Medical Council Of India vs K.K. Arora And Anr.
2006 Latest Caselaw 1030 Del

JUDGMENT

T.S. Thakur, J.

1. This Letters Patent Appeal arises out of an order passed by a Learned Single Judge of this Court whereby an order of suspension issued by the Appellant pending a departmental inquiry against the respondent has been quashed. The facts leading to the issue of the suspension order and the filing of this petition may be summarised as under :

2. The respondent Dr. K.K. Arora is working in the appellant Medical Council of India as a Deputy Secretary. He was on leave from 31st March, 2004 to 30th April, 2004 The allegation against the respondent is that he visited the office of the Council on 3rd April, 2004 at about 11:00 AM and tried to take away a large number of files and papers including certain original documents of the Council. He is alleged to have asked the Security Officer to keep the files in his car who obeyed those instructions but at the same time informed Dr. Devender Kumar, another Deputy Secretary about the incident. Dr. Devender Kumar is, in turn, said to have informed the Secretary of the Council who instructed the former to take into his custody all the files, papers and documents. In compliance with the said direction, the record which was kept in the car of the respondent was taken back from there and kept under the lock and seal of Mr.A.K. Harit, Deputy Secretary (Administration) who was in the meantime called to the office. Inventories of all the files, papers and documents were prepared from which it transpired that there were about 160 files/papers and documents of the Council which were sought to be taken away by the respondent out of which about 45 documents were original files/documents which could not have been removed from the office of the Council by anybody.

3. The matter was eventually taken to the Executive Committee of the Council who authorised the acting President of the Council to constitute a Sub-Committee and to take appropriate action against the respondent. A Sub- Committee was accordingly constituted which examined the matter and submitted a report recommending that disciplinary proceedings be initiated against the respondent. This report was considered by the Executive Committee of the Council in its meeting held on 30th December, 2004 and a decision taken to initiate disciplinary proceedings against the respondent and to place him under suspension pending conclusion of such proceedings. The respondent was, in pursuance to the said decision, placed under suspension pending departmental proceedings by an order dated 31st December, 2004 and the action taken reported to the Executive Committee in its meeting held on 31st January, 2005.

4. A charge-sheet was, pursuant to the decision of the Executive Committee, served upon the respondent on 15th March, 2005 and an Inquiry Officer appointed on 11th April, 2005 to hold an inquiry into the charges. The respondent has not, so far, filed any reply to the charge-sheet. He has instead demanded copies of certain documents in response to which the Council has advised him to make the request before the Inquiry Officer who would consider the matter in accordance with law.

5. While the inquiry proceedings had yet to make any progress, the respondent filed Writ Petition (Civil) No. 7281 of 2005 in which he not only challenged the order of suspension issued by the Council, but also the disciplinary proceedings initiated against him. Our esteemed brother Vikramajit Sen, J before whom the writ petition came up for hearing has allowed the writ petition in part and quashed the order of suspension issued against the respondent. The further prayer of the respondent for quashing of the departmental inquiry proceedings has however been declined on the ground that the present was not one of those cases where no misconduct was made out on a plain reading of the charges framed against the respondent. The court has, in this regard, observed :

It has been repeatedly held by the Hon'ble Supreme Court that jural interference in such matters is to be abjured. I had the occasion to consider this very question in Dhanvir Verma v. Punjab National Bank 2005 II AD (DELHI) 237. Inquiries must run their course unless on a plain reading of the charges no offence is made out. This situation does not present itself in the present case. The prayer, therefore, to interdict the inquiry which has commenced by means of Memorandum dated 15.3.2005 is rejected.

6. In so far as the order of suspension was concerned, a three pronged attack was mounted against the same before the learned Single Judge. In the first place, it was contended that the allegations made against the officer were wholly unbelievable in as much as any one intending to remove documents for any nefarious purpose would not have placed the same in the hands of a security personnel. The nature of the allegations underlying the order of suspension , argued the petitioner, showed that the power to suspend had been exercised arbitrarily. That contention found favor with the learned Single Judge who opined:

The allegation against the Petitioner is that he had attempted to remove documents on a holiday. It has been argued on his behalf that it is simply incredulous that any person intending to remove documents would place them for this nefarious purpose in the hands of the security personnel. Prima facie this has merit and therefore there is a strong likelihood that the decision may eventually be seen as mala fide and unsustainable.

