Central Administrative Tribunal - Ahmedabad
Manoj Agarwal And Vipul Vijoy vs State Of Gujarat And Ors. on 20 October, 1999
JUDGMENT
V. Ramakrishnan, Vice Chairman
1. As both the O.As have raised the same issues and have challenged the orders of suspension which are identically worded (except for the name and headquarters) and have sought the same reliefs and have urged mostly common grounds in support thereof, we propose to dispose of both the O.As by a common order.
2. Shri Manoj Agarwal applicant in the OA/674/99 was Dy. Commissioner of Police, Surat and Shri Vipul Vijoy applicant in OA/675 of 99 was the Addl. Commissioner of Police at Surat at the relevant time. According to their version on 24.9.99 a number of processions were taken out in Surat city for the immersion of idols of Lords Ganesh on account of Ganesh Visarjan festival at the end of Ganeshotsava. The applicants submit that in the previous years about 150 Ganapati Groups used to pass on the traditional route near Madina Masjid in the Limbayat area but this year in the background of certain incidents having communal overtones only 57 Ganapati processions were permitted to pass through that area and permits were issued accordingly. However, on the day of immersion on 24.9.99 the organisers of a number of processions insisted on passing through Madina masjid even though they were not having valid permits. Shri Manoj Agarwal says that he contacted Addl. Commissioner of Police on mobile. The latter told him he should not allow them to pass through that areas they did not hold valid permit and it was in the interest of entire Surat city to ensure that permit conditions are obeyed. The applicants submit that they tried to persuade the crowd with assistance of some local leaders not to insist on passing through Madina masjid area but the size of the crowd event on increasing and they had started throwing stones at the police and insisted that they would pass through the Masjid area. According to the applicants, they failed to convince the people and the situation became very tense and there was heavy stone throwing resulting in injuries to the police force. The police was forced to use the water cannons but the public had broken the pipes rendering water cannons useless. According to the applicant, they then used tear gas shells and when that was not effective, they resorted to a lathi charge. Shri Manoj Agarwal states that he spoke on maga-phone continuously asking the crowd to disperse or otherwise firing would be resorted to. But it had no effect and the mob was getting more and more violent. The situation was so critical that police was compelled to open fire to save the lives of the people and for self defence which resulted in seven deaths and thirteen serious injuries. After this event the Director General and Inspector General of Police Shri C.P. Singh had visited Surat and had submitted a report to the State Govt. The State Govt. had also ordered a judicial commission of inquiry under the Commission of Enquiries Act to enquire into and report on the incident which resulted in loss of lives of seven persons and injuries to several others and also the allegation that excessive force was used. Applicant No. 2 Shri Vipul Vijoy was transferred from Surat to Ahmedabad on the same day and he resumed his duties as Assistant Commissioner of Police, Ahmedabad on 25th September, 1999. However, on 27th September, 1999 the State Government had placed both the applicants who were at the spot during firing under suspension which is impugned in the present O.A.
3. Both the applicants submit that the orders of suspension were not issued in bona fide exercise of powers. According to Manoj Agarwal, this was done because Shri Kashiram Rana Hon'ble Union Minister for Textiles Respondent No. 3 in OA/674 of 1999 had brought undue pressure on the State Government and solely on account of that pressure the applicants were suspended. Shri Vipul Vijoy submits that the issue of casualties has been given a political turn. He further says that as he has been transferred from Surat to Ahmedabad, there was no need for the Government to take further action to place him under suspension. Both the applicants submit that the order of suspension is not in conformity with the requirements laid down under Rule-3 of All India Services (Discipline and Appeal) Rules (Rules for short). It is also their stand that even though the statutory rules provide for right of appeal to the Union Government, the same is not an efficacious remedy in the present case. Manoj Agarwat submits that he apprehends the Union Govt. would not take an objective view on the appeal when a Union Minister has brought pressure on the State Government to place the applicants under suspension. Vipul Vijoy has also contended that in the present case the right of appeal is not efficacious and Central Government does not have the powers to stay the suspension orders till the disposal of the appeal and continuance of their suspension will cause serious damage to the applicant.
It is also the contention of the applicants that the report of the DG and IGP relied upon by the State Government does not suggest any action against the applicants. They also state that DG and IGP has submitted a further report clarifying the earlier report which would make it clear that the suspension order is unwarranted.
4. The present applicants had initially approached the Hon'ble High Court of Gujarat and the Learned Single Judge had stayed the impugned orders. The State Govt. filed a Letter patent appeal before the Division Bench However, the applicants sought permission to withdraw the petition before the High Court stating that they would like to avail themselves of the remedy before this Tribunal. On grant of such permission by the High Court they withdrew the petition from the High Court and filed the present application before this Tribunal on 4th October, 1999. The Tribunal had ordered maintenance of status quo.
5. The respondent State Government in their reply statement have enclosed a copy of the report of the DG and IGP dated 28.9.99. It is emphasised by the respondent State Government that the applicants have a right of appeal to the Union Government under Rule 16 of the A.I.S. (Discipline and Appeal) Rules which is a statutory remedy and the applicants ought to have availed themselves of the same before approaching the Tribunal. They refer in this connection to the provisions of Section 20 of the Administrative Tribunal's Act 1985 and according to them, when the applicants had admittedly not exhausted the remedy of appeal available under Rule 16 their O.As should be dismissed as premature. In their reply statement, they also bring out that the Government had deputed DG and IGP to Surat on 25.9.99 and he has given his report wherein inter alia he observed that had the senior officers present remained cool and used force in a discriminatory and disciplined way the crowd would have been dispersed effectively without causing large scale casualties. They have enclosed a copy of the report and it is also submitted that the State Govt. having considered all the ramifications had decided to constitute a Commission of Enquiry to go into the various aspects of the incident. It is also stated that the satisfaction of the State Government to place the officers under suspension was the report of the DG and IGP and it was enough to assume that proceedings by way of departmental enquiry could be initiated. They say that the disciplinary proceedings against the applicants could have been initiated in full swing but for the fact that a decision has been taken to set up an Inquiry Commission and the State Govt, then decided that it would not be appropriate to proceed further regarding departmental proceedings at this stage but the same could be proceeded further at a later stage after receipt of the fact finding report from the Commission of Inquiry.
6. We have heard Mr. Raju for Manoj Agarwal Applicant in OA/674/99 and Shri Kureshi for Vipul Vijoy applicant in OA/675/99, Mr. Paresh Adhvaryu has entered appearance for the State Government and Mr. B.N. Doctor for Union Government. Mr. Tanna Senior counsel has made submissions on behalf of the State Government. Mr. Kureshi filed an M. A. sating that subsequent to the report of the DG and IGP dated 26.9.99 there was a further report from him and sought production of the same. At our direction, the further communication which is a D.O. letter dated 1.10.99 from DG and IGP to the Addl. Chief Secretary (Home) has been made available to the Court and also to the applicant's counsel and the same has been taken on record. Mr. Tanna has also given on 11.10.99 a copy of the reply dated 5.10.99 from the Additional Chief Secretary (Home) to the DG and IGP's letter dated 1.10.99. He has also furnished English translation of the minute of the Hon'ble Minister of State--Home which was approved by the Chief Minister in the relevant file and the same has been shown to the counsel for the applicants. Mr. Tanna has given to the Court a copy of the relevant noting in the file which led to the orders of suspension of the applicants. We have gone through these documents.
