Binay Kumar vs Union Of India & Ors.
2000 Latest Caselaw 57 Del

ORDER

A.K. Sikri, J.

1. The petitioner is working as Director (Personnel) in the Public Sector Undertaking known as Power Grid Corporation of India which is imp leaded as respondent No.4. It is a common case that the appointment to the post of Director (Personnel) is a Board level appointment which is made by Central Government/Union of India (respondent No.1) on the recommendation of Public Enterprises Selection Board (respondent No. 2) after the approval of Appointment Committee of Cabinet. The appointment of the petitioner is governed by terms and conditions contained in letter dated 9th June, 1999 by respondent No.1. Reference to the relevant terms and conditions as incorporated in this letter would be made at the appropriate stage. At this stage it would be sufficient to mention that as per paragraph 13 of these terms and conditions Conduct, Discipline and Appeal Rules framed by Respondent No. 4 in respect of its non-working category staff are to apply to the Petitioner mutates-mutants with the modification that Disciplinary Authority in his case would be the President of India, since the Appointing Authority is the President.

2. In the present petition the petitioner is aggrieved by the order dated 1st October, 1999 placing the petitioner under suspension with immediate effect. He has challenged this order on three counts, namely ;

(i) Order of suspension can be passed, under rule 20 (1) (a) of Power Grid Conduct Discipline and Appeal' Rules, only when disciplinary proceeding is either contemplated or pending against the petitioner. However, as on 1st October, 1999 when the impugned order of suspension was passed, no disciplinary proceedings were either contemplated or pending. Therefore, according to the petitioner, the suspension order could not have been passed on 1st October, 1999 and the order is illegal on this count;

(ii) Order is actuated by mala fides inasmuch as it is passed at the behest of respondent No. 3 who is Chairman-cum-Managing Director of respondent No. 4 and inimical towards the petitioner;

(iii) Before passing the impugned order of suspension petitioner was not heard in the matter and no opportunity was given to him to explain his point of view in respect of the alleged misconduct and, therefore the impugned order is violative of principles of natural justice.

3. To appreciate the aforesaid challenge of the petitioner to his suspension, it would be useful at this stage to mention the facts in some more detail. However I may hasten to add that while elaborating the facts unnecessary details are avoided.

4. The petitioner claims himself to be a person of outstanding merit with remarkable achievements at his credit. He joined respondent No. 4 on 20th May, 1992 and was appointed as General Manager on 16th December, 1995. Thereafter he was selected as Director (Personnel) and was appointed to this post vide order dated 7th July, 1998 as already pointed out above. The petitioner alleges in the petition that all throughout respondent No. 3 has shown his attitude qua the petitioner which is vindictive and for oblique purposes and extraneous reasons petitioner is victimised at his hands. According to the petitioner on 1st August, 1992 respondent No. 3 was promoted out of turn to the post of Additional General Manager when, at that point of time, both the petitioner and respondent No. 3 were Deputy General Managers. The petitioner had made representations against the promotion of respondent No. 3 as Additional General Manager. This angered respondent No. 3. enough to spoil the petitioner's career in future. He states that thereafter his Annual Confidential Report was spoiled even when the petitioner was appointed to the post of General Manager on 16th December, 1995. Respondent No. 3 had opposed the same and notwithstanding his opposition the petitioner was appointed to the said post. He even got the petitioner's candidature to the post of Executive Director rejected when the said post was sought to be filled in November 1997, on the basis of ACRS already spoiled by respondent No. 3. According to the petitioner even when the petitioner participated in interview for the post of Director (Personnel) respondent No.3 opposed his selection tooth and nail. When petitioner was selected for appointment to the post of Director (Personnel) inspite of the protest put in by respondent No. 3 and efforts made by respondent No. 3 he tried to put spokes by creating other hurdles. When respondent No. 3 did not succeed even thereafter, he got all relevant powers of Director (Personnel) withdrawn vide office order No. 34/98 dated 20th May, 1998. After the assumption of petitioner's office as Director (Personnel), respondent No.3 continued to create hurdle in his functioning scuttled various attempts of the petitioner to agonies the Human Resource Department, took away from the petitioner's functional and administrative control and the petitioner was not even permitted to place the problem regarding his job responsibility in the Board meetings including Agenda incorporating many items being references to violations in personal matters to which respondent No.3 was a direct party. Various instances of such violations are given in the petition. He further states that he is subjected to continuous humiliation, harassment and social torture causing immense personal trauma and irreparable damage to him personally as well as dignity of the post of Director (Personnel) which the petitioner occupied. The petitioner further alleges that respondent No.3 is hell bent on seeing the ouster of the petitioner as Director. He first opposed his selection as Director and thereafter withdrew his powers. After withdrawing his major functions as director, he recommended his termination. The petitioner had to file CWP No.5680 of 1999 pursuant to which this Hon'ble Court directed the Public Selection Enterprises Board to consider all his objections vide its order dated 20.9.99(Annexure-A-6). The petitioner had to file another writ regarding withdrawal of powers vide CWP No. 6066 of 1999 in which the notice has been issued making it returnable on 1.12.99. The respondent No.3 also spoiled the Confidential Reports of the petitioner for the year part-1995, 1996 and 1997 by usurping the power of countersigning authority whereas he could have acted only as reviewing officer. Even the adverse enteries were not communicated to him. The same is subject matter of CWP No. 6197 of 1999. The respondent No.3 has been committing gross irregularities in discharge of his public duties. The petitioner is being victimized for not becoming a convenient tool in his hands who has been opposing him tooth and nail. It is further alleged that even the aforesaid acts of victimisation did not satisfy the ego of respondent No. 3 who made false allegations against the petitioner and at his behest' the impugned order of suspension dated 1st October, 1999 is now passed. This order is being challenged in the present writ petition on the grounds which have already been enumerated above.

