Calcutta High Court (Appellete Side)
Arup Prasad Kairi vs Eastern Coalfields Limited And Others on 15 February, 2019
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Sambuddha Chakrabarti
W.P. No. 29825 (W) of 2017
Arup Prasad Kairi
Vs.
Eastern Coalfields Limited and Others.
For the petitioner : Mr. Swapan Banerjee, Advocate
Mr. Arunava Ganguly, Advocate
Mr. Kunal Ganguly, Advocate
For the ECL : Mr. Bijay Kumar, Advocate
Heard on : 03.01.2018, 15.02.2018, 02.05.2018,
27.08.2018, 28.08.2018
Judgement on : 15.02.2019
Sambuddha Chakrabarti, J.:
The case of the petitioner is that while working in the Eastern Coalfields Limited, i.e., the respondent no. 1, he got involved in a criminal case and has been facing trial before the learned Additional Sessions Judge, 3rd Court, Asansol.
While the petitioner was in judicial custody, he was placed under suspension with 50% wages. He makes a grievance that the order of suspension was passed pursuant to the order, dated January 22, 2015, passed by the learned Additional Sessions Judge, 3rd Court, Asansol and the order of the competent authority, as mentioned in the order of suspension, did not speak anything about his suspension from the service. He is being paid subsistence allowance at the rate of 50% of the wages though the rule provides for enhancement of subsistence allowance upto 75% of the wages after three months from the date of suspension. The petitioner made an application for revocation of suspension and enhancement of subsistence allowance which have not been acceded to.
The petitioner further alleges that uptil now no charge-sheet or departmental proceeding has been initiated against him and he continues to be paid 50% subsistence allowance without any enhancement.
The petitioner has, therefore, inter alia prayed for a writ in the nature of mandamus directing the respondents to set aside and quash the order of suspension and to pay enhanced subsistence allowance as per law which the petitioner is entitled to and for other reliefs.
The General Manager (P & IR), Eastern Coalfields Limited, i.e., the respondent no. 3, has affirmed an affidavit-in-opposition. It has been specifically mentioned in the affidavit that the service conditions of the respondent no. 1 company are governed by the certified Standing Orders. Clause 28.9 of the said Standing Orders reserves the right of the management to suspend a workman being prosecuted in a court of law for any grave criminal offence involving moral turpitude or murder until disposal of the trial. In such cases, the workman concerned shall be entitled to 50% of the wages as subsistence allowance. In case, the workman is finally acquitted, he would be paid full wages for the period of suspension.
The petitioner was arrested on August 13, 2014 and was in custody till January 27, 2015. He has been charged under Sections 326/307/302/120B and 34 of the Indian Penal Code, read with Sections 25 (1B)(a) and 27 of the Arms Act. Thus, he was charged with grave criminal offence involving murder, grievous hurt and criminal conspiracy. The disciplinary authority invoked clause 28.9 of the certified Standing Orders and placed him under suspension with 50% of wages till his conviction or acquittal.
The respondent no. 3 has specifically mentioned that the petitioner had not committed any misconduct in connection with the business of the company, but as a Government company the provision of the certified Standing Orders has to be followed in the present case.
Mr. Kumar, the learned Advocate for the respondents, further relied on the judgment of the Supreme Court in the case of Union of India and Another Vs. Ashok Kumar Aggarwal (Civil Appeal No. 9454 of 2013). There the Supreme Court after considering several cases held that long period of suspension does not make the order of suspension invalid. It was further observed that mere delay in conclusion of enquiry or trial cannot be a ground for quashing the suspension order if the charges are grave in nature. But whether an 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 mala fide and without there being even a prima facie evidence on record connecting the employee with the misconduct in question.
The principal thrust of the petitioner's case is that even if suspension is not an order of punishment in the instant case the conduct of the respondents shows mala fide act by placing him under suspension for a prolonged period without initiating any departmental proceeding rendering the suspension bad in law. In this connection, Mr. Banerjee, the learned Advocate for the petitioner has placed reliance on the judgment in the case of Ajay Kumar Choudhury Vs. Union of India, through its Secretary and Another, reported in (2015) 7 SCC 291. In that case, the Supreme Court observed that suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must be of short duration. If it is for an indeterminate period or if its renewal is not based on sound reasoning contemporaneously available on the record, this would render suspension punitive in nature. Departmental proceedings invariably commence with the delay, are plagued with procrastination prior and post the drawing up of the memorandum of charges, and eventually continue after even longer delay.
