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RAJEEV KUMAR TYAGI versus UNION OF INDIA AND OTHERS

High Court of Judicature at Allahabad

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Rajeev Kumar Tyagi v. Union Of India And Others - WRIT - A No. 23874 of 2007 [2007] RD-AH 11383 (6 July 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

"Reserved on 22.05.1997"

Delivered on .....................

Civil Misc. Writ Petition No. 23874 of 2007.

Rajeev Kumar Tyagi

Versus

Union of India and others.

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

Hon'ble Anjani Kumar, J.

Hon'ble Sudhir Agarwal, J.

The petitioner aggrieved by the order dated 7th May, 2007, passed by Central Administrative Tribunal, Allahabad Bench, Allahabad (hereinafter referred to as 'Tribunal'), whereby Original Application No. 457 of 2007 filed by the petitioner has been disposed of by the Tribunal observing that against the order of suspension the petitioner has remedy of review under Rule 29-A of the Central Civil Services (Classification, control and Appeal) Rules, 1965 (hereinafter referred to as '1965 Rules') and in case such an application is filed, the same shall be decided in accordance with law within a period of three weeks, has approached this Court under Article 226 of the Constitution of India contending that the order of suspension, impugned before the Tribunal, being wholly without jurisdiction, the Tribunal erred in law by declining to consider this aspect of the matter.

This writ petition came up before this Court for admission on 21st May, 2007 as a fresh matter.  The respondents put in their appearance through Sri Subodh Kumar, learned counsel filed two counter affidavits one on behalf of respondents 1 and 2 and another on behalf of respondents 3 and 4, copies whereof were already served upon learned counsel for the petitioner on 20th May, 2007.  Learned counsel for the petitioner, in the circumstances, requested for 24 hours time to file rejoinder affidavit and with the consent of learned counsel for the parties, the matter was adjourned for 22nd May, 2007 on which date the petitioner filed rejoinder affidavit. Since pleadings are complete, therefore, with the consent of learned counsel for the parties, the matter has been heard and is being decided finally at this stage under the Rules of the Court.

The facts in brief are that the petitioner, who was working as Telecom District Manager, BSNL posted at Rampur was placed under suspension vide order dated 17th April, 2007alleging that a case against him in respect to a criminal offence is under investigation and therefore he is being placed under suspension.  It is alleged by the petitioner that neither any criminal investigation or trial, nor any enquiry is pending against him, inasmuch as till date no First Information Report (hereinafter referred to as 'F.I.R.') or criminal complaint has been filed against him at any police station.  He has further alleged that it is claimed that a private television news channel IBN-7 telecasted a news item claimed to be based on sting operation in which the petitioner was shown accepting gratification for awarding the security work providing security (watch and ward services) of Telecom installation/premises of Rampur SSA of BSNL.  However, neither any departmental inquiry is contemplated or nor pending against him.  Therefore order of suspension passed by the respondent is beyond the purview of sub-Rule (1) of Rule-10 of 1965 Rules and is wholly without jurisdiction.  He further contended that Rule 29-A of 1965 Rules was not at all applicable in the case in hand and the Tribunal erred in law in relegating the petitioner to avail such remedy instead of considering the matter on merits.  

The respondents, on the other hand have stated in the counter affidavit admitting that the petitioner was placed under suspension prima facie on the basis of news telecast on IBN-7 news channel, wherein he was allegedly found indulged in corrupt practice of taking bribe to award work of supply of security guards, in respect whereof the department has initiated investigation and handed over the matter to C.B.I., Dehradoon for further investigation. Though it is correct that neither any F.I.R. has been lodged against the petitioner till date, nor any criminal complaint has been registered, nor any departmental enquiry is contemplated or pending, at this stage, since the matter is under investigation before C.B.I., hence the petitioner has been placed under suspension under sub-Rule (1) of Rule 10 of 1965 Rules. Lastly it is contended that even otherwise also it is not a fit case in which this Court should interfere under Article 226 of the Constitution of India.

We have heard learned counsel for the parties and perused the records. It is no doubt true that normally this Court decline to entertain a matter under Article 226 of the Constitution of India where a litigant has a statutory alternative remedy, unless such remedy is availed.  However, there are certain exception, namely where order impugned in the writ petition has been passed in violation of principles of natural justice or is wholly without jurisdiction or has violated the fundamental rights or vires of the Statute is under challenge.

