Central Administrative Tribunal - Bangalore
Shivanand Naikawadi vs Environment And Forest on 4 December, 2024
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O.A No.170/00143/2024/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00143/2024
Order Reserved on: 26.11.2024
Date of Order: 4.12.2024
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE DR. SANJIV KUMAR, MEMBER (A)
Shivanand Naikawadi
Indian Forest Service
S/o.Pundalik
Aged about 42 years
Residing at Byakud Taluk
Raibag District
Belagavi - 591 317 ...Applicant
(By Sr.Counsel Shri.S.Basavaraj along with Advocate Shri
Uday Shankar.M)
Vs.
1. State of Karnataka
By its Chief Secretary
Vidhana Soudha
Dr.Ambedkar Road
Bangalore - 560 001
2. The Under Secretary
Department of Personnel and Administrative Reforms
Vidhana Soudha
Dr.Ambedkar Road
Bangalore - 560 001
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O.A No.170/00143/2024/CAT/BANGALORE
3. The Principal Chief
Conservator of Forests
Head of the Forest Force
Aranya Bhavan, 18th Cross
Malleshwaram
Bangalore - 560 003
4. Additional Principal Chief
Conservator of Forests, Vigilance
Aranya Bhavan, 18th Cross
Malleshwaram
Bangalore - 560 003
5. Sri.Duryodhana Ihole
S/o.Mahalingappa Ihole
Member of Legislative Assembly
Raibag Constituency
Belagavi District ...Respondents
(By Shri M.Rajakumar for R 1 to R4 and Shri.M.F.Hasan Pasha
for R5 (not present))
ORDER
PER: DR. SANJIV KUMAR, MEMBER (A)
This Original Application has been filed under Section 19 of the Administrative Tribunal's Act 1985 seeking the following reliefs:
"(1) Issue Writ of Certiorari to quash the Government Order No.e DPAR 33 SFP 2024, Bangalore, dated 21.2.2024 passed by the second respondent which is produced herewith as Annexure A8 as the same is arbitrary, illegal, malafide and violative of Article 14, 16 and 21 of the Constitution of India apart from being without jurisdiction.
(2) Issue Writ of Mandamus or any appropriate order or direction directing the respondents to SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2024.12.09 15:15:15+05'30' 3 O.A No.170/00143/2024/CAT/BANGALORE reinstate the applicant as Deputy Conservator of Forests, Ghatapraba Division, Gokak with immediate effect and with all consequential service benefits and (3) To issue any other appropriate order or directions as this Hon'ble Tribunal deems fit in the facts and circumstances of the case in the interest of justice and equity. "
2. The above mentioned reliefs are claimed on the grounds as agitated in para 5 (1) to 5(4) of the Original Application. The brief facts of the applicant are that the applicant joined the IFS cadre in the year 2022 and belongs to 2017 batch. During the course of his employment and discharge of duties, he came across illegal construction on the forest land. The applicant received several telephonic calls from persons, impersonating as the MLA who is the 5th respondent. That FIR is already registered against one Arjun Vaddara for putting up illegal construction on the forest land and the criminal matter is pending adjudication. That on 8.1.2024, the applicant received a telephone call on his I-phone and the caller introduced himself as MLA, Raibag. Thinking that the caller is another impersonator, the applicant spoke in a stern and powerful voice questioning the caller. It appears that the 5th respondent called the applicant and after recording the conversation released the same to the social media and electronic media. Thereafter he made a SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2024.12.09 15:15:15+05'30' 4 O.A No.170/00143/2024/CAT/BANGALORE complaint to the Hon'ble Chief Minister which resulted in the preliminary enquiry. Though the applicant explained the entire incident and that he was not responsible for the misunderstanding, he is now kept under suspension, which according to the applicant is illegal and without jurisdiction. The applicant avers that the entire decision of the respondents 1 to 3 is illegal, unjust, arbitrary and malafide and the same is violative of articles 14, 16 and 21 of the Constitution of India. Hence, this present application and on that basis he claims the reliefs on the grounds as agitated in the Original Application.
3. On notice, Respondents 1 to 4 have filed their detailed reply statement. The Respondent 5 has also filed his reply statement separately.
4. Further, the applicant has filed his rejoinder statement to the reply statement of Respondents 1 to 4 as well as another rejoinder against the reply statement of Respondent 5.
5. When the case came up for final hearing on 26.11.2024, Senior Counsel Shri.S Basavaraj along with Shri.Udayashankar.M for the SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2024.12.09 15:15:15+05'30' 5 O.A No.170/00143/2024/CAT/BANGALORE applicant and Shri.M.Rajakumar for respondents 1 to 4 were present and heard. None appeared for respondent no.5
6. We have carefully gone through the records and considered the rival contentions of both parties.
7. From the record, facts of the case and contention of the parties, it is evident that this case is on a very narrow compass which is to be decided by us as to whether there were sufficient ground for suspension of the applicant and whether the suspension order dated 21.2.2024, i.e., the impugned Annexure A-8 is in order.
