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[Cites 10, Cited by 0]

Central Administrative Tribunal - Delhi

Dr. Sarbesh Bhattacharjee vs Department Of Health & Family Welfare on 23 December, 2011

      

  

  

 CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
NEW DELHI

Original Application No.4087 of 2011

This the 23rd day of December, 2011

HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN

HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A)

Dr. Sarbesh Bhattacharjee
S/o Sibesh Chandra Bhattacharjee,
R/o Qr. No.D-II/31, 
Kidwai Nagar East,
New Delhi.								         Applicant

( By Shri Nidhesh Gupta, Sr. Advocate and with him Shri Sagar Saxena and Shri Ajesh Luthra, Advocates )

Versus

1.	Department of Health & Family Welfare
	through its Principal Secretary,
	Government of NCT of Delhi,
	A-Wing, 9th Level, 
Delhi Secretariat, I.P. Estate, 
New Delhi-110002.

2.	Government of NCT of Delhi through
	Chief Secretary, Delhi Secretariat,
	I.P. Estate, New Delhi.

3.	Union of India through
	Secretary, Ministry of Health &
	Family Welfare, Nirman Bhawan,
	New Delhi-110011.					   Respondents

( By Shri Vijay Pandita, Advocate )

O R D E R

Justice V. K. Bali, Chairman:

There is minimal interference by Courts and Tribunals in the matter of suspension of a Government employee. From amongst the limited grounds, however, it is settled proposition of law that one ground to interfere in the matter of suspension would be where the order may not have been passed by the competent authority. This precisely is the primary plea of the applicant in the present Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985, questioning the order of suspension dated 02.11.2011 passed by the Principal Secretary (H&FW), Government of NCT of Delhi, the first respondent herein, less than three months prior to the date when the applicant was to superannuate. The Original Application during its pendency has been amended twice. We will make mention of the amendments brought about in the Application during its pendency at the relevant time.

2. The facts as extracted from the amended OA, insofar as the same are relevant, would need a necessary mention at this stage. The applicant joined in Arunachal Pradesh as Medical Officer on ad hoc basis on 15.01.1976 and was regularized through UPSC in Central health Services General Duty Medical Officer (GDMO) Sub Cadre with effect from 30.10.1976. It is his positive case that the Union of India, the third respondent herein, is his appointing authority. The applicant has given by and large details of the places of his postings and the promotions he earned from time to time. There would be no need to refer to the service progression of the applicant from 1976. Suffice it may, however, to mention that the applicant was given the charge of Additional Director (HQ) in February, 2009 along with the charge of East Zone till 21.08.2009, when he was transferred to the Delhi Government and was posted as Director Health Services (DHS) on 26.08.2009 and assumed the charge on the same date. In 2010, he was entrusted with the job of medical coverage of the Commonwealth Games, 2010 and it is his case that he did the same just within one year and five days, which was termed as world class health care even by the Games Federation Chief Michael Fennel in his speech of the closing ceremony. It is pleaded that the applicant had to establish one super specialty hospital in the Games Village and 37 athletes medical room and unlimited number of first aid posts (FAP) and field of play (FOP) as per demand of the Organizing committee, and he established all these within time. It is further pleaded that considering the time limit, the applicant had done the best job done by any one in the history of the games; even media reports confirmed the same. It is then the case of the applicant that since he could not give much time to his family due to his involvement in the Commonwealth Games and his official work for one long year, he lost his elder daughter who died due to neurological disorder, and he still feels guilty that had he given more time to her, he could have saved her, and that he was shattered due to his daughters untimely death. On 10.03.2011, the applicant was once again shifted from DHS by the Delhi Government, though he was the senior-most officer in GDMO sub-cadre and was presently posted as Medical Superintendent, DDU Hospital, when the suspension order came to be passed just before his retirement. The applicant claims an excellent, efficient and impeccable service record. Till date, he claims, he did not receive a single warning from any of his superiors or the Government he served. It is pleaded that having rendered over 35 years of unblemished service with very good/outstanding record, he was legitimately expecting that he would be retiring peacefully on 31.01.2010. However, the first respondent, it is pleaded, illegally and mala fidely in contravention of rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter to be referred as the Rules of 1965) issued the suspension order, and that no report as mandated under rule 10 of the Rules aforesaid, had been sent to the appointing authority, i.e., the third respondent, by the first respondent while suspending the applicant. The applicant, in addition to challenging the order dated 02.11.2011, has also questioned the order dated 28.11.2011, vide which during pendency of the present OA the third respondent has approved the confirmation of suspension, primarily on the ground that an illegal order issued by incompetent authority could not be ratified even by approval of the third respondent. Inasmuch as, reply to the unamended OA had since already been filed, in the amended OA the applicant who came to know the reasons of his suspension through the reply filed on behalf of the respondents, has touched the subject on merits as well. The applicant is said to have been suspended so as to prevent any interference in the investigation/inquiry and any tampering/destruction of the records pertaining to the case. The irregularities are alleged to have been committed by the applicant while working as Director, Health Services. It is the case of the applicant that he is no longer in the said department, and that in fact he had been transferred from there in March, 2011 itself, and has since been working as Medical Superintendent, DDU Hospital, Delhi, which has nothing to do with the Directorate of Health Services.

