Rajasthan High Court - Jaipur
Satya Prakash Trivedi vs R.S.E.B. And Ors. on 19 August, 1997
Equivalent citations: 1998(2)WLC364, 1997(2)WLN370
Author: V.G. Palshikar
Bench: V.G. Palshikar
JUDGMENT V.G. Palshikar, J.
1. By this petition, the petitioner has challenged the order dated 18th June, 97 passed by the Chairman of the Board suspending the petitioner from service as Junior Engineer in view of contemplated disciplinary proceedings. It is alleged that the order of suspension is unwarranted arbitrary and, therefore, unsustainable in law. Several grounds have been given in support of the challenge as made in this petition.
2. An extensive reply is filed by the Board defending the action of suspension and claiming that the order of suspension is not arbitrary or unwarranted or unjustified. Taking a very strong objection for interference with such order of suspension, Shri L.M. Lodha, learned Counsel for the respondent, Board pointed out to me several decisions of the Supreme Court of India and submitted that this Court should not exercise its discretionary jurisdiction in the present case of suspension. He placed heavy reliance on a judgment reported in AIR 1994 SC page 2296 and submitted that the Supreme Court of India having noticed the various cases decided by the Supreme Court has now rendered this judgment which settles the positions in law and it is now declared to be the law of the land by the Supreme Court of India that normally they should not be interfered in the matter of suspension orders. He, therefore, claimed that the petition should be dismissed.
3. Refuting this objection of maintainability of the petition or exercise of jurisdiction by this Court, the learned Counsel for the petitioner relied upon another judgment of the Supreme Court reported in 1995 Supreme Court Cases (L&S) 231 R.C. Sood v. High Court of Rajasthan. According to the learned Counsel, the Supreme Court has in this decision laid down that if even a prima facie case of misconduct is not made order of suspension becomes artibrary and is liable to be quashed. According to the learned Counsel in the present case also, the circumstances as alleged by the petitioner and not disputed by the respondents do not make out any case warrating suspension of the petitioner. There cannot be any dispute regarding the general proposition of law that normally the power of suspension of an employee in contemplation of a departmental proceeding is the purgative (sic) of the employer, exercise of which should not normally be interfered with as has been contended by Shri L.M. Lodha. In the decision reported in AIR 1994 SC 2296, the Supreme Court has succinctly pointed out the circumstances in which and the manner in which an order of suspension could not be passed and should be passed. It will be worthwhile to note the observations of the Supreme Court in this regard in extenso;
Normally when an appointing authority or 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 way of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to retrain 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 enquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the enquiry 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 enquiry etc. 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 enquiry or contemplated enquiry or 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 enquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental enquiry or trial of a criminal charge.
4. Their Lordships of the Supreme Court while so observing noted several decisions on the issue and then their Lordships proceeded to decide in para 13 as under:
13. On the facts in this case, we are of the considered view that since serious allegations of misconduct have been alleged against the respondent, the Tribunal was quite unjustified in interfering with the orders of suspension of the respondent pending enquiry. The Tribunal appears to have proceeded in haste in passing the impugned orders event before the ink is dried on the orders passed by the appointing authority. The contention of the respondent, therefore, that the discretion exercised by the Tribunal should not be interfered with and this Court would be loath to interfere with the exercise of such discretionary power cannot be given acceptance.