5. Before dealing with the grounds on which the suspension order is challenged, let me first deal with the preliminary objection raised by the respondents.

6. It was vehemently contending that the petition filed by the petitioner deserves to be dismissed as the petitioner is guilty of perjury inasmuch as copy of the Office Order No.7/99 dated 24.9.1999 (Annexure A-19) filed by the petitioner is substantially different from the actual order dated 24.9.1999. Annexure A-19 to A-22 are at pages 147 to 151 of the petition. The correct office order is filed by the respondent No. 1 alongwith his counter affidavit as Annexure-B and according to the respondents following are the material difference between the two orders :

      ACTUAL ORDER THAT             PURPORTED ORDER 
     WAS NOTIFIED                  ANNEXED TO THE WRIT 
     (i)  Last para
     "This issues with the         No such mention. 
     approval of competent 
     authority."
     (ii) Para 1                   Para 1
     "...Management is             "...The PNBC is therefore
     pleased to announce a         pleased to announce the 
     lump sum one time             agreed one time sum of 
     payment of Rs.5,000/-         Rs. 5,000/-..."
     as an ad hoc amount.." 
     (iii) Para 1                  Para 1 
     "...Payment will be           No such mention 
     released along with 
     the salary of 
     September 1999". 
     (iv) Para 2                   Para 2 
     "..The Management is          "PNBC has also agreed to 
     pleased to announce           announce in employees 
     payment of Ex-gratia/         favour and ex-gratia of 
     Special incentive for         8.33% not exceeding to 
     the year 1998-99".            Rs.3,500/-in favour of                   
                                   its employees for the 
                                   year 1998-99." 
     (v)  Para 2                   Para 2
     "..Payment will be            No such mention. 
     released along with the       No annexure enclosed. 
     salary of September, 1999 
     on terms and conditions as 
     contained in the enclosed 
     Annexures I A & B. 
     (vi) Para 3                   Para 3 
     "It was also agreed in        "Union and Management 
     the PNBC meeting held         also agreed in the 
     on 31.8.1999 to regulate      PNBC meeting held on 
     enhanced payments under the   31st Aug. "99 to enhance
     existing incentive scheme     existing incentive scheme
     wef 1.01.99. The Management   which will amount to double
     is pleased to amend relevant  the current rate of incentive 
     provisions in incentive       in favour of its employees 
     scheme as detailed in         w.e.f. 1.4.99."
     Annex-II. 
     Payment on amended terms 
     will be released accordingly 
     on terms and conditions as 
     contained in the enclosed 
     table at Annex-II". 
                                   Para 4 
                                   PNBC has also agreed to 
                                   discuss current incentive 
                                   scheme in vogue and submit its 
                                   recommendation to the
                                   Management 
                                   for perusal amendments if any, 
                                   approval & implementation". 
     (vii) _____                   Last Para "Release of amount 
                                   on account of the above 
                                   Union-Management decision 
                                   may be made accordingly."
     (viii) Annexures IA IB & II   No enclosures are 
     are enclosed.                 annexed. 

 

7. During arguments and even in the rejoinder affidavit filed by the petitioner to the counter affidavit on behalf of respondent No.1 it is not denied that the document annexed by the petitioner is at variance with the actual document. However the petitioner has attempted to explain the circumstances in which he filed his own document alongwith his petition and it was submitted that the purpose was not to mislead the Court and there was no material difference between the two documents and therefore the petitioner could not have taken any undue advantage by filing wrong documents. This was seriously disputed by the respondents who argued that the document in question was a very vital document as in the petition, petitioner has tried to raise his case and tried to show his innocence on the basis of this document as per which he was authorised to release the amount in question to employees which became ultimately the subject matter of charge and therefore according to respondents, the petitioner had intentionally put in his document to mislead the Court and take undue advantage as he was insisting upon ex-parte stay of the suspension order also.

