Dr. N. Balakrishnan vs Nehru Memorial Museum & Library ...
2010 Latest Caselaw 4886 Del

.*         HIGH COURT OF DELHI : NEW DELHI

+                      WP (C) No.13733/2009

%                                 Judgment decided on : 25.10.2010

Dr. N. Balakrishnan                                     ......Petitioner
                       Through: Ms. Nitya Ramakrishnan, Adv. with
                                Ms. Piya Singh, Adv.
                       Versus

Nehru Memorial Museum & Library Society & Ors. ....Respondents
                 Through: Mr. Parag P. Tripathi, ASG with Mr. Kunal
                          Bahri, Mr. Jayant K. Mehta and Mr. S.C.
                          Dhanda, Advs. for R-1 and 2
                          Mr. Sudhindra Tripathi, proxy counsel
                          for Mr. Peeyoosh Kalra, Adv. for R-3
Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                       Yes

2. To be referred to Reporter or not?                    Yes

3. Whether the judgment should be reported               Yes
   in the Digest?

MANMOHAN SINGH, J.

1. The present writ petition under Article 226 of Indian

constitution challenges the interim suspension order passed against the

petitioner dated 30th April 2009 whereby the petitioner has been

suspended from his post pending the disciplinary enquiry and

consequently the charge sheet was also issued on 22.6.2009 which has

also been made a subject of challenge in the writ petition. The brief facts

of the case can be enunciated as under:

a) The petitioner is stated to be the responsible employee of the

respondent society namely "The Nehru Memorial Museum

and Library Society" ( herein after referred as NMML or

respondent society). The said society operated under the

ministry of culture which has been arrayed through union of

India as respondent no. 3. The respondent no. 2 is the

chairman of executive counsel of respondent no. 1 society.

b) The petitioner claims to be currently holding the post of the

deputy director of the respondent society. The petitioner is

said to be working with that of the respondent no.1 for the

last more than 23 years. The petitioner has averred in the

petition to have joined the respondent in 1986 and since then

the he has been working with the respondent.

c) The grievance of the petitioner emanates from the

petitioner‟s unhealthy relations with that of the respondent‟s

society which started in the in year 2008 which ultimately

has culminated into the interim suspension which is baseless

and is backed by malice according to petitioner . The

petitioner has stated in the petition as a background of the

dispute as to how according to the petitioner, he is not

treated properly in the institution. The petitioner has given

several instances which happened in the year 2008 and prior

to the same including the director‟s decision to delegate the

powers of the deputy director. The said decision according

to the petitioner is not proper which was also raised before

the chairman who is respondent no. 2. Likewise other

instances including the petitioner‟s elevation as deputy

director is also stated to be not free from controversy.

d) In this backdrop, the petitioner submitted that due to the

unhealthy relationship between the petitioner and the

director of the respondent, the respondent was searching for

one reason or the other which ultimately lead to starting of

the false and malafide disciplinary enquiry and also paved

the way for the interim suspension which ought to be

quashed by this court.

e) The petitioner then explained his case which is a subject

matter of the disciplinary enquiry. The petitioner firstly

explained that in year 2000, a committee report under Mr.

A.K. Damodaran, who was the member of the NMML

Executive council was asked to suggest amendments to the

Recruitment rules. Pursuant to suggestions of Damodaran

committee, there was discussion between the ministry of

culture and executive council and they have thought it fit to

amend the rules which in such a manner that the post of the

deputy director was to be filled by departmental promotion.

The petitioner explained that this has become one of the

accusation in the charge sheet whereby the petitioner is

alleged to have influence this process of amendment of the

rules so as to become deputy director. It has been explained

by the petitioner the said decision was taken at very high

level after much discussion spanning over 5 years. The

charge sheet however provides that the petitioner issued an

explanatory note to the committee report when no such note

exists. This has made of the reason leading to the suspension

and initiation of the disciplinary enquiry against the

petitioner.

f) The petitioner then mounted his case on the facts stating that

there was an old complaint regarding the fellowship

selections held in 2005 by the respondent no. 1 which has

been introduced in the picture in order to sidetrack the

petitioner. The petitioner contended that the said complaint

has just become one reason to suspend the petitioner

unnecessarily as the petitioner was no where involved in the

entire process of selection.

g) The petitioner describes that the respondent holds the

prestigious fellowship project that awards fellowships to

senior scholars of repute and junion ones. In the year 2003,

the advertisement was issued inviting application for

fellowships. In 2004, the joint secretary in the Ministry of

Culture was given additional charge as Director of

respondent library. It is submitted that although October 20,

2003 was the last date of submission of the application but

the respondent is empowered to offer the fellowship even to

the non applicant.

h) The petitioner stated that on June 25, 2004, the group of the

academics wrote to the ministry seeking postponement of the

interviews relating to the section process. Thereafter acting

upon the same, the joint secretary, Ministry of culture who

was then the director had taken the decision to postpone the

same. The petitioner said this is another cause of enquiry and

the petitioner is being accused of the postponement of the

said interviews despite the fact that he has no role to play

and rather the decision was taken at the highest level.

i) The petitioner narrated that the new selection committee was

formed after change in the executive council. The new

selection committee has also considered some applications

of the applicants even beyond the date notified. The

petitioner also stated that one such application has also been

received by the office of the petitioner which has been

forwarded for the appropriate action. The petitioner is

unnecessarily dragged into the enquiry when the petitioner

was also not concerned with the selection process or

considering any such belated application is the stand of the

petitioner.