5. This decision is by two Judges Bench of the Supreme Court of India reported in AIR 1994 SC 2296.
6. The other judgment on which reliance is placed by the learned Counsel for the petitioner is reported in 1995 Supreme Court Gases (L&S) 231, where the Supreme Court quashed the order of suspension observing that the entire record on the basis of which the suspension order could be made did not disclose any material requiring suspension. The Supreme Court has chosen in this case to quash not only the order of suspension but also the disciplinary proceedings ordered against the delinquent officer by the employer which happens to be this Court. The suspension order was issued after a decision was reached by the Disciplinary Authority that regular enquiries should be made in the matter in accordance with the Rules against the delinquent officer as the Committee was prima facie of the view that the delinquent officer is responsible for manipulation of the record and hence, it was resolved that departmental enquiry under the relevant Rules be initiated against the delinquent officer pending which, he be placed under suspension. The Supreme Court after scrutinising the record of the case, came to the conclusion that the action of suspension was wholly arbitrary unwarranted and, therefore, violative of Article 16. From this observation of the Supreme Court in the case of Shri R.C. Sood, it appears that where the order of suspension is wholly arbitrary and unwarranted, it is violative of Article 14 and 16 of the Constitution and must be struck down, such conclusion appears to be reached by the Supreme Court. I have gathered this conclusion from the observation in para 13 which reads as under:
13. On a careful examination of the entire record placed before us by the learned Additional Solicitor General, we have no doubt that the view taken by the High Court and the consequent action against the petitioner, to say the least, is wholly arbitrary, unwarranted and violative of Articles 14 and 16 of the Constitution. It is unsustainable and must be struck down.
7. It will thus be seen that the Supreme Court has scrutinised the record and found that even commencement of the enquiry against Shri R.C. Sood was incorrect.
8. On perusal of both the judgments referred to above. I am of the view that it is well within the jurisdiction of this Court under Article 226 of the Constitution to examine in a given situation as an exceptional case the order of suspension by scrutinising the record to see the order is wholly arbitrary and unwarranted. It would in my opinion be necessary to examine the averments made in this petition and the replies in light of the two decisions of the Supreme Court, I, therefore, propose to proceed and analyse the facts as averred in the pleadings of the parties to examine as to whether the order of suspension is wholly arbitrary and unwarranted and, therefore, violative of Article 14 and 16 of the Constitution of India, if it is so, according to the Supreme Court of India in Shri R.C. Sood's case, it must be struck down.
9. The petitioner has averred in this petition that the disciplinary proceedings are commenced against him without application of mind, and without establishing any prima facie case for suspension. It is alleged in the petition that some electric poles were lying in village Hiyandesar for last more than 10 years for the purposes of electrifying the village as per Rural Development Plan of the Board. It is an admitted position that the poles were lying in the village for several years. According to the respondent, Board, it was during the working of the petitioner as Junior Engineer at Nokha that action of illegal erection of these poles was taken by the villagers that the poles were illegally and unauthorisedly raised by the villagers is an undisputed fact and according to the Board, the petitioner's conduct in not preventing the illegal erection of poles was a misconduct resulting in some loss of property to the Board. The petitioner has filed as annexures several documents showing that this was factual position and. the respondents have filed four documents to support the order of suspension. All the four documents filed by respondent, Board pertain to unauthorise erection of poles in village Hiyandesar. In Annexures R/3, the Assistant Engineer who made the report to the Executive Engineer on 4.6.96 has observed thus:
The statement of the villagers in which they are accepted that the poles erected by themselves is not right because the poles were there from 1990 and the villagers have erected the poles after six years. Also the manner in which the poles are erected certifies that the poles are erected under the direction of skilled technical person. However, the villagers are not ready to give in writing but it seems that JEN Shri S.P. Trivedi and Helper Shri Sharvan Singh Rajpurohit both are indirectly involved in this matter.
10. Annexures R/l is the document which is a complaint by one Ram Chandra informing the Chairman of the Board of erection of the poles illegally and unauthorisedly on 24.3.96, this letter also alleges involvement of the petitioner. It however, establishes the facts that the poles were erected by the villagers. Annexure R/2 is the letter by the Superintending Engineer to the Personal Secretary to the Chairman of the Board, wherein it has been observed that after receiving the complaint on 25.3.96, investigations were made and first information report was sought to be lodged and it is then observe that:
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11. The letter then says that in spite of complaint to the Superintendent of Police, no further action is taken. Thus, the allegation in the petition and the reply make out a pleading involving around illegal and unauthorised erection of poles at village Hiyandesar in which involvement of the petitioner is alleged.
12. The petitioner has thereafter, filed a rejoinder and refuted allegation made in reply. This rejoinder also attacks the averments in reply which pertains to the illegal erection of poles. Neither the reply nor the rejoinder of the petitioner, therefore, disclose any other cause for suspension of the petitioner.
