Kerala High Court
Haridas vs District Judge on 7 July, 1993
Equivalent citations: (1993)IILLJ1004KER
JUDGMENT K. Narayana Kurup, J.
1. It is said that every cloud has a silver lining, but the same was not true in the case of the official career of the petitioner as will be clear when the facts of the case unfolds itself.
2. The petitioner was appointed as Lower Division Clerkin the Munsiff Court, Tellicherry as per Ext. P1, proceedings of the first respondent District Judge dated February 15, 1982. Pursuant to Ext. P1 he took charge as L.D.C. on March 1, 1982. Thereafter, the first respondent transferred and posted him as L.D.C. in the District Court, Tellicherry.
3. Before this appointment as L.D.C. the petitioner was working as a teacher in a Tutorial College at Trivandrum for about 2 years where one Shri Madhavan Nair Suresh Mithran was also working as a teacher and the said Suresh Mithran was conducting a chitty and doing business in money lending under the name and style of M/s. Indian Mithra Bankers. While the petitioner was working as a teacher in the tutorial college as aforesaid, he was staying in a rental building at Trivandrum along with his parents, His next door neighbour at that lime was one Shri Ravindran Nair, the said Ravindran Nair joined in one of the chillies conducted by Suresh Mithran. According to the petitioner, during the last week of May 1981 Shri Suresh Mithran requested the petitioner to hand over a sum of Rs. 5,000/- to the aforesaind Ravindran Nair which was due from Suresh Mithran and Ravindran Nair on account of the chitty transaction. Accordingly, the petitioner and Suresh Mithran left the tutorial college in the evening and on the way to the petitioner's house both the petitioner and Suresh Mithran went to the office of the Indian Mithra Bankers and Suresh Mithran handed over to the petitioner a sum of Rs. 5,000/-, all in 100 rupee denomination. On reaching home the petitioner handed over this sum of Rs. 5,000/- to Ravindran Nair as directed by Suresh Mithran. As noticed above, this incident occurred during the last week of May 1981. Nine months thereafter the petitioner got the appointment as Lower Division Clerk as per Ext. P1 order of the first respondent. During Onam vacation in the year 1982 the petitioner, while he was at Trivandrum, was arrested on September 8, 1982 by the Crime Branch in connection with a case registered before the II Class Judicial Magistrate Court, Trivandrum for the alleged offence under Section 489-B and C read with Section 34 of the Indian Penal code. He was released on bail on September 9, 1982. On enquiries, the petitioner understood that the 50 hundred rupees currency notes handed over to him by Shri Suresh Mithran during May, 1981 to be handed over to his neighbour were alleged to be counterfeit currency notes and that the petitioner carried the said counterfeit currency notes from Suresh Mithran to be passed on to Ravindran Nair. The said Suresh Mithran was also arrested by the police on September 9, 1982 and he was remanded to judicial custody for nearly two weeks and thereafter he was also granted bail. Ext. P2 is the case diary submitted by the police before the II Class Judicial Magistrate Court.