j) Pursuant to the said selection process, the petitioner has

averred that the disappointed candidates have complained to

an MP who then referred the matter to the petitions

committee. The petition committee reported that the

selection process was distorted. Similarly, the parliamentary

standing committee also recommended that the said selection

process is not devoid of problems.

k) A fact finding committee was appointed after the negative

results given by the two reports. The fact finding inquiry

headed by Mr, V.P. Dutt had also found the role of the

director and deputy director questionable.

l) On 30th April 2009, the petitioner was informed that he was

being suspended as there was a disciplinary proceedings

pending against him. The petitioner thereafter sent the

representation to the executive council/ disciplinary authority

asking the grounds of his suspension.

m) On 18th May 2009, the petitioner herein moved to the

appellate authority by filing the appeal against the said

suspension order. Thereafter the appeal authority conducted

the hearing of the petitioner on 29th June 2009. The said

hearing was postponed as the respondent has refused to

attend the said hearing.

n) On 22nd June 2009, the petitioner was served a copy of the

charge-sheet comprising six articles. The suspension order

dated 30.04.2009 was further extended on 29th July 2009

extending the same for further period of 180 days. In the

meantime, the petitioner‟s appeal was pending.

o) The petitioner had filed a writ petition earlier before this

court under article 226 of Indian Constitution praying the

revocation of the suspension wherein by way of order dated

20.08.2009 this court directed the appeal authority to

expeditiously dispose of the petitioner‟s appeal.

p) Thereafter, once the appeal was not timely disposed of , the

petitioner filed this fresh writ petitioner challenging the

suspension order and charge-sheet.

q) The petitioner challenged the said suspension order on the grounds as under:

That the order of suspension has been made under malafide consideration as the petitioner had protested against the director of the respondent no. 1 decision to divest the powers of the director The impugned order of suspension suffers from the vice of the arbitrariness in as much as even the fact finding inquiry report was not fully complied with and only the petitioner is singled out.

In the present case, there was no circumstances necessitating the suspension as the petitioner is not likely to do anything to the detriment to the respondent organization and the petitioner had done any misconduct earlier also. Thus, the order of suspension is clearly malafides, arbitrary and backed by ulterior motives.

The petitioner sought to justify all the six charges by giving the detailed replies which are discussed below. That the charges against the petitioner are vague, baseless and trivial.

The petitioner is being singled out and thus made to suffer against the persons who have their direct involvements in the said alleged charges when the said decisions were made.

2. The charges as framed against the petitioner are set out as

under:

"Article I

That the said Shri N. Balakrishnan while functioning as Head, Research and Publications Division (HRPD) and subsequently as Deputy Director at the NMML during the years 2000 and onwards, committed misconduct in as much as that, vide letter dated 7 th July 2004 he unauthorisedly got the interviews of shortlisted candidates for the award of fellowships postponed. This decision to postpone the interviews, which was scheduled for 10th July 2004, was taken without seeking any approval from the Chairman, NMML Executive Council, since only the Executive Council was vested with such authority. This charge is further proved by the fact that the decision to postpone the interviews was not reported to the Executive Council at its meeting held on 2nd August 2004. By this act, he effectively stopped the functioning of the fellowship programme for promoting high quality research through award of fellowship at the level of Senior Fellow, Fellow and Junior Fellow.

Thus by doing so, Shri N. Balakrishnan, Deputy Director NMML committed a serious misconduct and thereby contravened Rule 3 (1) (ii) and Rule 3 (1) (iii) of the CCS (Conduct) Rules 1964 as applicable to NMML employees, whereby every Society servant at all times maintain devotion to duty, and do nothing which is unbecoming of a Society servant.

Article 2

That, during the aforesaid period and while functioning in the aforesaid office, the said Shri n. Balakrishnan, Deputy Director NMML committed another serious misconduct in as much as when the selections did take place after the formation of new Executive Council, which nominated a new Fellowship Selection Committee for recommending the selection of Fellows, he by a series of acts ensured that the selection of candidates for Fellowships was not conducted in a fair and transparent manner in order to bring undue favour to two candidates namely, Prof. Neerja Gopal jayal and Dr. Dilip Simeon for the posts of Senior Fellow.

Thus by misleading the Executive Council in the above manner, Shri N. Balakrishnan, Deputy Director NMML committed serious misconduct and thereby contravened Rule 3 (1) (ii) and Rule 3 (1) (iii) of the CCS (Conduct) Rules 1964 as applicable to NMML employees, whereby every Society servant shall at all times maintain devotion to duty, and do nothing which is unbecoming of a Society servant.

Article 3

That, during the aforesaid period and while functioning in the aforesaid office, the said Shri N. Balakrishnan, Deputy Directgor NMML, committed serious misconduct in as much as that he misled the new Executive Council by not placing full facts before it while getting the Executive Council to appoint a new Fellowship Selection Committee for appointment of Fellows.

Thus by deliberately, withholding vital information from the Executive Council with a view to misleading it, Shri Balakrishnan, Deputy Director NMML, committed serious misconduct and thereby contravened Rule 3 (1) (ii) and Rule 3 (1) (iii) of the CCS (Conduct) Rules 1964 as applicable to NMML employees, whereby every Society servant shall at all times maintain devotion to duty, and do nothing which is unbecoming of a Society servant.

