V.K. Seth, Member (A).
1. Vide this O. A. the applicant has sought setting aside of the order dated 20.11.1997 passed by the State of U.P. placing him under suspension with immediate effect. He has also sought directions to respondents not to give effect to the aforesaid impugned order.
2. The prayer of the applicant has been contested by the respondents and objections as also detailed counter reply and supplementary counter affidavit were filed by the State of U.P. The applicant filed rejoinder as also supplementary rejoinder. We have carefully gone through the same and also taken note of the detailed submissions of the learned counsel for the two sides made at the admission stage itself. The O.A. is being finally disposed of at the admission stage itself.
3. Now a brief description of the factual background. The applicant, who is a member of the Indian Administrative Service, was appointed as Director, U.P. Rajaswa Krishi Mandi Parishad vide an order dated 6.4.1997 and assumed the charge of that post on 8.4.97. He worked in the said capacity from 8.4.97 to 30.9.97 when he was transferred and posted as Managing Director, U.P. State Mineral Development Corporation. An F.I.R. was lodged in the matter on 11.11.97. While serving in the latter capacity, the applicant was placed under suspension vide order dated 20.11.1997 (enclosed as annexure-1 to the O.A.). In connection with the suspension the applicant represented to the Appointment Secretary, U.P. Government vide a letter dated 21.11.1997 endorsing its copy to Sri R.S. Mathur, Chief Secretary, U.P. Government for immediate decision at his level and also for bringing the facts stated therein to the notice of the Hon'ble Chief Minister and arranging a meeting with the latter to enable him to clarify the position personally. Copies, among others, were also endorsed to Secretary, D.O.P.T., Government of India as also the Establishment Officer, D.O.P.T. for issue of necessary orders in the matter. The applicant filed the present O.A. on 2.12.97. Soon thereafter during the pendency of this O.A. Vide a memorandum dated 5.12.97 (wrongly mentioned as 5th September, 1997) of the D.O.P.T. the applicant was informed that he may prefer an appeal to the Central Government through State Government against the order of suspension in terms of Rule 16 of the All India Services (Discipline and Appeal) Rules. The said memo is enclosed as annexure R-1 with the counter reply of respondent No. 2 subsequently vide an order dated 26.12.1997 Government of India, D.O.P.T. Confirmed the impugned order of suspension of the applicant (Annexure S.R. 1 with the supplementary counter affidavit). On 29.12,97 the applicant was informed that the State Government has decided to initiate disciplinary proceedings against him under Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969. Copy of the charge-sheet together with statements as also list of documents and witnesses in support thereof was also enclosed. The applicant was allowed 15 days for submitting statement of his defence, which was finally submitted by the applicant on 20.1.98. Vide orders of 23.1.98 Enquiry Officer and Presenting Officers were appointed. Since the applicant did not admit the charges levelled against him, the Governor while appointing the Enquiry Officer directed him to submit his enquiry report within a month.
4. The applicant contends that the impugned action suffers from arbitrariness and malafide, that it was the applicant who brought to the notice of the Board all relevant facts, that the Board is a corporate body and for the alleged lapses individual responsibility against the applicant cannot be fixed. Further that as Chief Executive Officer of the Mandi Parishad he was under legal obligation to implement the decision taken by the Board and that the FIR supports the contentions of the applicant. Non application of mind, abuse of power and colourable exercise of power have also been alleged. During the course of arguments it was also pointed out that the F.I.R. does not name the applicant and that the applicant was already transferred from Mandi Parishad and therefore, he could neither obstruct the proceedings nor tamper with the evidence. It was further contended that the charges contained in the chargesheet subsequently issued were not attributable to any acts of omission or commission on the part of the applicant. It was strenuously urged that it was the applicant who sought a review of the earlier decision and acts of omission were more attributable to some others from the Government who were present at the time of relevant meeting of the Board. With reference to Section 20 of the A.T. Act, 1985, which inter alia provides that a 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 grievances. It was argued that the case presented unusual and extraordinary circumstances.
5. As against above, briefly stated the stand of the respondents is based on the contentions that the O.A. is clearly premature as the applicant had not preferred an appeal against the impugned order despite statutory provision Under Rule 16 of the All India Services (Discipline and Appeal) Rules and the Tribunal could intervene if the impugned order was malafide or arbitrary or in violation of any statutory rules and further that the Tribunal could look into the decision making process and not the decision itself. It was also urged that it would not be within the purview of this Tribunal to look into the gravity or otherwise of the charges.