7. The above reasoning came under severe criticism at the hands of Mr. Gupta who argued that the learned Single Judge had stepped beyond the scope of judicial review and interfered with the order of suspension on a factual premise which had yet to be investigated by the Inquiry Officer and which, in any case, involved appreciation of evidence before any conclusion, one way or the other, could be recorded. It was contended that the view expressed by the learned Single Judge was self-contradictory in as much as the Court had, on the one hand, declined to quash the proceedings holding that the charges framed against the officer, if proved, would constitute misconduct, while on the other, declared that the allegations contained in the charge-sheet were not believable.

8. There is, in our view, merit in the submissions made by Mr.Gupta. A writ court is not entitled to embark upon an inquiry as to the truth of the allegations made against the employee or to interfere with the same except in cases where no misconduct could be said to have been committed even if the allegations levelled against the employee were all taken as true. The learned single Judge was therefore correct in holding that the present was not a fit case in which the allegation made against the employee did not constitute a misconduct even if proved to be correct. That indeed was the correct test applicable in such cases. Having said so, the learned Single Judge, in our view, fell in error in interfering with the order of suspension on the ground that the allegations made against the respondent were unbelievable or to use the expression adopted by the learned Single Judge ``simply incredulous'`. So long as the allegations, if proved, could constitute misconduct, it was premature for the Court to examine whether or not the allegations made against the employee were believable. Interference with the order of suspension on the ground that the allegations were unbelievable was not therefore justified.

9. That apart, the conclusion which the learned Single Judge has deduced as regards the credibility of the allegations albeit on a prima facie basis is also, in our opinion, unsustainable. There was nothing so absurd about the allegation that the delinquent officer had come to the office while he was on leave. There was similarly nothing so very absurd about the officer taking the help of the security staff for removing records from the officers room or Almirah to his car. What is noteworthy is that it was not a stranger trying to remove the records taking help from the security staff so as to make the same sound unbelievable. It was on the other hand an officer of the Council who had according to the allegations made against the delinquent asked the security man on duty to shift the record to his car. Interference with the order of suspension on the ground that the allegation was unbelievable was not, therefore, indicated particularly so when the writ petition did not allege any mala fides against any officer of the Council, nor was any officer or functionary of the Council arrayed as a party in person to the petition as required by law. It was, therefore, difficult to dub the decision to place the respondent under suspension as mala fide or arbitrary.

10. The second reason which prevailed with the learned Single Judge while quashing the order of suspension rests on the need for an order of suspension stating why the same is being issued. Relying upon the decision of the Supreme Court in Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors. , the Learned Single Judge has come to the conclusion that the legality of an order must be judged only by reference to the reasons contained therein and not what is supplemented by an affidavit in the Court. The learned Single Judge has extended the proposition stated in M.S. Gill's case (supra) to hold that since the order of suspension does not record the reasons why it was necessary to suspend the delinquent officer pending inquiry, the same fell short of the requirements of law.

11. In M.S. Gill's case (supra), one of the questions that fell for consideration was whether the correctness of an order made by a statutory authority could be judged by reference to reasons stated on affidavit before the court but not contained in the order itself. The court answered that question in the negative. It held that if the validity of an order could be so judged, an order which was bad in the beginning may get validated by the time the matter came to the Court on account of a challenge to the same. The court relied upon the observation made by Bose, J in Commissioner of Police, Bombay v. Gordhandas Bhanji to the effect that public orders made by public authorities are meant to have public effect and that an order cannot be construed in the light of the explanation subsequently given by the officer making the same.

12. Neither of the above two decisions dealt with the requirement of an order of suspension setting out reasons on account of which the disciplinary authority considered it necessary to place the delinquent employee under suspension. That apart, the question is not whether an order can be justified by reference to the reasons stated in an affidavit filed before the Court in support of the same. The question is whether there is any requirement of stating the reasons why an order of suspension is being made by an authority otherwise competent to do so. There is in our view no juristic basis for holding that an order of suspension must necessarily spell out the precise reason why an order of suspension is being issued. Judicial review of any such order may be confined to finding out :

(a) Whether the Authority who has passed the order of suspension was competent to do so under the relevant service rules;

(b) Whether the order of suspension is in contemplation of a disciplinary enquiry against the delinquent employee; and.

(c) Whether the order of suspension has been passed after taking into consideration the relevant factors like nature of the allegations made against the employee and the need to keep him out of range of mischief.