8. I need not deal with the rival contentions on this aspect in detail. Suffice is to state that I am not fully convinced with the alleged circumstances mentioned by the petitioner under which he picked up the order which he has annexed to the petition. However giving him a benefit of this doubt I leave the matter at that and hope that the petitioner shall be careful in future. For this reason, I am not proposing to take any action on the application filed by the respondents under section 340 of Criminal Procedure Code. More so when this application was also filed after the judgment was reserved and only after the petitioner filed the application for withdrawal of the writ petition.

9. Now I proceed to deal with the arguments advanced by the petitioner in the same order in which these are noticed above.

(i) Mr. K.K. Rai, learned counsel appearing for the petitioner, submitted that the petitioner is governed by Conduct, Discipline and Appeal Rules of respondent No. 4. Rule 20 deals with suspension and clause (a) of sub-rule (1) of Rule 20 stipulates that suspension can be ordered, as per the said clause, only when disciplinary proceeding against an employee is contemplated or is pending. It was submitted that admittedly no charge-sheet was served to the petitioner as on 1st October, 1999 and therefore it cannot be said that any disciplinary proceedings were pending against him. According to him, even no disciplinary proceedings were contemplated and the record would show that the case was initiated against him, on the basis of certain allegations, to divest him of his powers as Director (Personnel). Mr.Rai elaborated his arguments by submitting that the word "contemplation" has definite connotation in service jurisprudence. For this purpose he relied upon the judgment of this Court in the case of K.B. Chopra Vs. Punjab National Bank reported in 1979 (1) SLR 436 and particularly the following observations:-

"In determining the true import of the expression "contemplated" in clause 12(1)(a) of the Regulation, it necessary to bear in mind that suspension may be of two kinds, In the first instance, it may be punitive in nature and, therefore, by itself constituting a punishment. Secondly, it is of a non-punitive nature and purely for the purpose of a departmental proceedings or disciplinary proceedings as a measure of security until the guilt of the delinquent officer has either been determined or he had been vindicated. Such suspension is not intended to punish the officer for any misconduct of which he may have been guilty or may eventually be found guilty. By its nature , therefore, such suspension is ordinarily resorted to either when the disciplinary proceedings commence with the service of the formal charge-sheet of accusation on the officer or when such proceedings are about to commence, such suspension being for the limited purpose of the proceedings, must be confined to the absolute minimum limits. In construing the expression "contemplated", it is also necessary to examine the setting in which the expression is used in the Regulation even though in the context of the ordinary or the judicially determined meaning of the expression. The Regulation empowers the competent authority to suspend where a disciplinary proceeding against an officer is contemplated or is pending. The Regulation does not empower suspension where disciplinary proceedings are merely under contemplation. Disciplinary proceedings commence with the framing of the charge-sheet and culminate in the final order punishing or vindicating the officer. Disciplinary proceedings could not be contemplated unless a decision to initiate the proceedings had already been taken. The expression "is pending" also lends colour to the true meaning of the expression "contemplated", so that an officer may be suspended either where the proceedings are pending or if not pending, the decision to initiate proceedings having been taken, such proceedings are imminent and would follow as a matter of course. There would, therefore, be no power to suspend if the decision to initiate proceedings is yet to be taken where, for example, the matter is at the preliminary enquiry or confidential enquiry or some sort of departmental investigation stages. The reason for this is obvious . Until the investigation or preliminary enquiry or confidential enquiry concludes, there can be no application of mind by the competent authority if the case was fit one for initiation of disciplinary proceedings and until such application of mind, it could not be said that the proceedings are contemplated. The mere possibility of the disciplinary proceedings is outside the expression "contemplated". An extended meaning was sought to be given to the expression with reference to the language used in sub-clause(b) of clause 12(1) of the Regulations which provides for the eventuality where in respect of any criminal offence, a case was under investigation, enquiry or trial. True pendency of investigation into an offence would justify a suspension under sub-clause(b), but not so under sub-clause(a). Investigation by the police stands on a different footing. The moment the conduct of an officer is subject matter of an investigation by the police, it would justify suspension because such investigation is a matter of public record. That is not so in the case of a preliminary enquiry by an employer or a confidential enquiry by him to determine if there was a prima facie case for proceedings. Moreover, the course of investigation by the police is regulated by law but not so where investigation is carried out by an employer on his own. I am, therefore, of the view that while suspension under the Regulation would be justified even though a formal charge-sheet or an accusation has not been made against the delinquent officer, mere pendency of the preliminary enquiry or a confidential enquiry or a departmental investigation would not justify an order of suspension and such an order would be made only if on an application of the mind to the material, the competent authority has taken a decision to initiate disciplinary proceedings even though the decision may not yet have been carried out.

