Bombay High Court
Dr. Narender Omprakash Bansal vs The Addl. Chief Secretary, ... on 11 March, 2016
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11987 OF 2015
Dr.Narender Omprakash Bansal, Mumbai Petitioner
versus
1. The Additional Chief Secretary,
Medical Education and Drugs Department,
Government of Maharashtra, Mumbai.
2. The Director, Medical Education and
Research, St.George's Hospital, Mumbai.
3. The Dean, Grant Medical College and
Sir J.J.Group of Hospital, Mumbai.
4. The State of Maharashtra Respondents
Mr.R.A.Dada, Senior Advocate, with Mr.R.D.Soni, Mr.Sujay
Gawde, Mr.Kamal Bhatt and Mr.Ajay Sharma i/by Shree & Co.
for Petitioner.
Mr.C.P.Yadav, Assistant Government Pleader, for Respondents-
State.
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CORAM : D.H.WAGHELA, C.J. AND
M.S.SONAK, J.
DATE : 11th March 2016
ORAL JUDGMENT (Per - Chief Justice) :
1. The petition is admitted and service of Rule is
waived by learned Assistant Government Pleader appearing for
the respondents.
2. Heard, by consent, the petition is disposed of.
3. The petitioner is a Professor of Cardiology and Head
of Department in Grant Medical College and Sir J.J.Group of
Hospital. He has prayed for quashing of the judgment and
order dated 16th October 2015 passed by Maharashtra
Administrative Tribunal, Mumbai (`Tribunal') in Original
Application No.444 of 2015 and has also prayed to quash the
order dated 29th May 2016 of his suspension from service.
Before partly allowing the Original Application by the impugned
order, the Tribunal has recorded in the impugned order as
under:
"54. The fact that the suspension is certainly the
matter of hardship. In the background that in
present case though four months have passed to the
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suspension, charge-sheet is not served on the
applicant and even review as regards continuation or
revocation of suspension is not shown to have been
taken.
55. Though suspension is not proved to be mala
fide, the conduct of State is not shown or seen to be
diligent.
56. It is evident that though power to suspend
exists and material to reach a conclusion as to need
of suspension exists, it is not adequate to draft the
charge sheet since despite lapse of period more than
four months has elapsed, charge sheet is not issued.
Therefore it can be safely said that Government did
hurry in issuing the order of suspension and has
inordinately withheld serving of charge-sheet.
57. Be it that the Government was satisfied as to
need of suspension, but needed time to gather more
evidence, it should have waited to collect entire and
additional material and evidence required as a basis
for a comprehensive charge sheet. The Government
ought to have waited for a month or two, employed
appropriate devices, machinery, personnel, or agency
for collecting any and entire factual data which
according to the Government constitutes serious
misconduct. After collecting any or all such evidence,
Government should have moved forward for taking
recourse of issue of order of suspension. Such a
prudent step would have certainly proved the
Government's action to be charged with sincerity.
This hurry may not be per-se evidence of mala fides,
however, is certainly evidence of the action of the
Government lacking required degree of prudence.
Prudence is always expected, though there are
judicial limitations of enforcing it. It needs to be
recorded as a word of caution that; prima facie,
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appears that the Government machinery down the
line, does not seems be involved and cooperating to
implement the decision of the Government to suspend
the applicant. Else, delay in action of preparing and
serving the charge-sheet would not have occurred.
58. In the result, it is necessary to issue direction to
the State to proceed or withdraw the suspension. It is
necessary in the interest of justice that if charge-sheet
is not served on the Applicant within 15 days from
the date of receipt of this order, the suspension order
shall stand automatically stayed and applicant be
permitted to join duty. The Government would be
free to proceed with the enquiry as and when it opts
to serve the charge-sheet in due course and at its own
leisure.
59. The discussion and observations in this order
have become necessary in view of long drawn
submissions, however, those be regarded as prima
facie impressions for all purposes, and not the
comments on merits of claim and contentions of both
parties. The observations be contained in foregoing
paragraph nos.37 to 49 be treated as `prima facie',
and not a dictum on the question of fact or law
involved in present case."