3. Delving further on the merits of the controversy, it is stated that the respondents, as mentioned in their reply, have suspended the applicant on the allegation that while posted as Director, Health Services, he had issued a supply order for sterile gloves to a firm M/s MRK Healthcare, which was valid for two years. The said rate contract with the firm was cancelled within eight months, i.e., even before the expiry of one year, without issuing any show cause notice to the firm for failing to supply any more quantities of sterile gloves during that year. Even within 15 days of issuance of supply order or before commencement of supplies, a security deposit of 5% of the total costs was also required to be obtained from the contractor, which the applicant was alleged to have failed to do. He was also alleged to have not initiated any penal action against the supplier for refusing to supply the total requirement of sterile gloves, and instead the GNCTD hospitals were informed by him to make their own arrangements for purchase of sterile gloves, which the hospitals thereafter purchased at much higher prices, and various hospitals, especially Lok Nayak Hospital, placed order for supply of sterile gloves with M/s Pharmatech (which was the sole distributor of M/s MRK Healthcare) at double the cost (Rs.12/-) than the rate contract entered into with M/s MRK Healthcare (Rs.6/-). In that regard, it is the case of the applicant that the reasoning and basis for passing the suspension order would be completely mala fide, illegal, arbitrary and discriminatory. It is his case that an agreement dated 03.04.2010 had been entered into between the Director, Health Services, GNCTD and M/s MRK Healthcare. The said firm had to supply sterile gloves for a period of two years. The firm, however, wrote a letter indicating its inability to do the same. The applicant, therefore, cancelled the contract and forfeited the earnest money deposit. It is the case of the applicant that the said action can surely not form the basis of suspension order against the applicant, since the failure to supply was on the part of the firm and the applicant had only cancelled the contract and forfeited the earnest money deposited by the firm. It is further his case that the reply of the respondents itself states that the firm mentioned therein, i.e., M/s MRK Healthcare had failed to supply the sterile gloves, and it is thus apparent that the failure to supply would be on the part of the said firm, and, therefore, there was no question of the applicant having favoured the said vendor. Further, perusal of the record of the case would show that the said firm had written a letter indicating its inability to supply the gloves, and in such a situation, the applicant cancelled the contract with the firm. The allegation that no show cause notice had been issued to the firm, it is pleaded, could be a ground for the firm to challenge the cancellation, but surely could not be a ground to allege favouritism on the part of the applicant. As regards the allegation that a security deposit of 5% of total cost was also required to be obtained from the contractor, but the applicant had failed to do so, it is the case of the applicant that in all supply contracts, normal practice is to take an earnest money deposit, and the condition of security deposit of 5% of the total cost is never taken since the total cost of supply would not be known to the Directorate; the said total cost would be known to the concerned hospital when the actual supply is made to it and, therefore, since the total cost itself would not be known, there would be no question of taking 5% of the said cost as earnest money deposit. Moreover, it is pleaded, it is the regular practice of the Directorate to take only an earnest money deposit and security deposit of 5% of total cost is not taken. As regards the applicant not taking penal action against the supplier for refusing to supply the total requirement of sterile gloves, it is the case of the applicant that the penal action/black listing is to be undertaken by the special purchase committee and not by the applicant. It is pleaded that the applicant had cancelled the contract and forfeited the earnest money deposit. In response to an RTI query regarding the action taken against other firms who had also failed to honour their commitments under a contract for supply of various articles, the applicant received information vide letter dated 15.11.2011, perusal whereof would show that when one firm M/s Neon Labs, had in spite of entering into an agreement with the Directorate, expressed its inability to supply injection heparin, the issue was discussed at the State level special purchase committee under chairmanship of Dean, Maulana Azad Medical Committee, and it was decided to forfeit the earnest money deposit as also that M/s Neon Labs may be allowed to supply other approved drugs after submission of fresh earnest money of Rs.3 lakhs. It was stated in the letter aforesaid that the earnest money deposit of the firm was thus forfeited and it continued to supply other drugs through CPRAC to all Delhi Government hospitals. From the facts as mentioned above, it is the case of the applicant that the respondents are acting in an arbitrary and discriminatory manner against him, inasmuch as, in similar circumstances, the Directorate had only forfeited the earnest money deposit, and far from taking any penal action against the firm in question, allowed it to continue supplying other drugs after submission of fresh earnest money deposit.