10. He further submitted that the word "contemplation" as appearing in Rule 20 (a) of the Rules is to be strictly construed and the order of suspension itself should indicate such contemplation. If no such contemplation could be inferred from the order then the order is liable to be struck down. In any case it is to be found from the record that there was a contemplation of disciplinary proceedings and in the counter affidavit filed by the respondents there is no averment made that disciplinary proceedings were contemplated. It was also argued by Mr. Rai that the petitioner is occupying very high office i.e., that of Director (Personnel) and as there is always stigma attached to suspension the impugned order should have been passed after careful consideration of the entire material and in support of this preposition he referred to the judgment in the case of Ashok Gaur Vs. State of Rajasthan reported in 1987 (5) SLR 547 (at page 558). He also submitted that the allegations against the petitioner were not serious enough which would warrant extreme step of suspension when at the most there were certain technical irregularities and lapses on the part of the petitioner and suspension on such grounds amounts to unreasonable exercise of powers. To buttress this submission the petitioner relied upon the judgment of Supreme Court in the case of Subramaniam Vs. State of Kerala reported as 1973 (1) SLR 521. He also submitted that there was no inherent right of the employer to suspend an employee and, therefore, should not be lightly resorted to. He also referred to the recent judgment of Supreme Court in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. & Anr. .

11. He also relied upon the judgments of the Supreme Court in the case of Prabhu Dayal Vs. MCD 1981 (1) SLR 814 as well as P.R. Nayak Vs. UOI 1972 SLR 219.

12. The nature of suspension has been dealt with elaborately in the aforesaid judgments and nicely summed up by this Court in the case of K.B. Chopra (supra) and therefore needs no reiteration. Suffice is to state that the suspension of an employee may be of two kinds namely suspension in contemplation or pending inquiry or criminal trial and suspension by way of punishment.

The suspension in the present case is of former kind. Such a suspension is not treated as punitive in nature. Whenever disciplinary authority is of the view that there are allegations against an employee which warrant disciplinary action in contemplation of said disciplinary action or when the inquiry is actually pending or when the employee is involved in a criminal case during the pendency of the criminal case the said employee may be put under suspension, if the disciplinary authority is of the view that allegations are serious enough which would warrant suspension of an employee in the meantime. No doubt such a power to suspend is discretionary and disciplinary authority has to apply its mind and exercise discretion, while deciding to place the officer under suspension, after careful consideration of the nature and seriousness of the allegations leveled/sought to be levelled against the petitioner.

13. In the light of aforesaid principle of law relating to suspension let us examine the position as contained in Rule 20 of CDA Rules which deals with suspension. It would be useful to reproduce the said rule at this stage.

"Rule 20. Suspension.

(1) The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the management by general or special order may place an employee under suspension :

(a) where a disciplinary proceedings against him is contemplated or its pending; or

(b) where a case against him in respect of any criminal offence is under investigation or trial.

14. The impugned order dated 1.10.1999 suspending the petitioner which is issued under Rule 20 (1)(a) of the rules may now be quoted :

"No. 11/32/98-PG (Part) Government of India Ministry of Power

New Delhi, 1st October, 1999

ORDER

Whereas, it has been observed that Shri Binay Kumar, Director (Personnel), Power Grid Corporation of India Limited, has indulged in a serious act of indiscipline, misconduct and irresponsible behaviour, which is prejudicial to the working of the Corporation, and his continued presence in that office, is not in the public interest.

2. The President, in exercise of the powers conferred under Rule 20(1)(a) of the POWER GRID, Conduct, Discipline and Appeal Rules, as amended from time to time, places Shri Binay Kumar, under suspension with immediate effect.

3. During the period of suspension, Shri Binary Kumar will be entitled to draw subsistence allowance in accordance with Rule 21 of the above said rules.

4. It is further ordered that during the period that this order shall remain in force, the headquarters of Shri Binay Kumar shall be at New Delhi and he shall not leave the Headquarters without obtaining the prior permission of the Ministry of Power.

BY ORDER AND IN THE NAME OF THE PRESIDENT OF INDIA.

(RAJEEV SHARMA) Deputy Secretary to the Government of India."

15. The aforesaid order is passed by Government of India in the name of President of India who is the appointing authority of the petitioner. A close scrutiny of this order surfaces the following salient features :

(a) Serious acts of indiscipline etc are imputed to the petitioner.

(b) These so-called serious acts of indiscipline etc. are prejudicial to the working of the corporation.

(c) The continued presence of the petitioner in the office is not in public interest because of the serious acts of indiscipline etc. allegedly committed by the petitioner.

(d) The petitioner is placed under suspension under Rule 20(1)(a) of the CDA rules which deal with suspension where a disciplinary proceeding against the employee is contemplated or is pending.

16. Admittedly petitioner was not served with charged sheet as on the date of the passing of the order and therefore no proceedings were pending against him as on that date i.e. 1.10.1999. Thus when order of suspension itself mentions Rule 20(1)(a), there is an obvious reference to the disciplinary enquiry against the petitioner under contemplation. Thus Mr. Soli Sorabjee, learned Attorney General rightly argued that the disciplinary proceedings against the petitioner were contemplated as on the date of passing the order and such contemplation can be read in the order itself when there is a specific reference to rule 20(1)(a) of the CDA rules. The impugned order is passed with proper application of mind as it reflects the mental process of the competent authority who was examined the allegations of indiscipline, misconduct and irresponsible behaviour of the petitioner and has treated the same as serious one. He has also formed the opinion that the nature of alleged acts is such which is prejudicial to the working of the corporation and they are serious enough to warrant suspension inasmuch as disciplinary proceedings against the petitioner were contemplated. This could be spelt out from the impugned order itself and when the order itself is categorical on all relevant aspects which have to be considered before deciding whether an employee is to be placed under suspension or not, no further probe is required to be done.