7. Mr. Raju for Agarwal submits forcefully that the order of suspension is totally untenable. He says that the impugned order does not say that there is any contemplation of the disciplinary proceedings against the applicant. It does not conform to the statutory form provided in Rule 3(9) of A.I.S. (D and A) Rules which requires the citation that disciplinary proceedings are pending or are contemplated. The order was quoted certain extracts from the DG and IGP's report but when we read the entire report, it is clear that the DG and IGP has made a number of other observations in his report which are in favour of the applicants. He was present for about one hour in Surat and he has not asked for the statement of any person including the applicants. Mr. Raju says that DG and IGP has not mentioned about any excessive use of force at the time of his visit. Mr. Raju goes on to submit that with the constitution of a Commission of Inquiry where one of the terms of reference is to enquire into the allegations of the excessive use of the force by police, it is premature for the State Government to take any final view on such allegations. The Govt. had decided to constitute a Commission of Inquiry with the present terms of reference before issuing the order of suspension to the applicant and that these two decisions are not compatible. Mr. Raju does not agree that the DG and IGP's report could form the basis for satisfaction of the State Govt. to suspend the applicants. He says that the suspension order does not contain arecital about the satisfaction of the State Government that it was necessary or desirable to place the applicants under suspension. He further contends that from the copy of the minuts of the Minister of State it would seem that the only ground urged in support of the order is that it would restore the confidence of the public. There is nothing to show that there has been proper application of mind with regard to the requirements of the rules. He further submits that the DG and IGP's report has been received late in the evening of 26th September, 1999 and the orders of suspension were approved on the same day. From the materials made available by the respondents it would seem that the Government did not have the report of the DG and IGP or any other material which would warrant placing the applicants under suspension.
Mr. Raju brings out that he has alleged mala fides against the Union Minister of Textiles (Resp. No. 3 in OA/674/99) but he has not filed any application rebutting the allegation. Even the State Govt. in their initial reply had not denied this allegation but they have done so only in their sur rejoinder. Mr. Raju says that allegation of mala fides should be taken to be established.
Mr. Raju refers to the second proviso of Rule 3(1) which states that a suspension order shall not be valid unless before the expiry of the period of 90 days from the date from which the officer is suspended, disciplinary proceedings are initiated against him or the order of suspension is confirmed by the Central Government. Mr. Raju argues that this should be understood to mean that till the formal initiation of disciplinary proceedings the suspension order does not take effect.
Mr. Raju does not agree that the present O.A. is premature as the applicant has not exhausted the remedy of appeal, He submits that the applicant has alleged mala fides against Resp. No. 3 who is a Union Minister and in such a situation appeal to the Union Government is not an efficacious remedy. He further contends that none of the conditions as laid down under Rule 3 has been fulfilled in the present case, and when a suspension order has been made on a matter extraneous to Rule 3 there is no need to exhaust the alternative remedy and the present O.A. is maintainable. He relies in this connection on the decision of the Calcutta High Court in the case of Shri P.P. Biswas v. State of Bengal, 1980(1) SLR 611. He also refers to the decision of the Full Bench of this Tribunal in the case of B. Parameshwara Rao v. The Divisional Engineer Telecommunications Eluru (Full Bench Judgments of CAT Vol. II page 250=1990(2) SLJ 525 (Hyd.) (CAT). He says that the Full Bench after careful consideration has held that a discretion is available to the Tribunal to entertain such petitions in exceptional and extraordinary situations. He says that the present case is extraordinary for the reason that mala fides have been alleged against the Respondent No. 3 who is a Union Minister that he brought undue pressure on the State Govt. to suspend the applicants and the appeal which can be addressed to the Union Government will not receive objective consideration, Above all, he says that the order has been made without any jurisdiction and it is not an order under Rule of the Rules and appeal is available under Rule 16 only in respect of orders under Rule 3.
Mr. Raju in support of his contentions has relied on a number of Court's decisions namely:
1. Dr. Ashok Kumar Sheth v. The State of Bihar and Ors., 1988(1) SLJ 179 (CAT).
2. M.A. Sultan, IES v. State of West Bengal and Ors., (1987)3 Administrative Tribunals Cases 109.
3. K.C. Meena v. Union of India, (1998) 37 Administrative Tribunals Cases 334=1999(1) SLJ 65 (Chandigarh) (CAT).
4. M.A. Sultan, I.F.S. v. State of West Bengal and Ors., 1987 (2) S.L.R. 586.
5. R.K. Singh v. The Chief Engineer P.W.D. and Ors., 1976 SLJ 744.
6. Narayan Chandra Pal v. Union of India and Ors., 1987 (3) S.L.R. 660.
7. P.K. Nag v. Union of India and Ors., 1987 (4) S.L.R. 697.
8. Zujnarrao Bhikaji Nagarkar v. Union of India, 1999 (6) Supreme Today 523.
9. P.R. Nayak v. Union of India, AIR 1972 S.C. 554.
10. A.N. Ramkrishnan Nair v. Divisional Engineer, Telegraphs, 1987(3)SLJ589 (Madras) (CAT).
11. P.S. Chawla v. Union of India, 1989(2) SLJ 470 (CAT).
12. P. Lal, IPS, Addl., DGP v. Union of India, 1999(1) SLJ 542 (CAT).
13. Charan Singh v. Union of India and Ors., 1986 Administrative Tribunal Cases 307=1986(2) SLJ 245 (PB-ND) (CAT).
14. Ram and Shyam Company v. State of Haryana and Ors., 1985 (3) Supreme Court Cases 267.
15. Rashtriya Chaturth Shreni Railway Majdoor Congress (INTUC) v. Union of India and Ors. AIR 1997 SC 3492=1999(1) SLJ 107 (SC).
16. Whirlpool Corporation v. Registrar of Trade Marks, Mumbaiand Ors., AIR 1999 SC 22.
17. A. Mewa Singh and Ors. v. Shromani Gurdwara Prabandhak Committee, AIR 1999 SC 688.
18. S.A. Khan v. Union of India and Ors., 1993(3) SLJ 528 (Chandigarh--CAT).
Mr. Raju also refers to the decision of the Hon'ble Supreme Court in the case of S.S. Rathore v. State of M.P. AIR 1990 S.C. 10=1990(1) SLJ 98 (SC) and says that the observation of the Supreme Court in that case does not amount to a total ban on entertaining the applications when the alternative remedy has not been exhausted. This has been taken into account by the Full Bench while rendering its decision.