4. We may now refer to the applicant amending the OA twice over. This matter came up for hearing before us on 24.11.2011, when after hearing the learned counsel representing the parties, judgment was reserved. On 28.11.2011, we recorded the following order for the parties to clarify the position:

Arguments in this case were heard on 24.11.2011 when judgment was reserved.
2. Dr. Sarbesh Bhattacharjee, the applicant herein, has filed present OA under Section 19 of the Administrative Tribunals Act, 1985, calling in question the order dated 02.11.2011 placing him under suspension. The order, as per the case set up by the respondents, has been issued under signatures of Pr. Secretary (H&FW), Government of NCT of Delhi, after due approval from the Chief Secretary and the Minister of Health, Government of NCT of Delhi. The only contention that has been raised on behalf of the applicant during the course of arguments is that Government of NCT of Delhi is not the appointing authority of the applicant, and that the applicant came to be appointed by the order of the President, and the President alone, being the appointing authority, could pass the order of suspension. Counsel representing the respondents would place reliance upon proviso to rule 10 (1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter to be referred as the Rules of 1965), to contend that when 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. Counsel for the applicant, in rebuttal, would contend that the authority lower than the appointing authority has to be in the hierarchy of posts, and that the proviso to rule 10(1) of the Rules of 1965 would not cover a case where the appointing authority may be the President, and the order may have been passed by any of the authority of the State Government. While preparing our judgment, however, we find that the applicant has himself pleaded in the OA that the 1st respondent, i.e., Principal Secretary, Department of Health & Family Welfare, Government of NCT of Delhi, is not the appointing authority of the applicant, as in fact the 3rd respondent, Union of India through Secretary, Ministry of Health Family Welfare, is the appointing authority, and, therefore, the 1st respondent while issuing the order of suspension, should have immediately reported to the 3rd respondent the circumstances in which the order was made, as mandated by rule 10 of the Rules of 1965. This has been averred in para 1 as also para 5(D) of the OA. We may reproduce para 5(d), which reads as follows:
D. For that respondent no.1 is not the appointing authority of the applicant rather respondent no.3 is the appointing authority. Therefore, respondent no.1, while issuing the order of suspension, should have immediately reported to respondent no.3 the circumstances in which the order was made as mandated by Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. This is sine qua non for suspension order being effective.
3. Once, it is the case of the applicant himself that the 1st respondent should have immediately reported to the 3rd respondents the circumstances in which the order of suspension was made, as mandated by rule 10, which procedure has indeed been followed, as may emanate from the pleadings made in the counter reply, it is not understandable as to how it is then contended that the authority lower than the appointing authority should be in the hierarchy of posts. The matter, in our view, would need clarification.
4. List again on 05.12.2011. Copy of this order be given forthwith to counsel for parties. An application came to be filed for amending the OA insofar as the averments referred to in the order are concerned. Even though, in the application seeking amendment what has primarily been stated is to be a typographical error, it may not appear to be so, but during the course of arguments it was urged that if the legal position be that the order of suspension can be passed validly by the competent authority, which would be the third respondent, i.e., the appointing authority in the case of the applicant, the averment as regards sending the matter for approval to the third respondent would not validate the initial order of suspension. The respondents filed reply to the application seeking amendment, which was allowed vide order dated 05.12.2011, which reads as follows:
MA 3185/2011
In hand is a miscellaneous application seeking amendment of the Original Application. Notice in this application was issued, to which reply has been filed on behalf of the respondents. Since Mr. Pandita, counsel defending the respondents, does not oppose the amendment in the OA, this MA stands allowed.
OA 4087/2011
Mr. Pandita, counsel defending the respondents, seeks time to file reply to the amended OA. Let the reply be filed two days before the next date with an advance copy to the counsel opposite.
List on 15.12.2011. It appears that counsel for the respondents would not oppose the amendment as during the course of arguments it was urged that the primary point raised in the OA is as regards legality of the order having been passed by an incompetent authority, and, therefore, averments made in the OA as regards the procedure to be adopted may not be much relevant.

5. The second amendment was necessitated as during pendency of the OA, the third respondent accorded approval to the order of suspension passed by the first respondent, challenged in the first instance in the unamended OA. The application in that regard was allowed vide order dated 15.12.2011 by recording the following order:

MA No.3298/2011
Applicant by way of MA in hand seeks amendment of the OA so as to incorporate challenge to order dated 28.11.2011 which was brought to the notice of the applicant during the pendency of the OA. Reply on behalf of Respondent No.1 & 2 has been filed and the prayer has been opposed. We see hardly any justification for opposing an application which is simply for incorporating a challenge to the order, which too came to the notice of the applicant during the pendency of the OA. The application in hand is allowed. Reply to the amended OA has already been filed.
OA No.4087/2011
Arguments heard. Order reserved.