6. For convenience of reference the relevant Rules are reproduced below :
The All India Services (Discipline and Appeal) Rules, 1969 :
3. Suspension--(1) If, having regard to the circumstances in any case and where articles of charge have been drawn up. The nature of the charges, the Government of a State or the Central Government, as the case may be, is satisfied that it is necessary or desirable to place under suspension a member of the Service, against whom disciplinary proceedings are contemplated or are pending, that Government may--
(a) if the member of the Service is serving under that Government, pass an order placing him under suspension, or
(b) if the member of the Service is serving under another Government, request that Government to place him under suspension, pending the conclusion of the disciplinary proceedings and the passing of the final order in the case.
Provided that, in cases, where there is a difference of opinion,--
(i) between two State Governments, the matter shall be referred to Central Government for its decision;
(ii) between a State Government and the Central Government, the opinion of the Central Government shall prevail:
Provided further that, where a State Government passes an order placing under suspension a member of the Service against whom disciplinary proceedings are contemplated, such an order shall not be valid unless, before the expiry of a period of forty-five days from the date from which the member is placed under suspension, or such further period not exceeding forty-five days as may be specified by the Central Government for reasons to be recorded in writing, either, disciplinary proceedings are initiated against him or the order of suspension is confirmed by the Central Government.
6. Penalties--(1) The following penalties may, for good and sufficient reasons and as hereinafter provided by imposed on a member of the service, namely:--
(v) reduction to a lower stage in the time scale of pay for a specified period with further directions as to whether or not the member of the Service will earn increments during the period of reduction and whether, on the expiry of such period, the reduction will or will not have the effect of postponing future increments of his pay;
(vi) reduction to a lower time scale of pay, grade or post which shall ordinarily be a bar to promotion of the member of the Service to the time scale of pay, grade or post from which he was reduced, with or without further direction regarding conditions of restoration to the grade or post from which the member of the Service was reduced and his seniority and pay on such restoration to that grade or post;
(vii) compulsory retirement.
Provided that, if.... of the said rules.
(viii) removal from Service which shall not be a disqualification for future employment under the Government to be a disqualification for future employment under the Government;
(ix) dismissal from Service which shall ordinarily be a disqualification for future employment under the Government.
8. Procedure for imposing major penalties.--(1) No order imposing any of the major penalties specified in Rule 6 shall be made except after an inquiry is held as far as may be, in the manner provided in this rule and Rule 10, or, provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850) where such inquiry is held under that Act.
(2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a member of the Service, it may appoint under this rule or under the provisions of the Public Servants (Inquiries) Act 1850, as the case may be, an authority to inquire into the truth thereof.
(5)The disciplinary authority shall deliver or cause to be delivered to the member of the Service a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the member of the Service to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.
16. Order against which appeal lies.--Subject to the provisions of Rule 15 and the explanations to Rule 6, a member of the Service may prefer an appeal to the Central Government against all or any of the following orders, namely:--
(i) an order of suspension made or deemed to have been made under Rule 3;
Administrative Tribunals Act, 1985
Section-20. Application not be admitted unless other remedies exhausted.--(1) A 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 grievances.
(2) For the purpose of Sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances,--
(a) if a final order has been made by Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in (sic)
(b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.
7. A reading of the relevant statutory provisions in All India Services (Discipline and Appeal) Rules together with the facts narrated earlier goes to show that there is no procedural infirmity in the actions of the State Government, The impugned order of suspension of the applicant has been issued in contemplation of disciplinary proceedings for imposing a major penalty. The said order has been confirmed within the limitation period by the Central Government and disciplinary proceedings have also been initiated in time. This view was fairly conceded by the learned counsel for the applicant during the course of hearing of the petition, who, however, stressed the arbitrariness of the order and also strenuously urged that while there may be no element of personal malafide or malice, there was malice in law inasmuch as the charges were not based on any actions attributable to him demonstrating misuse or abuse of power vested in the authority. He also made a very strong plea for the intervention by the Tribunal, the basis of which are certain decisions mentioned earlier. In response the learned counsel for respondents also cited several authorities. We, therefore, propose to examine in the following paragraphs as to how far the rulings cited before us lend support to the contentions of the two sides.
8. In the case of Sheikh Mustaque Ahmad v. Union of India and Ors. (reported in (1997) 36 A.T.C. page 148), in which the matter related to dismissal from service of a rail way employee and an order of suspension treating the applicant retrospectively under suspension, the Tribunal held that the use of the word 'ordinarily' has granted discretion to the Tribunal in proper cases to waive the condition of exhausting the departmental remedies. In our view the present case is not pari materia and what we are discussing here is not a case of dismissal but a case of suspension under All India Service Rules and the O.A. has been heard at the admission stage itself in view of preliminary objections. This decision, therefore, is of no avail to the cause of the applicant.
9. In the Full Bench decision in O.A. No. 27 of 1990 in re. B. Parameshwara Rao v. The Divisional Engineer, Telecommunications, Eluru and Anr., reported in Full Bench Judgments of CAT Vol. II Bahri Bros. 250 it was, inter alia, held that ordinarily connotes a discretionary power which has to be exercised in rare and exceptional cases and not usually or casually.