8. Mr. Kureshi for Vipul Vijoy applicant in OA/675/1999 endorses the arguments of Shri Raju. He also contends that this is an extraordinary case where it is not necessary for the applicant to exhaust the remedy of appeal. According to him, Section 20 of the Admn. Tribunals Act does not impose a total ban on entertaining such petitions. He says that the High Courts while exercising jurisdiction under Article 226 of the Constitution, have been following a self-imposed restriction not to entertain ordinarily matters where the alternative remedy has not been exhausted. Section 20 of the A.T. Act only brings out explicitly such self-imposed restrictions. He refers in this connection to a number of decisions of the High Court and Supreme Court where petitions have been entertained without exhausting the alternative remedy and he says that the same principle would apply in respect of the applications filed before this Tribunal, and contends that the fact that the alternative remedy has not been exhausted does not shut out altogether the remedy of approaching the Court directly in appropriate cases. He says that the present case is not an ordinary one as it involves highly sensitive matters of communal harmony of the entire State, besides the morale of the entire police force of the State is at stake, the Union Government in the present case cannot stay the operalion of the suspension order. He contends that the order is in violation of the principles of natural justice and the need for exhausting alternative remedy does not apply. He also submits that in the appeal the applicants cannot have the same access to the Union Govt. as they have before the Court, He refers in this connection of the fact that the State Govt. had made available the subsequent letter dated 1.10.99 from the DG and IPG only after an M.A., was filed. The applicant could get this letter only because he has approached the Tribunal and this would not have been the case had he filed an appeal to the Union Government. Mr. Kureshi goes on to submit that it is not his contention that the Tribunal should re-appreciate the materials or substitute its own opinion regarding the need for suspension. He says that any administrative order is open to judicial review and refers in this connection to the distinction between the judicial review and justiciability as laid down by the Supreme Court in the case of A.K. Kaul v. Union of India, AIR 1995 SC 1403=1995(3) SLJ 1 (SC). According to him there is absolutely no material on which an order of suspension could have been passed. The impugned order relies predominantly on a part of the report of the DG and IGP which refers to a number of other factors namely, the fact that Surat city is highly communally sensitive and that there had been incidents in the past where police had to open firing near Madina masjid and that intelligence reports indicated the likelihood of disturbances in certain parts of Surat city including Madina mosque and the fact that the Commissioner of Police in consultation with the organisers of Ganeshotsava had not given permits for a number of processions to pass through Madina mosque. The DG and IGP report says that there was stone throwing from the crowd and the police resorted to use of gas grenades and subsequently lathi charge was made. However, the crowd kept on reforming and threw stones on the police party which resulted in injuries to 14 officers and many members of the police force. The DG and IGP goes on to say that the applicant who was present at the spot formed the view that the crowd had become unmanageable and the lives of police men were in danger and the police opened firing. Mr. Kureshi says that these observations in the report are totally inconsistent with the view expressed by the DG and IGP that the force used seems to have been excessive. The applicants were convinced that the DG and IGP had taken such a view without making a proper assessment and without any materials in support thereof as he had not examined any persons including the applicants. Their assumption has been substantiated by the fact that the DG and IGP in his further letter dated 1.10.1999 had clearly brought out that what he had observed was only his impression and was not based on examination of witnesses and detailed study of all relevant records necessary for the construction of the sequence of events leading to police firing. Mr. Kureshi says that the State Government has taken the decision on the impression of DG and IGP in his first report and in the context of his subsequent admission that he had not examined any witnesses nor has he made any detailed study of the relevant records before giving his opinion, it was necessary for them to have reconsidered their decision. Mr. Kureshi says that, when the Govt. has set up a Commission of Inquiry, they should have waited for its report before forming any opinion on the allegation of excessive use of force and in any case when the DGP's subsequent report clearly says that his earlier observations were not based on any material whatsoever, the same should not have been relied upon for placing the applicants under suspension. Mr. Kureshi says that no foundation whatsoever has been laid for making an assumption regarding excessive use offeree.
Mr. Kureshi also reiterates the submissions of Mr. Raju that the impugned order is not in conformity with the requirements laid down in Rule 3 of the Rules. He also refers to a number of authorities in support of his stand that in the present case, it is not necessary for the applicant to exhaust the remedy of appeal. These are:
1. Barium Chemicals Ltd. and Anr. v. Company Law Board and Ors.--AIR 1967 SC 295.
2. B.B. Mam v. Dhandhuka Nagar Panchayat, 1991(2) (sic) 1339.
3. Darshan Hosiery Works v. U.O.I, 1981 GLR 533.
9. Mr. Tanna, Senior counsel for the State Government contends that the present O. As before this Tribunal are not maintainable as they are premature. He refers to Section 20 of the Administrative Tribunals Act and says that it is incumbent on the part of the applicants to have exhausted the statutory remedy of appeal available to them under Rule 16 of the All India Service (Discipline and Appeal) Rules. Rule 16(1) specifically refers to order of suspension made or deemed to have been made under Rule 3 of the Rules. If such an appeal had been filed it would be considered by the Central Government and Rule 19(2) empowers the Central Government to make such orders as it may deem just and equitable. He says there is no bar for the Central Govt. to stay a suspension order till the disposal of the appeal even though it may not do so except in exceptional cases. Mr. Tanna takes us through the provisions of Rule 3 including the amendments promulgated in 1998. He submits that the second proviso to Rule 3(1) states that where a member of Service against whom disciplinary proceedings are contemplated is suspended such suspension shall not be valid unless before the expiry of the period of 90 days from the date from which Member was suspended disciplinary proceedings are initiated against him and period of 90 days is therefore available for the State Government to initiate disciplinary proceedings which in special circumstances can be extended further by the Central Government for reasons to be recorded in writing. He also refers to Rule 3 (6A) of the Rules which requires the State Government to furnish a detailed report of the case to the Central Government within a period of 15 days from the date on which the officer was suspended and it is within the competence of the Central Government to issue such orders which are just and equitable in any given case. He also refers to the newly added Sub-rule (8) of Rule 3 which sets up a formal institutional mechanism to review the orders of suspension and to make recommendations. Mr, Tanna says that this has been done to ensure total objectivity in dealing with such matters. This Rule has set up a review Committee consisting of very senior officers of the State Government consisting of Chief Secretary, senior-most Addl. Chief Secretary/Home Secretary/Director General of Police of the concerned State etc. at the time of review. To our querry whether a review of the suspension order by such a committee is contemplated by the State Government at present, Mr. Tanna says that it would be appropriate to do such review only just before 99 days from the date of the order of the suspension. It is also necessary for the State Govt. to wait for the reaction of the Central Government on the report sent by the State Govt. regarding suspension. Mr. Tanna submits that an effective departmental mechanism is available which should be availed of by the applicants instead of rushing to the Court.