6. In the reply to the final amended OA, the respondents while opposing the cause of the applicant, have pleaded that the amended OA is not maintainable as the applicant has not exhausted remedies available to him, and that he should have filed an appeal before the Ministry of H&FW, Government of India, instead of approaching the Tribunal. It is then pleaded that the amended OA may not be allowed, as in the first miscellaneous application filed by him, the applicant took the plea that there was a typographical error in para 1 and 5D of the OA, which would be an afterthought. It is pleaded that there was no typographical error and the applicant has in fact tried to change the content of his plea of seeking relief under the garb of typographical error. As regards the pleading made in the application that there had been no independent application of mind by the competent authority, i.e., Ministry of H&FW, Government of India, having merely accepted the request made by the Government of NCT of Delhi, it is averred that the proposal had been considered in the Ministry and the competent authority approved the confirmation of suspension orders issued in respect of the applicant. It is pleaded that that the suspension order was issued on 02.11.2011, and immediately thereafter, the Ministry of Health & Family Welfare, Government of India was informed of the action taken by the State Government and a letter to that effect was sent to the Government of India vide letter dated 04.11.2011. It is further pleaded that the suspension was necessitated as prima facie irregularities and involvement of the applicant were observed in the matter of favouring a particular vendor who had been selected for supply of sterile gloves. The order of suspension has been issued under the signatures of Principal Secretary (H&FW), Government of NCT of Delhi after due approval from the Chief Secretary and the Minister of Health, Government of NCT of Delhi. Subsequent confirmation of suspension of the applicant has also been received from the Ministry of Health & Family Welfare, Government of India, vide letter dated 28.11.2011. The matter has also been referred to the vigilance department for conducting a detailed investigation. There is no dispute as regards the appointing authority of the applicant that the same would be the third respondent. However, it is pleaded that provisions of rule 10 of the Rules of 1965 have been complied with while issuing the order of suspension, inasmuch as the first respondent had immediately reported to the third respondent the circumstances in which the said suspension order was made. The gravity of the irregularities alleged to have been committed by the applicant is stated to be such that immediate suspension was warranted. It is pleaded that the matter is also being pursued by the vigilance department and in addition to departmental proceedings, criminal action against the applicant is also expected. Some other irregularities, it is pleaded, have also been noticed. The allegations against the applicant on which he has been placed under suspension are that he had issued supply order for sterile gloves to a firm M/s MRK Healthcare which was valid for two years. The said rate contract with the firm was cancelled within eight months, i.e., even before the expiry of one year without issuing any show cause notice to the firm for failing to supply any more quantities of sterile gloves during that year. Within 15 days of issuance of the supply order or before commencement of supplies, a security deposit of 5% of total cost was also required to be obtained from the contractor. However, the applicant did not get the said security deposit from the contractor. He also did not initiate any penal action against the supplier for refusing to supply the total requirement of sterile gloves. The hospitals thereafter purchased sterile gloves at much higher prices. Various hospital, especially Lok Nayak Hospital, placed order for supply of sterile gloves with M/s Pharmatech (which was the sole distributor of M/s MRK healthcare) at double the cost (Rs.12/-) than the rate contract entered into with M/s MRK Healthcare (Rs.6/-). It is pleaded that the matter being of grave and serious nature involving financial irregularities amounting to large sums of money, required thorough investigation, for which the matter has been referred to the Directorate of Vigilance, Government of NCT of Delhi, and that given the gravity of irregularities, the large financial implications and to facilitate fair and impartial inquiry/investigation the applicant was placed under suspension so as to prevent any interference in the investigation/inquiry and any tampering/destruction of records pertaining to the case. Along with the applicant, the then CMO/Incharge, Central Procurement Agency was also suspended. It is pleaded that no harassment has been meted out to the applicant.

7. We have heard the learned counsel representing the parties and with their assistance examined the records of the case.

