B.C.S. Balinga vs National Housing Bank & Ors.
1999 Latest Caselaw 217 Del

ORDER

K. Ramamoorthy, J.

1. In Writ Petition No. 6666/98 the petitioner has challenged the proceedings dated 4.12.1998 assigning some work to the petitioner. The petitioner has also challenged the charge-sheet issued by the respondent on 16.9.1998.

2. In Writ Petition No. 247/99 the petitioner has challenged the order of suspension dated 23.12.1998. The petitioner has also challenged chargesheet dated 7.1.1999.

3. Heard the learned counsel for the petitioner Mr. A.K. Matta. In view of the facts and circumstances of two cases and in the interest of justice I am of the view that I should not go into the rival contentions of the parties at this stage. Mr. Matta in challenging the order dated 23.12.1998 referred to the judgment of the Supreme Court in State of Orissa through its Principal Secretary, Home Dept. Vs. Bimal Kumar Mohanty, and relied upon paragraph 13 therein. The right of an employer to suspend an employee is inherent in the contract of employment subject to the rules in this behalf. The point was considered by the Supreme Court in several cases. As the learned counsel for the petitioner Mr. Matta placed reliance on paragraph 13 of the judgment above referred to it has become necessary to give a brief survey of the decisions of the Supreme Court on this point.

4. In R.P. Kapur Vs. Union of India & Anr., the Supreme Court had to deal with the suspension of an ICS Officer. On 18th of July, 1959 the appellant before the Supreme Court was suspended by the Governor of the Punjab on the ground that a criminal case was pending against him. The Supreme Court observed at page 445 that 'the general principle therefore is that an employer can suspend an employee pending an enquiry into his conduct and the only question that can arise on such suspension will relate to the payment during the period of such suspension'.

5. In Balvantray Ratilal Patel Vs. The State of Maharashtra the Supreme Court was invited to decide the decision of Maharashtra Government suspending a member of the Bombay Medical Service Class II. The Supreme Court observed as under :

"ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work, he will have to pay wages during the period of suspension. Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the order of suspension has the effect of temporarily suspending the relationship of master and servant with the conse quence that the servant is not Bound to render service and the master is not bound to pay. This principle of law of master and servant is well-established: (See Hanley Vs. Pease & Partners, Ltd., (1915) 1 K.B. 698, Walhwork Vs. Fielding, (1922) 2 K.B. 66 and the judgment of Cotton, L.J. in Boston Deep Sea Fishing and Ice Co. Vs. Ansell, (1888) 39 Ch. D. 339. It is equally wellsettled that an order of interim suspension can be passed against the employee while an inquiry is pending into his conduct even though there is no such term in the contract of appointment or in the rules, but in such a case the employee would be entitled to his remuneration for the period of suspension if there is no statute or rule under which it could be withheld."

6. In V.P. Gindroniya Vs. State of Madhya Pradesh & Ors., the Supreme Court observed that 'when there is power to suspend, the suspension has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay'. In Govt. of India, Ministry of Home Affairs & Ors. Vs. Tarak Nath Ghosh, the Supreme Court observed as under :

"When serious allegations of misconduct are imputed against a member of a Service normally it would not be desirable to allow him to continue in the post where he was functioning. If the disciplinary authority takes note of such allegations and is of opinion after some preliminary enquiries that the circumstances of the case justify further investigation to be made before definite charges can be framed, it would not be improper to remove the officer concerned from the sphere of his activity inasmuch as it may be necessary to find out facts from people working under him or look into papers which are in his custody and it would be embarrassing and inopportune both for the officer concerned as well as to those whose duty it was to make the enquiry to do so while the officer was present at the spot. Such a situation can be avoided either by transferring the officer to some other place or by temporarily putting him out of action by making an order of suspension. Government may rightly take the view that an officer against whom serious imputations are made should not be allowed to function anywhere before the matter has been finally set at rest after proper scrutiny and holding of departmental proceedings."

7. In U.P. Rajya Krishi Utpadan Mandi Parishad & Ors. Vs. Sanjiv Rajan, :

"Whether the employees should or should not continue in their office during the period of inquiry is a matter to be assessed by the concerned authority and ordinarily, the Court should not interfere with the orders of suspension unless they are passed mala fide and without there being even a prima facie evidence on record connecting the employees with the misconduct in question."

From this it is very clear that it is for the employer to decide and that decision is subjective on objective considerations on materials available on the basis of which charge-sheets had been issued. The Court cannot interfere unless circumstances mentioned by the Supreme Court in the above case are clearly established by the employee.

8. In State of Orissa through its Principal Secretary, Home Dept Vs. Bimal Kumar Mohanty (supra) which is relied upon by the learned counsel for the petitioner, the Supreme Court set aside the order of Orissa Administrative Tribunal in interfering with the order of suspension. While doing so the Supreme Court observed in para 13 of the judgment as under :

"It is thus settled law that 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 of 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. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending enquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the enquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or enquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending enquiry or contemplated enquiry or investigation. It would be another thing if the action is actuated by malafides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or enquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental enquiry or trial of a criminal charge."

9. The principle laid down by the Supreme Court is clear on the point. The charges levelled against the petitioner on 16.9.1998 and 7.1.1999 have been taken into account by the respondent and in the light of those charges and on the materials available on record and having regard to the department of the petitioner, the respondent had decided to keep the petitioner under suspension. It is not for this Court at this stage to go into the correctness or otherwise of the decision of the employer to keep the petitioner under suspension. I am of the view that in the light of the charges levelled against the petitioner the decision of the respondent to suspend the petitioner cannot be said to be not in accordance with law.

10. In view of the circumstances stated by the parties I direct the first respondent to complete the enquiry proceedings against the petitioner and pass final order on or before 31st May, 1999.

11. The learned counsel for the petitioner submitted that the petitioner would file his reply to the charge-sheet dated 7.1.1999 within two weeks from today.

12. With these observations both the writ petitions are dismissed.

13. There shall be no order as to costs.