4. The first respondent placed the petitioner under suspension as per proceedings evidenced by Ext. P3 dated November 2, 1982 on the ground that a criminal offence is under investigation by the police against the petitioner. Accordingly the petitioner was relieved from the post of L.D.C. on November 2, 1982 itself. The petitioner's grievance is that though he was arrested as early as on September 8, 1982, no charge sheet has been laid against him as on the date of filing of this Original Petition and the consequent delay has caused him untold misery and hardship. According to the petitioner the respondents are bound to complete the disciplinary proceedings with utmost dispatch averting all avoidable delays. In support of his contention he places reliance on Exts. P4 to P7. Ext. P4 is a Govt. Memorandum No. 79056/O & M/64 dated November 16, 1964 which stipulates that time limit should be observed in all disciplinary cases except those referred to the Tribunal. It also provides for stringent action being taken against persons responsible for delaying disciplinary cases. Ext. P4 memorandum is further modified by Ext. P5 Memorandum No. 52703/ 65/O& M dated November 6, 1965 which contemplates a prescribed time flow chart for the completion of various stages in taking disciplinary action and the maximum time limits for such completion is fixed as 8 months. Under Ext. P5 all Departments of Secretariat, Heads of Departments and other disciplinary authorities are instructed to follow the revised Flow Process Chart in dealing with disciplinary cases. Ext. P6 is another memorandum dated November 28, 1979 stipulating that it will be desirable to limit the maximum period for which a State Government employee kept under suspension pending completion of disciplinary proceedings against him to six months in normal circumstances. Ext. P6 memorandum further states that in exceptional cases where it is not possible to adhere to the time limit the authority concerned which placed the officer under suspension should report the facts to the next higher authority and the latter authority should review the case with special reference to the reasons for the delay and issue appropriate orders of continuing or cancelling suspension. Ext. P7 G.O. (MS) No. 1/80 Vig. dated January 2, 1980 is yet another order issued by the Government regarding review of suspension under which the cases of Government servants who are continuing under suspension pending completion of disciplinary proceedings initiated against them for a period exceeding six months have to be reviewed. There also it is provided that it will be desirable to limit the maximum period of suspension of the officers to six months in normal circumstances and to reinstate them in service without prejudice to the disciplinary proceedings initiated against them. In exceptional cases where it is not possible to adhere to the time limit, the authority which placed the officer under suspension should report the fact to the next higher authority and the latter authority should review the case of suspension. Ext. P8 dated April 8, 1983 is the representation submitted by the petitioner before the first respondent bringing to his notice the directives and guidelines contained in Exts. P4 to P7 Govt. orders with a request to review the suspension order and to reinstate him in service since six months period of suspension has already been elapsed. In reply to Ext. P8 the petitioner was informed by the first respondent as per Ext.P9 memorandum No. AI-7370/82 dated April 16, 1983 that "nothing can be done now, as desired by the officer, since the criminal case against him is still being investigated by the police".
5. Since no orders were passed by the first respondent reviewing the order of suspension of the petitioner, he was compelled to approach this court by filing O.P. 4047/88 for the issuance of a writ of mandamus directing the first respondent to revoke the order of suspension and to reinstate him forthwith in the light of the directives and guidelines contained in Exts. P4 to P7 Govt. orders and for the issuance of a writ of mandamus directing respondents 1 and 2 therein to complete and finalise the disciplinary proceedings, if any, against the petitioner. When the Original Petition came up for hearing before this court on September 19, 1988, it was submitted by the Govt. Pleader that the vigilance investigation against the petitioner in connection with the matter has come to an end and the final report will be laid shortly and on such submission being made, this court disposed of the O.P. by Ext. P10 judgment dated September 19, 1988 with the following directions:
"(i) When the Deputy Superintendent of Police, CFS, Crime CID Trivandrum files final report in regard to the alleged offences relating to counterfeiting of currency notes, he will immediately submit a copy of the same before the District Judge, Tellicherry.
(ii) When the 1st respondent receives a copy of the final report as aforesaid, he shall review the order of suspension and decide whether it is necessary to continue suspension or whether petitioner should be reinstated. Naturally this will have to be done without any delay particularly in view of the long lapse of six years, after suspension".
Since no action was taken by the first respondent to reinstate the petitioner even after Ext. P10 judgment, he has moved this court again in the instant writ petition for the issuance of a writ of mandamus or other appropriate writ, direction or order directing the first respondent to revoke the order of suspension and to reinstate the petitioner in service forthwith in the light of the provisions contained in Exts. P4 to P7 Govt. orders and to direct the respondents to complete and finalise disciplinary proceedings, if any, against the petitioner within 3 months from the date of receipt of the notice of the Original Petition and for other incidental reliefs. Though the instant writ petition was filed as early as May 20, 1989, the petitioner submits that the first respondent has not initiated any action to reinstate the petitioner in service.
