Calcutta High Court (Appellete Side)
Mr. Vinay Kumar Sinha vs Union Of India & Ors on 19 September, 2013
Author: Dipankar Datta
Bench: Dipankar Datta
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19.09.2013 W.P. 16311(W) of 2013
Mr. Vinay Kumar Sinha
vs.
Union of India & ors.
Mr. Kishore Datta
Mr. Aniruddha Chatterjee
Mr. S. C. Shrivastava
Mr. Pradeep Kumar
Mr. Chandan Kumar Lal
.........for the petitioner.
Mr. Soumya Majumder
Mr. Raj Kumar Basu
Mr. Somnath Roy
......for the respondents 2 - 5.
1) The petitioner is an employee of the Hindustan Copper Limited, a Government of India enterprise (hereafter the company). He is the Chief Manager (Marketing) and posted at Malanjkhand Copper Project, Malanjkhand, District Balaghat in the State of Madhya Pradesh.
2) By an order dated November 3, 2011, the Director (Mining) of the company, being the disciplinary authority of the petitioner placed him under suspension in contemplation of disciplinary proceedings. The order entitled the 2 petitioner to draw subsistence allowance as per Rules 21.1 and 21.2 of the Hindustan Copper Limited (Conduct, Discipline and Appeal) Rules, 1979 (hereafter the CDA Rules). The last paragraph of the order reads as follows:
"IT IS FURTHER, ordered that during the suspension period, Shri V.K. Sinha, Chief Manager (Marketing), HCL shall mark his attendance once daily at the appropriate place and time in HCL/MCP, which will be communicated to him by the DGM/MCP (the Unit Head) and shall not leave the Headquarters, i.e. MCP Unit of HCL, Malanjkhand, Dist: Balaghat (Madhya Pradesh) without obtaining he prior permission of the MCP Unit Head, i.e. DGM/MCP."
3) By a further order dated May 25, 2012, the disciplinary authority of the petitioner issued charge-sheet in connection with disciplinary proceedings (major penalty) that he had contemplated and proposed to conduct (referred to in the order of suspension) under Rule 25 of the CDA Rules.
4) It is not in dispute that the petitioner has been participating in the disciplinary proceedings, but he has not been paid subsistence allowance since the day he was placed under suspension. However, owing to the petitioner's failure to mark 3 attendance daily as was directed by letters dated November 28, 2011 and February 9, 2011 issued by the MCP Unit Head, i.e. DGM/MCP, the disciplinary authority initiated disciplinary proceedings against him once again by issuance of a charge-sheet dated May 8, 2013. Such charge-sheet was forwarded to the petitioner by the Chief Manager (HR & A) of the company by his forwarding letter dated May 17, 2013.
5) In this writ petition, the petitioner has challenged the legality, validity and propriety of the order of suspension dated November 3, 2011 as well as the charge-sheets dated May 25, 2012 and May 8, 2013 (communicated to him by the letter dated May 17, 2013).
6) While praying for orders quashing the same, the petitioner has also prayed for further orders on the company to release arrears of salary as well as subsistence allowance.
7) I have heard Mr. Datta, learned advocate for the petitioner and Mr. Majumdar, learned advocate for the company on the question of admission of the writ petition and grant of interim relief. 4
8) The writ petition raises arguable issues and, therefore, deserves admission. It is admitted.
9) Now, I shall consider whether the petitioner is entitled to any interim relief or not.
10) Elaborate submissions have been made by both the learned advocates regarding the direction contained in the order of suspension dated November 3, 2011 requiring the petitioner to mark his attendance daily and not to leave the headquarters without obtaining the prior permission of the unit head, i.e. DGM/MCP. In support of his contention that the direction is absolutely illegal, Mr. Datta has relied on the decision of the Supreme Court reported in AIR 2002 SC 2959 : Anwarun Nisha Khatoon v. State of Bihar and ors., and a Bench decision of the Orissa High Court reported in (2008) 2 LLJ 800 :
Manoj Kumar Panda v. Orissa Air Products Limited, whereas to support the said direction, Mr. Majumdar has relied on the decision reported in (2003) 8 SCC 458 : State of Punjab and ors. v. Charanjit Singh.5
11) Mr. Datta has also relied on the decisions reported in AIR 1973 SC 1183 : Ghanshyam Das Shrivastava v. State of Madhya Pradesh, and AIR 2000 SC 2806 : Jagdamba Prasad Shukla v.
State of U.P. and ors., to contend that if an employee is not paid subsistence allowance and in a financially distressed condition is forced to participate in a departmental enquiry, it amounts to denial of opportunity to raise defence, which would vitiate the enquiry and no order of punishment based on such enquiry can be sustained.
12) The suspension order passed by the petitioner's disciplinary authority is in the nature of an interim suspension. It was ordered in contemplation of disciplinary proceedings and would be operative till such time the disciplinary proceedings are concluded or is revoked earlier by the disciplinary authority. The question as to whether the direction requiring the petitioner to mark his attendance daily and not to leave the headquarters without permission is legally sustainable has to be answered by looking into 6 the rules framed by the company in this behalf. The CDA Rules, to which my attention has been drawn, does not empower the petitioner's disciplinary authority to impose any such condition of the nature as reflected in the last paragraph of the order of suspension extracted (supra). All that is required for release of subsistence allowance is the satisfaction of the disciplinary authority that the employee is not engaged in any other employment or business or profession or vocation.
13) A complete answer to Mr. Majumdar's contention is found in the decision in Anwarun Nisha Khatoon (supra) and Manoj Kumar Panda (supra).