According to Mr. Tanna Section 20 of the Administrative Tribunals Act imposed a ban on entertaining the present O.As as admittedly the statutory right of appeal has not been exhausted by the applicants. He refers in this connection to the decision of the Hon'ble Supreme Court in the case of 5.5. Rathore v. State of M.P., AIR 1990 SC 10 rendered by a seven judge Bench where the Apex Court has made it clear that exhaustion of the remedies available under the Service Rules is the condition precedent to maintenance of claims under the Administrative Tribunals Act. As such a condition has not been fulfilled on the present case, the present O.As are not maintainable. He also says that authorities relied upon by Mr. Raju and Mr. Kureshi in this regard are of no assistance to the present applicants as many of them deal with the powers available to the High Court under Article 226 of the Constitution. According to Mr. Tanna these powers are not available to the Tribunal in view of Section 20 of the A.T. Act. He also relies on the Full Bench Judgment of this Tribunal in the case of D. Parameshwar Rao v. Divisional Engineer Telecommunications referred to supra where the Full Bench has taken note of the various decisions including some cited by Mr. Raju and Mr. Kureshi and following the decision of the Supreme Court in Rathore's case held that Section 20 requires exhaustion of alternative remedies available before approaching the Tribunal. He says that Full Bench has no doubt stated that in exceptional and extraordinary cases such an application may be entertained without exhaustion of the remedies. But according to Mr. Tanna this has to be related to the following observations of the Full Bench:
"A person aggrieved can file an application under Section 19 of the Act when the cause of action arises namely when the impugned order is passed provided the rules do not make provision for filing of an appeal/revision/representation."
Mr. Tanna submits that this would lead to an inference that the exceptional or extraordinary cases where the Tribunal can entertain the O. As is only in a situation where the Service rules do not provide for filing of an appeal etc. In the present case, Rule 16 of the A.I.S. (D and A) Rules specifically provides for a right of appeal against the order of suspension and as such it is not open to the Tribunal to entertain the present O. A. when a statutory provision for an appeal exists. Mr. Tanna further brings out that the applicants have rushed initially to the High Court and then to the Tribunal without even submitting a representation to the State Government or an appeal to the Central Government. They should have filed an appeal and after waiting for a reasonable period they could have approached the Tribunal if they find that the appeal is either not disposed of or is rejected. The learned counsel submits that the applicants have taken what he calls areverse route by approaching the High Court first and then the Tribunal without approaching the State of the Central Government. Mr. Tanna further brings out that to suspension is not a penalty and if it is later on found that it is not required to be continued the same can be revoked and the applicants would not be put to any hardship. If on the other hand, the same has to be continued because of the institution of the disciplinary proceedings etc. they have to wait for the finalisation of such proceedings. The counsel refers that in the case of Rathore the issue involved was dismissal from service and even in such a case, the Supreme Court had referred to the need for exhausting the remedy of appeal etc. whereas in the present case the impugned order is merely one of suspension. Mr. Tanna says that even at present the Tribunal may give a direction that the applicants shall file an appeal before the Central Govt. and if Tribunal desires, it can further direct that contentions raised in the O.As should be taken as supplementary appeal which should be dealt with by the Government of India before disposing of the appeal. For these reasons Mr. Tanna submits that the present O.As are premature and not maintainable.
10. Mr. Tanna also does not agree that there has been any violation of the provisions of Rule 3 of the AIS (D and A) Rules. Rule 3 (1) states that having regard to the circumstances in any case the State Government is satisfied that it is necessary or desirable to place the officer under suspension against whom disciplinary proceedings are contemplated or are pending, it can do so. In the present case there has been a very major incident which has resulted in the loss of lives of seven persons and injuries to many others. There has been great tension in Surat city and it is necessary for the State Govt. to take appropriate steps to restore the public confidence.
The State Govt. deputed the DGP to visit Surat and to submit his report. The DGP had stated that quantum of the force used was excessive. No doubt the DGP had watered down his statement in the subsequent letter dated 1.10.99 but the first report dated 26.9.99 was quite clear and emphatic regarding the excessive quantum of force used. Besides the DGP, other important leaders had visited Surat and gave their assessments to the Government and the State Govt. having carefully considered those materials was satisfied that it was desirable to place the applicants under suspension and proceeded to do so. He says that this is done as per the provisions of Rule 3. Mr. Tanna says that the mere fact that the disciplinary proceedings have not been initiated would not stand in the way of the Govt. invoking the powers under Rule 3. As the State Govt. has decided to constitute a Commission of Inquiry to go into the relevant circumstances including the allegation regarding use of excessive force, it was thought proper not to start formal departmental proceedings against the applicants. Mr. Tanna says that if it were theonly objection, the State Govt. can issue formal orders initiating the disciplinary proceedings against the applicants and decide whether to continue them or not, pending the receipt of the Inquiry Commission's report. The Constitution of the Inquiry Commission would show the Government was serious about the matter and some extracts from the DGP's report has been incorporated in the suspension order and this itself amounts to comtemplation of proceedings. The learned counsel also says that as per the scheme of the rules, suspension orders can be issued first and the actual contemplation regarding disciplinary proceedings can follow later. Accordingly to him, the fact that the officers have been placed under the suspension would itself lead to an inference of contemplation of the disciplinary proceedings and as such the requirements of the rules have been satisfied. Mr. Tanna asserts that the present O.As are without any merit and should be dismissed.
11. We have carefully considered the contentions of all the counsel and have also gone through the relevant documents made available to us.
12. We shall first deal with the contention of the counsel for the State Government about the need for exhausting the statutory remedy of appeal before approaching the Tribunal. Mr. Tanna has referred to Section 20 of the A.T. Act and also decision of the Supreme Court in S.S. Rathore 's case, besides decision of the Full Bench in Parameshwara Rao's case. As against these, Mr. Raju and Mr. Kureshi have relied on a number of Court decisions. Many of them have been rendered by this Tribunal in various Benches. Mr. Raju has also referred to the decision of the Calcutta High Court in the case of P.P. Biswas v. State of Bengal, 1980(1) SLR 611, particularly to Head Note 'C' where the Hon'ble Calcutta High Court has held that if the order is passed on a matter extraneous to Rule 3 then the order of suspension is not under Rule 3 and there is no need to invoke Rule 16 which provides for an appeal for the order of suspension made under Rule 3. Mr. Raju also has referred to the cases of :
(1) Intuc v. Union of India, AIR 1997 SC 3492. (2) Whirlpool Corporation Case, AIR 1992 SC 22. (3) Mewa Singh and Ors. v. Shiromani Gurdawara Prabandhak Committee, AIR 1999 SC 688.