Article 4

That, during the aforesaid period and while functioning in the aforesaid office, the said Shri N. Balakrishnan, Deputy Director NMML, again committed misconduct in as much as that, he misused his authority and manipulated the records and the selection process for selection of Fellows by unauthorizedly operating uponthe 18-month old list of applicants without going in for re- advertisement and unauthorizedly assumed the role of coordinator without seeking any approval of the Selection Committee which met on 4th March 2005 and brought undue favour to two candidates namely Prof. Neerja Gopal Jayal and Dr. Dilip Simeon by receiving and admitting for consideration their applications for the post of Senior Fellows on 2 May 2005 and 9 May 2005 respectively, nineteen months after the cut off date thereby denying opportunity to suitable candidates who may have come up in the meanwhile to apply for these posts. Both these applicants were selected for the post of Senior Fellow at the NMML.

Thus by doing so, Shri N. Balakrishnan, Deputy Director NMML, committed serious misconduct and thereby contravened Rule 3 (1) (ii) and Rule 3 (1) (iii) of the CCS (Conduct) Rules 1964 as made applicable to NMML employees, whereby every Society servant shall at all times maintain devotion to duty, and do nothing which is unbecoming of a Society servant.

Article 5

That, during the aforesaid period and while functioning in the aforesaid office, the said Shri N. Balakrishnan, who was at that time holding the post of Head, Research and Publication Division and was the senior most officer of NMML, misused his authority

by misleading the Executive Council in order to favour himself for appointment as Deputy Director in as much as he misinterpreted the recommendations of the Damodaran Committee Report through an Explanatory Note accompanying the proposal for amendment of the Recruitment Rules as well as an earlier proposal by Dr. O.P. Kejriwal, the then Director NMML before the meeting of the Executive Council held on 25th January 2005 and thereby got the Recruitment Rules for the post of Deputy Director, NMML amended on a faulty logic from „Direct Recruitment‟ to "Departmental Promotion, failing which by Direct Recruitment" which was done to tailor make the eligibility criteria to get himself fitted to the requirement for the said post thereby misusing his authority for personal gain.

By conducting himself in the above manner, Shri N. Balakrishnan, Deputy Director NMML, committed serious misconduct and thereby contravened Rule 3 (1) (ii) and Rule 3 (1)

(iii) of the CCS (Conduct) Rules 1964 as applicable to NMML employees, whereby every Society servant shall at all times show devotion to duty and do nothing which is unbecoming of a Society servant.

Article 6

That, during the aforesaid period and while functioning in the aforesaid office, the said Shri N. Balakrishnan, who was at that time holding the post of Deputy Director committed misconduct by willfully disobeying the orders of the Director and was found in unauthorized possession of official files and documents of NMML. This came to light when a committee made an inventory of items found in the office of Shri N. Balakrishnan, Deputy Director subsequent to his suspension by the disciplinary authority.

By his above act Shri Balakrishnan, committed a serious misconduct and thereby contravened Rule 3 (1) (ii) and Rule 3 (1)

(iii) of the CCS (Conduct) Rules 1964 as applicable to NMML employees."

3. The petition was listed on 9.12.2009 when this court issued

notice in the petition. The Respondent no. 1 and 2 have filed their counter

affidavit by justifying the suspension order and charge sheet on the

following grounds:

a) The respondent contended that the petitioner has not placed the complete facts before the court. It is submitted that the petitioner

suspension is not totally irrational one but rather there is a complete basis for lodging the displinary enquiry against the petitioner which leads to his suspension. It is pointed out that the action of the respondent was in pursuance to the findings and directives of the petitions committee of 14th Lok Sabha contained in its 44th report which was forwarded to respondent for compliance by the Ministry.

It is stated that the said committee report examined the irregularities and manipulations on the petition of Some Mr. S.P. Singh in relation to the Fellowship selection which has been conducted from the year 2003 to 2005. The respondents submitted that the report observed the practices adopted by NMML to annul the list of candidates shortlisted by previous committee and also observed the applications of Some Candidates like Mr. Dilip Simeoon and Ms. Nirja Jayal has been entertained beyond time even after 19 months of the expiry of the last date of the receipt of the application. The respondent contended that the petitioner is involved in entertaining the late applications of these two individuals and thus the same is required to be inquired into for which the inquiry has been lodged after suspension as per the due recommendation of the committee and asking of Central vigilance Commission.

Likewise the respondent contended that the parliamentary standing committee of Ministry of culture also questioned the selection process of senior fellows on the similar counts and recommended the probe into the selection process. Thus, the respondent contended that the inquiry is not baseless but rather is backed by three source recommendation.

b) The respondent further submitted that not merely on the basis of the recommendations of the committees, the respondent have initiated the inquiry against the petitioner. But the respondent no. 2 has again appointed a fact finding inquiry prior to the inquiry against the petitioner in order to ascertain the complete facts. The fact finding inquiry is conducted by Shri V.P. Dutt who is stated to be well known academician and fellow of the respondent institution.

The respondent stated that the said fact finding inquiry recorded that there is delayed acceptance of the applications and also named the petitioner in its report for belated acceptance of the applications and also the acceptance of the application without any authority. There is finding in the report that the actions of the

director in charge and deputy director at that time were palpably malafide. Thus there is also the finding that the prima facie case is made out to institute the displinary action against both the director in charge and deputy director.

