Madras High Court
M.K. Dange vs Chairman-Cum-Managing Director, Oil ... on 22 August, 2003
Equivalent citations: (2003)3MLJ544
Author: D. Murugesan
Bench: D. Murugesan
ORDER D. Murugesan, J.
1. Though W.P.M.P.Nos.20758 to 20760 of 2002 are listed, by consent of the respective learned counsel, the main writ petition itself is taken up for hearing and disposal.
2. The petitioner has challenged the order of suspension dated 7.12.93 passed by the General Manager(F&A), Oil and Natural Gas Corporation Ltd., the third respondent, as confirmed by the order dated 30.5.2001 passed by the Chief Manager(P&A), Oil and Natural Gas Corporation Ltd., the second respondent. The main grounds of attack on the orders of suspension as put forth by Mr.P.V.S.Giridhar, learned counsel for the petitioner are as follows. (1) The order of suspension was dated 7.12.93. The prolonged suspension is bad in the eye of law, as the petitioner is kept under suspension for over a period of nearly 10 years, without there being any disciplinary proceedings conducted nor the criminal proceedings initiated had come to an end. (2) The respondents are not empowered to place the petitioner under suspension under Regulation 33 of Oil and Natural Gas Corporation (Conduct, Discipline and Appeal) Regulations, 1976, inasmuch as on the date of suspension, neither disciplinary proceedings was contemplated nor the petitioner engaged himself in activities prejudicial to the interest or the security of the State; and (3) one Mr.H.S.Harit, Joint Director(P&A), immediate superior to the petitioner who was also involved in the offence was not placed under suspension and he was allowed to continue in service.
3. The above challenge is countenanced by a detailed counter affidavit filed on behalf of the respondents. I have heard Mr.P.V.S.Giridhar, learned counsel for the petitioner and Mr.M.S.Krishnan, learned counsel for the respondents at length.
4. I have given my due consideration to the rival submissions. Insofar as the first challenge to the prolonged suspension, learned counsel for the petitioner relied upon a judgment of this Court in "A. BOOPALAN V. THE ASSISTANT DIRECTOR, KHADI AND VILLAGE INDUSTRIES, VILLUPURAM AND ANOTHER (2002 WLR 546)". In that case an order of suspension made during the month of May, 1991 was questioned before this Court on the ground of prolonged suspension for 11 years. Placing reliance on a number of judgments of the Apex Court more particularly, in "O.P. GUPTA v. UNION OF INDIA ", this Court found that the prolonged suspension is bad more particularly, when the investigation was over and all the materials were collected and there was no chance for the petitioner to tamper with the materials. That was a case where no charge sheet was filed and the delinquent officer was kept under suspension pending investigation.
5. The Apex Court in "ALLAHABAD BANK AND ANOTHER v. DEEPAK KUMAR BOLA ", while considering the case of prolonged suspension refused to interfere with the same on the ground that the prolonged suspension should not be viewed very lightly when the employee/officer is facing serious charges of corruption and misappropriation of money. That was a case where the charge sheet was filed and the trial was pending.
6. Coming to the facts of the present case, the petitioner is admittedly facing criminal charges not only under the provisions of Indian Penal Code but also under the provisions of Prevention of Corruption Act and the same is not in dispute. Though detailed arguments were made on the basis of the seriousness of the charges, I do not propose to traverse the same as any discussion or finding on merit will adversely affect the rights of both the petitioner and the respondents. Suffice for me to take into consideration of the fact that the petitioner as of now is facing criminal charges of corruption. In the circumstances, in my considered view, the judgment of the Apex Court in Allahabad Bank's case (supra) is alone applicable to the facts of this case. In fact, the relevant portion of the said judgment of the Apex Court reads as under:-
"We are unable to agree with the contention of the learned counsel for the respondent that there has been no application of mind or the objective consideration of the facts by the appellant before it passed the orders of suspension. As already observed, the very fact that the investigation was conducted by the CBI which resulted in filing of a charge sheet, alleging various offences having been committed by the respondent, was sufficient for the appellant to conclude that pending prosecution the respondent should be suspended. It would be indeed inconceivable that a bank should allow an employee to continue to remain on duty when he is facing serious charges of corruption and misappropriation of money. Allowing such an employee to remain in the seat would result in giving him further opportunity to indulge in the acts for which he was being prosecuted."
While considering the said judgment in Boopalan's case referred supra, the learned Judge differentiated the same on the ground that a prolonged suspension pending charge sheet and facing trial cannot be equated to a prolonged suspension pending under the guise of mere investigation. From the above pronouncement of the Apex Court, it is clear that wherever the prolonged suspension was pending investigation, the Courts have interfered with. When the charges are so serious and the delinquent officer is facing trial after the charge sheet is issued by framing charges, orders of suspension in such event shall not be viewed very lightly. In that view of the matter, I do not find any support that could be drawn by the petitioner over the judgment of this Court in Boopalan's case (supra).
