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Judgment
T. Nandakumar Singh, J.—Heard Mr. S. Wahlang, learned counsel appearing for the petitioner and also Ms. N.G. Shylla, learned GA appearing for the respondents.
By this writ petition, the petitioner is assailing the impugned order being No. NST/I-5/2005/3085, dated Nongstoin 12-08-2015 (Annexure-I to the writ petition), for placing the petitioner under suspension pending departmental proceedings. For easy reference, the impugned suspension order is quoted hereunder:-
"GOVERNMENT OF MEGHALAYA OFFICE OFTHE DISTRICT MEDICAL & HEALTH OFFICER, WEST KHASI HILLS, NONGSTOIN.
No. NST/I-5/2005/3085/Dated Nongstoin, the 12-08-05.
OFFICE ORDER No. 66.
Pending Departmental Proceedings Sri. Damilton Hoojon, Dresser attached to Pariong PHC is placed under suspension w.e.f. 20.7.05 (FN) as per Rule 45 and 51 (1) of S.R. and F.R.
(Dr. B.K. Patigiri), District Medical & Health Officer, West Khasi Hills, Nongstoin."
It is also stated in the writ petition that the petitioner also filed many representations including one representation dated 07-07-2015 before the respondents requesting them to reinstate him as no departmental proceedings had been initiated for the last 10(ten) years against him. The Addl. District Medical & Health Officer, West Khasi Hills, Nongstoin under his letter dated 15-07-2015, informed the petitioner that since there is a police case against the petitioner and also the trial of that case is now pending in the Court, he declined to accept the request of the petitioner for re-instatement. It appears from the pleadings of the parties that the petitioner had been placed under suspension for involvement in a criminal case for which the trial is pending.
The respondents had filed the affidavit-in-opposition wherein it is stated that no article of charge had been framed for the departmental enquiry against the petitioner. In other words, the article of charge had not yet framed against the petitioner even after a lapse of 10(ten) years from the date of placing the petitioner under suspension vide impugned suspension order dated 12-08-2005. It is fairly settled law that suspension is not a punishment, but a long and continuous suspension is punitive in nature.
Mr. S. Wahlang, learned counsel appearing for the petitioner by placing heavy reliance on the decision of the Apex Court in O.P. Gupta Vs. Union of India (UOI) and Others, contended that a long and continuous suspension is unfair and punitive in nature. Para 15 and 23 of the SCC in O.P. Gupta''s case Supra read as follows:
"15. We have set out the facts in sufficient detail to show that there is no presumption that the Government always acts in a manner which is just and fair. There was no occasion whatever to protract the departmental inquiry for a period of 20 years and keeping the appellant under suspension for a period of nearly 11 years unless it was actuated with the mala fide intention of subjecting him to harassment. The charge framed against the appellant was serious enough to merit his dismissal from service. Apparently, the departmental authorities were not in a position to substantiate the charge. But that was no reason for keeping the departmental proceedings alive for a period of 20 years and not to have revoked the order of suspension for over 11 years. An order of suspension of a government servant does not put an end to his service under the Government. He continues to be a member of the service in spite of the order of suspension. The real effect of the order of suspension as explained by this Court in Khem Chand Vs. Union of India (UOI), is that he continues to be a member of the government service but is not permitted to work and further during the period of suspension he is paid only some allowances - generally called subsistence allowance - which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the departmental inquiry is concluded within a reasonable time, affects a government servant injuriously. The very expression ''subsistence allowance'' has an undeniable penal significance. The dictionary meaning of the word ''Subsist'' as given in Shorter Oxford English Dictionary, Vol. II at p. 2171 is "to remain alive as on food; to continue to exist". "Subsistence" means-means of supporting life, especially a minimum livelihood. Although suspension is not one of the punishments specified in Rule 11 of the Rules, an order of suspension is not to be lightly passed against the government servant. In the case of Board of Trustees of the Port of Bombay Vs. Dilipkumar Raghavendranath Nadkarni and Others, the Court held that the expression ''life'' does not merely connote animal existence or a continued drudgery through life. The expression ''life'' has a much wider meaning. Suspension in a case like the present where there was no question of inflicting any departmental punishment prima facie tantamounts to imposition of penalty which is manifestly repugnant to the principles of natural justice and fairplay in action. The conditions of service are within the executive power of the State or its legislative power under the proviso to Article 309 of the Constitution, but even so such rules have to be reasonable and fair and not grossly unjust. It is a clear principle of natural justice that the delinquent officer when placed under suspension is entitled to represent that the departmental proceedings should be concluded with reasonable diligence and 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 totally arbitrary and unfettered power of placing its officers under disability and distress for an indefinite duration.