17. At this stage, I may refer to the recent judgment of the Apex Court in the case of P.N.B. Vs. D.M. Amarnath decided on 25.10.1999. In the said case, the impugned order of suspension did not reflect as to whether the same was in contemplation/pending of disciplinary proceedings or in respect of criminal offence which was under investigation or trial. In the absence of any such stipulation in the order of suspension, Karnataka High Court in a petition filed by the suspended employee, quashed the said suspension order which decision was affirmed by the Division Bench of the Karnataka High Court. In appeal filed by bank, judgment of the Karnatak High Court was reversed and set aside and the Supreme Court held that it was not necessary even to mention the clause under which the suspension order was passed and one could always go into the records and ascertain as so whether the disciplinary authority passed the order in contemplation/pending of the disciplinary proceedings or in respect of any criminal offence which was under investigation or trial. M.J. Rao, J. speaking for the Court made the following pertinent observations :

In our opinion, the law does not require that the suspension order must on its face disclose that any disciplinary proceedings were contemplated or were pending or that any criminal offence was under investigation, enquiry or trail. It would be sufficient if the Competent Authority recorded in its proceedings that the conditions mentioned in Regulation 12.1 were in existence.

18. The present case is on a better footing where the impugned order itself mentions all the ingredients and therefore one has not to look into the record to find found the mental process of the disciplinary authority while passing the impugned order of suspension. Still, I had summoned the record relating to passing of the order of suspension and I am satisfied that disciplinary proceedings were contemplated at the time of passing the order of suspension. In fact there is another subsequent development in the matter which infact clinches the issue. The petitioner has been served with memorandum of charges on 29.10.1999 i.e. within one month of the passing of the suspension order. When the petitioner has in fact been served with the charge sheet itself, what further proof is required to show that the disciplinary proceedings were in fact contemplated while placing the petitioner under suspension as even the charge sheet followed immediately thereafter. The position as on today is that the disciplinary proceedings are infact 'pending' against the petitioner. For this reason, the challenge of the petitioner to the order of suspension on this ground has to fail.

19. In view of the aforesaid discussion highlighting the relevant material which exists in this case, various judgments cited by the petitioner are of no avail. There cannot be any quarrel with the proposition of law laid down in the aforesaid judgments. In the case of K.B. Chopra (supra) after suspending the petitioner, for a period of eleven months no charge sheet was issued and in these circumstances petitioner had challenged the suspension order. In fact in that case, the petition was dismissed after the Court was satisfied that there was a contemplation of disciplinary proceedings at the time of passing the order of suspension against the petitioner and the respondent bank was able to satisfactorily explain the delay in serving the charge sheet. In the case of Ashok Gaur (supra) the petitioner was placed under suspension in regard to a criminal case for which he was arrested and remained under custody exceeding 48 hours and the said criminal case had nothing to do with his duties. Therefore the order of suspension was made under the deeming provision which provided that a Government servant who is detained in custody whether on criminal charge or otherwise for a period exceeding 48 hours shall be deemed to have been suspended with immediate effect from the date of detention by an order of the appointing authority. However the relevant rule further provided that an order of suspension may or deemed to have been made under the said rule may at any time be revoked by the authority which made the order or is deemed to have made the order. It was in this context the Rajasthan High Court made the following observations :

"From the above discussions, it is apparent that an order of suspension should not be passed by invoking powers under Rule 13 simply because a disciplinary proceeding is contemplated or criminal case is under investigation or trial against a Government Servant. The Appointing Authority has to exercise his discretion in this regard. A Government Servant may be put under suspension in the contingencies referred to above. If there are reasons to believe, on the basis of the material available at the time of initiation of proceeding, that he may be guilty of gross-misconduct or corruption which, if approved, will lead to dismissal or removal, he may be suspended even if the suspension is likely to continue for longer period, or where there are reasons to believer that a Government Servant if allowed to continue in active service, might tamper with the evidence, he may be suspended or, in case a Government Servant is facing trial in a criminal court he should be suspended, if he has been refused bail and committed to prison. But, simply because a criminal case is under investigation or trial against a Government Servant, though, he may be put under suspension but the question arises what should be the nature of the offence? If an interpretation is put that in each and every criminal offence which is under investigation or trial, a Government Servant should be put under investigation, then such a power may be termed as arbitrary power. A Government Servant may be facing trial of a minor offence under the Motor Vehicles Act. Would it mean that he should be placed under suspension because he is facing trial? Thus, it leads us to infer that Government Servant could be placed under suspension with regard to a case which involves a misconduct for which a criminal proceeding may be lodged, or which may also become a subject-matter of disciplinary proceeding. A rational meaning will have to be given to sub-clause (b) of Rule 13. Sub-rule (2) of Rule 13 is quite specific which says that in case a person remains under custody exceeding 48 hours, he may be suspended with effect from the date of detention and such suspension shall continue till further orders. It is enacted for the simple purpose that while under detention a Government Servant may not earn his wages. Sub Rules (2) and (5) of Rule 13 make in clear that the Appointing Authority which has exercised the power of suspension under Rule 13 has a duty to see that the order of suspension may be revoked, if the same is not needed at any time subsequently."