The respondent submitted that in view of all the events including the fact finding inquiry preeceeding the disciplinary inquiry categorically finding the actions of then deputy director as bad, the said initiation of the inquiry and charges cannot be said to be baseless as contended by the petitioner.

c) The respondent contended that the charges leveled against the petitioner also disclose cause against the petitioner. The petitioner is stated to have sent the letter dated 7.7.2004 to the shortlisted candidates regarding the postponement of the interviews which was not even informed the executive council of the society. Thus, the charges be it anyone is not without any evidence but are backed by the recommendation, factual analysis and the evidence in support thereof.

d) Likewise, the respondent submitted that the fact finding committee recorded that the application of the Ms. Nirja Jayal was received on 2.5.2005 by the petitioner where as the deadline was 20.10.2003. The petitioner was promoted as Deputy Director on 17.3.2005 and after his promotion, the petitioner accepted the application of Ms. Jayal and shortlisted her despite the fact that she has not applied for. The said finding and events also formed another basis of Article 4 of the Charge.

e) The respondent submitted that in view of the well reasoned inquiry and charges coupled with imputation backed by the evidence, the interim suspension pending the inquiry and the inquiry itself cannot be faulted with. The respondent contended that judicial review of the cases involving the disciplinary action is extremely limited and the present case does not warrant the court‟s interference.

4. Learned Counsel Ms. Nitya Ramakrishnan appeared on behalf

of the petitioner and has made the following submissions:

a) Firstly, Learned counsel submitted that the disciplinary inquiry

launched by the respondent ought to be quashed by this court as

there is no ground made out to launch the said disciplinary inquiry.

b) Learned counsel submitted that the said disciplinary inquiry is

backed by the malice as the petitioner has opposed the steps taken

by the director of the respondent to divest the petitioners powers as

deputy director to someone else. The petitioner contended that

malice of the respondent can be highlighted on following counts:

a. The petitioner is charged with doing such acts for which he

was not vested with power to perform such acts.

b. The charges made are trivial or baseless

c. The petitioner is being singled out in the enquiry and no

other person against whom such enquiry is initiated although

the fact finding inquiry report is against some other persons

also.

4. Learned counsel for the petitioner has relied upon AIR1976

SC 1766 titled as The Regional Manager and Anr.Vs. Pawan Kumar

Dubey to inform the court that the Malice in Law is also the ground for

interference and also submitted that the present acts of the respondent by

charging the petitioner without the legally tenable ground is malice in law.

5. The reliance was also placed on the matter of T.V.

Chaudhary with E.S. Reddi Vs. Chief Secretary Government of AP,

(1987) 3 SCC 258 to urge that this court in appropriate case where the

differential treatment is accorded like the present one can direct the

government to initiate the same inquiry against the other delinquent

officers or else quash the suspension order.

6. Likewise the petitioner also put strong reliance on

Bongaigaon Refinery & Petrochemicals ltd & Others v. Girish

Chandra Sarma, 2007 7 SCC 206 wherein this apex court set aside the

penalty wherein one person is singled out as against the others by

upholding the order Division Bench.

7. The learned counsel for the petitioner further argued that the

charges that are framed as baseless. The petitioner counsel explained the

situation wise as to the reasons as to why the charges against the

petitioner cannot be said to be made out. Such situations can be enlisted

as under:

The first article of charge was sought to be justified by the petitioner that the allegation of the postponing the selection process is completely baseless in as much as the director had the authority to postpone the selection process and not the petitioner. The petitioner also denied that the petitioner was the deputy director at the relevant time when the selection process was carried on. Thus, the petitioner stated that the first charge is complete baseless.

Petitioner commented on the second charge of favouring two candidates that the said charge is also baseless. The petitioner had nothing to do with selection process. The executive council appointed selection committee which is involved in selection process, The petitioner also denied the allegation of influencing the decision to accommodate the candidates to their benefit.

The petitioner stated that third article of charge that the petitioner withheld some facts from the executive council is equally baseless as the petitioner is not under duty to inform the executive council.

The petitioner responded the fourth charge which alleged that the petitioner assumed the role of the coordinator that he did not readvertise the process of selection of fellows and operated under 18 months old list. The petitioner stated that the petitioner has not accepted any such belated application beyond the date. Out of 10 applications, 1 application has been also received by the office of the petitioner which was

handed over for processing. In these circumstances, it cannot be said that the said application has been accepted by the petitioner belatedly. The role of coordinator to the petitioner was given by the director to be performed. The fifth article of charge states that the petitioner mis interpreted the Damodaran committee report and given some explanatory note, to which the petitioner response is that the said explanatory note does not exist. The Damodaran committee recommended that the more posts should be filled up through departmental promotion in order to avoid stagnation. Further, the petitioner states that the director is responsible for this and not the petitioner.

The petitioner deals with the last charge wherein the petitioner is alleged to have found in unauthorized possession of official files and documents of the respondent no. 1. The petitioner just denied the said charge by stating that there was no complaint of returning documents when asked. The charge is also criticized to be trivial.

8. Thus the learned counsel for the petitioner submitted that the

charges framed against the petitioner are baseless or are so trivial which

do not warrant suspension and nor even require enquiry by the

disciplinary authority.

9. The decision in Zunjarao Bhikaji Nagarkar Vs. Union of

India, AIR 1999 SC 288 is relied upon wherein para 42 the court

observed that the disciplinary proceedings against an officer cannot take

place on an information which is vague and indefinite. The court also

observed that the suspicion has no role to play and there must exist the

reasonable basis to proceeding against the delinquent officer.