14) Referring to the decision of the Patna High Court reported in 1995 (2) PLJR 690 : Ganesh Ram v. State of Bihar, the Supreme Court observed that no rule could be shown, which required the suspended employee to mark attendance. It was further observed that the employer could, at the most, ask for a certificate from the suspended employee that he was not 7 engaged in any other employment, business, profession or vocation, and that grant of subsistence allowance could not have been denied on the ground that such a certificate was not given particularly when the employer himself did not ask the suspended employee to give such a certificate.
15) In Manoj Kumar Panda (supra) too, Hon'ble A. K. Ganguly, C.J. (as His Lordship then was), concluded that the respondent company having failed to show that there was any requirement under the rules that a suspended workman has to report for duty every day or to sign the attendance register and to receive direction and communication from it during the period of suspension, the stipulation to that effect in the suspension order was difficult for the Court to sustain.
16) Mr. Majumdar, per contra, has contended that the satisfaction that Rule 21.1 of the CDA Rules contemplated could only be achieved in the manner directed i.e. if the petitioner were asked to mark his attendance daily and not to leave the 8 headquarters without permission. It is an implied power and in exercising such power, the disciplinary authority committed no illegality.
17) The contention appears to be misconceived. Daily marking of attendance at the stipulated hour and not leaving headquarters per se are no guarantee that the suspended employee is not engaged in any other employment or business or profession or vocation. Even after marking attendance at the stipulated hour and even without leaving station, a suspended employee may engage himself in employment or business or profession or vocation. A full-proof solution is hard to find. However, as has been observed in Anwarun Nisha Khatoon (supra), the company at the most could have asked for a certificate from the petitioner that he has not so engaged himself. If indeed such a certificate were given by the petitioner and ultimately it is found to be incorrect on the basis of the materials gathered by the company, it would afford sufficient ground to proceed against him departmentally and to recover any amount that might have been 9 released in his favour on account of subsistence allowance based on suppression or misrepresentation of fact by him. In a case of this nature, where authorities are legion that without any provision in the rules the employer would not be authorized to require a suspended employee to mark attendance daily and not to leave headquarters without permission during the period of suspension, the impugned direction in the order of suspension in the absence of an express authorization appears to be illegal. Unless the CDA Rules empower the disciplinary authority to so direct, I do not see reason as to why the petitioner should be deprived of subsistence allowance only on such ground and face disciplinary proceedings for not having complied with an apparently illegal order.
18) I have failed to comprehend the materiality of the decision in Charanjit Singh (supra) to the facts of the present case. The respondent there was dismissed from service because of unauthorized absence during suspension. While it is true that the order of suspension dated 10 November 24, 1984 stipulated that the respondent should remain present in the police lines and attend all the roll calls and parades and he was further ordered not to leave station without prior permission, there is no reference in the decision to the service rules governing the service conditions of the respondent and, therefore, the order of suspension as such cannot be looked upon as illegal being contrary to the service rules. The decision is not an authority for the proposition urged by Mr. Majumdar and is clearly distinguishable.
19) Accordingly, I hold that the direction contained in the last paragraph of the order of suspension dated November 3, 2011 shall not be given any effect or further effect until further orders. The suspension shall continue until revoked by the disciplinary authority or merges in a penalty, if imposed. Arrears of subsistence allowance shall be released in favour of the petitioner within a month and for the future, as and when the same falls due, if the disciplinary authority does not require production of any 11 certificate by him. Should the disciplinary authority call upon the petitioner to submit certificate(s) that he has never been engaged in any other employment or business or profession or vocation between the day the order of suspension was served on him and this day, as well as once every month for the current period, he shall have to present such certificate(s) if he is desirous of drawing subsistence allowance. On such presentation and not later than fourteen days therefrom, the disciplinary authority shall release subsistence allowance in his favour in terms of Rule 21.1 and the other relevant rules. If contrary evidence is available to the disciplinary authority i.e. the contents of the certificate(s) presented by the petitioner are not correct, he shall be at liberty to withhold release of subsistence allowance but shall be under an obligation to furnish to the petitioner such materials to enable him explain the position.
20) So long the disciplinary authority does not disclose material to the petitioner in support of his version that the petitioner has been engaged 12 in any other employment or business or profession or vocation, the disciplinary proceedings initiated against him vide charge- sheet dated May 8, 2013 shall not proceed further until leave is obtained from this Court.
21) The other contention raised on behalf of the petitioner that the disciplinary proceedings initiated vide charge-sheet dated May 25, 2012 stands vitiated due to non-payment of subsistence allowance has not impressed me. If at all the petitioner was prevented from taking due part in the disciplinary proceedings because of any financial distress arising out of non- payment of subsistence allowance, he ought not to have waited for 18 months from date of issuance of the order of suspension to approach this Court. The disciplinary proceedings initiated by the disciplinary authority vide charge-sheet dated May 25, 2012 shall be taken to its logical conclusion subject to payment of subsistence allowance as directed above.
22) The decisions in Ghanshyam Das
Shrivastava (supra) and Jagdamba Prasad
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Shukla (supra), to my mind, do not come to the rescue of the petitioner at this stage since the disciplinary proceedings are yet to terminate and he has been participating in such proceedings in excess of a few months and direction for payment of subsistence allowance has already been made hereinbefore.
23) Needless to observe, the findings and observations as recorded above are prima facie and without prejudice.
24) The prayer of the petitioner for arrears of salary requires consideration only after the parties complete their affidavits.
25) Let counter-affidavit be filed by 6 (six) weeks; reply thereto, if any, may be filed by 2 (two) weeks thereafter.
26) The writ petition shall be treated as ready for hearing upon expiry of the period fixed above for exchange of affidavits and thereafter the parties shall be at liberty to mention it for hearing before the appropriate bench. 14 Urgent photostat certified copy of this order, if applied for, shall be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.) 15