However, in the case in hand prima facie we are of the view that Rule 29-A of 1965 Rules would not have attracted and therefore the petitioner does not have a statutory alternative remedy.  Rule 29-A of 1965 Rules are quoted as under :-

"29-A. Review. -(1) The President may, at any time, either on his own motion or otherwise, review any order passed under these rules, when any new material or evidence which could not be produced or was not available at the time of passing the order under review and which has the effect of changing the nature of the case, has come, or has been brought, to his notice :

Provided that no order imposing or enhancing any penalty shall be made by the President unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed or where it is proposed to impose any of the major penalties specified in Rule 11 or to enhance the minor penalty imposed by the order sought to be reviewed to any of the major penalties and if an enquiry under Rule 14 has not already been held in the case, no such penalty shall be imposed except after inquiring in the manner laid down in Rule 14, subject to the provisions of Rule 19, and except after consultation with the Commission where such consultation is necessary."

The order of suspension has been passed against the petitioner under Rule 10(1) of 1965 Rules by the President.  Rule 29-A of 1965 Rules empowers the President either on his own motion or otherwise, to review any order passed under 1965 Rules when any new material or evidence which could not be produced or was not available at the time of passing the order under review and which has the effect of changing the nature of the case, has come or has been brought, to his notice.  The order passed under the Rules in general is not reviewable, unless the conditions prescribed under Rule 29-A of 1965 Rules specified therein i.e. any new material or evidence which could not be produced or was not available are satisfied.  If a person is aggrieved by any order passed under 1965 Rules, the remedy would not lie under Rule 29-A of 1965 Rules.  The petitioner challenges the order of suspension on the ground that Rule 10 (1) of 1965 Rules has no application in the case in hand, it has nothing to do with such conditions which would attract Rule 29-A of 1965 Rules. Therefore, in our view, the Tribunal was not justified in relegating the petitioner to avail remedy under Rule 29-A of 1965 Rules.  It is not a general power of appeal whereof an employee is entitled to avail by raising all the issues on facts and law. A power of review has to be exercised only when the conditions prescribed thereunder exist. After having arrived at the aforesaid conclusion, normally we would have set aside the order of the Tribunal and remitted the matter to the Tribunal to consider the matter on merits, but since the pleadings are complete, both the parties have advanced their arguments on merits of the issues also and therefore to avoid prolonged litigation and to settle the issue without any further delay, we proceed to consider the matter on merits also as to whether the impugned order of suspension is valid and could have been passed under Rule 10(1) of 1965 Rules.

It is not disputed that the power of suspension has been exercised in the case in hand under Rule 10 (1) of 1965 Rules, which reads as under :-

"10. Suspension.---(1) The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension-

(a) where a disciplinary proceeding against him is contemplated or  is pending, or

(aa) where   in   the   opinion   of   the  authority aforesaid,   he   has   engaged  himself   in activities prejudicial  to  the interest  of  the security of the State, or

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

Provided that, except in case of an order of suspension made by the Comptroller and Auditor-General in regard to a member of the India Audit and Accounts Service and in regard to an Assistant Accountant-General or equivalent (other than a regular member of the Indian Audit and Accounts Service), where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report,to the appointing authority the circumstances in which the order was made."