10. The learned counsel strenuously argued that this court should

interfere in the pending enquiry as the appeal is filed by the petitioner

wherein the appeal has preferred against the suspension order has called

upon the respondents and in consultation thereof the decision is taken by

the appeal board on 1.2.2010, thus the same also shows the malice on the

part of the respondent.

11. Learned counsel for the petitioner has made the submission

that the charge sheet against the petitioner ought to be quashed as there is

no rational basis for charging the petitioner. It is argued that the basis of

the charge sheet is fact finding inquiry held by Mr. V. P. Dutt wherein

there is no allegation made against the petitioner. Thus, as per the

petitioner‟s counsel, the charge against the petitioner ought not to have

been framed.

12. Counsel for the petitioner has relied upon the following

authorities wherein the court has exercised the judicial review on the

basis of infirmities in the charges. The same are enlisted as under:

1) In R.C. Sood Vs. High Court of Rajasthan (1994) Supp (3) SCC 711, the court has found that there was no material on record to impute the petitioner and thus the court held that the pending enquiry is arbitrary and quashed the same.

2) In M. V. Bijalani Vs. Union of India, (2006) 5 SCC 88. The Hon‟ble Supreme Court has held that the charges must be specific and the same cannot take into consideration irrelevant facts. The apex court quashed the enquiry where the enquiry officer enquired on something for which delinquent officer was not charged with and thus finding infirmity in charges.

13. Learned counsel for the petitioner replied to the basis of the

charges explained by the respondent by stating the neither the fact finding

committee report nor the petitions committee report mentions the name of

the petitioner and rather the actions taken which were found improper

were done by then director and not the petitioner. This according to the

petitioner‟s counsel makes the charges baseless shows clear malafide.

14. The learned counsel for the petitioner then proceeded to

explain that although it is correct that the judicial review in the cases

relating to departmental enquiry against the delinquent officer is

extremely limited but the court has to apply different principles when

faced with the different situations. It was argued by the learned counsel

for the petitioner that there is comparative shift when it comes to judging

the administrative action based upon impingement of article 14 which can

dissected in two parts:

1) When there is impingement of article 14 on the ground of discriminatory or unreasonable classification.

2) When the administrative action is attacked on the ground of arbitrariness.

In the former, learned counsel for the petitioner submits

applies the doctrine of proportionality which balances the level of

discrimination proportionately with that of the grievance. In other words,

the power of judicial review in those cases are widened as the court can

look into the reasonable differentia as to how a person has been

discriminated against and what is the nexus with the object which is

sought to be achieved by such action and then take the decision

measuring it proportionately.

In the later, as per the learned counsel for the petitioner, the

court may still consider applying the Wednesbury reasonableness and in

those cases, the court has to judge the same on the touchstone of the

Wednesbury reasonableness.

15. The aid is drawn from the decision of the Hon‟ble Supreme

Court‟s decision in Om Kumar v. Union of India cited as 2000(7)

SCALE 524wherein it was held :

"66. It is clear from the above discussion that in India where administrative action is challenged under Article 14 as being discriminatory, equals are treated unequally or unequals are treated equally, the question is for the Constitutional Courts as primary reviewing Courts to consider correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the administrator. Hence the Court deals with the merits of the balancing action of the administrator and is, in essence, applying 'proportionality' and is a primary reviewing authority.

67. But where, an administrative action is challenged as 'arbitrary' under Article 14 on the basis of Royappa (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is 'rational' or 'reasonable' and the test then is the Wednesbury test. The Courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. [In G.B. Mahajan vs. Jalgaon Municipal Council] : AIR1991SC1153 )]. Venkatachaliah, J. (as he then was) pointed out that 'reasonableness' of the administrator under Article 14 in the context of administrative law has to be judged from the stand point of Wednesbury rules. In Tata's Cellular vs. Union of India: AIR1996SC11 , Indian Express Newspapers vs. Union of India ( : [1986]159ITR856(SC) ), Supreme Court Employees' Welfare Association vs. Union of India and Anr. (: (1989)IILLJ506SC ) and UP. Financial Corporation v. GEM CAP (India) Pvt. Ltd. ( : [1993]2SCR149 ), while Judging whether the administrative action is 'arbitrary' under Article 14(i.e. otherwise then being discriminatory), this Court has confined itself to a Wednesbury review always.

68. Thus, when administrative action is attacked as discriminatory under Article 14, the principle of primary review is for the Courts by applying proportionality. However, where administrative action is questioned as 'arbitrary' under Article 14, the principle of secondary review based on Wednesbury principles applies"

16. With this learned counsel submitted that the present case falls

both under former and later categorization as not merely the violation of

article 14 is contended on the count of being arbitrary but also

discrimination and classification is also claimed by the petitioner, which

allows this court to judicially review the impugned decision to enquiry

and chargesheet in a wide manner.

17. Per contra Mr. Prag Tripathi, learned ASG and Senior Counsel

appearing on behalf of the Respondent has made his submissions which

can be crystallized as under:

a) Mr. Tripathi, learned ASG firstly submitted that the departmental

enquiry has been initiated after the three prong analysis and due

recommendation of committees including petitions committee

report, parliamentary standing committee report and CVCs asking

after the recommendation of the petition committees report. Even

thereafter the fact finding inquiry conducted by Mr. Dutt also

yielded the similar result wherein there are finding about

involvement of the petitioner in delaying the fellowship award

selection process, accepting applications beyond deadlines etc

which are also forming the part of chargesheet. Thus, as per

learned ASG neither the interim suspension after due compliance of

rule 10 CCS rules nor the initiation of departmental enquiry,

chargesheet can be faulted with which are all based on sound

grounds.