Mr. Kureshi has relied on the decision of the Hon'ble Gujarat High Court in the case of B.B. Maru v. Dhandhuka Nagar Panchayat where the High Court had held that the exhaustion of alternate remedy is not a total bar to exercise extraordinary jurisdiction under Article 226 and the same principle should be applied here also. Similarly, in the case of N.R. Chaudhary v. Principal, Govt. I.T.I.,Ahmedabad, 1993 (2) GCD 641 (Gujarat), the Gujarat High Court had held that non-exhaustion of alternative remedy is not a bar toexercise of powers in the interest of natural justice. In the case of Darshan Hosiery Works v. Union of India, 1981 GLR 533, the Gujarat High Court has held that if the impugned notice or order is without any foundation the same can be challenged under Article 226 without availing of the alternate remedy of appeal.
Mr. Tanna however says that these cases relied upon by Mr. Raju and Mr. Kureshi are not applicable to the present situation. He has essentially relied on the Supreme Court decision in S.S. Rathore's case. We have gone through the observations of the Hon'ble . Apex Court in that case. Rathore's case was primarily in the context of the question of limitation and the Supreme Court held that cause of action arose not from the date of the original adverse order but on the date when the order of the higher authority is made where a statutory remedy is provided by way of a representation or an appeal. The Supreme Court has no doubt referred to the A.T. Act, 1985 and says that Section 20 purports to give effect to the rule for exhaustion of the remedies available therein as a condition precedent to maintain the claims by the Tribunal. The observations of the Supreme Court in Rathore 's case have been considered in detail by the Full Bench of this Tribunal in Parameshwara Rao's case. After a detailed analysis the Full Bench had observed that this Tribunal can entertain such applications in extraordinary cases even when the remedy of appeal is not exhausted. We may refer to their following observations in para 12 :
"The question now is whether it is imperative for every applicant to exhaust the remedy of statutory appeal for redressal of service matters before he comes to the Tribunal under Section 19 of the Act? The wordings of Section 20 of the Act uses the words: "A Tribunal shall not ordinarily admit an application...." which means that ordinarily it will not be open to the Tribunal to admit an Application under Section 19 of the Act where the statutory provision for appeal etc., had not been availed of. It will be deemed to have been availed of if after the filing of such an appeal, a period of six months have expired and no orders have been passed by the Appellate Authority. The emphasis on the word "ordinarily" means that if there be an extraordinary situation or unusual event or circumstance, the Tribunal may exempt the above procedure being complied with and entertain the Application. Such instances are likely to be rare and unusual. That is why the expression 'Ordinarily' has been used. There can be no denial of the fact that the Tribunal has power to entertain an Application even though the period of six months after the filing of the appeal has not expired but such power is to be exercised rarely and in exceptional cases."
The Full Bench has also discussed the purport of the term "ordinarily" and referred to various Court decisions which explained that the word "ordinarily" means usually and normally and not exceptionally as contrasted with extraordinarily. In another case, the Supreme Court stated that the term "ordinarily" means in the large majority of the cases but not invariably. It also quoted the observations of the Madras Bench while considering the provisions of Section 20 of the A.T. Act and had referred to the remedy of appeal under Rule 16 of A.I.S. (D and A) Rules, 1969 not being exhausted. The Full Bench referred with approval to the observation of the V.C. as follows:
"No doubt, the expression 'ordinarily' occurring in that Section will indicate that the Tribunal has some sort of discretion in the matter. But such a discretion cannot be exercised in all the cases and that has to be exercised in extraordinary situations."
The Tribunal has also referred to the decision of the Calcutta High Court in P.P. Biswas case.
In para 26 the Full Bench has observed in clear terms as under:--
"We have already expressed our view above and explained that the use of the word "ordinarily" connotes a discretionary power in the Tribunal but as indicated earlier, that power has to be exercised in rare and exceptional cases and not usually or casually."
The decision of the Full Bench is binding on us, which stipulates that while the Tribunal will not entertain most applications when the alternative remedy is not exhausted, the discretion to entertain can be exercised in rare and exceptional cases. We therefore do not agree with the contention of Mr. Tanna that Tribunal has no power at all to entertain the present O.As when the alternate remedy of appeal to Union Government has not been exhausted. If it can be established that these applications are exceptional and rare which would justify taking recourse to the discretionary power of the Tribunal, the same can be entertained. We also do not find any merit in the stand of Mr. Tanna that the extraordinary situation to entertain such O.As will be available only if the rules do not make provisions for filing an appeal or representation. The Full Bench had referred to a contingency when the rules do not provide for any appeal and states that in such an event the cause of action arises immediately on passing of the impugned order. It does not say that Tribunal can entertain O.A. only in a situation when statutory right of appeal is not available. Section 20 provides for the need ordinarily to exhaust the remedies available under Service Rules as to redressal of grievance. If there is no provision for alternative remedy in the service rules, there is obviously no question of taking recourse to the same.
13. We shall now proceed to examine firstly whether the present case is a rare and exceptional one which would warrant dispensing with the requirement of exhaustion of alternate remedy of appeal and if so, secondly whether the impugned suspension orders can be sustained.
14. We may at the out set mention that we do not find much force in the submission of Mr. Raju that till the disciplinary proceedings are initiated, the order of suspension does not remain valid as per the provisions of second proviso to Rule 3(1). Mr. Raju had contended that only when the disciplinary proceedings are initiated the suspension order becomes valid retrospectively. Such an interpretation is not at all tenable. To illustrate if an officer exercising statutory functions is placed under suspension pending drawal of proceedings and such proceedings are drawn up say after a month or so, it cannot be held that during the internegum he can be taken to be on duty and to be able to exercise his powers including the statutory powers.
15. We also do not find merit in the contention that merely because the Union Minister of Textile is made a respondent by name and mala fides are alleged against him, the right of appeal to the Union Government becomes illusory. The allegation of mala fides against the Union Minister of Textile has been denied by the respondents not in the initial reply but in the sur rejoinder. It is for the applicant to lay a firm foundation on the basis of which an inference of mala fides can be drawn. He has not done so. We also note that if an appeal is filed it will be dealt with by the formal machinery of the Government of India in the Ministry of Home Affairs. There is absolutely no basis to hold that it will not be considered and disposed of objectively merely because the applicant has alleged mala fides against the Union Minister of Textiles. This contention is rejected.
16. We also do not find much force in the statement of Mr. Kureshi that merely because the Central Govt. is unlikely to grant a stay on the suspension order such an appeal to the Union Government would not be efficacious. This by itself is not a valid ground in support of the applicant's stand for not exercising the remedy of appeal.
Mr. Kureshi had also argued that Vipul Vijoy the applicant was transferred from Surat to Ahmedabad and he should not have been placed under suspension. The mere fact that . an officer has been transferred will not by itself preclude issueof an order placing him under suspension if in a given situation such suspension is warranted.