13. The challenge to the order of suspension in the present case was not founded on the first or the second limbs indicated above. That the executive committee was competent under the rules to suspend the officer was never disputed nor was it disputed that the suspension was in contemplation of an enquiry into the allegations of misconduct made against the respondent. That being so, the only question that required to be answered was whether the order of suspension had been passed mechanically and without regard to the relevant factors. That aspect could be examined by reference to the attendant circumstances and the contemporaneous record as much as it could be seen by reference to the contents of the order of suspension. So long as the contemporaneous record demonstrates proper application of mind and consideration of the matter by the competent authority and so long as the order was not an exercise mechanically undertaken, the order could not be faulted on the ground that it did not, in specific terms, state as to why it was necessary to place the employee under suspension. That is because suspension is no punishment. It simply forbids or disables the employee from discharging the duties of office or the post held by him. It is meant to restrain him from further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of the services that dereliction of the duty would yield fruits. The legal position is in this regard succinctly stated by the apex court in State of Orissa (through its Principal Secretary, Home Dept.) v. Bimal Kumar Mohanty , in the following words:

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 inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry 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 inquiry etc.

14. The order of suspension issued by the Council in the present case was not a mechanical exercise. It was not an order issued without proper consideration or proper verification of the facts leading to the issue of the charge-sheet and the order of suspension. The Executive Committee had, in the first instance, authorised the constitution of a Sub-committee. The Sub- committee had examined the matter and submitted its report recommending disciplinary proceedings against the respondent. The Executive Committee of the Council had then sought legal opinion from its advocate Shri A. Mariarputham and Shri R. Mohan, Additional Solicitor General of India. In both these opinions, the Council was advised to place the respondent under suspension as there was a prima facie case made out against the delinquent officer. This is evident from the following passage appearing in Sh.R. Mohan, ASG of India's opinion :

I had carefully perused the detailed note prepared by the Secretary, Medical Council of India as well as the opinion given by Shri A. Mariarputham, Advocate, Supreme Court of India. After a careful perusal of the note of the Secretary as well as the opinion of Sh.A. Mariarputham, I am of the considered opinion that initiation of the disciplinary proceedings against Dr. Arora has got nothing to do with the pendency of the writ proceedings. The acts as alleged are very serious in nature and immediate disciplinary proceeding is required to be taken. I also concur with the opinion of Shri A. Mariarputham. Pending disciplinary proceedings, the delinquent officer IS required to be placed under suspension. It may be noted that there is already a prima facie case against the delinquent officer. In view of the prima facie materials, there is no bar for initiating disciplinary proceedings as well as placing him under suspension.

15. The Executive Committee had then perused the report of the Sub- Committee, the legal opinion received by the Council and agreed with the view that the misconduct alleged against the respondent was serious and gross and that the respondent ought to be placed under suspension with immediate effect pending inquiry into the allegations made against him. It is, in the light of this contemporaneous record, difficult to dub the order of suspension as mechanical or passed without due and proper application of mind or to describe the same as 'mala fide' without there being any allegation leave alone material to substantiate the same.

16. The third reason why the order of suspension has been quashed is that agenda for the meeting of the Executive Committee did not include an item relating to the proposed disciplinary proceedings and suspension of the respondent. A two-fold reason has prevailed with the learned Single Judge in holding that the matter was not discussed by the Executive Committee. The first reason is that in the absence of an agenda, the members could not have taken a decision with far reaching consequences. The second reason why the decision was bad, according to the learned Single Judge, is that the same was not taken in the open.