8. Before we may touch upon the controversy on merits, we may deal with the objection raised by the respondents that the applicant has not exhausted the statutory remedy of appeal against the order of suspension, and, therefore, present OA would need rejection, relegating the applicant to the alternative remedy of appeal. Admittedly, appeal against an order of suspension is provided under rule 23 of the Rules of 1965. Per contra, Shri Nidhesh Gupta, the learned Senior Advocate representing the applicant, would contend that there is no express bar for resorting to an Application under Section 19 of the Act of 1985 for an employee not exhausting all the remedies under the statute that may be available to him. In that regard, the learned counsel refers to provisions of Section 20 of the Act aforesaid, which state that the Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of his grievances. Having heard the learned counsel for parties, we are of the view that there is no express or absolute bar for an employee to necessarily exhaust all remedies available to him under the relevant service rules before approaching the Tribunal for redressal of his grievances under Section 19 of the Act. Even though, there may not be any express provision like Section 20, either in the Constitution of India or elsewhere that ordinarily a writ under Article 226/227 would not lie if all alternative remedies have not been exhausted, but the law that has developed and is now firmly entrenched is that a writ may not be competent ordinarily when available remedies have not been exhausted. This law, it appears, has been incorporated specifically in the provisions contained in Section 20 of the Act of 1985. The circumstances, under which a person may be permitted to approach the High Court without exhausting the remedies available to him, in our considered view, would be applicable to the Original Applications filed under Section 19 of the Act of 1985. The rule of exhaustion of statutory remedies is the rule of policy, convenience and discretion, and the court in its considered view, in exceptional cases, may issue discretionary writ. Number of circumstances have been counted from time to time where a citizen is allowed to have direct access to the court without thus availing the alternative remedies available to him. In that regard we may first refer to the judgment of the Honble Supreme Court in Dr. (Smt.) Kuntesh Gupta v Management of Hindu Kanya Mahavidyalaya, Sitapur (UP) & others [(1987) 4 SCC 525]. The question in the case aforesaid was as to whether the Vice-Chancellor being a quasi judicial authority could review his own order, such power having not been expressly conferred on him by the statute. While observing that the provisions of the relevant statute did not confer any power of review on the Vice-Chancellor, and, therefore, his action would be wholly without jurisdiction in reviewing his earlier order, it was held that the review order, being without jurisdiction and a nullity, could surely be challenged before the High Court by a petition under Article 226, and that the same could not be dismissed by the High Court on the ground that an alternative remedy was available to the aggrieved person. Thus, if, therefore, the order in question may be without jurisdiction, void ab initio or a nullity, it is not necessary for a citizen to exhaust alternative remedies. In Seth Chand Ratan v Pandit Durga Prasad [(2003) 5 SCC 399], it was held that where there is complete lack of jurisdiction for the officer or authority or tribunal to take action or there has been a contravention of fundamental rights or there has been a violation of the rules of natural justice or where the tribunal acted under a provision of law, which is ultra vires, then notwithstanding the existence of an alternative remedy, the High Court can exercise its jurisdiction to grant relief. In BALCO Cooperative Power Plant Mazdoor Sangh & another v National Thermal Power Corporation & others [(2007) 14 SCC 234], which was the case of transfer of employees of the PSU to a private organization in terms of a bipartite agreement between the PSU and the private organization, and where the consent of the employees had not been taken, the order of transfer was held to be arbitrary and unreasonable. Since the claim of the petitioners related to interpretation of the agreement and appointment letters, and no disputed facts were involved, the Apex Court held that inasmuch as, the claim of an employee relates to interpretation of certain clauses in the agreement and appointment letters and no disputed facts are involved, and the issue related to employment of few hundred of employees and in the light of the assertion that transferring them to private organization from a PSU without their specific consent would be arbitrary and unreasonable, the alternative remedy being rule of discretion and not the rule of law, the writ petitions under Article 226 filed by the employees would be maintainable. In Satwati Deswal v State of Haryana & others [(2010) 1 SCC 126], it was held that when it may be a case of violation of principles of natural justice, alternative remedies cannot be insisted upon. In Jindal Strips Limited & another v State of Haryana & others [Civil Writ Petition No.1898 of 1992, decided on 15.09.1995], by a Division Bench of the Punjab & Haryana High Court, in which one of us (V. K. Bali, Chairman) was a Member, after referring to the case law on the subject, the circumstances were mentioned, availability of which may not result into dismissal of the writ petition, relegating the party to the alternative remedies. In short, the facts of the case aforesaid were that a writ had come to be filed straightway against the order of Sales Tax Officer (STO). The statute provided for an appeal before the prescribed authority and further appeal to the tribunal and thereafter to ask for a case to be stated upon a question of law for the opinion of the High Court. The Sales Tax Act provided for a complete machinery to challenge an order of assessment, and on behalf of the respondents it was urged that the writ straight in the High Court against the order of STO would not be competent. It was also urged that where a right or liability was created by the statute, which gives a special remedy for enforcing it, the remedy provided by the statute only must be availed of. The order of STO came to be straightway challenged in the High Court for the reason that the Chief Minister of the State was inimically disposed towards O. P. Jindal, as alleged, who practically owned M/s Jindal Strips Limited. We need not refer to all the facts of the case, but may, however, hasten to add that serious mala fides were alleged against the sitting Chief Minister of the State. All possible exceptions for which an alternative remedy may not be insisted upon for a citizen to file writ straight in the High Court have been mentioned by the Division Bench based upon case law. Surely, one of the exceptions is where the order under challenge may be wholly without jurisdiction or void ab initio.