17. While a number of decisions relied upon by the learned counsel for the applicants turn on the facts of those cases, we find that the decision of the Calcutta High Court in Biswas's case would be quite relevant while considering the present applications. Mr. Tanna had sought to argue that this was done by the High Court in exercise of its special powers under Article 226. We hold that it does not make any difference in view of the decision of the Full Bench, in Parameshwara Rao 's case referred to supra wherein it was held that similar powers can also be exercised by the Tribunal in rare and exceptional cases. The Full Bench also had cited Biswas's case but had not in any way changed or modified the principle underlying therein. We may with advantage cited Head Note 'C in Biswas' s case which reads as follows:
"C". Constitution of India, Article 226 (as amended)--All India Services (Discipline and Appeal) Rules, 1969, Rules 3 and 16--Alternative remedy--Suspension on matter extraneous to rule 3--Remedy by way of appealagainst the order passed under Rule 3--No bar to the maintainability of writ petition.
Now, Article 226 of the Constitution as amended, in so far as it restricts resort to a Court on certain circumstances, must be strictly construed because it involves curtailment of the jurisdiction of the Court. If the order is passed on a matter extraneous to Rule 3, then the order of suspension is not under Rule 3 and Rule 16 of All India Services (Discipline and Appeal) Rules provides for an appeal from an order of suspension made or deemed to have been made under Rule 3. Strictly speaking, it does not cover an order purported to be made under Rule-3.
Such a strict construction is permissible specially in case of ouster of jurisdiction of the Court, which is to be inferred. But quite apart from this, in my opinion, the remedy, as I have held before and as it is now well settled by several other decisions of this Court, must be for the injury complained of. Now, an appeal to the Central Govt. from the order of suspension will not be a remedy of the immediate grievance or the injury suffered by a man placed under suspension and faced with the consequences of suspension. Therefore, in my opinion, Rule 16 of the said Rules is no bar to the exercise of jurisdiction of this Court."
We also find that Mr. Kureshi's reliance on the decision of the Hon'ble Gujarat High Court in the case of Darshan Hosiery Works v. Union of India is quite apt. We may reproduce the Head Note which reads as follows:
"Constitution of India, 1950--Article 226--Central Excise and Salt Act (1 of 1944)--Section 35--Under Section 35 of the Excise Act no appeal preferred--Whether such order can be challenged in petition under Article 226--If notice is without any foundation and failure to comply it results in penal consequences it can be challenged under Article 226.
Merely because the petitioners have not exhausted the remedy of challenging the impugned notice in appeal under Section 35 of the Central Excise and Salt Act, it cannot be said that the petitions are not maintainable because failure or omission on the part of the petitioners to take out the licence leads to prosecution against them. If, therefore, a notice has been served upon a petitioner to do acertain thing and if that notice has no foundation whatsoever in law under which it purports to have been issued, then such a notice can be challenged in a petition under Article 226 of the Constitution because failure or omission to comply with such a notice results into penal consequences.
(Para 3)".
18. In the light of these decisions, we shall now examine whether in the present case the orders of suspension have been issued under Rule 3 of the A.I.S. (D and A) Rules and also whether there is any foundation in law at all for issue of such an order.
19. We may extract Rule 3(1) below:--
"3. Suspension--(i) If, having regard to the circumstances in any case and, where particles of charge have been drawn up, the nature of the charges, the Government of a State or the Central Government, as the case may be, is satisfied that it is necessary or desirable to place under suspension a member of the Service, against whom disciplinary proceedings are contemplated or are pending, that Government may-
3(1 )(a) If the member of the Service is serving under that Government, pass on order placing him under suspension, or 3(1)(b) If the member of the Service is serving under another Government request that Government to place him under suspension.
pending the conclusion of the disciplinary proceedings and the passing of the final order in the case."
The other Sub-Rules namely Sub-rules 1 (A), 2, 3,4, 5, 6 relating to different situations are not applicable to the present case. All counsel are agreed that the present cases have to be considered only in terms of Sub-rule (1) of Rule 3.
Rule 3 (1) requires that either the disciplinary proceedings should be pending i.e. where articles of charges have been drawn up or the disciplinary proceedings should be contemplated. It further stipulates that the Government should be satisfied that having regard to the circumstances in any case that it is necessary or desirable to place the officer under suspension.
Admittedly, in the present case disciplinary proceedings have not been initiated and therefore they are not pending. We have therefore to examine whether the disciplinary proceedings were contemplated when the decision was taken to place the applicants under suspension.
Mr. Tanna had contended that if necessary, the State Govt. will draw up the disciplinary proceedings within a week or so and decide whether they should be kept pending or be proceeded with.
In the present O. As we are examining the validity of the impugned orders dated 27.9.99 in the context of the requirements of Rules when the decision was taken and not with what the State Government may contemplate later.
20. We may reproduce the impugned order in the case of Vipul Vijoy:--
"ORDER Whereas riots have taken place in the Limbayat Police Station Area of Surat City on the 24th September, 1999 on the occasion of Ganesh Visarjan Festival, Whereas Police had used force to control the unlawful assembly, during the course of which several persons received bullet injuries, and seven out of them have expired and several others admitted to hospital with bullet injuries.
Whereas, in view of the nature of the incident, the Government has decided that Commission of Inquiry to be head by a sitting or retired Judge of the High Court should be set up to go into the various aspects of the incidents, including whether there has been excessive use of force and if so by whom, Whereas Government has deputed the Director General of Police to visit Surat on the 25th, Whereas, after his visit to Surat, the DGP has given a report in which, he had inter alia stated that:
"taking the overall view of the area, its topography and the nature of casualties, I am of the view, that the force used by the police under the command of Shri Vipul Vijoy assisted by Shri Manoj Agarwal, the DCP, was in excess which the situation demanded, It was found that the situation could have easily been controlled by effective use of lathi charge and gas shells, It is felt that had senior officers present at the place of incident remained cool and used the force in a discriminate and disciplined way, the crowd would have been handled and effectively disposed (sic.) without causing such large casualties."
The State Government, having considered all the above, has come to the conclusion that the Shri Vipul Vijoy Addl. Commissioner of Police, Surat, (now at Ahmedabad) should be placed under suspension forth with under Rule 3 of the AIS (D and A) Rules, 1969 until further orders. Accordingly he is placed under suspension.
During the period of suspension the headquarters of Shri Vipul Vijoy shall remain at Gandhinagar. During the period of suspension, Shri Vipul Vijoy shall be entitled to receive subsistence allowance as per rules. It is not permissible for Shri Vipul Vijoy to accept employment or to do business while under suspension in view of the provisions of Rule 13 of AIS (Conduct) Rules, 1968.
By order and in the name of the Governor of Gujarat."
