Rajasthan High Court - Jaipur
D.R. Kalla And Ors. vs The State Of Rajasthan on 22 October, 1997
Equivalent citations: 1998(2)WLC169, 1997(2)WLN550
Author: B.S. Chauhan
Bench: B.S. Chauhan
JUDGMENT B.S. Chauhan, J.
1. In all these cases, similar legal issues are involved and therefore, they are being disposed of by a common judgment.
2. Mainly two averments have been made. Firstly ; the authority which passed the impugned suspension order is not competent to do so, not being the appointing authority and, secondly; petitioners are facing criminal trial, on the same charges and the disciplinary proceedings ought to have been stayed till the finalisation of the trial in the criminal court.
3. In view of the above legal submissions, the facts involved in these cases are irrelevant but it may be mentioned that the criminal cases are pending for 2 to 3 years and suspension orders have been passed quite a long ago.
4. The issues involved are no more res Integra. The said issues had been considered in a catena of decisions. On the first issue, learned Counsel for the petitioners have vehemently argued that the authorities which passed the suspension orders are not the appointing authorities of the petitioners and, thus, the impugned suspension orders are bad for want of competence.
5. In State of M.P. v. Sardul Singh , the Supreme Court held that article 311(1) of the Constitution provides for guarantee to a civil servant that he would not be dismissed or removed by an authority subordinate to his appointing authority but it does not provide for further guarantee that disciplinary proceedings in dismissal or removal of a civil servant should also be initiated and conducted by the authority mentioned therein.
6. Similarly in E.V. Srinivas Shastri v. Comptroller and Auditor General of India , the Hon'ble Supreme Court elaborated the same issue again and observed as under:
It need not be pointed out that initiation of a departmental proceeding per se does not visit the officer concerned with any evil consequences and the framers of the Constitution do not consider it necessary to guarantee even that too holder of civil post....at the same time, this will not give right to authorities having the same rank as that of the officer against whom the proceeding is to be initiated to take a decision whether any such proceeding should be initiated. In absence of a rule any supervisory authority who can be held to be a controlling authority, can initiate such proceeding.
7. A view similar to Srinivas Shastri's case (supra) has been taken by the Supreme Court in Inspector General of Police and Anr. v. Thavasiappan 1992 (2) SCC 145 and Director General, ESI and Anr. v. E. Abdul Razak, . In the judgment, the Supreme Court had considered its earlier judgment in Scientific Adviser to the Ministry of Defence v. S. Denial etc. 1995 Suppl. SCC 374, wherein it had been held that the Rules applicable in that case, do not permit any delegated authority to initiate the departmental proceeding.
8. It is well settled law that the controlling/supervisory authority has a right to initiate disciplinary proceedings unless the statutory rules provide for the contrary.
9. In the instant case, the provisions of Rule 13 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, hereinafter called the Act, 1958'. Rule 13 reads as under:
13. Suspension.--(1) The Appointing Authority or any authority to which it is subordinate or any other authority empowered by the Government in that behalf may place a Govt. servant under suspension.
(a) where a disciplinary proceedings against him is contemplated or is pending or
(b) where a case against him in respect of any criminal offence is under investigation or trial:
Provided that where the order of suspension is made by an authority, lower than the Appointing Authority, such authority shall forthwith report to the Appointing Authority the circumstances in which the order was made. (Emphasis added).
10. Thus, it is evident that the impugned suspension orders cannot be challenged on the ground that the same had been passed by the Authority not having the competence and the submission on this Court has no force.
11. So far as the second issue is concerned, it has also been considered by the Hon'ble Apex Court from time to time.
12. In Kusheshwar Debey v. Bharat Coking Coal Ltd. and Ors. , it has been held that where a disciplinary proceedings and criminal proceedings are based on the same set of facts, the disciplinary proceedings should be stayed.
13. Similarly, in R.P. Kapoor v. Union of India , the Constitution Bench of the Supreme Court has observed as under:
The usual practice is that where a public servant is being tried on a criminal charge, the Government postpone holding a departmental enquiry and await the result of the criminal trial and departmental proceedings follow on the result of the criminal trial.
14. In Delhi Cloths General Mills v. Kushan Bhan , the Apex Court observed as under:
It is true that very often employer stays the enquiries pending the decision of the trial court and that is fair but we cannot say that principle of natural justice requires that an employer must wait for the decision at least of the criminal trial court before taking action against an employee. We may, however, add that if the case is of a grave nature and involves question of fact of law, which are not simple it would be advisable for the employer to await the decision of the trial court, so that the defence of the employee in the criminal case may not be prejudiced.
15. Parishad v. Sanjeev Rajan , wherein the Supreme Court has held as under:
Whether the employees should or should not continue in their office during the period of inquiry is a matter to be assessed by the concerned authority 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 employees with the case, before the preliminary report was received, the Director was impressed by the 1st respondent employee's representation. However, after the report, it was noticed that the employee could not be innocent. Since this is the conclusion arrived at by the management on the basis of the material in their possession, no conclusion to the contrary could be drawn by the Court at the interlocutory stage and without going through the entire evidence on record. In the circumstances, there was no justification for the High Court to revoke the order of suspension.
16. This view has been reiterated by the Supreme Court in State of Orissa v. B.K. Mohanty ).
17. In State of Rajasthan v. B.K. Meena and Ors. , the Hon'ble Apex Court considered several of its earlier judgments and observed as under:
The interests of administration and good government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that undesirable elements are thrown out and any charge of misdemeanour is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is also not in the interest of administration that persons accused of serious misdemeanour should be continued in the office indefinitely, i.e. for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasize some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighed and a decision taken keeping in view the various principles laid down in the decisions referred to above.
". . Staying of disciplinary proceedings pending criminal proceedings, to repeat, should not be a matter of course but a considered decision. Even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed.
18. A writ court cannot act as "an appellate forum de hors the limitations of judicial review while considering the quashing of suspension order and charges and even at the threshold". (Vide Secretary to Govt, Prohibition and Excise Department v. L. Srinivasan . Thus, in view of the above, I find no force in the second submission also.
19. Undoubtedly, the competent authority has always a power to review the suspension order. It is an inherent power conferred upon him by the provisions of Article 21 of the General Clauses Act, 1897 and while exercising such a power, he can consider the case of an employee for revoking the suspension order, if he is satisfied that the criminal case would be concluded after an unusal delay for no fault of the employee concerned. However, if the competent authority is satisfied that his disclosure of defence in the disciplinary proceeding may substantially prejudice the criminal trial of the employee, he may also not proceed with the enquiry but where an employee has already submitted the reply to the charges served upon him in disciplinary proceedings or in a case where chargesheet has already been filed in the court and the authority is satisfied that the disclosure of defence will not materially prejudice the cause of the employee, he may issue an appropriate direction to conclude the enquiry expeditiously. Appendices I and II to the said Rules provide for a detailed procedure in respect of suspension and conducting the disciplinary proceedings. The said requirements have to be complied with and concerned authorities have to act in accordance to the procedure provided in the said appendices.
20. In view of the above, all the petitions are dismissed with a direction that the petitioners may approach the competent authorities alongwith certified copy of this judgment and if the petitioners do so, the competent authorities are directed to consider their cases strictly in accordance with law and pass appropriate orders and if the authority comes to the conclusion that the enquiry is to be proceeded with the same may be concluded expeditiously and if possible, within a period of four months from the date of submission of their representations. No order as to costs.