Jyotish Ch. Mazumdar vs State of Assam and Others

J.N. Sarma, J.—This matter arises out of an order of suspension.

Notice of motion was issued on 25.9.2001 and the Govt. Advocate was asked to receive instruction as to the reason leading to the suspension of the Petitioner and the date also was fixed i.e. 3.10.2001. On 3.10.2001, Mr. A.C. Buragohain, learned GA prayed for time to obtain instruction as to the reason which have led the authority to put the Petitioner under suspension. The matter was again listed on 5.10.2001. On 5.10.2001 learned Govt. Advocate, Mr. N.C. Phukan took time to receive instruction. Thereafter, it was listed on 10.10.2001. On 10.10.2001, two days time granted as prayed for. Thereafter it was listed on 12.10.2001 and on that date, time was granted till 15.10.2001. The matter was listed on 15.10.2001 and on that date also, learned GA prayed for adjournment till 17.10.2001 and the matter has been listed today i.e. 17.10.2001. This will show that the GA took time on 5 occasions to receive instruction. The seat of power of the State of Assam is at a distance of about 10 KM from this Court and this Court took a serious view in this matter in view of the fact that the Petitioner earlier was Project Director, DRDA where he was on deputation and he was sent back as Deputy Secretary, Power where he is working. He is an ACS Officer. He is to retire in the month of January, 2001 and serious allegations have been made in the writ application with regard to the order of suspension. Those allegations are made in paragraphs 11, 12, and 13 of the writ application. These are quoted below:

That the Petitioner begs to state that the impugned order of suspension does not disclose any reason nor does it disclose any satisfaction of the appointing authority which will necessary for exercise of power under Rule 6 of the Assam Service (Disciplinary & Appeal) Rules, 1964 as interpreted by the Division Bench of this Hon''ble Court. The impugned order also does not disclose'' anything regarding subsistence allowance of the Petitioner nor does it disclose about the headquarter of the Petitioner during the period of suspension. The said order is a bald and barren without disclosing the mind of the authority and has nothing but a mechanical exercise of power acting arbitrarily and on the face of it the said order is illegal and void.

That the Petitioner begs to state that while the Petitioner was serving as the Project Director, DRDA, Ka Mr. up, the Govt of Assam engaged a Chartered Accountant to audit the various accounts under the DRDA. It may be stated that with a view to facilitate drawal and deposit of fund under various heads and under various schemes, the DRDA since its inception is operating so many accounts in the schedule banks at Guwahati. While performing the audit works entrusted to the Chartered Accountant, the Petitioner requested the said auditor to reconcile the accounts of DRDA, inasmuch as, the Petitioner found that due to non-reconciliation of such accounts the DRDA is loosing a huge amount of money by way of interest. Accordingly on request being made, the said Auditor appointed by the Govt. reconcile the. various accounts by visiting of the banks, as a result of which a huge sum of money amounting to Rs. 3 crore (approx) were credited in total. Although there was no prior approval from the Govt. for the purpose of reconciliation of amount it was within the ambit of power and jurisdiction of the Project Director and the Petitioner duly initiated the fact of such reconciliation to the Government in the Panchayat Department. The then Commissioner & Secretary to the Panchayat & R.D. Department, however, for the reasons best known to him did not like this action of the Petitioner. However, the Petitioner was not issued any show cause notice regarding this nor any explanation was sought for from him. Except the aforesaid action which bonafided the DRDA finance, there is no other action of the Petitioner which displeased the authority.

That the Petitioner begs to state that the authority did not like the challenge made by the Petitioner, the order of his repatriation to the Department issued vide Notification dtd. 10.7.2001 and the filing of WP(C) 4844/2001 pursuant to the said order as the Petitioner was also requesting and insisting upon the authorities to issue him the revised pay slip during his posting as the Project Director, DRDA, Ka Mr. up and this has apparently annoying the concerned authority and ultimately as a result of this, the impugned order of suspension was passed suspending the Petitioner from his service without disclosing any reason and without drawing any departmental proceeding in gross violation of the principles of natural justice, equity and fair play in action as well as the professed norms of the Government.

The law with regard to power of suspension have by now crystalised. Suspension is not a punishment. The Division Bench of this Court as far back as on 6.9.1983 in the case of Dhirendra Kumar Barthakur v. State of Assam and Ors. reported in (1983) 2 GLR 459, laid down the law as follows:

Despite the apparent wide power of suspension under Rules, 6 it is now well settled that the authority concerned is to keep in view several factors in exercise of its powers, such as, where continuance in the Office of the Government servant would prejudice the investigation, trial or an enquiry, or where the allegations against him are such that in the interest of maintenance of purity of the administration or the upkeep of proper standards of discipline and morale in the service, it is considered expedient to place him under suspension. It is necessary that the authority concerned passing the order must address its mind to relevant aspects and come to the bonafide conclusion that a disciplinary proceeding against him is under contemplation.