9. Further, the applicant is challenging the order of suspension and approval thereof, on the ground of statutory violations, which would render the impugned orders void ab initio and a nullity. Our experience in the Tribunal shows the statutory appeals filed by the employees are kept pending for long time. In number of cases we have to issue directions to the appellate authorities to simply decide the appeals within specified time frame as no decision is taken even after their long pendency. It appears to us that the chances of the appeal that may have been filed by the applicant, for its culmination into a final order before his retirement, would be very bleak. If the appeal was to be decided after the retirement of the applicant, the same would have been rendered infructuous, as acceptance of the appeal after retirement of the applicant would have been of no meaning and consequence to him. The applicant retiring with grace while in service would be entirely different than his retiring in disgrace under suspension. Therefore, we are of the view that the present is a fit case where the OA be not dismissed relegating the applicant to exhaust the alternative remedy of appeal.

10. We may mention at the very outset that the plea raised by the applicant that his appointing authority would be the 3rd and not the 1st respondent has remained uncontroverted, be it in the pleadings or during the course of arguments. We may, however, touch upon the same as regards only its essential part. The applicant came to be appointed to the Central Health Service vide notification dated 19.07.1976 by the President. His letter of appointment was handed over to us during the course of arguments. The applicant was appointed as Medical Officer to the Central Health Service on probation, on which post he was confirmed later. The Service is governed by rules known as Central Health Service Rules, 1996. Controlling authority, in view of rule 2(b), means the Government of India in the Ministry of Health and Family Welfare. Government, as per rule 2(e) means the Government of India, and Service, as per rule 2(i) means the Central Health Service. Rule 3 which deals with composition of the Service, states that all duty posts, included in the Service shall be classified as Central Civil Service Group A and the grades, scales of pay, non-practising allowance and other matters connected therewith shall be as specified in Schedule-I. In view of provisions contained in rule 6, all officers appointed under the Central Health Service Rules, 1982 on or before the commencement of the Rules of 1996, would be deemed to have been appointed under the new Rules and they would be members of the Service in the respective grades. All appointments to the Service shall be made by the controlling authority, in view of provisions contained in rule 11, and, as mentioned above, controlling authority would mean the Government of India in the Ministry of Health and Family Welfare. It is thus made out from the provisions of the Rules of 1996 as well that the appointing authority of a member of the Service, as the applicant is, is the Government of India in the Ministry of Health and Family Welfare. Rule 10 of the Rules of 1965 deals with suspension. The same, insofar as is relevant, reads as follows:

(1) The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government Servant under suspension
(a) where a disciplinary proceeding against him is contemplated or is pending; or (aa) where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or
(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial :
Provided that, except in case of an order of suspension made by the Comptroller and Auditor-General in regard to a member of the Indian Audit and Accounts Service and in regard to an Assistant Accountant-General or equivalent (other than a regular member of the Indian Audit and Accounts Service), 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. A bare perusal of rule 10 would manifest that an employee can be placed under suspension either by the appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the President, by general or special order. Whereas, it is the specific case of the applicant that his appointing authority would be the Government of India in the Ministry of Health and Family Welfare, and, therefore, the order of suspension passed by the first respondent would be void ab initio, it is not the case of the respondents that the first respondent is either the appointing authority of an authority subordinate to the appointing authority, or even the disciplinary authority of the applicant; the first respondent is also not an authority that may have been empowered in that behalf by the President, by general or special order. The respondents in their endeavour for this Tribunal to hold the order to have been passed by the competent authority, would exclusively rely upon the proviso to rule 10 of the Rules of 1965. It is urged during the course of arguments by the learned counsel representing the respondents that the order of suspension in the case of the applicant has been made by an authority lower than the appointing authority, and the procedure envisaged under the proviso for reporting the matter to the appointing authority, has been meticulously followed in the present case. We are of the firm view that the State Government, in the present case the Government of NCT of Delhi, cannot be said to be an authority lower than the appointing authority. Lower authority than the appointing authority, it appears to us, can be only in the hierarchy of the posts. To illustrate, if the Secretary of a Department may be the appointing authority of an employee, the Additional Secretary would be the authority lower than the appointing authority. The State Government cannot be said to be an authority as such, and, therefore, there would be no question of the State Government being an authority lower than the Central Government. It may be recalled that the averments made by the applicant in the unamended OA that the first respondent had not sent the matter for approval of the third respondent, may not be having any consequence, as the procedure of reporting of a matter of suspension to the appointing authority by the authority lower than the said authority, would not be applicable in the facts and circumstances of the case. There cannot be any manner of doubt that in the present case, suspension order has been passed by an incompetent authority, and, therefore, the said order would be void ab initio or non est, as the case may be.

