all kinds of sale and purchase of alcohol including spirit and as he has failed to carry out his duties, he has been placed under suspension. It has also been argued that that suspension of the petitioner is not a punishment and whether the petitioner is guilty of the misconduct or not, will be looked into the Departmental Enquiry. He has prayed for dismissal of the Writ Petition.
After hearing learned counsel for the parties at length and perusing the record, this Court is of the considered opinion that learned counsel for the petitioner has been able to make out a prima facie case for grant of interim relief.
Resultantly, operation of the impugned order dated 6/5/2020 (Annexure P/1) shall remain stayed till the next date of hearing. The petitioner shall be permitted to work as Asstt. Commissioner, Excise Distt. Ratlam till the next date of hearing.
Mr. Amit Seth, learned counsel for the petitioner has also expressed his apprehension in obtaining the certified copy of this order, as major portion of the High Court is closed on account of COVID-19. Resultantly, the order passed by this Court and uploaded on the Website of the High Court shall be treated as certified copy of this order for all purposes. The counsel shall later on obtain a certified copy, as and when normal functioning is resumed, either by e- mail or by physical form.
List on 29/06/2020."
This Court, while granting interim order to the petitioner, has directed the petitioner to work as an Assistant Commissioner, Excise District - Ratlam, and therefore, on account of interim order, it is the petitioner, who is entitled to work as an Assistant Commissioner, Excise, District - Ratlam.
In the considered opinion of this Court, the petitioner has been made a scapegoat and for a collective responsibility Writ Petition No.7476/2020 5 of the entire department to ensure that no sell of country made liquor carried out in the State, the petitioner has been placed under suspension. If such actions from the State are permitted then the Principal Secretary of the Excise Department or the Commissioner of the Excise Department, being the head of the department, is equally responsible for the unfortunate incident which taken place at Ratlam. It was not the duty of the petitioner to carry out door to door checking and if four persons are consuming liquor / country liquor in a closed room, the petitioner does not have ways and means to find out what is going on in some house in the township of the Ratlam. The petitioner and the entire staff under the petitioner were very vigilant, they have taken all possible steps to ensure that no such sale takes place and in spite of fact that the petitioner has worked hard day-night during the lockdown, he is being complemented by an order of suspension.
The Hon'ble Supreme Court in the case of Union of India & Another v/s Ashok Kumar Agrawal (Civil Appeal No.9454/2013) decided on 23.11.2013 while dealing with the case of suspension under the Central Civil Services (Classification, Control & Appeal) Rules, 1965 in paragraphs - 7, 8, 9, 10, 11, 13 and 14 has held as under:-
"7. During suspension, relationship of master and servant continues between the employer and the employee. However, the employee is forbidden to perform his official duties. Thus, suspension order does not put an end to the service. Suspension means the action of debarring for the time being from a function or privilege or temporary deprivation of working in the office. In certain cases, suspension may cause stigma even after exoneration in the departmental proceedings or acquittal by the Criminal Court, but it cannot be treated as a punishment even by any stretch of imagination in strict legal sense. (Vide: O.P. Gupta v. Union of India & Ors., AIR 1987 SC 2257; and Capt. Writ Petition No.7476/2020 6 M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr., AIR 1999 SC 1416).
8. In State of Orissa v. Bimal Kumar Mohanty, AIR 1994 SC 2296, this Court observed as under:-
"...... the order of suspension would be passed taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of evidence placed before the appointing authority and on application of the mind by the disciplinary authority. Appointing authority or disciplinary authority should consider ..... and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law should be laid down in that behalf......In other words, it is to refrain him to avail further opportunity to perpetuate the alleged misconduct or to remove the impression among the members of service that dereliction of duty will pay fruits and the offending employee may get away even pending inquiry without any impediment or to provide an opportunity to the delinquent officer to scuttle the inquiry or investigation to win over the other witnesses or the delinquent having had an opportunity in office to impede the progress of the investigation or inquiry etc. It would be another thing if the action is actuated by mala fide, arbitrarily or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The Authority also should keep in mind public interest of the impact of the delinquent's continuation in office while facing departmental inquiry or a trial of a criminal charge." (Emphasis added) (See also: R.P. Kapur v. Union of India & Anr., AIR 1964 SC 787 ; and Balvantrai Ratilal Patel v. State of Maharashtra, AIR 1968 SC 800).