The Supreme Court further observed in that case that protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be. The suspended person suffering the ignominy of insinuations, the scorn of society and the derision of his department, has to endure this excruciation even before he is formally charged with some misdemeanor, indiscretion or offence.
In Ajay Kumar Choudhury (Supra), the appellant assailed his suspension which was effected on September 30, 2011 and had been extended and continued ever since. While acting as the Defence Estate Officer, Kashmir Circle, he issued certain NOCs and, therefore, the NOC in respect of the certain defence lands for which he was incorrectly asked to give his explanation. It was in this background that he had received the suspension order dated September 30, 2011. Through various proceedings when ultimately the matter wended to the Supreme Court, the suspension of the appellant had been continued for a period of 90 days with effect from the 4th extension and that investigation having been completed, sanction for the prosecution was to be granted within a period of two weeks. When the matters were heard neither a charge-sheet nor a memorandum of charges had been served upon the appellant. It was submitted by the learned Additional Solicitor General that the original suspension was in contemplation of a departmental enquiry which could not be commenced because of a directive of the Central Vigilance Commission prohibiting its commencement if the matter was under the investigation of the CBI.
The Supreme Court further observed in that case that the Code of Criminal Procedure, 1973 contains a new provision which has the effect of circumscribing the power of the magistrate to authorize detention of an accused person beyond a period of 90 days where the investigation relates to an offence punishable with death or imprisonment for life or imprisonment for a term not less than ten years, and beyond a period of 60 days where the investigation relates to any other offence if Parliament considered it necessary that a person be released from incarceration after the expiry of 90 days even though accused of commission of the most heinous crimes, a fortiori, suspension should not be continued after the expiry of the similar period especially when a memorandum of charges/charge-sheet has not been served on the suspended person. The Supreme Court, therefore, directed that the currency of a suspension order should not extend beyond three months if within this period the memorandum of charges is not served on the delinquent officer. If the memorandum of charges is served, a reasoned order must be passed for the extension of the suspension.
The law on the point is well-settled. The right to suspend an employee impliedly inheres in an employer in the fundamentals of master and servant relationship. Thus, in the absence of any express term in the contract of service or an express statutory provision or a rule conferring power of interim suspension the employer always enjoys the right to direct suspension for purpose of duties by the employee. In such cases, the employer is obliged to pay the employee's wages during the period of suspension.
But the situation is entirely different when an employee is placed under suspension pursuant to the service rules applicable to him. Where the service rules lay down the circumstances in which an employee should be placed under suspension and the rights and obligations of the employer and employee during the period of suspension it must have to strictly conform to the same. In Sudhir Kumar Banerji Vs. Superintendent of Police, reported in 1979(II) CHN 178, this Court held when the power to suspend is expressly made subject to specific statutory limitations or the circumstances for exercise of power are enumerated, the scope of the power cannot be extended beyond what is expressly stated.
The service rules quite frequently require that an employee facing a criminal investigation, enquiry or trial is to be placed under suspension. In the present case, clause 28.9 of the certified Standing Orders specifically empowers the management to suspend a workman for being prosecuted in a court of law for any grave criminal offence involving moral turpitude or murder until the disposal of the trial.
The provisions relating to suspension has also been incorporated in Rule 10 of Central Civil Services Classification, Control and Appeal Rules, 1965. Rule 10(1)(b) empowers the appropriate authority to place a government servant under suspension where a case against him in respect of any criminal offence is under investigation, enquiry or trial. Although, Rule 28.9 of the Certified Standing Orders of the respondent no. 1 company speaks of an employee being prosecuted for any grave criminal offence of a certain nature reference may be made to the provision contained in Rule 10(1)(b) of the Central Civil Services Classification, Control and Appeal Rules 1965, where, of course, the scope of suspension is larger than that contained in the Certified Standing Orders. The word 'prosecution' is of larger import than trial inasmuch as it includes an investigation undertaken pursuant to lodging of a First Information Report. It involves the stages of investigation and filing of charge-sheet to be followed by trial.