11. The first respondent, however, as mentioned above, after placing the applicant under suspension vide order dated 02.11.2011, sought approval of the Central Government, which has been accorded by it vide order dated 28.11.2011, which too came to be challenged by amending the OA, as mentioned above. The question that arises is as to whether once the appointing authority may have approved the order of suspension passed by the first respondent, should the order of suspension be held valid at least from the date the approval was given. The learned counsel representing the applicant, being confronted with the position aforesaid, would vehemently contend that once the order has been passed by an incompetent authority and the same may be void ab initio, it cannot be approved or ratified by the competent authority. For the proposition of law as mentioned above, the learned counsel would rely upon two decisions of the Honble Supreme Court in Marathwada University v Seshrao Balwant Rao Chavan [(1989) 3 SCC 132] and Government of Andhra Pradesh & others v K. Brahmanandam & others [(2008) 5 SCC 241]. The facts of Marathwada University (supra) would reveal that power to take disciplinary action against an officer was with the executive council. The order against the employee, however, came to be passed by the vice chancellor. The order passed by the vice chancellor against the employee had later been ratified by the competent authority, i.e., the executive council. While holding that the power to appoint officers was conferred on the executive council under the relevant provisions of the statute, which would comprehend the power to remove as well, and that the executive council and not the vice chancellor would be competent to take disciplinary action against the controller of examination, the Honble Supreme Court concentrated upon ratification of the order passed by the vice chancellor in that regard. It was urged before the Apex Court that the executive council had delegated its disciplinary power to the vice chancellor and the relevant Act provided for such delegation. Insofar as, the delegation of power is concerned, it was held that by the power delegated under the resolution, the vice chancellor could either accept or reject the report with intimation to the executive council, and he could not have taken any other action, as he was not authorized to do so. As regards ratification by the executive council and its legal effect, it was held, after referring to Friedmans Law of Agency (5th edn.) chapter 5 at p.73, and Bowstead on Agency (14th edn.) at p.39, that These principles of ratification, apparently do not have any application with regard to exercise of powers conferred under statutory provisions. The statutory authority cannot travel beyond the power conferred and any action without power has no legal validity. It is ab initio void and cannot be ratified. In State of Andhra Pradesh v K. Brahmanandam (supra) where certain teachers were appointed in violation of rules, and even the approval of their appointments was not taken from the competent authority, it was held that the Government was neither under any statutory nor contractual obligation liable to bear the financial burden of salary, and that principle of quasi contract could also not be invoked against the Government. It was also held that appointments made in violation of the mandatory provisions of the statute would be illegal and, thus, void, and that illegality cannot be ratified or regularized. In view of the authoritative enunciation of law by the Apex Court, we have no hesitation in holding that once the power to suspend the applicant lay exclusively with the Central Government, the approval accorded by it or the ratification done by it, would be of no meaning and consequence. The order has to go.

12. Even though, there is not much scope in judicial review to examine the merits of controversy, but we are touching upon the same so as not to give a final view, but only to state that there are some questions which ought to have been examined before placing the applicant under suspension. Once, we are inclined to set aside both the orders dated 02.11.2011 and 28.11.2011, i.e., placing the applicant under suspension and approval of the same by the Central Government, it would be obvious that liberty shall have to be given to the Central Government to pass appropriate orders, but before the liberty that shall be given to the Central Government to pass an order, we may only mention that there are certain facts which need a serious look. Before we may, however, do that, we may refer to the letter dated 04.11.2011 that was sent to the third respondent for confirmation of the suspension order, which reads, thus:

Pursuant to a complaint received regarding favouring of a particular supplier in the matter of supply of surgical gloves, the Govt. of N.C.T. of Delhi has found prima facie irregularities and the involvement of then Director of Health Services Dr. Sarvesh Bhattacharjee, and the then Chief Medical Officer, Incharge Central Procurement Agency Dr. S. Rao. The said two officers have been, thereafter, placed under suspension on 3/11/2011 (copy enclosed) and the matter has been referred to the Directorate of Vigilance, Govt. of NCT of Delhi.
The said two officers of the Central Health Service Cadre have been suspended from service in exercise of powers conferred by the Central Civil Service (Classification, Control and Appeal) Rules, 1965.
It is requested that the said suspension orders be confirmed.
Further action being taken as per the said CCS (CCA) Rules will also be intimated to you shortly. No factual scenario is mentioned in the letter aforesaid. All that is stated is that a complaint against the applicant regarding favouring a particular supplier in the matter of supply of surgical gloves had been received, and that the Government of NCT of Delhi had found prima facie irregularities and involvement of the applicant and another, and, therefore, they need to be placed under suspension. What favouritism has been shown by the applicant and to whom, is also not mentioned. The proposal came to be approved on 28.11.2011 by the Government of India by passing the following order:
I am directed to refer to DO No.1(8)/7/DHS/ CPA/2010/Pr.SecyHFW/1347 dated 04.11.2007 requesting therewith the Ministry for confirming the suspension Orders in respect of Dr. Sarvesh Bhattacharjee, the then Director Health Services and Dr. D. S. Rao, the then CMO, In Charge, Central Procurement Agency, issued by Govt. of NCT of Delhi vide Order os.F.1(8)/7/DHS/CPA/2010/8102 to 8110 and 8111-8119 respectively dated 02.11.2011.
The proposal has been considered in the Ministry and the Competent Authority i.e. Honble HFM has approved the confirmation of suspension Orders issued in respect of Dr. Sarvesh Bhattacharjee and Dr. D. S. Rao, CHS Officers. The proposal appears to have been approved simply because it was sent, and not because any justification was found for doing so. In the reply filed on behalf of the respondents, the specific reason for placing the applicant under suspension is that prima facie irregularities and involvement of the applicant were observed in the matter of favouring a particular vendor who had been selected for supply of sterile gloves. The applicant is said to have issued a supply order on M/s MRK Healthcare, which was valid for two years. The said rate contract with the firm was cancelled within eight months, i.e., even before expiry of one year without issuing any show cause notice to the firm for failing to supply any more quantifies of sterile gloves during that year.

13. Do the allegations as mentioned above, really go to show any favouritism to M/s MRK Healthcare? The applicant is said to have cancelled the contract within eight months, and it is an admitted position that he had forfeited the security deposit of the said firm as well. We are sanguine that the Government, while applying its mind to place the applicant under suspension, would consider as to whether at all it was favouritism or harshness to the concerned firm. We may, however, mention here that it is not in dispute that the applicant cancelled the contract of the said firm because it had admittedly expressed its inability to supply the material. It is then mentioned that within 15 days of issuance of the supply order or before commencement of the supplies, a security deposit of 5% of the total costs was also required to be obtained from the contractor, but the applicant did not get the security deposit from the contractor, and he also did not initiate any penal action against the supplier for refusing to supply the total requirement of sterile gloves. The case of the applicant is that it is impossible to get the security deposit of 5% of the total cost, as the same cannot be estimated beforehand. It is also his case that such a security deposit was not being taken from others as well. It is also his case that there could not be any further penal action but for to blacklist the said firm, but that had to be done by the concerned committee and not by the applicant. This aspect shall also have to be given a serious thought by the Government. It is then the case of the respondents that the hospitals thereafter purchased the gloves at much higher prices. Once the contract was validly cancelled and it is rather the case of the respondents that more punitive action ought to have been taken against the firm, obviously the material to be supplied by the firm shall have to be supplied by others, and if in that event more money had to be coughed out by the Government, can the applicant be really blamed for the same. These are the questions on which the respondent Government of India has to apply its mind. The contract and cancellation thereof, forfeiture of the deposit and the non-deposit of security of 5% of the total cost of the material to be supplied by the firm, are admitted facts. That some hospitals, one of which has been mentioned by the respondents, may have to spend more money in purchasing the surgical gloves is also not in dispute. In these circumstances, prima facie it does not appear that there would have been any occasion for the applicant to tamper with evidence or influence the witnesses, particularly when he had left the department and at the relevant time was working in DDU Hospital, Delhi and would have no control over the officers or employees of the department where he was earlier working. This aspect shall also have to be taken into consideration by the Government.

14. It may be recalled that the applicant has unblemished service span of 35 years. He is to superannuate on 31.01.2012. The allegations against him are not serious, like corruption or falsification of records etc. Do the allegations made against the applicant would be enough to place him under suspension, and that too, just a couple of months prior to his retirement, would be another question which shall have to be considered by the Government.

15. For the reasons mentioned above, while allowing the present Original Application, we quash and set aside the orders dated 02.11.2011 and 28.11.2011, i.e., placing the applicant under suspension and approval thereof by the Central Government, with liberty to the Central Government to consider the matter afresh by application of mind on the points as fully detailed above. The suspension of the applicant shall be revoked forthwith, with liberty as mentioned above. There shall, however, be no order as to costs. 

( Dr. Ramesh Chandra Panda )				         ( V. K. Bali )
             Member (A)						         Chairman

/as/