9. The power of suspension should not be exercised in an arbitrary manner and without any reasonable ground or as vindictive misuse of power. Suspension should be made only in a case where there is a strong prima facie case against the delinquent employee and the allegations involving moral turpitude, grave misconduct or indiscipline or refusal to carry out the orders of superior authority are there, or there is a strong prima facie case against him, if proved, would ordinarily result in reduction in rank, removal or Writ Petition No.7476/2020 7 dismissal from service. The authority should also take into account all the 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.
10. In view of the above, the law on the issue can be summarised to the effect that suspension order can be passed by the competent authority considering the gravity of the alleged misconduct i.e. serious act of omission or commission and the nature of evidence available. It cannot be actuated by mala fide, arbitrariness, or for ulterior purpose. Effect on public interest due to the employee's continuation in office is also a relevant and determining factor. The facts of each case have to be taken into consideration as no formula of universal application can be laid down in this regard. However, suspension order should be passed only where there is a strong prima facie case against the delinquent, and if the charges stand proved, would ordinarily warrant imposition of major punishment i.e. removal or dismissal from service, or reduction in rank etc.
11. In Jayrajbhai Jayantibhai Patel v. Anilbhai Nathubhai Patel & Ors., (2006) 8 SCC 200, this Court explained:
"18. Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self-recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. In other words, when a court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decision-making process and not Writ Petition No.7476/2020 8 the decision."
13. There cannot be any doubt that the Rules 1965 are a self contained code and the order of suspension can be examined in the light of the statutory provisions to determine as to whether the suspension order was justified. Undoubtedly, the delinquent cannot be considered to be any better off 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. (Vide: Union of India & Ors. v. Udai Narain, (1998) 5 SCC 535).
14. 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. Sardul Singh, (1970) 1 SCC 108; P.V. Srinivasa Sastry v. Comptroller & Auditor General of India, (1993) 1 SCC 419; Director General, ESI & Anr. v. T. Abdul Razak, AIR 1996 SC 2292; Kusheshwar Dubey v. M/s Bharat Cooking Coal Ltd. & Ors., AIR 1988 SC 2118; Delhi Cloth General Mills vs. Kushan Bhan, AIR 1960 SC 806; U.P. Rajya Krishi Utpadan Mandi Parishad & Ors. v. Sanjeev Rajan, (1993) Supp. (3) SCC 483; State of Rajasthan v. B.K. Meena & Ors., (1996) 6 SCC 417; Secretary to Govt., Prohibition and Excise Department v. L. Srinivasan, (1996) 3 SCC 157; and Allahabad Bank & Anr. v. Deepak Kumar Bhola, (1997) 4 SCC 1, 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, Writ Petition No.7476/2020 9 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 can not 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. 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 aid of disciplinary proceedings so that the delinquent may not gain custody or control of papers or take any advantage of his position. More so, at this stage, it is not desirable that the court may find out as which version is true when there are claims and counter claims on factual issues. The court cannot act as if it an appellate forum de hors the powers of judicial review." In light of the aforesaid judgment, though the order of suspension is not a punishment, but in the present case, the order of suspension has been passed in a stigmatic manner. The order of suspension, as held by the Hon'ble Supreme Court, should be passed only when there is a strong prima facie case against the delinquent employees and if the charges stand proved, would ordinarily warrant imposition of major punishment i.e. removal or dismissal from service or reduction in rank etc. The Hon'ble Supreme Court has also dealt with the scope of interference and in light of the aforesaid judgment, this Court is of the considered opinion that the order of suspension is bad in law.
In the considered opinion of this Court, as the order of suspension is stigmatic in nature, it does not reveal that any Writ Petition No.7476/2020 10 Departmental Enquiry is contemplated and in the order of suspension it has been held that the petitioner was careless in discharging his duties, this Court of the considered opinion that the order suspension deserves to be set aside and is accordingly set aside.
So far as the intervenor is concerned, the respondents / State shall be free to provide appropriate posting order to the intervenor at some other place and shall also be free to pass appropriate order cancelling the transfer order of the intervenor to Ratlam. The State shall be at liberty to take appropriate action in respect of the intervenor.
With the aforesaid, the present Writ Petition stands allowed.
Certified copy, as per rules.
(S.C. SHARMA) JUDGE Ravi Digitally signed by Ravi Prakash Date: 2020.06.04 13:57:16 +05'30'