TMI Blog1997 (1) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal Rules, 1978 (hereinafter referred to as Discipline and Appeal Rules). Rule 20(1) of the Discipline and Appeal Rules confers power upon the authorities to place an employee under suspension. The said Rule 20(1) reads as follows: Rule No. 20, Suspension. 1. The appointing authority or any authority to which it is subordinate or the disciplinary authority empowered in that behalf by the Management by general or special order may place an employee under suspension- (a) where a disciplinary proceeding against him is contemplated or is pending; or (b) where a case against him in respect of any criminal offence is under investigation or trial. 2. The relevant lines of the order of suspension dated 4.12.1980 read as follows: Whereas a disciplinary proceeding against Shri Samir K. Roy Chowdhury, Store Clerk, Regional Sales Manager's office, Calcutta, is contemplated. Now, therefore, the undersigned in exercise of the powers conferred under Rule 20.1 of IDPL Conduct, Discipline Appeal Rules, 1978 hereby places the said Shri Samir K. Roy Chowdhury under suspension with immediate effect. It is further ordered that during the period that this order shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought fit not to proceed against the petitioner departmentally during the pendency of the criminal investigation and the proceedings against the petitioner. The respondents further stated that the criminal proceedings filed by CBI against the petitioner is pending disposal and its outcome is awaited by the respondent No. 1. The respondents further stated that during the period of his suspension, the petitioner is being paid subsistence allowance as is admissible under the Conduct, Discipline and Appeal Rules, 1978 of the respondent No. 1. The respondent further stated that the continuance of the suspension order passed against the petitioner is justified in the facts and circumstances of the case. 6. In paragraph 8 of the affidavit-in-opposition the respondents, inter alia, stated as follows:- I say that the petitioner has been kept under suspension in the facts and circumstances stated hereinabove, namely, the pendency of the criminal proceedings against him. During the pendency of the criminal investigation by CBI and/or pendency of criminal proceedings against the petitioner, it was thought fit by the management of the respondent No. 1 not to initiate parallel proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ld. Court did not say that no charge-sheet was required to be issued. 10. No decision of any Hon'ble Court or of Hon'ble Supreme Court has been brought to the notice of this Court wherein it was held or observed that it is desirable not to issue charge-sheet against an erring employee in connection with the disciplinary proceeding on the ground that on the self-same fact a criminal proceeding is pending in a criminal Court. It is one thing to say that a charge-sheet has been issued initiating disciplinary proceeding, but the departmental enquiry into those charges has been stayed due to the pendency of a criminal proceeding on the self-same fact but it is a quite different proposition if no charge-sheet is issued initiating a disciplinary proceeding on the ground that on the self-same fact a criminal proceeding is pending. In the second proposition, there is no existence of any disciplinary proceeding. If an order is passed taking an action against a person on the ground that a definite course of proceeding against him is under contemplation and if such course of proceeding is not taken recourse to within a reasonable time, then the continuation of the effect of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsion on the ground of contemplated disciplinary proceeding, respondents chose not to initiate disciplinary proceeding by issuing charge-sheet on the ground that a criminal trial is pending against the petitioner. Therefore, till today no disciplinary proceeding is in existence against the petitioner. Thus the petitioner has been kept under suspension for these long sixteen years without there being any disciplinary proceeding against him. This is not a case of wrong reference to a section as contended by the ld. Advocate for the respondents. This court is of the view that N.B. Sanjana's case (AIR 1971 SC 2039) has no manner of application in the facts and circumstances of the present case. Having chosen to place the petitioner under suspension for a specific ground, now the respondents cannot say that continuation of such suspension is justified on a different ground which was not chosen by the respondents at the time of placing the petitioner under suspension. 13. The ld. Advocate for the respondents argued that this long delay for framing charges against the petitioner in the departmental proceeding cannot be good ground for interfering with the suspension of the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding has ever been initiated against him during this long period of sixteen years and that the same has made the continuation of suspension illegal and arbitrary. Under these circumstances Bhoop Singh's case (supra) has no manner of application in the facts and circumstances of the instant case. 16. The ld. Advocate for the respondents referred to U.P. Rajya Krishi Utpadan Mandi Parishad v. Sanjiv Rajan reported in 1993 Supp(3) SCC 483 : 1993(2) SCT 732 (SC). The ld. Advocate referred to paragraph 5 of the Reported decision. The relevant lines of the said paragraph 5 read as follows:- Ordinarily, when there is an accusation of defalcation of the monies, the delinquent employees have to be kept away from the establishment till the charges are finally disposed of. Whether the charges are baseless, malicious or vindictive and are framed only to keep the individual concerned out of the employment is a different matter. But even in such a case, no conclusion can be arrived at without examining the entire record in question and hence it is always advisable to allow disciplinary proceedings to continue unhindered. It is possible that in some cases, the authorities do not procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... embezzlement and fabrication of false records etc. and that the offences and the trial of the case is pending. The Tribunal had set aside the departmental enquiry and quashed the charge on the ground of delay in initiation of disciplinary proceedings. In the nature of the charges, it would take a long time to detect embezzlement and fabrication of false records which should be done in secrecy. It is not necessary to go into the merits and record any finding on the charge levelled against the charged officer since any finding recorded by this Court would gravely prejudice the case of the parties at the enquiry and also at the trial. Therefore, we desist from expressing any opinion on merit or recording any of the contentions raised by the counsel on either side. Suffice it to state that the Administrative Tribunal has committed grossest error in its exercise of the judicial review. The member of the Administrative Tribunal appears to have no knowledge of the jurisprudence of the service law and exercised power as if he is an appellate forum de hors the limitation of judicial review. This is one such instance where a member had exceeded his power of judicial review in quashing the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned, no doubt has to take into account whether the Government servant is in any way responsible for the undue delay in the disposal of the proceedings initiated against him. If the Government servant is not responsible for such delay or even if he is responsible for such delay to some extent but is not primarily responsible for it, is for the Government to reconsider whether the order of suspension should be continued or whether the subsistence allowance should be varied to his advantage or not. The decision on the said question no doubt, depends upon several factors relevant to the case. 23. For the reasons stated in the preceding paragraph this Court is of the view that P.L. Shah's case (supra) does not help the respondents. 24. In paragraph 12 of the affidavit-in-opposition the respondents stated, inter alia, as follows:- The reason for continuance of the suspension order against the petitioner and the reason for not proceeding against the petitioner departmentally has been stated hereinabove which I repeat and reiterate. Having regard to the deep involvement of the petitioner in the matter of misappropriation of funds and goods of the respondent No. 1 as also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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