Maval Taluka General Kamgar ... vs Kirkee Cantonment Board, The ...
2003 Latest Caselaw 277 Bom

JUDGMENT

C.K. Thakker, C.J.

1. Rule. Mr. Palkhiwala, learned Advocate, appears and waives service of notice of rule on behalf of respondent Nos. 1 and 3. Mr. V.P. Sawant, learned advocate, appears and waives service of notice of rule on behalf of respondent No. 4. In the facts and circumstances, the matter is taken up for final hearing.

2. This petition is filed by the petitioners as pro bono publico for an appropriate writ, direction or order quashing and setting aside Resolution No. 6 dated December 10, 2001, passed by Kirkee Cantonment Board, revoking an order of suspension and reinstating respondent No. 4 in service.

3. It is the case of the petitioners that petitioner No. 1 is a registered union of Maval Taluka General Kamgar Sanghtna. It is asserted that one of the objects of petitioner No. 1 is to ensure that dishonest employees are not given any benefit. Petitioner No. 2 is resident of Kirkee. Respondent No. 3 is an employee of respondent No. 1-Board. He is Health Superintendent/Garden Superintendent. It is alleged that respondent No. 4 was caught red handed by the Anti Corruption Bureau Department of Pune in connection with a complaint lodged by petitioner No. 2 alleging therein that for installation of illegal steel cabin near a bus stop to run a business of repairing scooter and motor-cycle etc., respondent No. 4 had demanded and accepted an amount of Rs. 10,000/- from petitioner No. 2 as illegal gratification. Police Inspector, Anti Corruption, Pune, wrote a letter to the President of Cantonment Board, Kirkee, on January 25, 2001, stating that respondent No. 4 was arrested by police for accepting an amount of Rs. 10,000/- illegally by promising petitioner No. 2 and allowing him to keep a cabin near bus stop.

4. On January 30, 2001, the respondent-Board unanimously resolved to place respondent No. 4 under suspension with immediate effect till finalisation of the case/further orders by the Cantonment Board. The said order is annexed to the petition at Annexure A-1. He was to be paid subsistence allowance as admissible under the Rule during the period of suspension.

5. It appears that respondent No. 4 made an application to the Board requesting his reinstatement in service. Legal opinion was sought and the application along with legal opinion was placed before the Board. The prayer of respondent No. 4 was rejected as the inquiry against him was not over. It was, however, resolved that if the inquiry proceedings against respondent No. 4 would not conclude within six months, the prayer of respondent No. 4 for reinstatement would be considered.

6. On December 10, 2001, Resolution No. 6 came to be passed by the respondent-Board and it was decided to reinstate respondent No. 4 on the post of Health Superintendent/Garden Superintendent with immediate effect on terms and conditions mentioned therein. The said order is challenged in the present petition.

7. Notices were issued, pursuant to which the respondents appeared. Affidavits and counter affidavits have been filed. We have the learned counsel for the parties.

8. Mr. Anturkar, learned counsel for the petitioners, contended that the impugned Resolution passed by respondent-Board is illegal, unlawful and improper. The Board had acted arbitrarily and unreasonably in passing a Resolution and in reinstating respondent No. 4, though he was caught red hand. It was also submitted that once respondent No. 4 was arrested, criminal proceedings were initiated and are pending, no reinstatement should have been ordered. It was urged that in light of serious allegations levelled against respondent No. 4, power of reinstatement could not have been exercised by the Board. Moreover, the action has been taken within six months, though a decision had been taken earlier that if the proceedings would not be completed within six months, prayer of respondent No. 4 for reinstatement would be considered thereafter. Thus, there was colourable exercise of power on the part of respondent Board. The counsel submitted that even while resolving to reinstate respondent No. 4, certain conditions were imposed which go to show that there was prima facie case of a serious offence alleged to have been committed by respondent No. 4 which did not call for such action. Mr. Anturkar also submitted that mala fide exercise of power is apparent, if one reads affidavit in reply, which clearly reveals that by going out way, respondent-Board had supported respondent No. 4, in passing the impugned resolution. On all these grounds, the resolution deserves to be quashed and set aside by this Court.