17. It was argued on behalf of the appellant that both these reasons were untenable. Mr. Gupta cited two reasons in support of that submission. Firstly because the record relating to the official business transacted in the Executive Committee had been maintained regularly and in the ordinary course of official business of the Council. The minutes of the meeting of the Executive Committee held on 30th December, 2004 shows that the meeting was attended by as many as ten members including the acting President of the Committee and the Secretary. No allegation of any mala fide or fabrication or interpolation in the record has been made against anyone of these signatories who have confirmed the minutes of the meeting held on 30th December, 2004 in the next meeting of the Executive Committee held on 31st January, 2005. There is not even a murmur in the record leave alone any protest from any member of the Executive Committee whether present or absent on 30th December, 2004 against the alleged non-circulation of the agenda item relating to the disciplinary action proposed against the respondent and his suspension pending inquiry. Circulation of the agenda item is meant only for the benefit of the members participating in the meeting. It is meant to inform the members about the subject matter which is coming up for discussion. If none of the members whether present or absent in the meeting protests or claims any handicap on account of non-circulation of the agenda, it would be too hyper technical an approach to annul the proceedings of the meeting only because the agenda had not been circulated in time or in the form in which it ought to have been. The substance of the matter is whether the members had any difficulty in taking a considered decision of the issue brought up before them. There is nothing in the instant case to suggest that any difficulty was faced by the members of the Executive Committee in taking such a decision. No prejudice could be assumed if none was claimed by the members nor can a resolution and a decision validly taken up nullified on the ipse dixit of the petitioner against whom the same was recorded by the authority competent to do so. That apart, the members of the Executive Committee were not new to the subject being discussed in the meeting. The allegations against the respondent were known to them and the constitution of a Sub-committee had already been authorised by it in its previous meeting. This was accepted even by the Learned Single Judge as is evident from the following passage from the judgment under appeal :

There is also substance in the contention of the learned Counsel for the Respondent that the Members of the Executive committee were already aware for several months of the alleged misconduct of the Petitioner as is evident from a perusal of the Minutes of its Meeting held on 12.5.2004 At that Meeting a Sub- Committee had been constituted to look into this very question. The opinion of the Sub-Committee, inter alia, was that the act of removing 45 original and official documents/records amounted to grave misconduct. The Sub-Committee recommended the initiation of disciplinary proceedings against the Petitioner.

18. In the light of the above, we find it difficult to subscribe to the view that the decision taken by the Executive Committee was bad as the agenda had not been circulated or that there was any infirmity in the decision taken by the Committee on that account. We are of the considered opinion that the matter was brought up before the Executive Committee who had recorded a considered decision for initiating disciplinary action against the respondent and placing him under suspension pending inquiry.

19. One other reason which found favor with the learned Single Judge may also be noticed at this stage. The learned Single Judge has, while quashing the order of suspension, observed :

What is notable is that there is no whisper that the Petitioner is likely to commit the same alleged misconduct again. This goes to the root of the justification of the suspension order.

20. If the above is meant to convey that an order of suspension could be justified only if there is likelihood of the petitioner committing the same misconduct again, we must record our regretful inability to agree. It is true that while deciding whether an employee should or should not be suspended, the competent authority has to keep various factors in view including, in appropriate cases, the question whether the delinquent is likely to repeat his misconduct if not suspended. But it is far from saying that an order of suspension can be justified only if there is a likelihood of repetition of the misconduct. As observed by the Supreme Court in Bimal Kumar Mohanty's case (supra), an order of suspension is passed looking to different factors including the gravity of the misconduct alleged against the employee, the likelihood of the delinquent officer's scuttling the inquiry or investigation and the possibility of his winning over witnesses or impeding the progress of investigation or inquiry. No single circumstance is conclusive of the matter. The fact that the order of suspension did not record any apprehension regarding the repetition of the misconduct alleged against the respondent is, therefore, of no consequence. An employee may be placed under suspension even when there is either a remote or even no possibility of his repeating the very same misconduct.

21. The respondent has already been served with the charge-sheet. All that can perhaps be ordered is an expeditious completion of the inquiry proceedings. Mr.Gupta, learned Counsel for the Medical Council of India submitted that the Inquiry Officer earlier appointed was not available on account of his repatriation but the Council had already made a request to Government of India to nominate another inquiry officer so that the inquiry could proceed expeditiously. He urged that the Council had no difficulty in doing everything possible to ensure an early and expeditious conclusion of the inquiry proceedings provided the respondent also co-operated in the same. He submitted that the respondent had not deliberately filed any reply to the charge-sheet till date which was one reason why the inquiry proceedings had not made much headway.

22. In the result, we allow this appeal; set aside the order passed by the learned Single Judge and dismiss the writ petition. We, however, direct that the inquiry proceedings initiated against the respondent shall be expedited to ensure that the same are concluded within a period of one year from the date the new inquiry officer assumes the charge of the inquiry. Needless to say that the respondent employee shall co-operate with the Inquiry Officer for an early completion of the inquiry proceedings and in case he does not do so, the Inquiry Officer shall be free to pass appropriate orders in accordance with law.

23. No costs.