It is thus submitted by the learned ASG that the rule 10

empowers the respondent to suspend the petitioner when the

respondent is contemplating enquiry or at the initiation of the

enquiry. The said actions of the respondents are in due compliance

of the rules. Like wise, the extension orders dated 29.07.2009 and

dated 22.01.2010 are also in due compliance of the Rules which

cannot be faulted with.

b) Learned ASG submitted that so far as charges are concerned, the

same can be interefered by this court only when the charges are

vague and do not at prima facie disclose misconduct . In the

present case, the learned ASG submitted that the charges are

backed by the fact finding inquiry, thereafter the itemized charges,

the date wise instances and happenings leading to imputations, all

these have to be enquired into by way of the Displinary enquiry

and the same cannot be merely put aside by this court.

The reliance is placed on DY. Inspector General Police Vs.

K.S. Swaminathan, (1996) 11 SCC 498 wherein the apex court

has held that the court has not to go into the truthfulness or

otherwise of the charges and should confine itself only to enquiry

in the judicial review as to whether the statement of facts,

chargesheet supplied and material in support thereof disclose

alleged misconduct. The court will not quash the charge memo by

judging the charges themselves.

c) Shri Tripathi, Learned ASG further explained that the suspension

per se is not stigmatic and rather is the part of the ordinary

discipline and the same is with aim to enable the other employees

to perform their job peacefully without dereliction of their duties.

Thus, the said suspension order cannot be faulted with as the

respondent being the autonomous body has its own liberty to

maintain discipline.

d) Learned ASG argued that the extent of judicial review in the

departmental enquiry cases also more so when it relates to

suspension pending the enquiries is extremely limited and the court

by exercise of judicial review cannot interfere with the suspension

order unless the same is passed malafide and there is apparent

evidence of no connection of the delinquent employee with the

misconduct in question. As per learned ASG both the criterion are

not met with as there is no malafide and also the there is sufficient

evidence on record to show the connection of the petitioner with

that of the misconduct in question.

Learned ASG has relied upon the judgment passed by apex

court in UP Rajya Krishi Utpadan Mandi Parishad v. Sanjiv

Rajan (1993) Supp (3) SCC 483 wherein the apex court observed

"Whether the employee should or should not continue in their

office during the period of the enquiry is a matter to be assessed by

the authority concerned and ordinarily the court should not

interefere with the orders of the suspension unless they are passed

malafide and without there being prima facie evidence on record

connecting the employees with the misconduct in question.

e) Learned ASG submitted that the malice as alleged by the petitioner

has to be specific against the person specific and must disclose the

events by which such malice has been exercised upon the

petitioner. Further, the said person must be made party to the

proceedings and must be stated in the petition. If that is not so, no

malice in general can be attributable to the respondents.

The learned ASG relied upon Dhampur Sugar (Kashipur)

Ltd versus State of Uttranchal & Others, (2007) 8 SCC 418

wherein the apex court observed that allegations of malafide are

serious in nature and they essentially raise a question of fact. It is

therefore, necessary for the person making such allegation to

supply full particulars in the petition. If the sufficient averments and

requisite materials are not on record, the court would not make

fishing or roving enquiry. Mere assertion, vague averment or bald

statement is not enough to hold the action to be malefide.

f) The learned ASG concluded his submission by stating that the

scope of judicial interference in the cases involving departmental

enquiry is extremely limited. The court has to look into the same

from the perspective of wednesbury reasonableness only. Learned

ASG also submitted that the till the time there is a disclosure of

misconduct, the person initiating the enquiry is competent, the

charges are supported by material on record, the court cannot

interfere in the pending enquiry unless the court arrives at the

conclusion that there is an element of malice and/ or arbitrariness.

18. Learned counsel for the Respondent no. 3 Mr. Peyoosh Kalra

also made his submissions and relied upon the submissions of learned

ASG.

I have noted the submissions made at bar by the parties and

also given my careful consideration to the petition filed by the petitioner,

the counter affidavit of respondent no. 1 and 2 and separate counter filed

by the respondent no. 3. Before coming to my findings, I deem it

appropriate to analyze the law on the subject.

19. Firstly, it is now trite that the judicial review in cases relating

to departmental enquiry is extremely limited. The same is confined to

adjudging the lack of jurisdiction, jurisdictional error, reasonableness of

the decision, arbitratrariness, discriminatory, violation of principles of

natural justice, malice. ( Kindly see B.C. Chaturvedi Versus Union of

India, (1995) 6 SCC 749 at para 12,

20. Secondly, it is also needs no reiteration that the interference in

the pending enquiry is discouraged unless the enquiry is vitiated being

actuated by malice (including malice in law and malice in fact),

arbitrariness, discriminatory, patent lack of jurisdiction, vagueness of

charges and charges contrary to the law, the supportive material being

not commensurate to the charges.

21. In State of Orissa v. Bimal Kumar Mohanty, AIR 1994 SC

2296, it was held by supreme court:

"The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending enquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the enquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or enquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending enquiry or contemplated enquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or enquiry.