(An identical order has been issued in respect of Manoj Agarwal except for change of the name and of the designation as D.C.P. Surat whereas Vipul Vijoy was Addl. C.P. Surat and later on Addl. C.P. Ahmedabad).
The impugned order refers to the constitution of a Commission of Inquiry and also extracts of certain observations from the report of DGP. It does not say that disciplinary proceedings are contemplated against the applicants. Admittedly, disciplinary proceedings are not pending. Mr, Raju had referred to the fact that the statutory form as laid down in Rule 3 (9) has not been followed and that there is no recital that disciplinary proceedings are contemplated. Rule 3(9) stipulates the order of suspension shall be made as nearly as practicable in standard form. It does not say that invariably in all such cases, the same form should be used. We may refer in this connection to the observations of the Hon'ble Supreme Court in the case of State of Haryana v. Hariram Yadav, (1994) 2 SCC 647 where the Hon'ble Supreme Court has observed inter alia as follows:
"... The law is well settled that in cases where the exercise of statutory power is subject to the fulfilment of a condition then the recital about the said condition having been fulfilled in the order raises a presumption about the fulfillment of the said condition, and the burden is on the person who challenges the validity of the order to show that the said condition was not fulfilled. In a case, where the order does not contain a recital about the condition being fulfilled, the burden to prove that the condition was fulfilled would be on the authority passing the order if the validity of the order is challenged on the ground that the said condition is not fulfilled. Reference, in this context, may be made to the decision of this Court in Swadeshi Cotton Mills Co. Ltd. v. State of U.P., AIR 1961 SC 1381, wherein it has been observed:
The validity of the order therefore does not depend upon the recital of the formation of the opinion and the making of the order in consequence. It would therefore follow that if by inadvertence or otherwise the recital of the formation of the opinion is not mentioned in the preamble to the order the defect can be remedied by showing by other evidence in proceedings where challenge is made to the validity of the order, that in fact the order was made after such opinion had been formed and was thus a valid exercise of the power conferred by the law. The only exception to this course would be where the statute requires that there should be a recital in the order itself before it can be validly made."
21. The absence of any recital in the order would not by itself vitiate the order of suspension provided that State Government can establish by other evidence in the proceedings namely the relevant Government file that the order was issued after the necessary opinion was formed and was thus a valid exercise of power conferred by law.
22. In view of this position we have gone through the copy of the notes in the Government file and also the English translation of the minutes of MOS (Home). This minute reads as follows:
"In view of the unfortunate incident a Surat, Limbayat area during the religious procession of immersion of Ganesh Idols wherein the public and the police came into confrontation with each other and in view of the tension thereafter and to restore confidence of the public, officers who were present on the spot Shri Vipul Vijoy Addl. CP, Surat and Shri Major Agrawal, DCP Surat may immediately be placed under suspension and their HQ may be fixed at Gandhinagar.
Sd/- MOS (Home) 26.9.99"
A copy of this minute has been shown to the counsel for the applicants.
23. The order of the Hon'ble Minister for State (Home) says that public came into confrontation with the police which resulted in tension and in order to restore public confidence the applicants who were present on the spot should be placed under suspension. It does not in any way say that the applicants were either responsible for the confrontation or they were guilty of misconduct or showed lack of devotion to duty or had conducted themselves in a manner unbecoming of a senior police officer. The suspension order refers to certain observations of the DGP. The wordings of the suspension order leads to the inference that the applicants are placed under suspension as they had allegedly used excessive force.
24. We have gone through the copy of the notes and orders in the State Government file leading to the issue of impugned orders. The top officers of the State Govt. have put up notes to the Hon'ble Minister of State [Home (MOS) (Home)] and Hon'ble Chief Minister. The notes are dated 26.9.1999 and refers to several meetings taken by the Chief Minister over the preceding two days in which the Minister of State (Home) and some other Ministers and Senior officers of the State Govt. were present. It states that as the number of deaths and injuries were large a decision was taken to order a judicial enquiry into the incident and to constitute a judicial commission. There is a further noting which states that after considerable discussion it was decided that in order to ensure that the Commission of Inquiry would do its work without it appearing that the officers involved in the case were still in Surat, that Shri Vipul Vijoy should be transferred out of Surat as he was highest ranking officer present at the place of incident and had ordered firing. There is also a specific statement in the note that this was not a reflection either on the officer's action or on the merits of the case. The note further brings out that some suggestions were made about action against the Police Officers involved in the case and that the official view was that in fairness to all concerned the report of the judicial commission should be awaited and that it was necessary to keep morale of the police high.
The note however revealed that a view was expressed that the passions of the people of Surat have been aroused because of "excessive use of force", and that action should be taken against those responsible to calm down the passions to ensure that things would not deteriorate further in the coming days. The note says that it was pointed out that DGP had reportedly stated to the press in Surat that excessive force had been used and that the DGP had orally stated so to the Chief Minister. It was decided that the DGP should be asked to give his views in writing to the Government. The note further says that ACP had not fired any ammunition nor had he given specific orders to the officers to fire a specific number of rounds and that he cannot be held in any way responsible, for the so-called excessive firing. The official note states that the only action that could be contemplated against the officers is the transfer of the officers involved out of Surat. There is a further note which brings out that as a decision to set up a judicial commission has been taken it may not be viable to take some action like suspension at this stage. However, a reference was made to the visit of Hon'ble Minister who noted that passions were running high in Surat and unless some immediate demonstrative action was taken things could go out of hand. The official view, however, is that it would be desirable to take only administrative action by way of transfer of the officers and any stronger action like suspension can be viewed as penal action and it would be inconsistent with the constitution of the Judicial Commission, demoralise the officers and weaken the police administration in Surat. This is followed by the minutes of the Hon'ble Minister of State (Home) which has been approved by the Honourable Chief Minister.
25. We have mentioned in some detail what is contained in the notes and orders in the Government file. We have gone through the copy of the notes and orders with a view to examine the decision making process of the authorities and whether there is any foundation in law for issuing the impugned orders.