6. The first respondent has filed a counter affidavit stating that "Charge sheet has now been filed against the petitioner and other accused in the case before the Judicial Second Class Magistrate, Trivandrum under Section 489-B and C and 34, I.P.C. (Ext. R1)" vide paragraph 3. It is further stated that the petitioner could not be reinstated since the criminal case against him was being investigated and after due consideration it was decided on April 16, 1983 by the first respondent that the petitioner is not entitled to be reinstated in service. Therefore the provisions in Ext. P7 regarding review of the cases of suspension exceeding six months have been duly complied with. The counter affidavit proceeds further to state that the matter was reported to the High Court as contemplated in Ext. P7 order as per first respondent's letter dated May 23, 1983 (Ext. R2) and the High Court as per Office Memorandum dated June 1, 1983 (Ext. R3) ordered that the suspension of the petitioner will continue. The counter affidavit further says that as the case was still under investigation as reported by the Deputy Superintendent of Police, CB, CID in his letter dated March 3, 1986 the suspension of the petitioner was not revoked and the matter was reported to the High Court as per latter dated May 5, 1986 (Ext. R4). The High Court after reviewing the case of the petitioner issued orders (Ext. R5) for continuing the suspension of the petition in view of sub-para (iii) of Paragraph 17 of the Manual for Disciplinary Proceedings. In the result, the first respondent swears that there is no basis for allegation that the disciplinary action is being dragged on in a leisurely manner and that there is no delay on the part of the respondents in conducting disciplinary proceedings and that the suspension of the petitioner is in connection with a criminal case and the same is still pending. The first respondent further states in conclusion that the third respondent (Deputy Superintendent of Police C.B. C.I.D.C.F.S.) has now submitted the final report and a copy of the same was received by the first respondent on June 22, 1989 from the third respondent and the order of suspension was reviewed by the first respondent as directed by the High Court in the judgment dated September 19, 1988 in O.P. 4047/88 and orders passed on June 26, 1989 and communicated to the petitioner (Ext. P6).
7. We have heard learned counsel for the; petitioner and learned counsel for the respondents in detail.
8. Learned counsel for the petitioner reiterated the contentions raised in the Original Petition. In addition, he also sought to buttress his submissions based on the expanded meaning given to "life" occurring in Article 21 of the Constitution of India. Learned counsel for the respondents submitted that no interference is called for by this court with the order passed by the competent authority placing the petitioner under suspension and the petition is liable to be dismissed.
9. Having heard the learned counsel for the petitioner and the learned Govt. Pleader and having bestowed our anxious consideration on the entire gamut of the case and also after having perused the pleadings in detail, we are of the view that the continued suspension of the petitioner from service is unjustified and is liable to be interdicted by this court.
10. Normally, in exercise of the extra-ordinary jurisdiction vested under Article 226 of the Constitution of India this court will be loathe to interfere with an order of suspension passed by a competent authority against a public servant. But once it is found that the order of suspension has been allowed to remain for an unreasonably long period (in this case for more than 9 years) without any compelling reason or where the continuance of suspension by its unduly long duration is itself in the nature of substantive punishment as it keeps the Govt. servant out of service notwithstanding the fact that the relationship of master and servant (vinculum-juris) is not snapped and results in substantial reduction in emoluments this court cannot sit with folded hands turning a Nelson's eye to the gross injustice meted out to the public servant conveniently forgetting the role of this court as sentinel-on the qui-vive. To concede to the competent authority unfettered and unguided power of suspension will tantamount to putting a premium for arbitrariness and unfairness which is just the antithesis of the concept of equality and fairness adumbrated under Article 14 of the Constitution of India. It is now well settled that an unfair, irrational and unreasonable decision would be Constitutionally unsustainable. These principles apart, indefinite suspension of the civil servant besides stigmatising him to a great extent has the super-added disability and the pernicious effect of demoralising him to a great extent even when he is reinstated which cuts at the very root of the efficiency of civil service. While dealing with a less serious situation where the civil servant concerned was placed under suspension for a period of nearly 10 months and the learned Single Judge by an ad-interim order cancelled the order of suspension and on appeal by the State against the said interim order, the Madras High Court while dismissing the appeal and allowing the officer concerned to resume his post held as follows:
"Quite apart from the broad principle that we have reiterated so often in the past that this court will not ordinarily interfere by way of appeal, from the exercise of an interlocutory discretion by a learned Judge of this court, by virtue of his jurisdiction under Article 226 of the Constitution, there is a graver and more basic principle involved, upon which this writ appeal has to be dismissed. If the argument of the learned Govt. Pleader is to be accepted by us, it would imply that there isno principle of natural justice, under which the executive could be inhibited from indefinitely placing an officer in the agony and disability of suspension from his office, while the question of the charges is being investigated in a most leisurely fashion, and years might elapse before a decision is taken. On the contrary, in our view there is a very clear and distinct principle of natural justice, that an officer is entitled to ask, if he is suspended from his office because of grave averments or grave reports of misconduct, that the matter should be investigated with reasonable diligence, and that charges should be framed against him within a reasonable period of time. If such a principle were not to be recognised, it would imply that the executive is being vested with a total arbitrary and unfettered power of placing its officers under disability and distress, for an indefinite duration. We cannot accept this, nor is any such claim supported by any precedent or authority".-vide The State of Madras v. KA. Joseph (AIR 1970 Madras 155).
11. We are in respectful agreement with the above observations of the Madras High Court. ;
12. The petitioner has a further contention that his prolonged and indefinite suspension has resulted in deprivation of his right to livelihood which as the Supreme Court has interpreted in a catena of decisions comes within the ambit o right to life guaranteed under Article 21 of the Constitution of India. We find considerable force in the submission of the learned counsel for the petitioner. The chronology of events in this case would show that the matter was protracted for a long time. The petitioner was arrested as early as September 8, 1982 and was placed under suspension by the first respondent on November 2, 1982 and on April 8, 1983 the petitioner made a representation before the first respondent to reinstate him after cancelling the suspension order. As per Ext. P9 dated April 16, 1983 the first respondent rejected the petitioner's request saying that nothing can be done as the criminal case against the petitioner is still being investigated by the police. Even though more than 5 years have elapsed since Ext. P9, nothing is seen done by the first respondent and the petitioner was driven to this court in O.P. 4047/88 and this court as per Ext. P10 judgment dated September 19, 1988 directed the first respondent to review the order of suspension when the first respondent receives a copy of the final report from the police in regard to the alleged offence and decide whether it is necessary to continue suspension or whether the petitioner should be reinstated. In the counter affidavit filed by the first respodent it is stated that suspension is being continued as this court has ordered as per Ext. P5 that the suspension is to be continued. The respondents have no case that reinstatement of the petitioner will in any way hamper the investigation which is already over or that the petitioner will intimidate witnesses or flee from justice. In the absence of such circumstances the fundamentals basis to keep the petitioner under suspension had disappeared and he is entitled to be reinstated in service forthwith. It has also to be noted that even after this court issued a direction to the first respondent to consider whether it was necessary to continue the suspension as per judgment in O.P. 4047/88 dated September 19, 1988, nothing tangible is seen done by the first respondent in that regard.
13. In the light of the above discussion, we hold that the suspension of the petitioner beyond the date of submission of chargesheet which we take as June 22, 1989 being the date of receipt of charge sheet by the first respondent was quite unnecessary, illegal and arbitrary. Accordingly we direct the first respondent to reinstate the petitioner in service forthwith cancelling the order of suspension. We also direct respondents 1 and 2 to disburse to the petitioner arrears of salary in full with effect from June 22, 1989, as if the petitioner was not under suspension, within two months.
The Original Petition is allowed as above, however we make no order as to costs.
It is made clear that the petitioner will be entitled to spread over benefit of Section 89 of the Income Tax Act.