Central Administrative Tribunal - Bangalore
T.N. Mahaswamy vs Union Of India (Uoi) And Ors. on 26 February, 2003
Equivalent citations: 2003(3)SLJ323(CAT)
ORDER Mukesh Kumar Gupta, Member (J)
1. The applicant who had been working as Divisional Engineer on local officiating basis in Karwar Telecom Circle and reverted to substantive post of Sub Divisional Engineer and on the same day placed under suspension pending contemplation of disciplinary enquiry, has filed the present O.A. under Section 19 of the Administrative Tribunals Act, 1985, and prayed for the following reliefs:
"8. Reliefs sought In view of the facts mentioned in paragraph 4 above, the applicant prays for the following relief:
Pleased to call for records and proceeds relating to the case on hand maintained at the level of R-4, R-5 and R~6 and peruses the same Further,
(a) Quash the order-bearing No. STAFF/3-11/Offtng./2002 dated 22.8.2002, Ann-A10 passed by R-4 authority and order bearing No. X.3/GENL/2002-03/IV/3 dated 22.8.2002, Annexurc A-11 passed by Respondent No. 6 herein after holding the same as excessive acts of the authorities concerned in the facts and circumstances of the present case.
(b) Direct the respondents to restore the applicant to his position without any loss of monetary benefits as a consequence of quashing of impugned orders Ann-A-10 and A-11.
(c) Any other order or direction that this hon'ble tribunal may deem it fit and necessary and in the interest of justice and equity."
2. The aforesaid application was admitted by this Tribunal vide order dated 10.1.2003. Subsequently vide order dated 30.1.2003, the respondents were permitted to consider and take decision regarding revocation of the suspension order dated 22.8.2002 (Annexure A-11). Vide memorandum dated 11.2.2003, it has been brought on record that the said suspension order dated 22.8.2002 has now been revoked by the General Manager, Telecom, BSNL, Karwar, i.e., R-6, vide order dated 4.2.2003 with immediate effect.
3. The facts as stated in the O.A. are that while working as Divisional Engineer, Maintenance, Kumta, which covers three revenue taluks, the applicant was enquired about some alleged irregularities and certain allegations. One Santeguli Telephone Exchange coming within the maintenance Division of Kumta, which had been under the control of one N. A.M. Shaik, SDE, Telecom, Kumta, was inspected by the applicant on 30.7.2002 and he submitted his inspection report. In the said inspection carried on 30.7.2002, the applicant came to know about certain irregularities and immediately on 10.8.2002 he sent a communication to SDE, Telecom, Kumta, to set right the irregularities pointed out therein. It is also came the applicant's notice that on 24th and 25th July 2002 two calls were allowed to be made by the miscreants from the said exchange to Saudi Arabia with the connivance of exchange staff and thereby it caused a revenue loss of about Rs. 4,000 too. From the records it appears that the SDOT Kumta, filed a police complaint before the Town Police, Kumta, vide FIR dated 22.8.2000 (Annexure A-7 and A-8). The applicant was reverted vide office order dated 22.8.2000 (Annexure A-10) to his substantive post of SDE, Vide separate order of the same date, the applicant in exercise of the power conferred by sub-rule 1 of Rule 10 of CCS (CCA) Rules, was placed under suspension with immediate effect on the ground of contemplated disciplinary proceeding. A representation dated 27.8.2000 (Annexurc A-5) followed by reminder dated 13.9.2000 (Annexure A-16) was made with a request to revoke the said suspension order was made. The applicant has raised number of grounds in challenging these two orders of reversion and suspension respectively including alleged mala fides against respondents No. 5 and 6. In respect of the reversion order it has been stated that the said order dated 22.8.2000 is a punitive, non-speaking order and violates the principles of natural justice. Besides the said order is an act of high handedness on the part of the authority concerned, and is in clear violation of Articles 14 and 16 of the Constitution of India. Regarding Annexure A-11 i.e., the suspension order it has been urged that the said impugned action also is an act of high handedness on the part of the authorities concerned and it has a nexus of self prejudices of all concerned against the applicant and is outcome of whimsical attitude of R-5; that the exercise of the power b the authorities leading to the passing of impugned order of reversion is excessive, not commensurate with the incident in question; the impugned actions are baseless, without any justification and accordingly liable to be set aside that his representations have not been entertained; that keeping the subordinate officer under suspension is required to be exercise bona fide which principle has been violated in the present case.