26. From the notes and orders it is seen that the Government were concerned with fact that the passions of the people of Surat were running high on account of firing. Such passions seem to have been aggravated by the press briefings given by the D.G.P. As there were a number of casualties, the Government had decided to constitute a judicial commission of inquiry. In a situation where the police resorted to firing on the processionists accompanying idols of Lord Ganesh for immersion and when such firing resulted in the death of seven persons and injuries to many others, the passions of the people would naturally run high and there wilt be hostility towards the administration which would adversely affect the public confidence. But the perception of a Section of the people alone without studying all the other factors cannot justify forming a definite opinion regarding the merit of the police action. In any case, this has to await the report of the Judicial Commission of Inquiry which will give its findings. We also note that the terms of reference to the Commission is not only to enquire into the alleged excessive use of force but also to go into the question whether the force used was adequate or otherwise. It is not the case here that the Government while taking the view that the Commission of Inquiry has wide terms of reference and has been given four months' time to submit its report nonetheless formed an opinion that prima facie no responsible police officer would have resorted to police measures adopted by the applicants or acted in a manner as done by the applicants and that their conduct during the relevant time was such that it was unbecoming of senior police officers which would warrant drawal of disciplinary proceedings against them and that their continuance on duty not merely in Surat but even elsewhere would not be desirable at this juncture. The office note says that all that could be contemplated was the transfer of the officers and that the transfer was not in any way a reflection on the officer's action or on the merits of the case. There is no reference at all to the scope for instituting the disciplinary proceedings. We also do not see any material in the file from which a view can be taken that prima facie the conduct of the applicants would warrant institution of disciplinary proceedings. In any case there is no such view expressed in the file. There is a reference to the visit of the Hon'ble Ministers and they found that the passions of the people of Surat were aroused and running high and that it was felt that some demonstrative action should be taken to appease the people. There is a mention regarding the press briefing of the D.G.P. and to his oral reports to the Chief Minister etc. where he has expressed the view that force used was excessive. The DGP has given his written report in the evening of 26.9. 1999. The official note at the end says that the DGP's report is placed in the file, It is not known whether his oral report was identical with the written report. He gave his first written report dated 26.9.99 which was received on the evening of 26.9.99 and the decision to suspend the officers was also taken on the same day. Subsequently by his letter dated 1.10.99 he admitted that what he had given earlier was in the nature of an observation report and he had not examined any witnesses nor had conducted a detailed study of the relevant records. Even otherwise in his first report he had referred to the view formed by Shri Vipul Vijoy that the crowed had become unmanageable and lives of policemen were in danger. In the report dated 26.9.99, the D.G.P. had made some statements like the communal situation in Surat, the behaviour of the crowd etc. and normally he should have been called upon the elucidate some of his statements so as to reconcile them with his opinion that force used was excessive and that by implication the officers at the spot lost their cool. This was not done. The written report of the D.G.P. was made available to the Government on the evening of 26.9.99 but his oral report seems to have, been considered in the various meetings held by the Hon'ble Chief Minister
27. It is seen from the file that the decision to place the officers under suspension was intended to calm down the passions of people of Surat and to restore the public confidence. There is nothing in the note or in the order in the file to show that the disciplinary proceedings shall be drawn up or that they are contemplated against the applicants or that the State Government had in any way come to a prima facie assessment that the conduct of the officers who were at the spot during the tiring was such as to warrant drawal of disciplinary proceedings against them. In fact, there is a specific statement that in several meetings taken by the Hon'ble Chief Minister where the Minister of State (Home) and other senior officers of State Govt. were present besides some other Ministers, what was contemplated after considerable discussion was the transfer and that such a transfer was not a reflection either on the action of the officers or on the merits of the case.
28. In the sur-rejoinder affidavit dated 11.10.99 to the O. As there is a statement that the suspension was ordered after taking several factors into consideration and that the report dt. 26.9.99 from DGP was not the only source of reason for passing the order. Except for the briefing given by the Minister who visited Surat to the effect that the passions of the people of Surat were running high and the report from the DGP, there is no reference to any other materials in this file. If there were additional materials elsewhere, they have not been referred to or relied upon while passing the order of the suspension.
29. There was some discussion regarding the meaning of the term "contemplation." The dictionary meaning of the term "contemplate" is as follows:
"Contemplate. To view or consider with continued attention; to regard thoughtfully; to have in view as contingent or probable as an end or intention. To ponder, to study, to plan, to meditate, to reflect."
To "contemplate" in this context would mean that it was intended that drawal of disciplinary proceedings will be the probable outcome. The notes and orders do not either expressly or even by necessary implication bring out that disciplinary proceedings were contemplated which is a condition precedent for placing the officers under suspension under Rule 3. The inference from the file is that the suspension was ordered not for the reasons which are stipulated in Rule 3 but to calm down the passions of the people of Surat without forming even a prima facie opinion that the conduct of the applicants at the time of the incident would warrant initiation of disciplinary proceedings.
30. Mr. Tanna had argued that the suspension can be the first step and contemplation of the disciplinary proceedings can follow later. The rule makes it clear that either the disciplinary proceedings should be pending or they should be contemplated and it is a condition precedent for placing an officer under suspension. It is not open to the respondents to suspend the officer first and later on to say that disciplinary proceedings would be initiated or is being contemplated subsequently so as to fill up an earlier lacuna.
31. Mr. Tanna submitted that the fact that the officers have been suspended would lead to a presumption that disciplinary proceedings are contemplated. We do not agree that lacing an officer under suspension will automatically lead to a presumption that disciplinary proceedings are contemplated. The rules require the State Government to satisfy itself regarding the necessity or desirability of placing the officer under suspension only when the disciplinary proceedings are pending or contemplated. As such the contemplation has to be the first step and then only suspension can follow:
32. Mr. Tanna had submitted that the State Govt. can initiate disciplinary proceedings soon and then decide whether the same should be proceeded with or can be kept pending till the receipt of the report of the Commission of Inquiry. We also note from the sur rejoinder of the respondents to the O.As that there is a reference on a number of occasions that disciplinary proceedings against the applicants are on the anvil. We are not concerned with what the State Government propose to do in future. Any such action will obviously have to be in accordance with the law. We have to go on the basis of the position when the decision to issue the impugned orders was taken. At that time, disciplinary proceedings were not pending nor were they contemplated.
33. We thus hold that no foundation in law has been laid at all while deciding to place the officers under suspension. In the light of the foregoing discussion we hold that in the facts and circumstances of the case it is not an ordinary case but one of the rare and exceptional cases where the Tribunal would be justified in exercising its discretion to entertain the applications even though the remedy of appeal to Union Government has not been exhausted. We answer this issue accordingly.
34. The next question as to whether the impugned orders can be sustained has been answered in our discussion while examining the maintainability of the O.As in the context that the remedy of appeal has not been exhausted.
35. In the present case, the disciplinary proceedings are not pending as they have not been initiated. We have also come to the finding that they were not contemplated at all. As such the order of suspension does no satisfy any of the requirements of Rule 3 of the All India Services (Discipline and Appeal) Rules and cannot be sustained.
36. We accordingly quash and set aside the impugned orders dated 27.9.99 placing Shri Manoj Agarwal and Shri Vipul Vijoy under suspension and direct that the applicants shall be entitled to all the benefits available to them as per the Service Rules as if such impugned orders have never been issued.
37. With the above directions the O.As are finally disposed of with no orders as to costs.
We have pronounced our final order today in OA 674/99 and OA 675/99 in the presence of the learned counsel. Immediately on such pronouncement Mr. Tanna, Senior Counsel representing the State Government prays for staying our orders stating that the respondents will approach the Hon'ble High Court. We do not see any justification for acceeding to this request and we reject the request for staying our orders.