7. Coming to the application of Regulation 33, it is the grievance of the petitioner that even before the FIR was registered on 30.12.93, the petitioner was suspended on 7.12.93 on which date, there was neither an investigation nor an enquiry or trial was pending. In the absence of the same, question of placing the petitioner under suspension invoking Regulation 33 does not arise. In this context, Regulation 33 could be extracted as under:-
"33. Suspension: (1) The Appointing Authority, or any other Authority to which it is subordinate, or the Disciplinary Authority or any other Authority empowered by the Company by general or special order to impose a penalty as specified in Rule 34 may place an employee under suspension:
(a) Where a disciplinary proceeding against him is contemplated or is pending; or
(b) Where, in the opinion of the Authority aforesaid, he has engaged himself in activities prejudicial to the interest or the security of the State; or
(c) Where a case against him in respect of any criminal offence is under investigation, inquiry or trial. (2) ........"
Under Regulation 33(1), the appointing authority or any other authority to which it is subordinate, or the disciplinary authority or any other authority empowered by the company by general or special order to impose a penalty as specified in Rule 34 is empowered to place an employee under suspension in the event disciplinary proceedings against him is contemplated or is pending. From the charge memo issued to the petitioner on 25.2.97, it is seen that the petitioner along with the other officer had indulged in fraudulent encashing of the cheque to be issued in the name of one Western Services International purported to be the refund amount right from 20.10.93. There were similar transactions also much prior to the order dated 7.12.93. The respondents after considering the act of the petitioner as grave in nature, ordered preliminary enquiry and on the basis of the report of the enquiry, a complaint was lodged on 21.12.93 which was registered on 30.12.93. Considering the seriousness of the charges as revealed in the preliminary enquiry, the petitioner was placed under suspension on 7.12.93. On the date when the petitioner was suspended, in fact an enquiry was pending, though at the stage of preliminary enquiry. Mr.P.V.S.Giridhar, learned counsel for the petitioner would submit that the preliminary enquiry cannot be considered as contemplated enquiry unless such time a real enquiry is contemplated. I find no force in the said submission as for the purpose of invoking the provisions to place an employee under suspension, the purport of contemplated enquiry cannot be restricted to only a regular enquiry by excluding any preliminary enquiry. Moreover, in this case, a preliminary enquiry was conducted and after the report of the preliminary enquiry only, the petitioner was placed under suspension contemplating regular enquiry. In view of the above, I am unable to accept the submission of the learned counsel for petitioner that regulation 33(1) of the Regulations could have no application to the facts of this case. Though the learned counsel would argue that on the given facts and circumstances of the case Regulation 33(2) also is not applicable as it refers to any act prejudicial to the interest or the security of the State, in view of my finding as to the empowerment of the respondents to place the petitioner under suspension under Regulation 33(1), I am not inclined to deal with the second submission as it is unnecessary.
8. Insofar as the discrimination in not placing one Mr.H.S.Harit under suspension, it is not in dispute that he was not placed under suspension as the petitioner was placed. The preliminary enquiry implicated the petitioner to the grave charges and the charge against the other officer is that he was made to countersign by the petitioner and another officer. Though both of them were issued with separate charge memos and enquiries were contemplated, Mr.Harit failed to participate in the enquiry and faced an ex parte enquiry. But, the petitioner when issued with the charge memo dated 25.2.97, replied on 27.3.97 with an objection that he is already facing criminal charge on the same set of charges and hence a separate enquiry cannot be held. In view of the said objection, the respondents did not proceed with the enquiry and has left the matter to be adjudicated in the criminal Court. For the delay in completion of criminal trial, the respondents cannot be blamed as it is in the purview of the officers of the CBI. Considering the above facts, I find that both the petitioner and Mr.Harit cannot be placed on the same footing. For the said reason, I am unable to accept the last submission of the learned counsel for petitioner.
9. For all the above reasons, I find no merit in the writ petition and the same is liable to be dismissed. However, this Court has to take into consideration of the fact that though on the given facts and circumstances upheld the order of prolonged suspension, nevertheless, the trial cannot be prolonged for no reasons, as after the charges were framed and most of the witnesses had been examined, it would be in the interest of the petitioner to complete the trial as expeditiously as possible. However, in the absence of any details as to the witnesses to be examined on behalf of the prosecution as well as on behalf of the petitioner and the time to be consumed for the same, I do not propose to fix any time limit for the criminal Court to complete the trial. However, both the petitioner and the respondents are given liberty to approach the 8th Additional (CBI) Court, Chennai for expeditious disposal of the case. In the event of such applications being filed, the same shall be duly considered by the learned Judge who shall expedite the trial and complete the same as expeditiously as possible. Insofar as the grievance of the petitioner as to the non payment of Drill Site Compensatory Allowance to which he is entitled as per Regulation 14(b) of the Regulations, liberty is given to the petitioner to make appropriate application to the respondents and if such application is made, the respondents shall consider the same with reference to the allowances to which the petitioner is entitled to as per the regulations, and pass orders within a period of one month from the date of receipt of a copy of such representation.
10. With the above observation, the writ petition is dismissed. No costs. Consequently, W.P.M.P.Nos.20758 to 20760 of 2002 are also dismissed.