Murari Lal vs The Indian Institute Of ...
2001 Latest Caselaw 1592 Del

JUDGMENT

Mukundakam Sharma, J.

1. Although in the writ petition fur reliefs have been sought, but on careful perusal of the same I find that the present writ petition is field seeking for two specific reliefs. The first relief that is sought for is to quash the order of suspension dated 18.5.2001 passed against the petitioner and to allow him to discharge his duties as Chief Scientific Officer whereas the second relief is sought for in view of rejection of the request of the petitioner for grant of earned leave from 18.6.2001 to 29.6.2001 to enable the petitioner to visit his daughter in USA. So far the second relief i.e. refusal to grant earned leave from 18.6.2001 to 28.6.2001 is concerned the said period has since expired and therefore, no order is called for in respect of the same in the present writ petition. Being award of the aforesaid position he counsel for the petitioner rightly also did not convass the said aspect of the matter in the present writ petition and his entire submission was confined to the issue with regard to the order of suspension passed against the petitioner.

2. It was submitted that the said order of suspension is illegal and invalid as the petitioner was not heard by the respondents before passing of the aforesaid order and therefore, there was violation of the principles of natural justice. The order of suspension was also challenged on the ground that the respondents could not have passed the said order of suspension after issuance of the charge sheet to the petitioner was according to him the time limit stipulated for exercising the said jurisdiction has long expired. It was also submitted by him that the aforesaid decision of suspending the petitioner was taken by the competent authority not at his own instance but at instance of the extra statutory authority who has no recognition in the eye of law.

3. It order to appreciate the aforesaid contentions of the counsel appearing for the petitioner it would be necessary to set out some background facts relating to passing of the aforesaid order of suspension. The petitioner is at present working with the respondent Institute as Chief Scientific Officer in the Centre for Atmospheric Sciences. On 15.1.2001, Dr. Mrs. Diksha Aggarwal, one of the petitioner's Project Associates submitted a representation/complaint against the petitioner to the Director of the Indian Institute of Technology. On receipt of the said representation/complaint a fact finding enquiry was set up on 19.1.2001 by the Disciplinary Authority of the Institute, inter alia, to look into the allegations made by said Dr. Mrs. Diksha Aggarwal. In the said fact finding enquiry the statement of the petitioner was recorded on 1.2.2001 and the statement of Dr. Mrs. Diksha Aggarwal was recorded on 2.2.2001. After conclusion of the said enquiry the Committee submitted a report to the Disciplinary Authority with the conclusion that a prima facie case was made out against the petitioner. The report of the said enquiry committee was submitted to the Director of the Indian Institute of Technology on 12.2.2001. On 19.4.2001 a charge sheet based on the report of the said fact finding preliminary enquiry was issued to the petitioner. In the said charge sheet several charges have been drawn up and listed against the petitioner with the proposal that a disciplinary enquiry be held against the petitioner. The petitioner submitted his written statement of defense on 8.5.2001. After submission of the said written statement the disciplinary authority passed the aforesaid order of suspension against the petitioner on 18.5.2001. It was stated in the said order that since a disciplinary proceeding against the petitioner is under way therefore,e the disciplinary authority in exercise of powers conferred vide para 13(9) of the III Statute had ordered for placing the petitioner under suspension with immediate effect. Since the aforesaid order of suspension was passed by the respondents in exercise of the powers vested in Statute 13(9) of the III Statutes it would be appropriate to extract the relevant portion of the said provision hereinbelow:

13. Terms and conditions of service of permanent employees-

Permanent employees of the Institute shall be governed by the following terms and conditions:

.... .... .... ....

.... .... .... ....

(9) The Director may place a member of the staff appointed at the Institute under suspension-

(a) Where a disciplinary proceedings against him is contemplated or is pending, or

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

4. Mr. K.K. Rai, Counsel appearing for the petitioner assailed the aforesaid order of suspension on three grounds which have been set out in the preceding paragraphs. Counsel submitted that before the aforesaid order of suspension was passed the petitioner should have been heard so as to enable the petitioner to explain the circumstances for which he should not have been suspended from service. it was submitted by the counsel that the petitioner, apart from doing administrative work, is also looking after academic activities and therefore, the petitioner could have been allowed to continue to pursue the academic activities in the centre and therefore, the said order of suspension is not justified. In support of his contention that the order of suspension is bad want of the opportunity of hearing before the same was passed the counsel relied upon the decision of the Bombay High Court in Rajeshwar Sayanna v. The State of Maharashtra and Ors., reported in 1983 (1) All India Service law Journal page 484 and the decision in Supreme Court in R.C. Sood v. High Court of Rajasthan , reported in 1994 (4) SCALE 1031.

5. The next contentions of the counsel appearing for the petitioner was that the order of suspension passed by the respondents is delayed and that no such order of suspension could be passed at the present stage of the departmental proceedings. In support of this contention the counsel relied upon the flow chart of various steps to be taken in a departmental proceeding which is circulated by the respondent. It was submitted by him that according to the said flow chart an order of suspension could be passed by the Disciplinary Authority when the report of the fact finding enquiry committee was submitted and once that stage is over and a charge sheet is issued to the petitioner no such order of suspension could be made as the stage for taking such action is already over.