Thus in the present case when the petitioner has been arrested in connection with the criminal case and the investigation is under way it can definitely be said that he is being prosecuted for committing a grave criminal offence as well as offences involving moral turpitude.
The reference to the order, dated January 22, 2015 passed by the criminal court in the order of suspension cannot be read as the reason for passing the order of suspension. The petitioner relied on the said order passed by the criminal court and sought to argue that this order had nothing to do with placing him under suspension. Therefore, the use of the words "pursuant to the order dated 22.01.2015 passed by the Ld. Addl. Sessions Judge, 3rd Court, Asansol...." was inappropriate.
I am afraid, the context in which the order was passed must have eluded the petitioner. That the order of the criminal court does not, as it cannot, contain any direction for placing the employee under suspension is far too obvious. This order, however, has been referred to by the authority in the order dated June 23, 2015 obviously as a proof of the workman being prosecuted in a court of law for criminal offences. The said order of the criminal court relates to the submission of the learned Public Prosecutor that there were sufficient materials that the petitioner was the mastermind behind the offence in question as he hired killer to kill the victim. This order of the criminal court served as a proof that the petitioner was facing a criminal case. Moreover, the petitioner himself has admitted that he is facing trial pursuant to a charge-sheet filed in connection with the criminal case. The order of suspension specifically referred to the provision under which he has been placed under suspension and his right to get full wages on acquittal has also been informed to him by the order of suspension itself.
Thus, this is not a case where the petitioner has been suspended either pending or in contemplation of a departmental proceeding. This is a case where he has been placed under suspension as he is facing a trial for a grave criminal offence involving moral turpitude. The question of lifting or invoking the suspension for non-initiation of a departmental proceeding by issuing a charge-sheet arises in a case where an employee is placed under suspension in contemplation of a departmental proceeding. There the right of an employee not to be placed under suspension for an indefinite period comes into play; but where the Standing Orders says that such an employee is to be placed under suspension the question of delayed initiation of departmental proceeding is not a relevant factor.
In the judgment in the case of Ajay Kumar Choudhury (Supra) the appellant was placed under suspension by the concerned department for his issuing incorrect NOCs. In reply he admitted the mistake and wanted to pass on the responsibility to the subordinate staff. It was in this background that he was placed under suspension by his superior for a limited period which was subsequently extended from time to time. It was in this context that the Supreme Court had observed that suspension, specially preceding the formulation of charges, is temporary in nature. That the appellant was suspended in contemplation of a charge-sheet becomes all the more evident when in the penultimate paragraph of the judgment the Supreme Court observed that the appellant had now been served with a charge-sheet and, therefore, the directions might not be relevant for him any longer. Thus, it was a case where the Supreme Court disapproved the protracted periods of suspension and repeated renewal thereof in contemplation of a departmental proceeding.
When, however, the suspension is because of the pendency of a trial being faced by the concerned employee, the ratio decided in the case of Ajay Kumar Chowdhury (Supra) has no application.
Mr. Banerjee further relied on a judgment of the Delhi High Court in the case of Khalil Rahim Vs. Union of India [W.P. (C) No. 5164 of 2018]. That judgment relies on the case of Ajay Kumar Choudhury (Supra) which mandates that the suspension order should not extend beyond a period of three months and during this period the charge-sheet should be served upon the delinquent officer.
This judgment is also clearly distinguishable as the petitioner was suspended in contemplation of a disciplinary proceeding. A show-cause notice was served upon him as to why disciplinary proceeding should not be initiated. There was an office memorandum which held that suspension should not be extended beyond three months and if within that period charge-sheet was not served upon the concerned officer suspension would lapse. But the facts of the present case is different. The present one is not a case where the petitioner has been suspended in contemplation of a disciplinary proceeding so that the delay in conclusion of a proceeding could be a cause for revocation of the suspension order.
The petitioner further relied on a judgment of this court in the case of Tapan Kumar Das Vs. State of West Bengal (W.P. 30041 (W) of 2015). That was also a case where in contemplation of a disciplinary proceeding that petitioner had been kept under suspension for a very long period which affected his right to livelihood. This makes the case inapplicable to the facts of the present one.