No doubt suspension is not a punishment by itself; but it cannot be denied at the same time that in such cases the officers placed under suspension suffer a lot. Apart from this, suspension of a Government servant is liability on the part of the Government in the sense that not only the person concerned is required to be paid substantial allowance but also a substitute in his place is to be taken. The idea behind placing an officer under suspension is not to inflict punishment which can be done only when the charges are proved but to safeguard against further loss to the Government, manipulation of records, intimidation of witnesses or embarrassment to Government in the public eye as in the case where moral turpitude is involved.

Although Rule 6(1) dos not in term make obligatory the recording of reasons for the exercise of the power I would like to read in the rule such a requirement as "contemplation" or "pendency" even if mentioned in order would not make it less barren or reasonable. Because, if the reasons are recorded in the order itself and are thereby communicated also to the civil servant sought to be suspended it may be possible for him to make a representation immediately to his appointing authority explaining the circumstances which may appear in the order against him to enable such authority to revoke the suspension which acts to the detriment not only of the suspended civil servant by reducing the corpus of the remuneration to a mere "subsistence allowance" but also of the State which is deprived of his services and has to suffer itself a second penalty of non-productive expenditure. The necessity to revoke a suspension order in appropriate cases at the earliest opportunity has indeed been recognised in the Executive Instructions referred to in the leading judgment apparently for the reasons that the period of suspension not being limited by the rule itself, at times and in particular cases, the power may show its true complexion of its unlimited extent and dubious content. Indeed, Sub-clause (5) of Rule 6 itself contemplates cases of revocation and therefore it would be legitimate for the Court to read such requirement in Sub-clause (1) which will make it possible for the suspended officer to avail this remedy speedily and effectively.

Same is the law in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, , where the law has been laid down as follows:

To place an employee under suspension is an unqualified right of the employer. This right is conceded to the employer in service jurisprudence everywhere. It has even received statutory recognition under service rules framed by various authorities, including the Government of India and the State Governments. (see: for example, Rule 10 of the Central Civil Services (Classification, Control & Appeal) Rules). Even under the General Clauses Act, 1897, this right is conceded to the employer by Section 16 which, inter alia, provides that power to appoint includes power to suspend or dismiss.

In para 29 it has been held as follows:

Exercise of right to suspend an employee may be justified on the facts of a particular case. Instances, however, are not rare where officers have been found to be afflicted by a "suspension syndrome" and the employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employee''s trivial lapse which has often resulted in suspension.

There is Anr. decision to the same effect reported in State of Orissa Vs. Bimal Kumar Mohanty, where it has been laid down as follows:

Normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges or misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. It would be Anr. thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent''s continuance in office while facing departmental inquiry or trial of a criminal charge.

In the Manual of Departmental Proceedings, Govt. of Assam, Department of Personnel, also it is provided as follows:

(ii) Charges and statement of allegations should be framed as soon as possible. When the officer proceeded against is placed under suspension, it should in no case take more than fifteen days from the date of placing the officer under suspension. The charge sheet should specifically contain the designation(s) of the Inquiring Authority appointed for the purpose.

Though this is guideline and has no enforceable right on the part of the employee, yet a guideline when it is issued, it should be adhered to by the authority, guidelines are made in order to avoid arbitrariness and whimsical action. That also was not followed in this case, though the order was passed on 20.9.2001 vide Annexure-F. Annexure-F is quoted below:

NO.AAP.30/2001/15: Pending drawal of departmental proceeding Shri Jyotish Chandra Muzumdar, ACS, Deputy Secretary to the Govt. of Assam, Power Department is placed under suspension with immediate effect.

Since 20.9.2001, nothing has been done. A bare perusal of the order will show that this order of suspension was not in accordance with law laid down by the Division Bench of this Court as well as the law laid down by the Apex Court as indicated above. In view of that matter, the order of suspension shall stand quashed and the Petitioner shall be taken back in service immediately with all consequential benefits. However, it is made clear that the authority may proceed with the departmental proceeding, if so advised, but the Petitioner shall not be placed under suspension again.

Heard Mr. H.N. Sarma, learned Counsel for Petitioner and Mr. A.C. Buragohain, learned Govt. Advocate for Respondents.