10. In the case of BDA Limited v. State of UttarPradesh and Ors., reported in AIR 1995 Allahabad 277 it was held that the existence of alternative remedy is not a complete bar and does not oust the jurisdiction of the Court to the entertainment of the writ petition. In our view this is also of no help to the applicant as what we are dealing with here is the statutory provision under the A.T. Act and not the discretion vested with the High Court under the writ jurisdiction.
11. In the case of S.S. Rathore v. State of M.P. (reported in (1989) 4 SCC page 582) while discussing as to when cause of action arises it was held that right accrues not when the original order was passed by the dismissing authority but when that order was finally disposed of by a higher authority on appeal or representation in exhaustion of statutory remedy and where no such final order is made on expiry of six months from the date of appeal or representation. The purport of Section 20, of the A.T. Act is to give effect to the Disciplinary Rules and the exhaustion of the remedies available thereunder is a condition precedent to maintaining of claims under the Administrative Tribunals Act.
12. In the case of State of M.P. v. L.P. Tiwari, (1994) 4 SCC 468, it was held that non-service of chargesheet did not vitiate the suspension and further that an order of the Central Administrative Tribunal, which suffered from a manifest grievous error of law could not be a reason or justification for the Supreme Court to refuse interference. These observations clearly negate contentions of the applicant.
13. Similar view has been held in the case of State of Orissa through its Principal Secretary, Home Deptt. v. Bimal Kumar Mohanty, (1994) 4 SCC 126, wherein it was observed that the Tribunal appears to have proceeded in haste in passing the impugned orders even before the ink is dried on the orders passed by the appointing authority and further the contention that the discretion exercised by the Tribunal should not be interfered with .... cannot be given acceptance.
14. In the case of Ram and Shyam Company v. State of Haryana and Ors., AIR 1985 S.C. 1147, the learned counsel for the applicant invited our attention to certain observations contained in para-9 of the judgment. These are "ordinarily it is true that the Court has imposed a restraint in its own wisdom on its exercise of jurisdiction under Article
226..... At any rate it does not oust the jurisdiction of the Court.... where the order complained against is alleged to be illegal or invalid as being contrary to law..... a petition cannot be rejected on the ground that an appeal lies." As stated earlier what we are concerned here, is statutory provision of the A.T. Act and not a self imposed restriction in the context of writ jurisdiction under Article 226 of the Constitution.
15. In the case of P.R. Nayak v. Union of India, AIR 1972 Supreme Court 554, our attention was invited to the observations made in para-15 wherein it was observed that an order of suspension before actual initiation or commencement of disciplinary proceedings appears to us, therefore, to be clearly outside the ambit of Rule 3(1). In this connection the rule, which was in question in the said case, read as below :
"If having regard to the nature of the charges and the circumstances in any case, the Government which initiates any disciplinary proceedings is satisfied that it is necessary or desirable to place under suspension the member of the Service against whom such proceedings are started, that Government may--"
It will be noticed that the present provision, which was substituted by a notification dated 5.7.75 is different from the earlier provision and according to the extant rule it would be quite competent for the Government to place a member of the All India Service under suspension 'having regard to the circumstances in any case' implying thereby that in contemplation of disciplinary proceedings.
16. U.P. Rajya Krishi Utpadan Mandi Parishad and Ors. v. Sanjiv Rajan (1993) Suppl. 3 SCC 483, Orders of High Courtrevoking suspension--it was held that where charge of defalcation of monies or embezzlement of funds was involved, it was desirable that the concerned employee was kept out of mischief's range by being suspended and it was advisable to let the disciplinary proceedings unhindered. In the present case it is not clear from the chargesheet that the applicant himself embezzled any money.
17. In the case of Dy. Inspector General of Police v. K.S. Swaminathan, (1996) 11 SCC 498, it was held by the Hon'ble Supreme Court that examining the correctness of the charge, particularly at the stage of framing charges was beyond the scope of judicial review. Tribunal or Court has only to see whether statement of facts and material supplied by the delinquent disclose the misconduct alleged. This observation of the apex Court obviously lends support to the stand of the respondents. However, it is not of much relevance inasmuch as the chargesheet is not under challenge in the present case.
18. In the case of V.P. Kapoor v. Union of India and Anr., (1994) 27 A.T.C. 383, the learned counsel for the respondents quoted the observation of the apex Court cited in para-16 of the judgment in the case of E.S. Reddy v. Chief Secretary, Government of Andhra Pradesh, in support of his contention that the predecessor of the applicant was also placed under suspension as was done in the case cited in the aforesaid judgment.