It is not the case of the respondents that the petitioner has been placed under suspension where a disciplinary proceeding against him is contemplated or pending, therefore Rule 10(1)(a) of 1965 Rules is inapplicable.  Similarly the impugned order has not been passed on the allegations of the engagement of the petitioner in activities prejudicial to the interest of the security of the State, therefore clause (aa) of Rule 10, sub-Rule (1) of 1965 Rules is also inapplicable.  This bring us to the remaining clause (b) of Rule 10, sub-Rule (1) of 1965 Rules, which provides where a case against a government servant in respect of any criminal offence, inquiry or trial is under investigation, he may be placed under suspension.  Admittedly, no trial in respect of any criminal offence is pending against the petitioner.  The only two things which remain for consideration as to whether any investigation or enquiry in respect of any criminal offence against the petitioner could be said to be pending against him.  The petitioner has categorically stated that no F.I.R. or criminal complaint against him has been lodged or registered in any police station, till date.  This fact has not been disputed by the respondents. In order to commence investigation or enquiry of any criminal offence, the first thing wherefrom it would commence is registration of a F.I.R. or a criminal complaint.  If neither of two is in existence, it can not be said that any investigation or inquiry in respect of the criminal offence is going on pursuant thereto, a government servant can be placed under suspension.  An investigation or an inquiry  in respect to a criminal offence is governed by the provisions of Code of Criminal Procedure 1973 (hereinafter referred to as 'Cr.P.C').  In State of Karnataka Vs. Arun Kumar Agarwal and others - AIR 2000 SC, 411, it was held that "The acts of persons will not be subject of criminal investigation unless a crime is reported to have been committed or reasonable suspicion thereto arises.  On mere conjecture or surmise as a flight of fancy that some crime might have been committed, somewhere, by somebody but the crime is not known, the persons involved in it or the place of crime unknown, cannot be termed to be reasonable basis at all for starting a criminal investigation.  However condemnable be the nature or extent of corruption in the country, not al acts could be said to fall in that category."

While considering a pari-materia provision i.e. Rule 13 (1) of A.P. Civil Service (CCA) Rules, 1963, the Apex Court in Director General and Inspector General of Police, Andhra Pradesh, Hyderabad and othes Vs. K. Ratnagiri - (1990) 3 Supreme Court Cases, 60, observed, which reads as under :-

"The Rule 13(1) empowers the authority to keep the respondent under suspension pending investigation or enquiry into the criminal charges where such suspension is necessary in the public interest.  When the first information report is issued, the investigation commences and indeed it has commenced when the respondent was kept under suspension."

It is true that suspension under Rule 10 of 1996 Rules by itself is not a punishment but when it is governed by the statutory provision and requires the employer to exercise power of suspension in a particular manner and circumstances, the same has to be exercised in accordance therewith and any violation thereof would vitiate the order.  The order of suspension is not to be passed in a routine manner but the competent authority is required to consider the gravity of the misconduct sought to be enquired into or investigated and the nature of the evidence placed before the appointing authority and thereafter by application of mind by the said authority.  A non-objective and automatic order of suspension cannot sustain in law, unless the competent authority has exercised its power by considering the gravity of the alleged misconduct or the nature of the allegations levelled against the delinquent employee.  In State of Orissa Vs. Bimal Kumar Mohanty - A.I.R. 1994 Supreme Court, 2296, the Apex Court in para 12 of the judgement held as under :-

"12. It is thus settled law that normally when an appointed authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority.  Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action.  It would not be as an administrative routine or an automatic order to suspend an employee.  It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee.  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 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.  The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental enquiry or trial of a criminal charge."

In the case in hand, the allegations by itself are quite serious, but it does not appear as to whether the respondents themselves have made any kind of enquiry or any investigation or inquiry in the alleged criminal offence of the petitioner.  It appears that on the allegation that some news item was telecasted by IBN-7 T.V. News channel, the impugned order of suspension has been passed. The respondents have not even whispered in the entire counter affidavit that they collected any material from the said news channel or otherwise found that the matter requires some investigation or enquiry against the petitioner in respect to any alleged criminal offence. Though it is said that they have referred it to C.B.I., but whether any case has been registered by C.B.I. for making investigation or inquiry into an alleged criminal offence has also not been stated in the counter affidavit.  The investigation or inquiry into an alleged criminal offence would come only when a F.I.R. or criminal complaint is registered.  Thus,  in our view the order of suspension has been passed without satisfying the requirement of Rule 10(1)(b) of 1965 Rules.

In view of the above discussions, we are of the view that the impugned order of suspension is wholly beyond the purview of Rule 10(1) of 1965 Rules and therefore is illegal and without jurisdiction.  The same thus cannot be sustained in law.  

In the result, the writ petition succeeds and is allowed.  The order dated 7th May, 2007, passed by Tribunal and order dated 17th April, 2007, passed by respondent no. 2, (Annexures '1' and '2', respectively to the writ petition) are hereby quashed.  However this order shall not preclude the respondents from passing a fresh order in accordance with law.

Dated: 06.07.2007.

Rks.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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