8. The official respondents themselves have cited the decision of the Hon'ble Apex Court in Union of India v. Ashok Kumar Aggarwal, (2013) 16 SCC 147 wherein the Hon'ble Apex Court has observed as under:-
"27. 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. More so, at this stage, it is not desirable that the Court may find out as to which version is true when there are claims and counterclaims on factual issues. The SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2024.12.09 15:15:15+05'30' 6 O.A No.170/00143/2024/CAT/BANGALORE Court cannot act as if it is an appellate forum de hors the powers of judicial review.
9. They further averred that the allegations against the applicant are very grievous in nature as the applicant has conducted himself in a rude and discourtesy manner. Further, the applicant has released the phone record conversation and made it viral on social Medias. Hence they wanted to start disciplinary inquiry against the applicant.
10. Simple examination of the above ruling of the Hon'ble Apex Court it is evident that it has explained that the 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. More so, at this stage, it is not desirable that the Court may find out as to which version is true when there are claims and counterclaims on factual issues.
11. From the very wordings of the ruling, it is clear that the suspension is on purpose as an interim measure in the aid of SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2024.12.09 15:15:15+05'30' 7 O.A No.170/00143/2024/CAT/BANGALORE disciplinary proceedings so that the delinquent may not gain custody or control of papers or take any advantage of his position.
12. In the instant case, as there was a simple instance in the field where the applicant, while serving as an All India Service (IFS Officer) Officer in Gokak Forestry Division as Divisional Forest Officer, had a case of unauthorized construction in his jurisdiction where an FIR was registered by the Beat Forester, Raibag on 11.1.2023 where illegally someone had entered around 01 gunta of area at midnight for the purpose of construction of a new building and trench was dug and found a column was prepared and markings had been prepared. One, Mr.Arjun Vaddar of Village Bhommanala, was accused and FIR No.09/2022-23/FIR No.20/2022-23 dated 11.1.2023 had been registered much before the posting of the applicant as Deputy Conservator of Forests vide Government Order dated 13.7.2023. Pursuant to which, he took charge only on 15.7.2023, and the applicant was getting calls from someone impersonating as local MLA and trying to interfere with his quasi-judicial regulatory functioning of enforcement of Forest laws related to encroachment of forest land. Incidentally, the incident which led to his suspension happened on 8.1.2024, when, again, the applicant, had received a SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2024.12.09 15:15:15+05'30' 8 O.A No.170/00143/2024/CAT/BANGALORE telephone call from an unknown telephone number on his I-phone and again someone introduced himself as MLA, which he thought that again some impersonator was trying to put pressure on him. The applicant sternly and in a powerful voice questioned the caller. But actually the caller was the MLA.
13. Subsequently, something came into media which the MLA says that it is released by the applicant; whereas the applicant says that he used an I-phone which has no recording facility, and it is released by the other side. The 5th respondent, identified as the local MLA of that area, had given a complaint to the Hon'ble Chief Minister against the applicant, and the 4th respondent issued a show-cause notice dated 12.1.2024 asking the applicant to submit a written reply in this regard. The applicant appeared before the 4th respondent on 16.1.2024 and submitted a detailed reply explaining the circumstances under which the conversation took place between the applicant and the 5th respondent. A true copy of the said statement made by the applicant on 16.1.2024 is produced before us as Appendix A-5.
14. Thereafter the applicant received another show-cause notice on 17.2.2024 from the Chief Secretary, Government of Karnataka SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2024.12.09 15:15:15+05'30' 9 O.A No.170/00143/2024/CAT/BANGALORE alleging that the applicant recorded the telephonic conversation between himself and the 5th respondent and released it to the social media. The said show-cause notice is also placed before us as Annexure A6. The applicant has submitted a reply on 19.2.2024 explaining the circumstances under which he had to speak sternly with the 5th respondent and categorically denying the allegations that he recorded the conversation between himself and the 5th respondent and released it to the social media. Based on this, pending inquiry, the respondents have suspended the applicant vide their order dated 21.2.2024 which is at Annexure A-8.