19. In the case of Union of India and Ors. v. A.N. Saxena, (1992) 3 SCC 124, it was held that the Tribunal must be very cautious and careful in granting an interim order for staying of the disciplinary proceedings.
20. In the case of Secretary to Government, Prohibition and Excise Department v. L. Srinivasan, (1996) 3 SCC 157, the apex Court observed that in quashing the suspension and charges on the ground of delay in initiation of disciplinary proceedings the Administrative Tribunal committed grossest error in its exercise of the judicial review.
21. In the case of Secretary to Government and Anr. v. K. Munniappan, (1997) 4 SCC 255 it was held that suspension pending investigation into embezzlement was permissible. Certain directions were, however, issued for expeditious completion. In the present case, the competent authority has already issued directions for completion of the enquiry within a month.
22. In addition to the rulings cited above by the two sides, the learned counsel for the applicant brought to our notice instructions issued by the State Government vide their O.M. of 18.7.1979 on the subject of policy regarding suspension of government employees, which inter alia, prescribe that ordinarily action for suspension should be taken only when prima facie the evidence against government employees in such that if the charges are proved, the employee will be awarded the punishment to dismissal, removal or reduction in rank. Some other guidelines are also contained in the said G.O. It was, however, pointed out that the said O.M. is not applicable to the members of the All India Service. Be that as it may, it is noteworthy that somewhat similar guidelines were issued by the Government of India, Ministry of Home Affairs as far back as on 22.11.1964 (Swamy's Compilation of CCS (CCA) Rules. Please see Chapter-3 Suspension-General Instructions). In our considered view, therefore, while no specific guidelines seem to have been issued for in the matter of placing under suspension of members of All India Service, the rationale of the above guidelines is equally relevant and applicable to them.
23. It is not as though there is no charge against the applicant as demonstrated by subsequent developments. The impugned order of suspension dated 2.11.97, inter alia, mentions grave financial irregularities and laxity in the performance of duties attached to the post by him resulting in heavy financial loss muds }kjk dh xbZ xEHkhj] foh; vfu;ferrkvksa ,oa inh; dZO;ksa ds fuoZgu esa f'kfFkyrk ls e.Mh ifj"kn dks Hkkjh vkfFkZd gkfu igqapkus dk ekeyk and the decision to take disciplinary action for major penalty. Before this an F.I.R. was lodged on 1.11.97 by the Section Officer, Mandi Parishad for offences Under Section 419/420 I.P.C. and Prevention of Corruption Act. This F.I.R. names certain individuals but the applicant's name does not figure among them. Great stress was laid on this fact by the applicant's counsel while overlooking that the F.I.R. does not form the basis or the foundation of the order of suspension. That order is based on the decision to take disciplinary action for major penalty against the applicant on the ground of some alleged improprieties on his part. What the imputations are finds place in the annexures to the chargesheet subsequently served on the applicant vide a letter of 29.12.97. Lists of documents and witnesses in support of the imputations are also enclosed. That being so, whether the charges against the applicant are totally without basis, as strenuously urged on behalf of the applicant can be said only after the evidence has been adduced and appraised, which stage has not yet been reached as per the record of the case available with us and this task has to be completed by the Enquiry Officer appointed for the purpose. We also note the omission on the part of the applicant so far to prefer an appeal against the impugned suspension order despite statutory provision for the same in the All India Service (Discipline and Appeal) Rules. A fortiori the substance of the rulings cited also inclines us in support of the stand of the respondents. Still further no material of any substance has been placed before us in support of the contention of malice in fact or in law.
24. Notwithstanding the foregoing aspects we are of the considered view and it appears indisputable to us that the gravity of the charges and whether the same, if proved, would warrant imposition of a major penalty, is a most important and relevant aspect to be considered while resorting to suspension. In fact the task has now become easier as this aspect has crystalised with the subsequent issue of charge-sheet. Hardly any less relevant is the aspect of the extent to which, if any, the applicant could tamper with the evidence or otherwise influence the outcome of the enquiry, while holding his new assignment.
25. In the above view of the matter, we do not consider it necessary to embark on a discussion of the remaining contentions advanced by the two sides.
26. To sum up, in the context of the conspectus of the case, we are not persuaded to intervene on behalf of the applicant in the manner sought. His prayer, therefore, for quashing-of the impugned order is hereby rejected. Nonetheless in view of the circumstances of the case, notwithstanding the fact that a period of more than 45 days has elapsed since the impugned order was delivered to the applicant, we provide that the applicant may prefer an appeal against the impugned order within 15 days of receipt of this judgment and order. Further the appellate authority shall take a considered decision on the same within one month of the receipt of the said appeal in terms of rules and law on the subject including our observations hereinbefore.
27. In the circumstances of the case, parties shall bear their own costs.