9. Respondent-Board and its Officers, on the other hand, supported the action taken by the Board. An affidavit in reply is filed on behalf of respondent Nos. 1 to 3 wherein it was stated that the petition was not filed as a Public Interest Litigation but is an individual grievance. Petitioner No. 2 has disputes with respondent No. 4. So far as petitioner No. 1 is concerned, the Union is in Maval area which does not come within the limits of Kirkee Cantonment Board. It was then stated that a complaint was filed by Anti Corruption Department against respondent No. 4 for illegal acceptance of Rs. 10,000/- from petitioner No. 2 Cantonment Board has given necessary sanction to the Department to file a criminal case against respondent No. 4. It was not true that respondent No. 4 was caught red handed as alleged. From the charge-sheet filed by the Anti Corruption Department against respondent No. 4, it was clear that Rs. 10,000/- were found in the file which was placed in a rack near the table occupied by respondent No. 4. It was further stated by the deponent that the Cantonment Board independently examined the facts and circumstances of the case and formed an opinion that the allegation made by petitioner No. 2 did not seem to be probable. Further, allotment of cabin was not within the power of respondent No. 4. Such allotment can only be made by the first respondent.

10. The Cantonment Board permitted Anti Corruption, Bureau to initiate prosecution against respondent No. 4 and the matter is sub-judice and "no parallel disciplinary case can be initiated against the same person on the same charges". It was also stated that unless the case is finalized in the court of law, the Board is not in a position to take any decision in the matter. The Board will take necessary action on receipt of the verdict of the Court.

11. According to the Board, the decision has been taken in the interest of administration as in absence of supervisory head of Sanitary Section, the work of sanitation/health in Cantonment area was getting adversely affected. While reinstating respondent No. 4, the Board has taken due care and precautionary measures as is evident from the Resolution passed by the Board. The fourth respondent will not be given any duty in connection with removal of encroachment. The deponent had asserted that placing an employee under suspension or his reinstatement in service is an administrative decision, which is within the power of the Cantonment Board. Since the prosecution is filed by Anti Corruption Bureau and the matter is sub judice and it may take considerable time for its finalisation, the Board cannot afford to keep the post vacant for indefinite period.

12. It was then stated:

"However the charge against the Respondent No. 4 being a serious matter makes it necessary for the Board to avoid recurrence of any such complaint in future. Hence the Board has decided to keep the said Respondent No. 4 under observation."

13. Respondent No. 4 has also filed an affidavit controverting the allegations levelled against him by the petitioners. According to him, the petition is not filed as a public interest litigation but it is for settlement of private accounts. Petitioner No. 2 has a serious grudge against respondent No. 4 individually. Petitioner No. 1 has grievance against respondent o. 4, as respondent No. 4 is the President of rival trade union. It was then stated that the allegations that petitioner No. 2 requested for a cabin in Kirkee Bazar area and had paid an amount of Rs. 10,000/- to respondent No. 4 by way of illegal gratification for obtaining permission for such cabin are totally false and baseless. it is denied that the fourth respondent was caught red handed while accepting money. A false complaint was filed only for casting a slur on career and reputation of respondent No. 4 and to adversely affect his promotional chances. The charge-sheet had already been filed in criminal proceedings against respondent No. 4 in July, 2001. There is no case against him. Considering the circumstances in their entirety and prayer of respondent No. 4 to reinstate him in service, a decision has been taken by Respondent Board to reinstate him in service. Such an action cannot be said to be illegal, contrary to law to unlawful.

14. It was also stated by respondent No. 4 that at the relevant time, he was in charge of Sanitation as a Health Superintendent and had no authority to deal with encroachment cases as they were not within his powers. It is, therefore, unbelievable that respondent No. 4 could have demanded any sum and petitioner No. 2 would have paid such amount. The petition, therefore, deserves to be dismissed.

15. By filing affidavits in rejoinder, the petitioner reiterated what was stated in the petition and denied the facts stated and averments made by respondent No. 1-Board as well as by respondent No. 4.

16. In so far as the locus standi of the petitioners is concerned, in the light of all the facts before us, in our opinion, it cannot be said that the petitioners could not have approached this Court by invoking jurisdiction under Article 226 of the Constitution. The first respondent Board is "State" within the meaning of Article 12 of the Constitution. It is, therefore, bound to act in accordance with law and if an action of such authority is challenged as unlawful, illegal or not in conformity with well settled principles of law, a grievance can be made. It is, therefore, not proper to dismiss the petition on the ground that the petitioners have no locus standi.

17. The allegations of the petitioners that respondent No. 4 was caught red handed the same been controverted by the respondents. Looking to the record which has been produced by the parties, it appears that the amount of Rs. 10,000/- was found in the file which was placed in a rack near table occupied by respondent No. 4. Thus, it cannot be said that respondent No. 4 was caught red-handed as alleged. That, however, does not mean that the allegation levelled against respondent No. 4, by the petitioners is false or no such demand was put forward by respondent No. 4 and no payment was made by petitioner No. 2 to him. Since the matter is pending before competent criminal court, we refrain from making any observation one way or the other on that aspect in the present proceedings.