15. Simple reading of Annexure A-8 shows that the only fact in the case to be verified, as it is already an accepted fact that there was conversation between respondent no.5, MLA and the applicant on the designated date which is accepted by the applicant, and he may have harshly talked to him as the circumstances were such that it was a case of enforcement of forest conservation act and related provisions of law and peoples were impersonating as MLA and trying to influence and interfere with the work of the public servant. In the instance, the real MLA also talked to him, and it is not clear whether the MLA was just inquiring the facts of the case or if he was trying to influence the SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2024.12.09 15:15:15+05'30' 10 O.A No.170/00143/2024/CAT/BANGALORE case. Why did he have an occasion to interfere in the quasi-judicial function of the applicant? There has to be an arm's length distance between Members of the Legislature and the enforcement authorities in the field. And if at all, for such enforcement act where encroachment of forest land was involved and FIR was already registered, a Member of the Legislature has to talk to the authority, did he not require to exercise caution and restraint? In such circumstances, the rightful way would be to approach the Forest Minister or ask for information as provided in law, i.e., as there are various provisions of law for asking them in the assembly to call attention or through question hour or other means, but not directly touching base with an enforcement authority who can be unduly intimidated and influenced by such encounters.
16. And from the circumstances, it is amply clear that several people were impersonating themselves as MLA and had been trying to influence the applicant, and the said fact shows that this type of practice had been going on in the field, particularly in the area where this incident had happened which goes against the grain of the democratic parliamentary governance of our Country where executives, particularly at the sensitive field levels should have SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2024.12.09 15:15:15+05'30' 11 O.A No.170/00143/2024/CAT/BANGALORE independent autonomous hand to decide a quasi-judicial enforcement function like encroachments etc. From the whole narrative, the only case which is made out is for the pending inquiry to find out as to who released the conversation to the media ?
17. Further, the applicant has very well explained that there were several similar phone calls earlier from impersonators and the MLA also had called from a phone number which was not known to the applicant who had recently joined the Division, and he had the impression that the caller was also an impersonator. Obviously, from the circumstances, it appears that the new caller was also trying to ask for an explanation on enforcement matter from the Divisional Forest Officer which may amount to interference in the executive day-to-day functioning. Also, as it was a quasi-judicial function of the enforcement of Forest Conservation laws, it became much more serious infringement by the other side as such encounters undermine the separation of functions between the executive and the legislature.
18. The executive, how so far junior, cannot be browbeaten by any Hon'ble Member of legislature to take a decision in a particular way or to change their quasi-judicial decisions. The very circumstances of SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2024.12.09 15:15:15+05'30' 12 O.A No.170/00143/2024/CAT/BANGALORE the case makes it amply clear to us that a small incident of telephonic conversation has been disproportionately magnified into a big issue in this case. And for merely to inquire whether the applicant himself recorded and released the conversation to the media, an inquiry is purported to be instituted. For such an inquiry with suspension, it is definitely not clear as to in what way, and as to which custody or control of papers or taking any advantageous position by the applicant would have been possible when faced with the all- powerful other side, having the might of the whole Legislature. Clearly, in this case, there was no fact in terms of that, in any way, if suspension was not there, the applicant could have had any advantage or control or custody of any papers which, by his position, he could have manipulated or influenced. So the element for suspension, in our considered opinion did not exist in this particular case, and furthermore hardly any justifiable reasons are visible to initiate any disciplinary inquiry. From the facts of the case it appears that unauthorizedly members of public impersonating as a legislator like respondent no.5 was trying to directly interfere with administration of quasi-judicial function and enforcement of forest laws or removal of unauthorized forest land encroachments. Hence, we are clear in our minds that we do not find any substance in this particular case as ruled SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2024.12.09 15:15:15+05'30' 13 O.A No.170/00143/2024/CAT/BANGALORE in the decision of the Hon'ble Apex Court in Union of India v. Ashok Kumar Aggarwal (2013) 16 SCC 147 which goes in favour of the applicant instead of the respondents who have cited the case.
19. In the instant case where the applicant had been consistent in maintaining that he did not know who was on the other side of the call purporting to be a legislator, it shows clearly that someone very powerful was trying to influence the newly appointed Deputy Conservator of Forest, Gokak, which inter alia with other things, would also amount to an offense as described under Section 186 IPC. The incident further shows that when in this case the officer was not browbeaten, the other side resorted to playing victim card that the officer's behaviour has undermined the dignity and position of the Hon'ble Member of the Legislature. If for such instances, officers are kept under suspension, it will only lead to complete paralysis in autonomous executive functions and autonomous discharge of their quasi-judicial functions. Clearly, there was not much document or influence which could have been saved or avoided from the influence of the applicant if he was kept under suspension. We have carefully gone through the two show-cause notices issued to the applicant. Both of them do not shed much light on the incidence. It is evident that the SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2024.12.09 15:15:15+05'30' 14 O.A No.170/00143/2024/CAT/BANGALORE inquiry report by the APCCF (Vigilance) or the letter of MLA to the Hon'ble Chief Minister, are not made available to the applicant to reply. From the very contents of the second show-cause notice, it is evident that no material fact was available before the authorities except a cryptic recommendation of the Hon'ble Minister for Forest. There is nothing clear if the preliminary inquiry by the APCCF (Vigilance) could find and document any facts about even conversation on the mobile or what was leaked to the media, as it is not reflected in the notice. In the absence of any material fact, the only conclusion emerges that the 'Suspension' as such in this particular case was being used to browbeat the applicant for his upright initiative to protect the Forest land, and to please the member of legislature and the Hon'ble Minister of Forest. Hence in our considered opinion, the suspension per se was utterly perverse, disproportionate, illegal, malafide and without any substance.