4. The respondent Nos. 1 to 4 have filed their detailed reply and opposed the claim laid by the applicant. Similarly respondents 5 and 6 by their separate reply affidavit have denied the allegations of mala fide made against them. R-1 to 4 have stated that based on preliminary report from General Manager, Telecom, Karwar, during August 2002 regarding creation of illegal trunk telephone routes and thereby permitting free STD/ISD calls at Santeguli Exchange, Kumta, it has been observed that there had been a serious negligence and dereliction of duty on the part of the applicant and there existed a prima facie case against the applicant which needs to be investigated; that the applicant has no legal or vested right to hold the post of D.E. in the given circumstances. Since the matter is under investigation and disciplinary proceedings were contemplated, continuance of the applicant was likely to prejudice the further investigation and tampering to the evidence by the applicant had been apprehended; that the suspension order was issued by the competent authority taking into consideration the seriousness of the case; plea of innocence on the part of the applicant cannot be accepted at this stage; that the public interest which is the guiding factor in deciding to place the government servant under suspension had been given its due weightage and importance before passing the impugned orders. It has also been pointed out that since the police investigation is still going on it would not by justified to make a comment on the allegations of dereliction of duty, loss of revenue, involvement of anti national element as suspected. The respondents have taken a serious objection about the maintainability of the present O.A. It is urged that the reversion order as well as suspension order are two different, distinct and separate cause of action and they cannot be agitated in one O.A. Our attention has been invited to Rule 10 of the CAT (Procedure) Rules, 1987 according to which an application shall be based upon a single cause of action and may seek one or more reliefs provided they are consequential to one another.
5. No rejoinder has been filed by the applicant and as such the contentions raised by the respondents remain unrebutted except what has been orally argued.
6. The first question which arises for our consideration is as to whether the order of reversion as well as the order of suspension passed on the same day i.e., 22.8.2002 is based upon single or separate cause of action and whether the same are consequential to one another? As per Rule 10 of CAT (Procedure) Rules, 1987, an application shall be based upon a single cause of action and may seek one or more reliefs provided they are consequential to one another. As such if the answer to aforesaid question is that the reversion as well as suspension are two different causes of action, then the present O.A., would not be maintainable and hit by Rule 10 of aforesaid Rules. We have carefully perused the said reversion as well as suspension orders which have been passed by two different authorities i.e., while the reversion order was passed by the Office of Chief General Manager, Telecom, Karnataka Circle, Bangalore the suspension order was passed by the General Manager, Telecom, BSNL, Kanwar i.e., R-6. Admittedly the reversion order preceded the suspension order, though the same was passed on the same very day when the suspension order was so issued. By the reversion order the applicant who had been officiating as Division Engineer (Maintenance), Kumta, Karwar T.D. was reverted to his substantive post and posted as Sub-Divisional Engineer, Honnawar, Karwar T.D. The suspension order dated 22.8.2002 passed by R-6 has been issued in contemplation of disciplinary proceedings. The said suspension order mentioned the applicant as 'SDE.' As such it is crystal clear that the reversion order which preceded suspension order, are two different causes of action and could not be assailed in one O. A. particularly in view of the mandate of Rule 10 of Procedure Rules.
7. Though on this technical aspect we could have restricted our consideration about the legality of the either said reversion order or suspension order dated 22.8.2002. Since the said suspension order dated 22.8.2002 has been revoked vide order dated 4.2.2003, we deem it fit in the interest of justice keeping in view of the peculiar facts as mentioned herein above to consider the legality of the said both orders.
8. Learned Counsel for the applicant made a specific request to peruse the records which led to the passing of the said reversion as well as suspension orders. Acceding to the said request we directed the respondents to produce before us the records maintained in the office of the respondents whereby the applicant was reverted as well as suspended. We have carefully perused those original records produced before us. The basic contention raised by the learned Counsel for the applicant is that the said reversion order is punitive, though on the face of it, it is simplicitor and does not contain any allegation. It has been urged that the reversion as well suspension orders are intrinsically connected with each other particularly when they are based on the alleged incident. It has been further urged that from the perusal of charge-memo dated 17.1.2003 issued under Rule 16 of CCS (CCA) Rules, it would be evident that the reasons which were made the basis for placing the applicant under suspension had also influenced the mind of the authorities to revert the applicant. We have perused the said memorandum dated 17.1.2003 and find that the same contains allegations of failure on the part of the applicant to get the illegal telephone calls thoroughly investigated and to avoid recurrence of the same under his jurisdiction. We need not to go into the merits of the said memorandum dated 17.1.2003 as it is per the subject matter of the present O.A. Suffice would be to say that in view of the fact that this memorandum under Rule 16 is subsequent event, we cannot read these facts alongwith the order of suspension as well as reversion dated 22.8.2002. It has been strenuously contended that the reversion order is punitive in nature.
