Karnataka High Court

Sri H Ramaiah vs Commissioner on 13 January, 2021

Author: M.Nagaprasanna

                        1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 13TH DAY OF JANUARY, 2021

                     BEFORE

     THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

       WRIT PETITION No.14949/2020 (S-RES)

BETWEEN

SRI. H. RAMAIAH,
S/O PUTTASWAMY,
WORKING AS ASSISTANT REVENUE OFFICER,
(UNDER SUSPENSION),
AGED ABOUT 51 YEARS,
RESIDING AT NO. 1267,
NEW NO.11,
9TH B CROSS,
KAVI RANNA ROAD,
BENGALURU - 560 050.
                                   ... PETITIONER

(BY   SRI.BHAT   SHANKAR    SHIVARAM,   ADVOCATE
(PHYSICAL HEARING))


AND

1.    COMMISSIONER,
      BRUHAT BENGALURU MAHANAGARA PALIKE,
      N. R. SQUARE,
      BENGALURU - 560 002.

2.    DEPUTY COMMISSIONER
      (ADMINISTRATION),
      BRUHAT BENGALURU MAHANAGARA PALIKE,
                           2



     N.R. SQUARE,
     BENGALURU - 560 002.
                                      ... RESPONDENTS

(BY   SMT.M.C.NAGASHREE,       ADVOCATE      (PHYSICAL
HEARING))


     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE IMPUGNED ORDER OF SUSPENSION
ORDER OF SUSPENSION VIDE ANNEXURE-A DATED
08.05.2020 AND ETC.,


     THIS WRIT PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:

                        ORDER

The petitioner in this writ petition has called in

question the order of suspension dated 08.05.2020.

2. Heard the learned counsel, Sri. Bhat

Shankar Shivaram, appearing for the petitioner and

the learned AGA, Smt. M.C. Nagashreee, appearing

for the respondents.

3. The primary contention of the learned

counsel appearing for the petitioner is that pursuant

to the order of suspension dated 08.05.2020, no

charge sheet is issued against the petitioner till date,

and it is not in dispute. This is is in violation of the law

laid down by the Apex Court in the case of AJAY

KUMAR CHOUDHARY Vs. UNION OF INDIA AND

ANOTHER, reported in (2015) 7 SCC 291, has held as

follows:

"21. We, therefore, direct that the currency of a suspension order should not extend beyond three months if within this period the memorandum of charges/charge- sheet is not served on the delinquent officer/employee; if the memorandum of charges/charge-sheet is served, a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the person concerned to any department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from

contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognised principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognise that the previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time-limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation, departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us."

A Co-ordinate Bench of this Court in

W.P.No.7025-7026/2, wherein this Court following the

judgment of the Apex Court, has held as follows:

"10. In Ajay Kumar Choudhary (supra), the issue was whether the order of suspension issued against the delinquent officer, could be continued beyond the period of 90 days. That was a case where the appellant's suspension was extended for the first time for the further period of 180 days. This prompted the appellant to approach the Central Administration Tribunal, Chandigarh Bench, (CAT) and during the pendency of the proceedings, the second extension was ordered with effect from 26.06.2012 for another period of 180 days. Further, the third extension of the appellant's suspension was ordered on 21.12.2012, but for a period of 90 days. Another suspension order for the fourth time was issued on 22.03.2013 extending the period of suspension for another 90 days. The Tribunal gave partial relief to the appellant in terms of its order dated 22.05.2013 opining that no employee can be indefinitely suspended; and that disciplinary proceedings have to be

concluded within a reasonable period. When the matter reached the High Court, the writ Court formulated the following question "Whether the impugned directions circumscribing the Government's power to continue the suspension and also to issue a charge-sheet within a time-bound manner can be sustained"? The High Court opined that the Tribunal's view was "nothing but a substitution of a judicial determination to that of the authority possessing the power i.e., the executive Government as to the justification or rationale to continue with the suspension". The writ petition was allowed and the Central Government was directed to pass appropriate orders "as to whether it wishes to continue with the suspension or not, having regard to all the relevant facts, including the report of CBI".

11. Therefore, it is clear that the crux of the matter in Ajay Kumar Choudhary (supra) was regarding the power to keep the delinquent officer under

suspension beyond a reasonable period. The provisions of the Code of Criminal Procedure, 1973, has been made use of by the Hon'ble Supreme Court keeping in mind the legal expectation of expedition and diligence being present at every stage of a criminal trial and a fortiori in departmental enquiries, the same having been emphasized by the Supreme Court on numerous occasions. It is also clear that the decision in the case of Ajay Kumar Choudhary (supra), is not based on the provisions of the Central Civil Service (CCA) Rules, 1965, and more particularly, Rule 10 as was found in the case of Dipak Mali which was relied upon by the learned Senior Counsel representing the respondent-KIADB.

12. On the other hand, in the case of State of Karnataka Vs. A. Nataraj, the Division Bench has taken note of all the provisions including the Prevention of Corruption Act, 1988, Karnataka Civil

Services (CCA) Rules, and in the light of the judgment of the Ajay Kumar Chaudhary's case (supra), the Division Bench has come to a conclusion that the suspension order was continued by passing a subsequent order and extending the period of suspension, which was found to be against the Provisions of Rule 10(1)(c) and (d) of the Karnataka Civil Services (CCA) Rules and contrary to the dictum of the Apex Court in the case of Ajay Kumar Choudhary (supra).

13. In the light of the above, this Court is of the opinion that the decision in the case of Ajay Kumar Choudhary (supra) is applicable to the facts of the case on hand, on all fours. Therefore, the writ petition is partly allowed, while quashing the order of suspension dated 09.10.2018, at Annexure 'C', in view of the fact that the charge sheet is not filed against the petitioner within a reasonable period as

provided in the case of Ajay Kumar Choudhary.

14. At this stage, the learned Senior Counsel appearing for the petitioner submits that the petitioner would undertake before this Court that he shall not interfere in the investigation in any manner, whatsoever and if such interference is found, the respondents are free to pursue any action against the petitioner, in accordance with law."

In the light of the law laid down by the Apex

Court and as followed by a Co-ordinate Bench of this

Court in the afore-extracted judgments and the fact

that no charge sheet is issued against the petitioner,

the writ petition is allowed in part and the order of

suspension dated 08.05.2020 is quashed and the

respondents are directed to reinstate the petitioner

into service within two weeks from the date of receipt

of copy of this order.

4. In view of the disposal of the writ petition,

I.A.No.1/2020 is disposed of as it does not survive for

consideration.