13. Today, the Board has filed a reply to the rejoinder of the petitioner. The normal procedure of pleadings does not permit such reply. However, I accepted the same and taken on record. This reply of about 25 pages makes out entirely different case and in support of cause for suspension, several misconducts allegedly committed by the petitioner apart from the illegal erection of the poles are cited and it is contended by sur-rejoinder that the order of suspension was issued after taking into consideration this material copies of which are annexed of sur-rejoinder. It is pertinent to note that all these documents were available to the Board at the time when the reply was filed. No mention was made of this document in the reply, no mention was made of any misconduct on which appeals to have been committed by the petitioner. It is today for the first time that the Board has come with the case. The petitioner has prima facie committed several misconducts for enquire into which his suspension is necessary. In effect, several documents have now been placed before me for holding that the suspension was justified when none of those documents formed part of reasoning for the Board to issue the order of suspension. Had it been so this document would find place in the reply itself. The entire sur-rejoinder is, therefore, after thought that attacks me to the question as to whether suspension of the petitioner for the enquiry of illegal erection of poles at a village by the villagers requires suspension of the petitioner. The 14 documents filed with the sur-rejoinder are independent of the misconduct rightly committed of the poles from the original reply as filed by the respondents and the averments made in the petition. It is obvious that the petitioner and the Board contested this case on the basis of the issue of illegal erection of poles only. I, therefore, think that the documents filed along with the sur-rejoinder were not responsible for coming to the conclusion that the suspension is necessary.
14. A careful scrutiny of the entire case will disclose that the facts leading to the alleged misconduct of the illegal erection of the poles are admitted. There is no where any averment in the reply that petitioner would, if not suspend, interfere with the enquiry. In fact no enquiry remains to be done in view of the admitted position. In such circumstances, there is no reason why the petitioner should be suspended.
15. The authority to suspend a Junior Engineer is vested in the Superintending Engineer. Normally the Superintending Engineer under whom, the petitioner was functioning is expected to issue the order of suspension. However, in this case, the order of suspension has been issued by the Chairman of the Board himself. The order does not give any reason why the suspension is resorted. The Supreme Court has pointed out in the case of Shri R.C. Sood as under:
Acting on the said Resolution of the Full Court, the learned Chief Justice directed on 22.10.1994 that the petitioner even asked about this matter, even though he was available in Jaipur itself, being posted there as District Judge. This is how the impugned action has been taken.
16. In this case also, the petitioner was not even asked about the other misconducts as disclosed by the sur-rejoinder and that is how impugned action of the suspension is sought to be supported.
17. On the facts I am considering the allegations on the basis of which the misconduct is alleged require no further investigation. There is no averment that the petitioner is likely to interfere with the enquiry in any manner in reply or the sur- rejoinder and, therefore, in my opinion, the action of suspension is without application of mind and, therefore, wholly arbitrary and justifiable, it is unwarranted. There is no reason why the petitioner should be suspended when all the facts which according to the Board give rise to the misconduct are admitted. In such circumstances, the order of suspension appears to be a mechanical exercise of power deprecated by the Supreme Court of India in AIR 1994 SC 2296. It is obvious that an order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be enquired into and the nature of evidence placed before the authority. In the present case, no loss is caused to the Board. The poles belonging to the Board are very much in existence, the only thing that has been done is that they were lying around in the village and they now stand erected. No financial loss is, caused or even alleged to the Board if any irregularity impugning the misconduct has taken place, facts leading to it has been undisputed, therefore, there is no question of any further enquiry for the conduct of which the petitioner may be an impediment to require his suspension. Therefore, I am of the view that the suspension is wholly unwarranted arbitrary and, therefore, must be struck down as held by the Supreme Court in Shri R.C. Sood's case in para 13.
18. In the result, the petition succeeds and is allowed. The order of suspension dt. 18.6.97 is struck down as wholly arbitrary and violative of Articles 14 and 16 of the Constitution of India. The respondent, Board shall pay the cost of Rs. 750/- to the petitioner.