Madhya Pradesh High Court
R. N. Mishra vs Union Of India on 1 December, 2021
Author: Nandita Dubey
Bench: Nandita Dubey
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HIGH COURT OF MADHYA PRADESH AT JABALPUR
SINGLE BENCH : HON'BLE JUSTICE NANDITA DUBEY
Writ Petition No.17234/2021
D.K. Tiwari
Vs.
Union of India and others
Writ Petition No.15400/2021
Rajesh Dixit
Vs.
Union of India and others.
Writ Petition No.17200/2021
Dr. Jagannath Prasad Tegar
Vs.
Union of India and others.
Writ Petition No.17214/2021
R.N. Mishra
Vs.
Union of India and others
Shri Mrigendra Singh, learned Senior Advocate with
Shri K.N. Bundela and Ms. Ghuncha Rasool, counsel
for the petitioners.
Shri Swapnil Ganguly, learned counsel for
respondents No.2 and 3.
Arguments heard on : 13.09.2021
Order delivered on : 01.12.2021
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ORDER
This order will govern disposal of W.P. Nos. 17234/2021, 15400/2021, 17200/2021 and 17214/2021.
2. In all these petitions, challenge is made to the order of suspension as well as the charge sheet both dated 23.06.2021.
3. In W.P. No. 17214/2021, the petitioner has only challenged the order issuing charge sheet, as he had superannuated on 30.09.2020. In this case, petitioner was initially served with a charge sheet dated 29.09.2020 by the respondent/Institute levelling various charges. On 23.06.2021, another order was issued clarifying that due to lack of clarify in contents of Annexures I, II, III and IV, appended to the memorandum dated 29.09.2020, the same to be respectively replaced by Annexures A, B, C and D to this order. The Board of Governors further accorded sanction to departmental proceedings against petitioner to be conducted in accordance with CCS (CCA) Rules by the Director, NITTTR at Bhopal.
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4. These orders are mainly assailed on the ground that no opportunity of hearing was given before placing the petitioners under suspension. Further contention is that the departmental enquiry and the CBI enquiry are based on the same set of charges and the CBI has already concluded the investigation and filed the closure report. Referring to the closure report of CBI, it is submitted that the departmental enquiry was initiated to fulfill the personal vendetta of respondent, when the respondent failed to implicate the petitioners in a criminal proceedings.
5. The stand of respondent is that the order of suspension is not a punishment, nor issuance of a charge sheet gives any cause of action unless issued by an incompetent authority. It is contended that no punitive action has been taken against the petitioners. It is further urged that the scope of charges in a criminal case and departmental enquiry is totally different. Further the CBI report is pending consideration before the competent Court and yet to be accepted. Under the circumstances, at this juncture, no interference is called for.
6. I have heard the learned counsel for the parties at length and perused the record.
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7. The scope and extend of judicial review and interference in the charge sheet permissible under Article 226 of the Constitution of India is limited. It is settled law that issuance of order or suspension or charge sheet at the instance of the disciplinary authority to conduct an enquiry cannot be treated as punishment and does not give rise to a cause of action as no final order is passed at this stage. Normally, a charge sheet is not quashed prior to conducting the enquiry on the ground that facts stated in the charge sheet are erroneous. The legal proposition in this regard has already been settled by the Supreme Court in a number of decisions that no writ lies against the charge sheet or show cause notice unless the same is wholly without jurisdiction or illegal for some other reasons.
8. In the case of Secretary, Ministry of Defence and others Vs. Prabhash Chandra Mirdha (2012) 11 SCC 565 the Supreme Court has held:-
"12. Thus, the law on the issue can be summarised to the effect that chargesheet cannot generally be a subject matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the chargesheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not 5 liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings."
9. Admittedly, the competence of respondent in issuing the suspension order or charge sheet is not called in question. Though the petitioners have alleged malafide against respondent No.3, but that is only for the reason that the charge sheet has been issued despite a closure report by CBI. Be that as it may, in the absence of any clear allegation against any particular officer and in the absence of impleading such person eo nomine so as to enable him to answer the allegation against him, the allegation of malafide cannot be sustained. In the charge sheet dated 23.06.2021, six/seven charges are alleged against the petitioners. The charges pertain to procedural irregularity/dereliction of duty. The correctness of these charges cannot be gone into at this stage. Thus on the ground of malafide, no interference can be made.
10. Further, it is not in dispute that the closure report submitted before the competent Court by the CBI is yet to be accepted. It is well settled principle of law that 6 the yard stick of standard of proof in a criminal case is different from disciplinary proceedings. While the standard of proof in a criminal case is a proof beyond all reasonable doubt, the proof in a departmental proceedings is preponderance of probabilities. Thus a departmental proceedings can simultaneously continue with a criminal case. Further, even acquittal in a criminal case is not a bar for starting a departmental proceedings, if the authority is satisfied that there are material in support of the charge as held in AIR 1954 SC 375 (Venkatraman Vs. Union of India).