20. After interpreting rule 13 of the relevant rules which dealt with suspension, in the aforesaid case, the Court then examined the facts of that case and came to the conclusion that the suspension was not fully warranted as the case which was pending against the petitioner was of a petty nature and of no importance and did not relate to his official duties at all. This case also would have no application to the instant case. Similarly, in the case of Subramanian Vs. State of Kerala (supra) the Court observed that order of suspension should not be lightly passed and before passing such an order it was mandatory for the authority to apply mind and come to the bona fide conclusion that it was not desirable keeping the delinquent official in service in the interest of priority and probity of administration or his continuation in service warrant the investigation against him difficult for embarrasing. The Court found that instead of suspending the petitioner in the said case the purpose could have been served by transferring the officer. This case obviously has no application to the facts and circumstances of the present case where, as already observed by me above, the authority has applied its mind on all aspects which are treated as 'mandatory' by Kerala High Court in the aforesaid matter and this application of mind is writ large in the impugned order itself. Moreover, the petitioner in the instant case, who is Director (Personnel), cannot be transferred. In P.R. Nayak's case (supra) Supreme Court was dealing with rule 3(1) of All India Services (Disciplinary and Appeal) Rules, 1969 as per which the suspension could be resorted to only after disciplinary proceedings were actually initiated and not merely when they were in contemplation. The rule in the instant case empowers the disciplinary authority to place the employee under suspension even when the disciplinary proceedings are contemplated. The case of Prabhu Dayal (supra) decided by this Court also does not come to the aid of the petitioner as in that case the Court was dealing with the situation where the rules did not provide for suspension at all and in these circumstances it was held that the employer had no inherent right to suspend a contract or service of an employee and that such a right must be found in contract or in statute. Needless to mention even in such a case, it is the right of the employer not to take work from an employee and the only obligation is to pay full salary to the employee as held in that case itself.

(ii) The contention of the petitioner that impugned order is actuated by malafides also has no force. The petition imputes malafides on the part of respondent No. 3 who is Chairman-cum-Managing Director of respondent No. 4. It is alleged that it was respondent No. 3 at whose behest the impugned order was passed. It was further contended that since no counter affidavit is filed on behalf of respondent No. 3 denying the allegations of mala-fides levelled against him, these allegations should be treated as correct and thus the inevitable conclusion is that malafides against respondent No. 3 stand proved and the impugned order of suspension should be quashed. Countering this, it was argued by Mr. Soli Sorabjee, learned Attorney General and Mr. Mukul Rohatgi, learned Additional Solicitor General that the counter affidavit on behalf of respondent No. 3 was not filed as there was no need to the file the counter affidavit in the instant case when there was no role of respondent No. 3 in passing the impugned order of suspension. It was emphasised that the respondent No. 3 is much lower authority that the authority who passed the suspension order. Petitioner is an employee of the Government of India. His Appointing Authority is President of India and not respondent No. 4. He comes under the disciplinary jurisdiction of the Government of India, administrative ministry being the Ministry of Power. The order is passed when the matter is examined at the highest level by the Minister in the name of President of India and respondent No. 3 could not have influenced the Minister. Therefore, it was contended that allegations made against respondent No. 3 are of no consequences and totally irrelevant, despite being false. However as per the stand taken by Mr. Soli Sorabjee, although the allegations were false and frivolous, the respondents did not want to enter this arena when these allegations have no bearing or relevance with the present case as it would lead to unnecessary controversy and unpleasantness although not germane to the merits of the case. I find justification and force in the stand taken by the respondents. A perusal of the record by me shows that the matter was put up before the competent authority namely the Minister who applied his mind on the relevant aspects before passing the order of suspension. It is not borne from the record that the respondent No. 3 influenced the Minister and the order of suspension was passed at his request. Such thing cannot be inferred also inasmuch as Minister is much higher authority than the respondent No. 3 and one cannot presume that respondent No. 3 could influence the Minister to pass order of suspension. Therefore the allegations of malafides which are levelled against the respondent No. 3 are of no consequences in determining the validity of the impugned order of suspension.