Thirdly, in relation to order of suspension, the courts have from time to time held that the suspension is not stigmatic and will not ordinarily be interfered with except in cases where the suspension is passed malafidely and in cases where there is no supportive material on record connecting the employee with that of the misconduct.

Fourthly, The law relating to quashing of charges is also explicity discussed by Apex Court in Inspector General Police versus K.S. Swaminathan, (1996) 11 SCC 498 wherein the apex court has held that the charges can be interfered in the judicial review when they are vague and should not be contrary to the law. The court will not go into the truthfulness or otherwise of the charges at the time of examination of charges in a pending enquiry. ( kindly see Surath Chandra Chakraborthy v. State of West Bengal, (1970) 3 SCC 548, Sawai Singh v. State of Rajasthan, (1986) 3 SCC 454, Transport Commissioner Madras 5 versus A Radha Krishna Moorthy, (1995) 1 SCC 332))

Fifthly, It is also to be kept in mind that the writ court is not fact finding court. The writ court will not go into factual enquiry and then adjudicate the correctness or otherwise of the facts and rather would look the fairness, reasonableness of administrative actions and the taking away of any legal rights if any by virtue of the same. This has also been held in Management of Madurantakam, Co- operative Sugar Mills Ltd.Vs. S. Viswanathan, AIR2005SC1954 wherein the apex court observed:

"12. Normally, the Labour Court or the Industrial Tribunal, as the case may be, is the final court of facts in these type of disputes, but if a finding of fact is perverse or if the same is not based on legal evidence the High Court exercising a power either under Article 226 or under Article 227 of the Constitution of India can go into the question of fact decided by the Labour Court or the Tribunal. But before going into such an exercise it is necessary that the writ court must record reasons why it intends reconsidering a finding of fact. In the absence of any such defect in the order of the Labour Court the writ court will not enter into the realm of factual disputes and finding given thereon. A consideration of the impugned order of the learned Single Judge shows that nowhere he has come to the conclusion that the finding of the Labour Court is either perverse or based on no evidence or based on evidence which is not legally acceptable. Learned Single Judge proceeded as if he was sitting in a court of appeal on facts and item after item of evidence recorded in the domestic enquiry as well as before the Labour Court was reconsidered and findings given by the Labour Court were reversed. We find no justification for such an approach by the learned Single Judge which only amounts to substitution of his subjective satisfaction in the place of such satisfaction of the Labour Court."

22. It appears from the facts and circumstances of the above

mentioned cases wherein the Apex Court found malafide in initiation of

inquiry because the same was backed by politics. The Apex Court shown

its concerns by commenting that the Court cannot shut its eyes when the

malafides are so apparent as within few days of change of Government,

the inquiry was initiated against the person belonging to rival party.

These facts are missing in the present case.

23. Thus, unless the court records that the factual enquiry is

required on account of perversity in the lower court finding, the fact

finding is not permissible in exercise of Article 226 or Article 227.

24. Keeping these well settled principles in mind, I shall now deal

with the submissions made by the parties and will answer the questions

raised by the parties point wise :

a) The petitioner‟s contention that there is no ground for proceeding

against the petitioner by the respondent and thus pending enquiry

ought to be quashed at this stage is not sustainable. There is a

material on record backed by the committee report, parliamentary

standing committee report, fact finding report and other supportive

material which enables the respondent to proceed against the

petitioner a disciplinary enquiry. It is however another thing as to

who may succeed in the pending enquiry. But to quash the enquiry

when there is a material for the cause which the respondent is

espousing is not feasible on this count.

b) The petitioner‟s contention that the charges are vague and baseless

by giving justifications about the charges in itemized manner does

not come within the four corners of the scruitinity by this court.

Firstly based on the material on record, the charges are in

consonance with the fact finding report which has culminated into

articles of charges. Further, the said charges are also elaborated in

the form of imputations where in the dates and events are given

with the facts. The petitioners saying that he was not the deputy

director at that time is also disputed by the respondent. The

respondent rather states that the petitioner was deputy director

when the petitioner accepted one belated application of the person

seeking fellowship which is also one of the charges. Hence, it is

doubtful to say that the charges are vague and interfere with the

same without continuance of the enquiry is not proper.

c) The petitioner also sought to urge that the charges are false,

baseless and trivial by stating that the due to reason explained by

him, none of the charges remains. It is again not a good ground to

quash charges by going into truthfulness or falsity of the charges.

The moot question is as to whether the charges disclose the

misconduct and the same is in consonance with the supportive

material and not contrary to the law. If that be so, then charges will

remain and the court may order continuance of the enquiry which is

the situation in the present case.

d) The petitioner has argued at great length on arbitrariness as the

suspension order and the charges framed as arbitrary in as much as

the same is actuated by the malice and without any basis. The

malice has to be specifically averred as held by the apex court and

has to specific enough to state as to who has exercised the malice

and the courts have to gone to the extent of saying that the same

person must also be made party to prove the clear allegation of the

malice. In the present case, it is doubtful as to against whom the

petition is claiming malice. It may be the malice on the part of then

director or other superiors at that time or the malice at the part of

the current executive council who has taken decision of interim

suspension or to initiate the enquiry on the recommendation of

petitions committee and parliamentary committee report or the

malice at the part of the current director who is still in not good

terms with that of the petitioner with some issues on divesting the

powers as contended by the petitioner itself in the petition. Further,

it is unclear without evidence at this stage to state clearly whether

the decision of suspension was taken extraneous to the legal

situation which is test for malice in law. Thus, neither the factual

malice nor legal malice in the present case in the clearly shown

which enables this court to go into the question arbitrariness on

account of the malice. The question of baseless grounds already

stands answered. There is no arbitrariness overall in the decision

making process of the interim suspension order which is also in

consonance with the rules.