4. There is no dispute about the fact that the petitioner
has been suspended with effect from 9th May 2015 and the
subject matter of review of the suspension is governed by
Government Resolution dated 14th October 2011. The relevant
paragraphs of said Government Resolution read as under :
"7 A) Besides reasons mentioned in para-3, if
the government employee is suspended due to
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departmental enquiry proposed or initiated against
him as per the provision of Rule 8 of Maharashtra
Civil Services (Discipline & Appeal) Rules, 1979, in
such cases competent authority should take review of
such suspensions after completion of three months
from the date of suspension. The decision of
reinstatement may be taken after review by the
disciplinary authority as per the merit of the case. If
the process of Departmental Inquiry is not completed
within 6 months, in such cases the disciplinary
authority has to take decision to reinstate the
accused as per the merit of the case after taking
proper review, provided that the accused is to be
posted on non-executive post with the intent to avoid
his interference in the process of Departmental
Inquiry. Such action can be taken as per the
provision of Rule 4(5)(C) of Maharashtra Civil
Services (Discipline & Appeal) Rules, 1979.
B) Competent Authority should note that if
the process of Departmental Inquiry is proposed or
initiated as per the provision of Rule 10 of
Maharashtra Civil Services (Discipline & Appeal)
Rules, 1979, in such cases suspension of the
delinquent employee is neither expected nor
justifiable. Hence where it is decided to initiate the
process of Departmental Inquiry as per the provision
of Rule 10, it is necessary for the disciplinary
authority to take the decision to terminate the
suspension and to decide the posting of the accused
on non-executive post at the same time.
C) Cases mentioned in above para no.7(a)
and 7(b) need not to be referred to suspension review
committee."
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There is also no dispute about the fact that so far the
Government has not taken the case of suspension of the
petitioner in review and the matter is only stated to be lying
with the disciplinary authority. Even after hearing of present
petition being adjourned from time to time, the respondents
have not chosen to place on record any facts explaining or
justifying the delay in deciding the matter of continuation of
suspension of the petitioner.
5.
It appears from the averments made in the petition
that after joining as a Lecturer in Grant Medical College in the
year 1988, the petitioner was promoted to the post of Associate
Professor and finally as a Professor and Head of Cardiology at
Sir J.J.Group of Hospital since last thirteen years. He is also
appointed as the Post Graduate Teacher by University of Health
Sciences, State of Maharashtra since last seventeen years and
due to his experience, expertise and extraordinary skills in his
subject, he was appointed as an internal and external examiner
for DM Cardiology, DNB Cardiology, FNB Cardiology for last
twelve years across the country. He was also appointed by
Medical Council of India as an Inspector. He appears to have
received several international awards and published number of
research papers. He is stated to have treated more than
1,00,000 patients and performed thousands of Angiographies
and Angioplasties and balloon valve procedures.
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6. Since by now, the charge-sheet dated 2nd November
2015 is stated to have already been issued, this Court would
refrain from commenting upon gravity of the charges. However,
the grievance of the petitioner is that due to mere issuance of
the charge sheet, the respondents have not decided the matter
of continuation of his suspension from service in terms of the
obligation cast upon the Competent Authority and the
Disciplinary Authority.
7.
On the other hand, learned AGP submitted, on
instructions, that the matter of continuation of suspension is
under active consideration of the State Government and the
petitioner would be reinstated with appropriate order of posting
as soon as final decision is arrived at. Unfortunately, even
during pendency of the present petition and in spite of grant of
certain adjournments to the respondents, such decision has not
been forthcoming.
8. In the above facts and peculiar circumstances, the
continuation of suspension of the petitioner does not appear to
be either legal or in public interest insofar as a highly qualified
civil servant in-charge of cardiac care and health service is
deprived of any post on the one hand and the public in general
is deprived of his service on the other. Therefore, the petition is
allowed with the direction to the respondents concerned to
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revoke the impugned order of suspension and issue an order of
appropriate posting within a period of 3 (three) days from
today. The judgment is delivered in open Court and copy of the
same will be supplied to learned AGP as soon as possible.
9. With the above direction, Rule is made absolute with
no order as to costs.
(CHIEF JUSTICE)
(M.S.SONAK, J.)
MST