(iii) It was lastly contended by Mr. Rai learned counsel for the petitioner, that the petitioner was not given any hearing before passing the impugned order of suspension and therefore such suspension order is not in order. No doubt petitioner holds high position in respondent No. 4 as Director (Personnel). When the matter regarding alleged acts of indiscipline etc. was reported to the competent authority, Competent authority could ask for his explanation as well, before taking the extreme step of suspending the petitioner. However no hard and fast rule can be laid down in this respect. It cannot be said that as a matter of procedure, disciplinary authority is supposed to call for the comments or explanation from the concerned employee before suspending him. This cannot be read as requirement of law and the application of principle of natural justice is excluded to that extent. It can only be stated as rule of prudence that before resorting to suspension of an employee particularly when he belongs to higher echelons that his comments may also be called before taking such extreme step. However ultimately, it is the discretion of the competent authority to decide, on the facts of each case, as to whether suspension should be resorted to immediately or before taking such step the comments/explanation of the concerned employee be called for . Order of suspension cannot be invalidated merely because before ordering suspension, the concerned employee was not heard. It is more so as the petitioner is still not remediless. Even after the suspension of the petitioner, petitioner can make representation against the same. In fact rule 20 itself contains the provision for making the said representation against the order of suspension and it is always open to the disciplinary authority to revoke the suspension order, once disciplinary authority is satisfied that the continuation of the petitioner's suspension is not warranted or it is a fit case where suspension should be revoked. However that aspect of the matter has to be looked into by the competent authority after applying its mind on the facts and circumstances of each case.

21. The power of judicial review while examining the validity of suspension is limited and has to be exercised on established principles laid down for such purposes. When it is found that there was an application of mind by the competent authority and there is no violation of any statutory rules or any provision of statute or the Constitution and the order does not suffer from the vice of arbitrariness or malafides this Court has to stay its hands off. Admittedly there is a power to suspend an employee in contemplation of disciplinary proceedings. I have already held above that the competent authority, before resorting to the order of suspension, has in fact taken into consideration all the relevant aspects which he was supposed to take. It is not for this Court to substitute its own wisdom and interfere with the discretion exercised by the competent authority.

22. In fact the petitioner showed undue haste in approaching the Court by filing this writ petition which was filed on 13.10.1999 i.e. within less the two weeks of passing the suspension order. It could have been appropriate for him to make representation to the competent authority and wait for the outcome.

23. It seems the petitioner realised his mistake in losing his claim and showing undue haste in filing the present petition. This is clear from the fact that after the matter was argued and judgment reserved, before it could be pronounced the petitioner filed application (CM No. 14137/99) for withdrawal of the writ petition in which he alleges that since the decision to revoke the suspension of the petitioner is under active consideration at the highest level in the Ministry of Power and the issue is being satisfactorily dealt with by the respondent No. 1, the petitioner does not want to press the above mentioned writ petition. Following prayer is made :

"Therefore, this Hon'ble Court may graciously be pleased to :

(i) allow the withdrawal of the writ petition with liberty to agitate the issues if any cause of action survives; and

(ii) pass any other order or directions that this Hon'ble Court deems fit and proper under facts and circumstances of the case."

24. The arguments were heard and judgment reserved in this case on 3.12.1999. Petitioner had mentioned orally for withdrawal of the above petition on 14.12.1999. Same was opposed by the respondents. Accordingly petitioner moved this application on 16.12.1999. Respondent No. 4 has filed reply to the said application opposing the withdrawal of the writ petition. In fact this step of the petitioner has prompted respondent No. 4 to also move application under section 340 of Criminal Procedure Code. Although formal reply is filed only by respondent No. 4 at the bar it was submitted by Mr. Soli Sorabjee, Learned Attorney General and Mr. Mukul Rohatgi, Learned Additional Solicitor General that all the respondents including respondent No. 1 were opposing the withdrawal of the writ petition. Since there is an opposition to the withdrawal of the writ petition, it has compelled me to deal with this application as well.

25. It is contended by the petitioner that he is withdrawing the writ petition since the respondent No. 1 is actively considering his case for revocation of suspension. However it is contended by the respondents that this is only a make belief and petitioner should not be allowed to withdrawn this writ petition because of the following reasons :

(a) The filing of present application by the petitioner is not bonafide move inasmuch as the matter was argued at length for couple of days and judgment reserved. After the judgment is reserved and the petitioner is allowed to withdrawn the petition, it would set bad precedents and encourage the litigants to take chance by filing petition, argue the matter and withdraw the same after sensing that the Court verdict can go against them.

(b) The lack of bonafides are further cleared from the prayer clause contained in the application wherein the petitioner has sought liberty to reagitate the issue if any cause of action survives. This according to respondents, clearly shows the improper motive in filing the application as the petitioner even if withdraws the writ petition, still wants the matter to be kept alive so that he can agitate it again. If such attempt of the petitioner is allowed, it would lead to undesirable consequences and encourage fence sitters who may file petition and when not expecting favourable orders may withdraw the petition and then reagitate the matter before some other bench.