e) It can also not be said with certainty that the petitioner is singled

out from that others involved in the same happening of event. This

is more so when the petitioner is duly proceeded against after

framing of charges and imputation duly given to him. The enquiry

is still carrying on. At this nascent stage of the enquiry, it is rather

premature to state that there is element of discrimination. It may be

possible that during the continuance of the enquiry and disclosures

made therein or otherwise, the other persons involved may be

proceeded against. Thus, the petitioner insistence to stall the

enquiry till the time respondent proceeds against the others without

having specific persons, allegation at this stage is not tenable.

However, the petitioner is at the liberty to urge this plea with the

specific allegation before the disciplinary authority and in any

subsequent proceedings if need arises.

f) In relation to the question of applicability of proportionality and

wednesbury reasonableness on administrative action, there is no

quarrel to the said proposition and their respective applicability. In

view of my conclusion that the impugned suspension order and

decision making process is neither discriminatory nor arbitrary, the

same is squarely covered by both the tests as argued by the

petitioner.

g) There are not even the circumstances warranting the quashing of

interim suspension and charge sheet as the said suspension order is

not passed malafidely and also is consonance with the material

placed on record.

h) Lastly, the appeal filed before the appeal authority against the

suspension order has also been disposed off by the order wherein

the appeal authority also came to conclusion which seems to favour

the petitioner someway but the appeal authority also ordered that

the enquiry must go unhindered. Thus, this court also holds the

same view that all the factual inquiries which require evidence must

be decided by the disciplinary authority fairly and disciplinary

enquiry must carry on.

25. The petitioner has also referred the following judgments:

              a.          In Re: T.V. Choudhary, (1987) 3 SCC 258.
              b.         State of Punjab Vs. V.K. Khanna and Ors.,
                         (2001) 2 SCC 330.

As far as the decision referred by the petitioner in the matter

of T.V.Choudhary (Supra) is concerned, the Apex Court interfered with

the departmental inquiry on violation of Article 14 of Constitution of

India. The Apex Court was concerned with the order passed on the

earlier date when the Court directed the concerned Government to seek

instructions about the initiation of inquiry against second person as both

were involved in the matter. The Government in that case agreed to

initiate the inquiry subject to instructions. Therefore, the Hon‟ble Apex

Court confirmed the earlier order and did not laid down any guideline in

respect thereof and rather proceeded to discuss the role of counsel

towards the Courts and duty towards the client. Therefore, the said

decision does not help the case of the petitioner in the present matter.

As regard the second case i.e. State of Punjab is concerned,

the learned counsel for the petitioner has referred paras 33 and 34 in

support of his submission which read as under:

"33. While it is true that justifiability of the charges at the stage of initiating a disciplinary proceeding cannot possibly be delved into by any court pending inquiry but it is equally well settled that in the event there is an element of malice or mala fide, motive involved in the matter of issue of a charge-sheet or the authority concerned is so biased that the inquiry would be a mere farcical show and the conclusions are well known then and in that event law courts are otherwise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. It is not a question of shielding any misdeed that the Court would be anxious to do, it is the due process of law which should permeate in the society and in the event of there being any affectation of such process of law that law courts ought to rise up to the occasion and the High Court, in the contextual facts, has delved into the issue on that score. On the basis of the findings no exception can be taken and that has been the precise reason as to why this Court dealt with the issue in so great a detail so as to examine the judicial propriety at this stage of the proceedings.

34. The High Court while delving into the issue went into the factum of announcement of the Chief Minister in regard to appointment of an enquiry officer to substantiate the frame of mind of the authorities and thus depicting bias - what bias means has already been dealt with by us earlier in this judgment, as such it does not require any further dilation but the factum of announcement has been taken note of as an illustration to a mindset viz.: the inquiry shall proceed irrespective of the reply - is it an indication of a free and fair attitude towards the officer concerned? The answer cannot possibly be in the affirmative. It is well settled in service jurisprudence that the authority concerned has to apply its mind upon receipt of reply to the charge-sheet or show-cause as the case may be, as to whether a further inquiry is called for. In the event upon deliberations and due considerations it is in the affirmative - the inquiry follows but not otherwise and it is this part of service jurisprudence on which reliance was placed by Mr Subramanium and on that score, strongly criticised the conduct of the respondents (sic appellants) herein and accused them of being biased. We do find some justification in such a criticism upon consideration of the materials on record."

26. In view of the aforementioned discussion, there is no ground

made out to interfere with the impugned suspension order dated 30th April

2009 and charge sheet dated 22.6.2009 and thus the present petition is

hereby dismissed. However, it is made clear that any finding given in this

order shall have no bearing in the proceedings pending against the

petitioner on the basis of suspension order dated 30.04.2009 and charge

sheet dated 22.06.2009 and those would be determined as per its own

merit as per the respective pleas urged by the parties.

No orders as to costs.

MANMOHAN SINGH, J.

OCTOBER 25, 2010 jk/dp