11. In (2013) 16 SCC 147 Union of India and another Vs. Ashok Kumar Aggarwal, the Supreme Court has held thus:-
"26. The scope of interference by the Court with the order of suspension has been examined by the Court in a large number of cases, particularly in State of M.P. v. Sardul Singh, (1970) 1 SCC 108; P.V. Srinivasa Sastry v. Comptroller & Auditor General of India, (1993) 1 SCC 419; Director General, ESI & Anr. v. T. Abdul Razak, AIR 1996 SC 2292; Kusheshwar Dubey v. M/s Bharat Cooking Coal Ltd. & Ors., AIR 1988 SC 2118; Delhi Cloth General Mills vs. Kushan Bhan, AIR 1960 SC 806 U.P. Rajya Krishi Utpadan Mandi Parishad & Ors. v. Sanjeev Rajan, (1993) Supp. (3) SCC 483; State of Rajasthan v. B.K. Meena & Ors., (1996) 6 SCC 417; Secretary to Govt., Prohibition and Excise Department v. L. Srinivasan, (1996) 3 SCC 157; and 7 Allahabad Bank & Anr. v. Deepak Kumar Bhola, (1997) 4 SCC 1, wherein it has been observed that even if a criminal trial or enquiry takes a long time, it is ordinarily not open to the court to interfere in case of suspension as it is in the exclusive domain of the competent authority who can always review its order of suspension being an inherent power conferred upon them by the provisions of Article 21 of the General Clauses Act, 1897 and while exercising such a power, the authority can consider the case of an employee for revoking the suspension order, if satisfied that the criminal case pending would be concluded after an unusual delay for no fault of the employee concerned. Where the charges are baseless, mala fide or vindictive and are framed only to keep the delinquent employee out of job, a case for judicial review is made out. But in a case where no conclusion can be arrived at without examining the entire record in question and in order that the disciplinary proceedings may continue unhindered the court may not interfere. In case the court comes to the conclusion that the authority is not proceeding expeditiously as it ought to have been and it results in prolongation of sufferings for the delinquent employee, the court may issue directions. The court may, in case the authority fails to furnish proper explanation for delay in conclusion of the enquiry, direct to complete the enquiry within a stipulated period. However, mere delay in conclusion of enquiry or trial can not be a ground for quashing the suspension order, if the charges are grave in nature. But, whether the 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 in mala fide and without there being even a prima facie evidence on record connecting the employee with the misconduct in question.8
27. Suspension is a device to keep the delinquent out of the mischief range. The purpose is to complete the proceedings unhindered. Suspension is an interim measure in aid of disciplinary proceedings so that the delinquent may not gain custody or control of papers or take any advantage of his position. More so, at this stage, it is not desirable that the court may find out as which version is true when there are claims and counter claims on factual issues. The court cannot act as if it an appellate forum de hors the powers of judicial review."
12. Further, the CCA Rules do not provide for any opportunity of hearing before issuing order of suspension. The learned counsel for the petitioners has also failed to demonstrate that an opportunity of hearing was required to be given before passing the impugned suspension order. Moreover, against the order of suspension, the petitioners have an alternative, efficacious remedy of appeal available under the Rules of 1966.
13. In Devendra Singh Kirar Vs. State of M.P. and others (2014) 3 MPLJ 117 a coordinate Bench of this Court has held :-
"11..........In the opinion of this Court, the correctness of allegations cannot be gone into at this stage. The suspension is not a punishment. Correctness of allegations will be gone into in the disciplinary proceedings by the 9 enquiry officer. At this stage, there is no occasion for this Court to examine the correctness of the allegations. A Panchayat Secretary can be placed under suspension during pendency of an investigation, enquiry or trial. The only thing which needs to be examined at this stage is whether the conditions/ingredients for placing the petitioner under suspension are satisfied. Since the respondents intended to conduct a disciplinary enquiry against the petitioner, it cannot be said that the order of suspension is beyond the powers available to the appointing authority under the D and A rules. Thus, I find no reason to interfere with the suspension order."
14. So far as the contention of petitioners that the original documents are still tied up with CBI and on the basis of xerox copies, the departmental enquiry should not proceed, as it would prejudice the defence of petitioners, it is observed that under the CCA Rules, the documents which are required to be relied upon in a departmental enquiry, either be the original document or an authenticated copy thereof. In case, if the original documents are with CBI or tied up with in a Court of law, the CBI, which has taken possession of the original documents in custody, should be asked to authenticate the xerox copy/documents. Further, the CBI's assistance may also be taken for getting the original documents in custody of the Court inspected by the charged officer by making an appropriate application for inspection in the Court, if the charged officer so insists, as it 10 is also clarified in circular dated 24.02.2011 by the Government of India, Ministry of Finance (Anneuxre RJ-2).
15. At this stage, there is no occasion for this Court to examine the correctness of allegations. An employee can be placed under suspension if the employer intends to conduct a disciplinary enquiry against him. Further, at the stage of mere charge sheet, no right of petitioners get infringed, as no final order imposing punishment or otherwise adversely effected them has been passed. Thus, I find no reason to interfere with the impugned order.
16. Petitions have no substance and are hereby dismissed. No costs.
(Nandita Dubey) Judge SMT. GEETHA NAIR 01/12/2021 gn 16:45:52 +05'30' 2021.12.01