(c) It is even otherwise not proper to allow withdrawal of the writ petition when the matter is completely argued and judgment reserved which only remained to be pronounced.

(d) The petitioner has committed the act of perjury and he wanted to avoid any findings on this issue after this aspect was argued in detail. In any case when the application under section 340 of Criminal Procedure Code was filed and pending, the Court should not allow withdrawal of the writ petition.

26. Mr. Soli Sorabjee, Learned Attorney General further submitted that it was the discretion of the Court in writ proceedings, to allow or not to allow the withdrawal of the writ petition and such discretion should not be exercised in this case. He relied upon the judgment of Division Bench of this Court in the case of Mrs. Bharati Nayyar Vs. Union of India & Ors. reported in ILR (1977) II Delhi 23. That was the petition filed against detention order which was argued at length and judgment reserved. However before the judgment could be pronounced, matter was mentioned by the counsel for the respondents stating that detenue had been released and order of detention had been revoked and therefore the Court should not pronounce the judgment as the petition had become infructuous by releasing the detenue. After mentioning the application was filed to this effect. The Court however refused to do so and proceeded to pronounce the judgment. It was argued that the circumstances in the present case are almost akin to the situation prevailed in the aforesaid case. In fact the respondents were still ready to show concession and Mr. Soli Sorabjee made an offer that respondents would not oppose the withdrawal in case the petitioner unconditionally withdraws the writ petition as well as allegations against respondents including respondent No. 3. However this was not acceptable to the petitioner.

27. On the other hand, Mr. K.K. Rai, argued that the petitioner is dominus lit us and had right to withdraw the writ petition at any stage and supported his submissions by relying on the judgment of Supreme Court in the case of Shaik Hussain & Sons Vs. M.G. Kannaiah & Anr. .

28. No doubt the plaintiff/petitioner is a dominus lit us and if he files the petition, he has right to withdraw the same. However, this may be position before the matter is argued and judgment reserved. After the judgment is reserved, the matter is entirely in the hands of the Court. In fact no further proceedings are pending and only judgment remains to be delivered. Counsel of respective parties have no role to play. Therefore at this stage petitioner cannot be allowed to withdraw the writ petition as a matter of right and it is the discretion of the Court to allow the petitioner to withdraw the petition or not. The Court would exercise the discretion in favour of the petitioner, in a given case, if it is of the opinion that the application for withdrawal is a bona fide move by the petitioner for the reasons stated in the application for withdrawal. In the present case, the petitioner states that the matter regarding revocation of his suspension is under active consideration and that is why he wishes to withdraw the petition. Needless to mention even if the writ petition is dismissed it would still be open to the respondent No. 1 to pass appropriate orders in respect of the suspension of the petitioner and in fact I have already observed about this aspect herein above. In fact this is what even the Division Bench of this Court observed in Mrs. Bharati Nayyar's case (supra) while rejecting the application of the respondents with the prayer not to pronounce the judgment.

"The action taken by the respondents after judgment was reserved in this case does not doubt accord with out view of the case; the respondents were free to take the same kind of action even in the eventuality of our dismissing this petition."

29. On the other hand, if the petitioner is allowed to withdraw the writ petition at this stage when the matter was argued and the judgment reserved, it may create bad precedents particularly when the petitioner has not shown bonafides in his prayer by seeking liberty to reagitate the matter. In such cases after the arguments are heard and the judgment reserved, apprehending that judgment may go against the plaintiff/petitioner such litigants may start resorting to these methods. In a country like ours where the instances of abuse and misuse of process of law are not lacking, it may give further encouragement to the dubious litigants to indulge in such practices. I may clarify that I am not commenting upon the conduct of the petitioner but making general observations while expressing my fears about the dubious practices which may be adopted by filing frivolous litigation. Moreover as far as this case is concerned it was also imperative for me to deal with the allegations of prejudice levelled against the petitioner for which even an application under section 340 of Criminal Procedure Code has been filed. It is a different matter that after examining this aspect the petitioner is let off. For these reasons CM for withdrawal of CW is dismissed.

30. In view of the aforesaid discussion, this Civil Writ Petition fails and is dismissed. However it is clarified that while dismissing the writ petition I have upheld the validity of the suspension order, from legal angle, as on the date of passing the said order. It is a matter of record that when this order was passed version of the petitioner was not before the competent authority and in fact I have myself observed that it would have been appropriate for the petitioner to make representation against the suspension order rather than taking hasty step in filing the same petition. Therefore if the petitioner's stand is factually correct namely the matter is under active consideration at the appropriate level and the competent authority is proposing to revoke the suspension administratively, the competent authority would be free to take any such step after examining/reexamining the case in its entirety. The dismissal of this writ petition would not come in the way of the petitioner and would not stop the competent authority to take fresh look into the matter if the competent authority is otherwise wanting to do it, claimed by the petitioner.

31. There shall be no order as to costs.