18. The question before us is whether the order of suspension which had been passed against respondent No. 4 could or could not have been revoked and the action of respondent-Board in reinstating respondent No. 4 is legal and is in accordance with law?

19. In this connection, it may be stated that the ground which weighed with the respondent-Board as mentioned in the Resolution dated December 10, 2001 was that in absence of Health Superintendent, the sanitation work in the Cantonment area had been adversely affected as there was lack of overall supervision over Sanitary Inspectors and distribution of duties among them. No other ground has been specified in the Resolution. At the same time, however, certain conditions were imposed on respondent No. 4, even while reinstating him in service.

20. In the affidavit in reply, however, the Board had stated many things justifying the action of instatement of respondent No. 4. The Board also took upon itself even before the disposal of criminal trial by expressing opinion on merits of the case. It was stated that the Board had independently studied the facts and circumstances of the case and upon reviewing the same, it was of the opinion that the "allegations made by petitioner No. 2 were not probable". It may be stated that that was not the ground mentioned in the Resolution. It is further stated that criminal proceedings have been initiated against respondent No. 4 and the matter is sub judice and "no parallel disciplinary case can be initiated against the same person on the same charges". The learned counsel for the petitioners contended that this is not the well settled position of law. Even if the contention of the petitioners is not upheld that the said observation has been made by the Cantonment Board in the affidavit in reply with a view to favour respondent No. 4, it can be said that apprehension of the petitioners cannot be said to be ill-founded, particularly when the Board has gone to the extent of saying that unless the case is finalized in a court of law, "the Board is not in a position to take any decision in the matter". From the affidavit in reply of the Board, it is clear that the Board itself is of the opinion that charges leveled against respondent No. 4 were very serious, and hence certain conditions were imposed on him.

21. The learned counsel for the petitioners is also right in submitting that prima facie case has been made out against respondent No. 4. The Anti Corruption. Bureau had asked the Board to grant sanction to prosecute respondent No. 4 which was granted. Criminal proceedings have been initiated and even charge-sheet is submitted. It, therefore, cannot be said that the petitioners were not right in urging that prima facie case had been made out against respondent No. 4.

22. We are also not impressed by the argument of respondents that fourth respondent was not in charge of demolition of encroachment and had no power to oblige respondent No. 4, and, hence, the allegations were baseless. That also, in our opinion, can be considered by competent criminal court.

23. The learned counsel for the first respondent Board drew our attention to a legal opinion sought by the Board from the Legal Advisor of the Cantonment Board. According to that opinion, under the relevant Rules, the power to suspend an official was discretionary and not mandatory which was clear from the expression "may" used in Rule 10 of Central Civil Service (Classification Control and Appeal) Rules, 1965.

24. We may only state that as per settled law, in serious cases, which may result in major punishment if the conditions laid down in the Rules are present, such power "must" be exercised. Keeping in mind the allegations leveled against respondent No. 4 that he had demanded and accepted an amount of Rs. 10,000/- by way of illegal gratification from petitioner No. 2, it appears to us that the allegations are very serious and if proved, in all probability they would result in imposition of one of the major penalties. In the circumstances, in our considered opinion, the power of suspension had to be exercised.

25. From the resolution, it is clear that the only thing weighed with the Board in passing the Resolution and in reinstating respondent NO. 4 was that it would be in the interest of administration and to ensure that the administration is not adversely affected in absence of Health Superintendent. In our opinion, no reinstatement could have been ordered ignoring the allegations and pendency of proceedings in competent court. The said action, therefore, deserves to be quashed and set aside.

26. For the foregoing reasons, the petition deserves to be allowed and is accordingly allowed. The Resolution No. C.B.R. No. 6 dated December 10, 2001 passed by the first respondent-Board is hereby quashed and set aside. It is however, clarified that it is open to the first respondent-Board to take appropriate decision in accordance with law, keeping in mind relevant Circulars and Resolutions applicable to the first respondent-Board and our order will not come in the way of the Board in reconsidering the matter in accordance with law.

27. We may also clarify that all observations made us hereinabove have been made only for the purpose of deciding the present petition and we may not be understood to have expressed any opinion one way or the other on merits of the matter and as and when the matter will come up for consideration, either in criminal court or before the Board in future, the same will be decided on its own merits, without being inhibited by the aforesaid observations. Rule is accordingly made absolute. In the facts and circumstances, however, there shall be no order as to costs.

Certified copy expedited.