20. The official respondents further quoted paragraph 26 of the decision of the Hon'ble Apex Court in Union of India v. Ashok Kumar Aggarwal's case quoted supra wherein the Hon'ble Apex Court has observed the following:
"26. The scope of interference by the Court with the order of suspension has been examined by the Court SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2024.12.09 15:15:15+05'30' 15 O.A No.170/00143/2024/CAT/BANGALORE 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 Coaking 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, 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.
SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2024.12.09 15:15:15+05'30' 16 O.A No.170/00143/2024/CAT/BANGALORE 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. "
21. The respondents further assert that in the instant case, there are prima facie evidence to connect the conduct of the applicant with the said allegations. The order of suspension does not suffer from any malafides and that except vague allegations of mala fides, there are no substantiation from the applicant.
22. Simple reading of the Hon'ble Apex Court order shows us that while examining the case of suspension, the scope of judicial review is limited as the suspension is in the exclusive domain of the competent authority who can always review its order of suspension, but where the charges are baseless, manipulated or vindictive and are framed only to keep the delinquent employee out of the job, a case for judicial review is made out and that whether the employee should or should not be continued in the office during the period of inquiry is a matter to be decided by the disciplinary authority concerned and ordinarily the court should not interfere with the order of suspension unless they are passed without prima facie evidence SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2024.12.09 15:15:15+05'30' 17 O.A No.170/00143/2024/CAT/BANGALORE on record connecting the employee with the misconduct in question.
23. From the very disproportionate response of the suspension and the fact that the applicant could not have manipulated anything as there was no such document. Evidently it was not a case of corruption, moral turpitude or any kind of grave misconduct which was being imputed, the disproportionality of the response and the lack of reason for suspension in the order, which is expressly not mentioned in the order anywhere that what the suspension is going to achieve, it becomes evident that suspension was only made to please the respondent no.5 and the Hon'ble Forest Minister whose opinion on suspension is recorded (but his opinion also does not mentions any reason for suspension as to what will it achieve?) and due to which, becomes malafide and vindictive as the same is framed only to intimidate, overawe, influence and subjugate the said employee and to keep the delinquent employee out of the job. It is a fact that Hon'ble Forest Minister was neither the Inquiring Authority nor the Disciplinary Authority, and his opinion without giving express reasons become out of place. In this case once the employee accepted that he talked rudely in misunderstanding as similar calls were coming SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2024.12.09 15:15:15+05'30' 18 O.A No.170/00143/2024/CAT/BANGALORE from several impersonators and he also tendered his apology, the whole issue should have rested there, as there was hardly any ground left thereafter.
24. This incident could have been a good case study to develop a training module for the officers as to how to deal with political interference at the field level in the difficult job of forest conservation and enforcement of forest laws relating to unauthorized encroachment of forest land. The incident could have also triggered the self-imposed conduct by the Members of the Legislature as to what extent they should directly touch the base with lower bureaucracy as this type of encounters does not jell with democratic governance as envisaged by our Constitution. If every Member of the Legislature and parliament directly started interacting and interfering in various quasi-judicial and other executive functions at the field level, there would be a complete break-down of the constitutional functioning of the executive compromising its important quasi-judicial functions.
25. From the very face of the case and facts which are placed before us, we do not find any substantive ground for keeping the SHAINEY VIJU SHAINEBangalore CAT Y VIJU 2024.12.09 15:15:15+05'30' 19 O.A No.170/00143/2024/CAT/BANGALORE applicant under suspension as envisaged by the cited case of the Hon'ble Apex Court by the official respondents themselves.
26. With the above observations, we pass the following orders:
The Original Application is allowed. The impugned order No.e-DPAR 33 SFP 2024, BENGALURU, DATED 21st FEBRUARY 2024 is quashed and set aside as arbitrary, illegal, malafide and without jurisdiction with a direction to the respondents to provide the applicant all consequential benefits accordingly. No costs.
(DR. SANJIV KUMAR) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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