9. The issue as to whether reversion of one of the several officers from officiating post to substantive post amounts to reduction in rank had been considered by the Hon'ble Supreme Court in AIR 1974 SC 423-1974 SLJ 474, State of U.P. v. Sughar Singh. In the said case the respondent therein who had been a Head Constable in U.P. Police Force was deputed for training as a Cadet Sub Inspector at Army Police Training Centre and later on appointed as officiating Platoon Commander, was issued a show cause notice as to why an adverse entry should not be entered into his character roll. The explanation submitted by the said official was not found to be accepted and an adverse entry was actually made in his character roll. Later on the respondent therein was reverted from the post of Officiating Sub Inspector to his substantive post of Head Constable which order was challenged before the High Court of Allahabad. After considering the test laid down by the Hon'ble Supreme Court in Parshotam Lal Dingra v. Union of India, AIR 1958 SC 36, it was stated that reduction in rank must be a punishment if it carries penal consequences with it and two tests to be complied are (i) whether the servant has a right to the post or the rank and (ii) whether evil consequences such as forfeiture of pay and allowances, loss of seniority in his substantive rank, stoppage or postponement of future chances of promotion follow as a result of the order. After analysing the case law under Article 311 as well as the test of reversion in para 13 it was held that:
"Even a reversion from a higher but temporary or officiating rank to a lower substantive rank is in a sense reduction. But such orders of reversion are not always reduction in rank within the meaning of Article 311. If the officer is promoted substantially to a higher post or rank he gets a right to that particular post or rank and if he is afterwards reverted to the lower post or rank which he held before, it is a reduction in rank' in the technical sense in which the expression is used in Article 311. The real test, in all such cases is to ascertain if the officer concerned has a right to the post from which he is reverted. If he has a right to the post then a reversion is a punishment and cannot be ordered except in compliance with the provisions of Article 311. If on the other hand the officer concerned has no right to the post, he can be reverted without attracting the provisions of Article 311."
(Emphasis supplied).
The said judgment of Sughar Singh has been followed in a recent judgment in (2000) 5 SCC 152=2000(3) SLJ 312 (SC), Chandra Prakash Shahi v. State of U.P. and Ors. Though the Chandra Prakash Shahi was a probationer who was terminated in terms of Rule 3 of U.P. Temporary Government Servants (Termination of Service) Rules, 1975, and the said case the difference between the 'motive' as well as foundation was also considered in detail. In para 28 of the said judgment it was held that:
"The important principles which are deducible on the concept of 'motive' and 'foundation,' concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an inquiry is held and it is on the basis of that inquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an inquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that inquiry, the order would be punitive in nature as the inquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of 'motive'.
After stating as above, the Hon'ble Curt further explained that the 'motive' is the moving power which impels action for a definite result or to put it differently, motive is that which incites or stimulates a person to do an act. Following the aforesaid test laid down by the Hon'ble Supreme Court if we have regard to the facts of the present case it would be seen that the applicant was officiating as Divisional Engineer, Maintenance, and was not promoted on regular basis based on recommendations of departmental promotion committee. Merely because he had been officiating in the said post for about three years, it cannot be said that he had a right to the post of Divisional Engineer. Moreover no such contention was raised. If that is so, then in our considered opinion, the applicant had no right to hold the post of Divisional Engineer and, therefore, his reversion is neither punitive nor it amounts to reduction in rank within the meaning of Article 311 of the Constitution of India. As observed hereinabove, the reversion order dated 22.8.2002 is simpliciter in nature, it casts no stigma.
10. In AIR 1981 SC 957=1981(1) SLJ212(SC), Union of India v. P.S. Bhat : it has been held that if any order terminating the service of a probationer be an order of termination simpliciter without attaching any stigma to an employee and if the said order is not an order by way of punishment, there will be no question of provisions of Article 311 being attracted." In para 10 of the said judgment it has been observed that even if the conduct of the respondent in indulging in loose talks and filthy and abusive language may be considered as the motive or the inducing factor which influenced the authorities to pass the impugned order, the said order cannot be said to be by way of punishment. In our considered view the test laid down in the aforementioned cases are squarely applicable to the facts of the present case and, therefore, we have no hesitation in concluding that the reversion order dated 22.8.2002 (Annexure A-10) is not a punitive.