6. The learned counsel next drew my attention to the averments made in the counter affidavit filed by respondents 1 & 2 and specifically relying upon paragraph 11 thereof submitted that the said order of suspension was passed at the instance of Professional Committee which has no recognition was Statute 13(9) and as such, the order is illegal and without jurisdiction.

7. Mr. Mahinder Singh, learned counsel appearing for the respondent Institute however, submitted that none of the aforesaid submissions is of any substance. he submitted that the order of suspension is not an order imposing punishment on a person and the same is passed to ensure smooth disposal of the proceedings initiated against the charged officer. He also drew my attention to the nature of the charges drawn up against the petitioner and on the basis thereof submitted that the petitioner being in charge of the Centre and the complainant being a Project Officer under him and the material witnesses and the documents being under the charge of the petitioner there is a possibility of exertion of influence by the petitioner and therefore, the aforesaid action of suspension of the petitioner was taken. he submitted that rule of the respondent Institute pertaining to suspension does not envisage of any notice prior to passing of the order of suspension and the opportunity of hearing prior to passing of the order of suspension being not a part of the rule no such request and/or claim could be made for giving a hearing. He also submitted that the decision to place the petitioner under suspension was taken by the disciplinary authority namely - the Director, the same having been recommended by the Professorial Committee. In support of his contention he placed the relevant records before me for my perusal, which I have carefully examined.

8. In the light of the aforesaid submissions and the records placed before me, I may now proceed to decide the issue arising for my consideration. It is by now a settled law that an order of suspension is not an order of punishment and that such an order of suspension passed during the pendency of a criminal proceedings/disciplinary proceeding does not cast a stigma on the person who is suspended. In R.P. Kapur v. Union of India and Anr., the Supreme Court held that interim suspension must be distinguished from suspension as a punishment which is a different matter altogether depending upon the rules in that behalf. It was further held that on general principles, an employer can suspend an employee in one of the two ways for it may suspend any employee pending departmental enquiry or pending criminal proceedings which may be called interim suspension or otherwise the employer may proceed to hold the departmental enquiry and on the employee being found guilty, an order of suspension could be passed as a punishment, if the rules so permit.

9. In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr., , the Supreme Court in paragraph 26 stated thus:-

"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 Government of India and the State Governments. Section 16 of the General Clauses Act too provides that power to appoint includes power to suspend or dismiss."

In the said case the Supreme Court went on to hold that the order of suspension does not put an end to an employee's service. he continues to be a member of service though he is not permitted to work and is paid only subsistence allowance which is less than his salary.

10. In State of Orissa v. Bimal Kumar Mohanty, the Supreme Court held that suspension is not a punishment but it only forbids or disables an employee to discharge the duties of the office or post held by him. it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of the service that dereliction of duty would pay fruits and the offending employee could get away even pending enquiry, and that it also serves the purpose of preventing the delinquent employee to scuttle the enquiry or to influence the witnesses.

11. The power to suspend an employee/officer or faculty member of the Institute is regulated by the provisions of the Statute namely Statute 13(9) to which reference is already made. A bare perusal of the said provision would make it crystal clear that no right of hearing before passing the order of suspension is envisaged therein The order of suspension in the present case was also passed pending the departmental proceedings which is permissible under the aforesaid extant rules. The aforesaid order was passed not by way of punishment but to ensure smooth continuance and disposal of the departmental proceedings initiated against him as is disclosed from the records which cite the following reasons for suspending the petitioner:-

i) Access to all the Institute facilities including e-mail etc. are likely to be misused to influence the concerned persons as well as witnesses of the Enquiry. Official position may also be utilised to influence the outcome of the enquiry.

ii) Project staff employed in various projects in operation under the petitioner may be influenced as they may be required as additional witnesses in the case.

iii) Various documents/communications in his office may be needed to give additional information to substantiate the charges. These documents may be tampered if he continues to have access to the office.

12. The matter pertaining to suspension of the petitioner was directed to be placed by the Disciplinary Authority before the Professional Committee so that an unbiased view of the matter could be taken by the Disciplinary Authority and therefore, the matter was placed before the said Committee seeking their recommendation and guidance. The said committee held its meeting and considered the aspects and the committee was of the view that the presence of the petitioner in the Centre/Institute would be detrimental to the enquiry process due to the aforesaid reasons. The aforesaid views of the Professorial Committee were placed before the Director, who is the Disciplinary Authority. The Disciplinary Authority considered the same and decided to take resort to the aforesaid provision of Statute 13(9) of the III Statutes and that his how the aforesaid order of suspension was passed in the present case.

