Gujarat High Court
Vagadia Parmabhai Bhurabhai vs T.J. Trivedi, Under Secretary To ... on 6 March, 1986
Equivalent citations: (1986)2GLR1173
Author: A.M. Ahmadi
Bench: A.M. Ahmadi
JUDGMENT A.M. Ahmadi, J.
1. The petitioner, a Class I Gazetted Officer, serving as General Manager and Deputy Commissioner of Industries in the Co-operation Department of the State Government, has filed this petition challenging his suspension order, Annexure "C" dated 24th August 1985 inter alia on the ground that Rule 5 of Gujarat Civil Services (Discipline and Appeal) Rules, 1971, offended Articles 14, 19 and 21 of the Constitution. A few facts leading to this petition may be set out as under.
2. The petitioner was posted at Bhavnagar with effect from 9th March 1984. One Janakrai Vyas, a police Sub-Inspector in the Anti-Corruption Bureau, was also working at Bhavnagar at the material time. Naliniben, the daughter of the said Janakrai, had applied for a loan of Rs. 25,000/- under the Educated Unemployed Self-Employment Scheme as she proposed to start business. On 20th March 1984, Janakrai approached the petitioner for sanctioning a further loan of Rs. 15,000/- which the petitioner could not under the Rules. Annexure "A" to the petition is a copy of the said application. It is alleged that the refusal to sanction the additional loan annoyed Janakrai who with the help of two other Government servants arranged a trap on the plea that the petitioner had demanded a bribe from one Nagindas Patel of Bhavnagar. On July 26, 1984, after the trap incident, the petitioner was transferred from Bhavnagar to Bhuj. In his place one N.K. Patel, who was at the relevant point of time working as General Manager, District Industries Centre, Himatnagar, was posted at Bhavnagar. However, by the ad interim order passed by this Court on 8th March 1985, the implementation of the order of transfer at Bhuj was stayed till further orders. We are told by Mr. M.B. Gandhi, the learned Assistant Government Pleader, that in view of the Court's ad interim order the petitioner's transfer from Bhavnagar to Bhuj has been cancelled. We are further told that the State Government does not propose to transfer the petitioner from Bhavnagar for the present and his headquarters will continue to be at Bhavnagar.
3. By this petition the petitioner challenges the order of suspension on the ground that Rule 5 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 (hereinafter called 'the Rules') is ultra vires Articles 14, 19 and 21 of the Constitution inasmuch as it does not provide that the authority shall give an opportunity to the civil servant of being heard before he is suspended. According to the petitioner an order of interim suspension, though of an administrative nature must be passed consistently with the rules of natural justice and must answer the test of reasonableness as it involves civil consequences. In support of this contention the learned advocate for the petitioner places reliance on the observations of the Supreme Court in paragraphs 57 to 60 in Maneka Gandhi v. Union of India .
4. In J.S. Solanki v. Chief Conservator of Forests 1986 (1) 27(1) GLR 41, this Court was required to consider if it was open to the State Government/competent authority to both transfer and suspend a Government servant against whom an inquiry touching his integrity was under contemplation or was actually pending or whether only one of the two reme thes was available. In that case Rule 5 of the Rules was under consideration. Under that Rule a civil servant can be placed under suspension where a disciplinary proceeding against him is contemplated or is pending or where a case against him in respect of any criminal offence involving moral turpitude is under investigation, inquiry or trial. In the instant case the petitioner is facing a charge of demanding and receiving illegal gratification. We do not propose to enter into the question whether this charge is well-founded because any observation that we make in this behalf may cause prejudice to the petitioner at the trial before the Special Court. Suffice it to say that under the above rule a Government servant can be placed under suspension if a case against him for the commission of a criminal offence involving moral turpitude is under investigation, inquiry or trial. In J.S. Solanki's case, after analysing the law on the subject, this Court came to the conclusion that although the question of exercise of administrative powers of suspension/transfer is within the discretion of the authority charged with the duty to exercise the same, since the exercise of such powers has certain civil consequences, they must be exercised with restraint and not as a matter of course. In other words, the authority should apply its mind with a view to finding out whether transfer of the delinquent would serve the purpose; but if the authority comes to the conclusion on the facts of the case that it warrants suspension of the civil servant, it may next address itself to the question whether it is also necessary to charge his headquarters. It was pointed out that in doing so, it should be borne in mind that suspension and consequential fixation of subsistence allowance has financial implications and simultaneous transfer or change of headquarters adds to the woes of the delinquent as he may not be allotted Government quarters at the new station and may have to pay a substantial amount by way of rent which would have a crippling effect on his monetary condition. Therefore, in view of the above decision, the position in law is that while the power to suspend and transfer or transfer and suspend exists and may be exercised simultaneously or one after another, such power must be exercised with restraint and sparingly as it entails civil consequences. In such cases, when the authority is required to exercise such power it must first address itself to the question whether or not the mere transfer of the delinquent would serve the purpose, if not and if the facts warrant his suspension, the authority while suspending him should not as a matter of course order change of headquarters unless there is reason to believe that his continued presence at the same place would jeopardise the inquiry as be would be able to manipulate the evidence, both oral and documentary. To ensure fair-play it was observed that it would be desirable to record reasons when the authority decides to exercise such drastic administrative powers. In view of this decision Mr. Gandhi fairly conceded that unless he is in a position to satisfy this Court that Rule 5 is ultra vires the Constitution, he would be out of Court.