The petitioner last relied on a judgment of the Supreme Court in the case of State of Tamil Nadu Rep. by Sectary to Government (Home) Vs. Promod Kumar IPS and Another (Civil Appeal No. 8427-8428 of 2018), Mr. Banerjee submitted that in that case also reliance was placed on Ajay Kumar Choudhury (Supra) as that judgment had frowned upon the practice of protracted suspension and held that suspension must necessarily be for a short duration. In that case the respondent no. 1 was a member of the Indian Police Service against whom an investigation was initiated and it was found that he had abused his official position. Thereafter he was arrested and was placed under suspension in terms of Rule 3(2) of All India Service (Discipline and Appeal) Rules as he was detained in custody for a period exceeding 48 hours. He was subsequently released on bail.
When a government employee is placed under suspension for being in custody for a period of more than 48 hours, the consideration becomes entirely different. When the respondent no. 1 in the above mentioned case was released on bail, liberty was given to the investigating agency to approach the court in case he indulged in tampering with the evidence. There was no complaint made by the CBI in this regard. The Supreme Court had taken into consideration the minutes of the Review Committee meeting which mentioned that the respondent no. 1 was capable of exerting pressure and influencing witnesses and there was likelihood of his misusing the office if he was reinstated. The Supreme Court while directing the revocation of suspension was factually convinced that his reinstatement would not be a threat to a fair trial.
In the present case the petitioner was not placed under suspension in contemplation of any departmental proceeding. On the contrary, he was suspended on the ground that he was being prosecuted in a court of law for any grave criminal offence involving moral turpitude or murder. This clearly distinguishes the present case from the judgment relied on by the petitioner. When the law empowers the authority to place an employee facing a criminal trial of a certain gravity under suspension so long as the suspension continues he cannot ask for revocation of suspension based on the judicial pronouncements delivered in entirely different contexts. It is not understood why the petitioner has repeatedly mentioned in the writ petition that no charge-sheet has been issued against him or no departmental proceeding has been initiated. The provision under which the petitioner had been placed under suspension had been made known to him where the only reason for issuing the order of suspension is the pendency of the criminal case. Moreover, in view of the specific statement of the respondent no. 3 that the petitioner has not committed any act of misconduct in connection with discharge of his duty but because of the initiation and pendency of the trial he had to be placed under suspension as an employee of a Government company there is no question of initiating any departmental proceeding against the petitioner for committing any act of misconduct.
Even if it is sought to be argued that clause 28.9 of the certified Standing Orders does not compel the employer to place an employee under suspension during pendency of all criminal cases the petitioner is facing a trial for very grave offences involving moral turpitude. The charges on which the petitioner is facing trial are the gravest possible offence provided in the Penal Code read with violation of the relevant provisions of the Arms Act. The nature of the offence being what they are the petitioner cannot legitimately ask for a direction upon the respondents to revoke the order of suspension before the conclusion of the trial.
This must also be noted that since the petitioner has been suspended invoking rather a stringent certified Standing Orders the provision relating to enhancement of subsistence allowance after three months of suspension has no manner of application. Clause 28.9 starts with a non-obstante clause i.e., "notwithstanding the provision contained in these Standing Orders...." which clearly means that in spite of the other provisions of the Standing Orders the provision in clause 28.9 will have its full operation. The interpretation that has been attached to a non-obstante clause, as observed in Union of India vs. G.M. Kokil, reported in AIR 1984 SC 1022, is that the purpose of it is to give the enacted part of the clause or a section in case of conflict, an overriding effect over the other provision of the Act mentioned in the non-obstante clause.
That being the settled position of law when the subsistence allowance receivable by an employee placed under suspension in exercise of the power under clause 28.9 of the certified Standing Orders to be 50% of his wages, the petitioner cannot press the other provisions of the said Standing Orders into operation and can ask for enhancement of the subsistence allowance. That has no application to a case where an employee has been placed under suspension by invoking clause 28.9 of the certified Standing Orders. It is a settled principle of law, as laid down in R.P. Kapur Vs. Union of India and Another, reported in AIR 1964 SC 787, that during suspension an employee is entitled to payment according to the Rules in force. That apart, the petitioner has been assured, in terms of the said provision of the certified Standing Orders that if he is acquitted in the criminal case he will get full wages.
For the reasons stated above, the writ petition calls for no intervention. The writ petition has no merit.
The writ petition is dismissed.
There shall, however, be order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Dr. Sambuddha Chakrabarti, J.) S. Banerjee