13. The very purpose of putting a person under suspension during the pendency of a departmental proceedings is to prevent him from in any manner influencing the material witnesses to the departmental proceedings which could be his subordinates. In the present case the very purpose of putting the petitioner under suspension is to prevent him from exercising his influence over the possible witnesses who are his subordinates in the Centre and also to prevent him to have access to the vital documents which could be relevant for the purpose of departmental proceedings as is indicated from the aforesaid reasons spelt out from the records of the respondents. Therefore, in the present case it cannot be held that the order of suspension was passed by the respondents as a measure of punishment but the same was passed in order to facilitate and to ensure smooth conduct of the departmental proceedings initiated against the petitioner. Statute 13(9) of the III Statutes does not envisage any opportunity of hearing before an order of suspension is passed and therefore, the contention of the counsel appearing for the petitioner in that regard is without any merit. Reliance in the decision of the bombay High Court in Rajeshwar Sayanna (Supra) is misplaced as in the said case the order of suspension was found to have been passed as a measure of punishment whereas in the present case the order of suspension cannot be said to have been passed as a measure of punishment. The decision in R.C. Sood (Supra) is also not applicable to the facts of the present case. The records also disclose that the matter pertaining to the suspension of the petitioner was placed before the Disciplinary Authority and it is the Disciplinary Authority who has taken the final decision in the matter directing for placing the petitioner under suspension in terms of Statute 13(9) of the III Statutes. The views of the Professorial Committee are only in the nature of recommendations and guidance on the basis of which the disciplinary authority has taken an independent view and therefore, the order passed by the respondent cannot be said to be either by or at the instance of extra statutory authority.

14. The Statute provides that a person against whom a departmental proceeding is contemplated or is pending, could be placed under suspension. In the case of the petitioner a departmental proceeding is already initiated and therefore, on the date when the order of suspension was passed the departmental proceeding was pending against him and therefore, in terms of the said provision of the Statute there was no impediment in placing the petitioner under suspension as the departmental proceeding was pending. Reliance on the flow chart by the petitioner in my considered opinion, is misplaced. Although the aforesaid flow chart indicates that a person could be placed under suspension even before issuance of a charge sheet but on the basis thereof it cannot be submitted that once that stage is over no such order could be passed after the submission of the report by the fact finding enquiry. The said flow chart cannot be read so as to supersede the provisions of the Statute. The flow chart which at best could be in the nature of administrative instructions shall have to be read in the context of the relevant rules. It would be necessary to give a harmonious interpretation of the flow chart with the rules of suspension as contained in the Statute. For the said flow chart as stated above is at best an administrative instruction and therefore, cannot supersede the provisions of the Statute. The said flow chart indicates that the disciplinary authority could decide if an individual is to be suspended after it is found that a prima facie case exists against the said person. The same however, does not in any manner lay down that the said power which could be exercised by the Disciplinary Authority even before submission of the charge sheet cannot be exercised at a subsequent stage or after submission of the charge sheet. If such a construction as sought to be given by the counsel appearing for the petitioner is given the same would amount to over-riding the statutory provisions. Therefore, in terms of the Statute when a person could be suspended at any stage during the pendency of the departmental proceedings no bar could be read in issuing such an order of suspension after issuance of the charge sheet to the said person. Therefore, the contention of the counsel for the petitioner in that regard also is found to be without any merit.

15. Counsel appearing for the petitioner also sought to argue that the order was passed for malafides reasons and to subserve the interest of respondent No. 4. It was sought to be submitted by him that respondent No. 4 is inimically placed against the petitioner and it is at his instance and influence that the order of suspension was passed against the petitioner came to be passed. The said contention is without any basis, for the respondent No. 4 was not a member of the Professorial Committee which considered the matter regarding the order of suspension of the petitioner and gave its recommendations and views on suspension of the petitioner. Therefore, the aforesaid allegation is found to be without any basis.

16. A bare perusal of the charge sheet would indicate that the charges drawn up against the petitioner are grave and serious in nature and when in respect of the same a disciplinary proceeding is pending against the petitioner there could be no bar or impediment in placing the petitioner under suspension once the disciplinary authority is satisfied that such an action is called for the ensure smooth conduct of the disciplinary proceedings. In U.P. Rajya Krishi Utpan Parishad and Ors. v. Sanjib Rajan, 1993 Suppl. (3) SCC 483, it was held by the Supreme Court that when the charges against the delinquent officer are grave, the High Court should not have interfered with the order of suspension passed by the authorities. It was further held that whether the employees should or should not continue in 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 malafide and without there being a prima facie evidence on record connecting the employees with the misconduct in question. The ratio of the aforesaid decision is squarely applicable to the facts of the present case. To the same effect is the decision of the Supreme Court in Bimal Kumar Mohanty (Supra). I, therefore, find no merit in all the submissions of the counsel appearing for the petitioner.

17. In the result there is no merit in this petition and the petition stands dismissed, but without any costs. It is however, ordered that the respondents shall take all necessary steps to conduct and to complete the departmental proceedings pending against the petitioner with utmost expediency and subject to co-operation of the petitioner shall try to complete the same at the earliest opportunity preferably within a period of 6 months form today.