5. On the question of the constitutional validity of Rule 5, reliance was placed on the observations of the Supreme Court in paragraphs 57 to 60 of Maneka Gandhi's case (supra) and it was urged that even in regard to administrative actions which involve civil consequences, it is incumbent on the competent authority to adhere to the rules of natural justice before passing the order of suspension. To put is differently, according to Mr. N.N. Gandhi, the civil servant must be afforded a hearing before any order of suspension is passed against him. Now, it must be conceded that the rules of natural justice came to be evolved with a view to ensuring fairness in administrative procedure so that wide discretionary powers were not exercised in an unreasonable and arbitrary manner. Insistence on the application of the principles of natural justice to administrative action rules out bias and guarantees fair treatment. There can, therefore, be no doubt that even disciplinary authorities are bound to act fairly and their actions are also liable to scrutiny by Courts. But in the application of fair procedure there must be flexibility, for it is not possible to lay down rigid rules since much would depend on the subject matter of each case. In cases which demand immediate and urgent action, insistence on prior hearing would prove disastrous, e.g., raiding premises on suspicion that it is being used for illicit or immoral purposes. Similarly it would be disastrous to public interest to permit a person who is suspected of having demanded and/or received bribe to continue to hold public office pending hearing on the question of his interim suspension. In such cases a prompt transfer may also not serve the purpose as there is no guarantee that he will not indulge in similar activity at the other station. In such cases immediate and prompt action is called for to keep him out of harm's way. It has, therefore, been rightly said that the requirements of natural justice would vary from case to case.
6. Precisely this very question came up for consideration in Lakshman v. Commissioner of Police 1979(2) 20(2) GLR 563. While dealing with this contention, P.D. Desai, J., as he then was, pointed out that another equally important point which has to be borne in mind is that having regard to the nature of the action involved in ordering interim suspension, insistence upon compliance with the audi alteram partem rule at the stage or time when such order is made or prior thereto might, more often than not, prove to be a self-defeating exercise plainly contrary to the commonsense of the situation. In support of this view, reliance was placed on the following paragraph from Maneka Gandhi's case:
The audi alteram partem rule is intended to inject justice into the law and it cannot be applied to defeat the ends of justice, or to make the law 'lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation'. Since the life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism, the audi alteram partem rule would by the experimental test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands...
7. The above observation makes it abundantly clear that the application of the rule of natural justice of being heard before any administrative order having civil consequences is passed, cannot be insisted upon if the same is likely to defeat the very object or purpose of interim suspension. While it cannot be disputed on principle that the principle of natural justice must be extended to administrative actions involving civil consequences, it must be conceded that insistence on the application of the rule of natural justice, namely, affording a hearing before an order is passed, cannot be permitted if it is likely to result in defeating the administrative action required to be taken with promptitude, having regard to the circumstances of the case on hand. Inflexible and rigid application of the rule of audi alteram partem to Rule 5 of the rules would have the effect of setting at naught the very object or purpose of placing a civil servant under suspension. If a civil servant charged of committing an act involving moral turpitude cannot be placed under suspension unless he is given an opportunity of showing cause against the proposed order, he would continue in service till the hearing is completed which would not be in public interest. To continue a civil servant who is alleged to have betrayed a tendency to demand and accept illegal gratification would be against public interest and would defeat the very object of prompt action i.e. suspension in public interest if the procedure of giving a hearing before such an order is passed is required to be undergone. We are, therefore, in agreement with the view taken in Lakshman's case (supra). We, therefore, do not think that Rule 5 is ultra vires the Constitution on the plea that the procedure prescribed there under is in violation of the principles of natural justice.
8. In view of the above, we do not see any merit in this petition and dismiss the same. The rule is discharged with no order as to costs. The interim relief is vacated in view of the statement made at the bar by the learned Assistant Government Pleader.