The public interest in maintaining the efficiency of the services requires that civil servants should not be unfairly dealt with. The Government must view with concern that a departmental inquiry against the civil servant should have been kept alive for so long as 20 years or more and that he should have been placed under suspension without any lawful justification for as many as 11 years, without any progress being made in the departmental inquiry. It should also view with concern that a decision should have been taken by the competent authority to enforce the bar under FR 25 against the civil servant long after his retirement with a view to cause him financial loss. Such a course not only demoralises the services but virtually ruins the career of the delinquent officer as a government servant apart from subjecting him to untold hardship and humiliation. We hope and trust that the Government in future would ensure that departmental proceedings are concluded with reasonable diligence and not allowed to be protracted unnecessarily. The Government should also view with concern that there should be an attempt on the part of the competent authority to enforce the bar against a civil servant under FR 25 long after his retirement without affording him an opportunity of a hearing. It comes of ill-grace from the Government to have defeated the just claim of the appellant on technical pleas."
The Apex Court is of the similar view in Ajay Kumar Choudhary Vs. Union of India (UOI) and Others and held that:-
"8. Learned Senior Counsel for the Appellant, however, has rightly relied on a series of Judgments of this Court, including O.P. Gupta Vs. Union of India (UOI) and Others, , where this Court has enunciated that the suspension of an employee is injurious to his interests and must not be continued for an unreasonably long period; that, therefore, an order of suspension should not be lightly passed.
Our attention has also been drawn to K. Sukhendar Reddy Vs. State of Andhra Pradesh and Another, , which is topical in that it castigates selective suspension perpetuated indefinitely in circumstances where other involved persons had not been subjected to any scrutiny. Reliance on this decision is in the backdrop of the admitted facts that all the persons who have been privy to the making of the Office-notes have not been proceeded against departmentally."
Mr. S. Wahlang, learned counsel appearing for the petitioner further contended that the departmental enquiry and criminal proceedings are different. Departmental enquiry cannot be stalled simply because a criminal case is pending for the alleged offence and alleged misconduct for which the petitioner is under suspension. In support of his contention, learned counsel appearing for the petitioner relied on Noida Entrepreneurs Association vs. Noida and Ors. (2007) 10 SCC 385. Para 13, 14 and 17 of the Noida Entrepreneur''s case Supra read as follows:
"13. There can be no straitjacket formula as to in which case the departmental proceedings are to be stayed. There may be cases where the trial of the case gets prolonged by the dilatory method adopted by delinquent official. He cannot be permitted to, on one hand, prolong criminal case and at the same time contend that the departmental proceedings should be stayed on the ground that the criminal case is pending.
In Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, , this Court indicated some of the fact situations which would govern the question whether departmental proceedings should be kept in abeyance during pendency of a criminal case. In paragraph 22 conclusions which are deducible from various decisions were summarised. They are as follows (SCC p. 691 para 22):
.......(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest.
Mr. K.T.S. Tulsi, learned counsel for Smt. Neera Yadav stated that an appropriate motion shall be made before the departmental authorities to keep the proceedings in abeyance till conclusions of the criminal proceedings. If such prayer is made, the same shall be considered in the light of the principles set out by this Court in Hindustan Petroleum Ltd. case (2005) 10 SC 471 : 2005 SCC (Cri) 1605 and Uttaranchal Road Transport Corpn. and Others Vs. Mansaram Nainwal, . It is ordered accordingly."
In the present case, the charge memo or the article of charge against the petitioner had not been framed for the last more than 10(ten) years from the date of suspension under the impugned suspension order dated 12-08-2005. In the affidavit-in-opposition filed by the respondents, the respondents did not mention any reason for which the charge memo or article of charge had not been framed for departmental enquiry against the petitioner. It appears from the affidavit-in-opposition filed by the respondents that the petitioner had been placed under suspension continuously for more than 10(ten) years only because there is a criminal case pending against him.
Learned counsel appearing for the petitioner further contended that pendency of criminal case against an employee cannot be the ground for placing that employee under suspension till the trial of the criminal case is completed. In the instant case, the only reason given for requirement of the petitioner to be placed under suspension is pendency of a criminal case against the petitioner before the concerned Chief Judicial Magistrate, Nongstoin.
For the foregoing reasons, this Court is of the considered view that sufficient materials had been made out for interfering the impugned suspension order dated 12-08-2005. Accordingly, the impugned suspension order dated 12-08-2005 is hereby quashed and the petitioner should be re-instated in service within 45 days from the date of receipt of a copy of this judgment and order subject to result of the criminal case pending before the concerned Chief Judicial Magistrate. However, this Court is not deciding the arrear pay and allowances of the petitioner in the present case.
With the above directions, writ petition is allowed.