11. The next question which arises for our consideration is as to whether the suspension order dated 22.8.2002 is just, legal and based on material facts. It is contended by the learned Counsel for the applicant that the said order is an excessive act and perpetuated to the previous order of reversion; that the said order is the high handedness on the part of the authorities; that no self contained material has been incorporated in the said order; the said order of suspension has been passed without affording any opportunity; that this suspension has resulted into serious prejudice to the applicant as he has been denied the regular promotion in the cadre of Divisional Engineer. It is further urged that the alleged incident for which the applicant has placed under suspension does not connect the applicant in any manner and he has not been charged for any offence before the criminal Court. In support of the contention raised by the applicant a reliance has been placed on 1994(4) SCC 126=1994(2) SLJ 72 (SC), Staff of Orissa v. Bimal Kumar Mohanty, particularly para 13 wherein it has been observed that the suspension order should be passed after 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. The said suspension order should not be passed as an administrative routine or technical order to suspend an employee. We have carefully perused the said judgment. It would be interesting to note that the respondents have also heavily relied upon the said judgment in support of their contention that there had been no illegality or arbitrariness in passing the suspension order dated 22.8.2002. It is well settled that suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of the office or post held by him. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental inquiry or trial of a criminal charge.
12. It is admitted fact that there had been serious allegations against the applicant which required to be investigated and the matter was pending investigation with the police. During the pendency of present applicant, the police has conducted the investigation and it appears that it found no criminal offence against the applicant. The learned Counsel for the respondents has argued that the authorities found it prudent to revoke the suspension order dated 22.8.2002 and thereby issued a memorandum under Rule 16 on 17.1.2003. It has further been urged that there had been a prima facie case against the applicant which called for the suspension of the applicant. A serious allegation about the dereliction of duty and loss of government revenue is under scrutiny and as such the competent authority after taking into consideration all the facts and circumstances was justified in passing the order dated 22.8.2002. The said suspension order passed in public interest, based on material and did not cast any stigma. Learned Counsel for the respondents also cited (1996) 3 SCC 357 Secretary to Government, Prohibition and Excise Department v. L. Srinivasan, wherein in the nature of charges merely it would take a long time to detect embezzlement and fabrication of records which should be done in secrecy, the order of the Tamil Nadu Administrative Tribunal quashing the suspension as well as the charge was not approved by the Hon' ble Supreme Court. As far as the case of Bimal Kumar Mohanty is concerned the Hon'ble Supreme Court after considering the various Digments including the Constitution Bench in R.P. Kapur v. Union of India, 1964(5) SCR 431; Balvantrai Ratilal Patel v. State of Maharashtra, AIR 1968 SC 800; V.P. Gidroniya v. State of MP, 1970(1) SCC 362 Government of India, Ministry of Home Affairs v. Tarak Nath Ghosh, (1971) 1 SCC 734 and U.P. Rajya Krishi Utpadan Mandi Parishad v. Sanjiv Rajan, 1993 Supp. (3) SCC 483= 1994( 1) SLJ 28 (SC), summarised the law as under :
13. It is thus settled law that normally when an appointing authority as the Disciplinary Authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be 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 the appointing authority and on application of the mind by Disciplinary Authority, Appointing authority or Disciplinary Authority should consider the above aspects 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 could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even 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 the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc. But as stated earlier, 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 investigation. It would be another thing if the action is actuated by mala fides, arbitrary 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 continuance in office while facing departmental inquiry or trial of a criminal charge."
(Emphasis supplied) In our considered opinion the law so crystalised by the Hon'ble Supreme Court in the above mentioned case is squarely applicable to the facts and circumstance of the present case, particularly the serious allegations of misconduct regarding creation of illegal trunk telephone routes, permitting free ISD calls and dereliction of duty has been alleged against the applicant. In these circumstances we do not find any justification to interfere in the legality of the order of suspension dated 22.8.2002 particularly when the said order has already been revoked.
13. In the light of the above, we are of the considered view that the applicant has not made out the case for our interference either with the reversion order or suspension order dated 22.8.2002. Accordingly O.A. is dismissed. No costs.