RAVINDRA v. GHUGEAND Y. G. KHOBRAGADE, JJ
Legal Reasoning
7692.24wp(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 907 WRIT PETITION NO. 7692 OF 2024Gautam s/o Govindrao Wagh,Age: 42 years, Occu. Nil,Was serving as Pharmacist at Primary Health Centre, Kachner,Tq. and Dist. Chhatrapati Sambhajinagar ….PETITIONERVERSUS1.The State of Maharashtra,Through its Principal Secretary,Rural Development Deptt.,Mantralaya, Mumbai-400 0322.Divisional Commissioner,Chhatrapati Sambhajinagar3.Chief Executive Officer,Zilla Parishad,Chhatrapati Sambhajinagar4.District Health Officer,Zilla Parishad,Chhatrapati Sambhajinagar ….RESPONDENTS ….Mr S. S. Thombre, Advocate for PetitionerMr M. M. Nerlikar, A.G.P. for Respondent Nos.1 & 2Mr P. R. Nangare, Advocate for Respondent Nos.3 & 4 CORAM : RAVINDRA V. GHUGEAND Y. G. KHOBRAGADE, JJ. DATE : 9th August, 2024 7692.24wp(2) ORAL JUDGMENT (PER : Ravindra V. Ghuge, J.)1.Rule. Rule made returnable forthwith and heardfinally by consent of the learned Advocates for the respectivesides.2.The Petitioner has put forth prayer clause (B), whichreads as under :-(B)By issuing a writ of certiorari, orders, directions orany other appropriate writ in like nature, the impugnedorder dated 01.01.2024, thereby placing the petitionerunder suspension, issued by Chief Executive Officer, ZillaParishad, Chhatrapati Sambhajinagar, may kindly bequashed and set aside.”3.We have considered the submissions of the learnedAdvocates for the respective sides. With their assistance, we havegone through the Petition paper book. 4.The Petitioner submits that the Zilla Parishad’s SeniorOfficials are anti-pathetic towards the Petitioner on account of thePetitioner being a Union leader and having lodged complaintsabout certain lapses/irregularities. He has specifically put forth 7692.24wp(3) his contentions in paragraph Nos.6, 7 and 8 of the Petition Paperbook, which read as under :-“6. The petitioner states that since in the complaint madeby the petitioner and the Sangh, in respect of irregularitiesin Administrative/Request transfers in General Transfer of2023, there was substance, an enquiry committee wasappointed, which in turn, submitted its report saying thatthere was irregularities and illegalities in the GeneralTransfers of 2023 and, therefore, all the transfers orderswere ordered to be cancelled vide order dated 5.12.2023issued by Deputy Commissioner (Est.) DivisionalCommissioner, Chhatrapati Sambhajinagar.7. The petitioner states that the Deputy Commissionervide communication dated 3.4.2024 addressed toRespondent No.3-Chief Executive Officer, informed that asthe Divisional Commissioner has already ordered to takeappropriate action against the erring officers, who wereresponsible for commission of irregularities in the GeneralTransfer and since no action is taken against those erringofficers, the Deputy Commissioner informed to takeappropriate action and submit compliance report thereof.Hereto annexed and marked as EXHIBIT - B collectivelyare the copies of order dated 5.12.2023 and letter dated3.4.2024, both issued by Deputy Commissioner (Est.)Divisional Commissioner, Chhatrapati Sambhajinagar.8. The petitioner states that as aforesaid, the petitioneris an office bearer of said Sangh and sought an enquiryagainst the officials of Zilla Parishad, keeping grudgeagainst the petitioner, District Health Officer, ZillaParishad, Chhatrapati Sambhajinagar, under the influence
Legal Reasoning
7692.24wp(4) of higher officials of ZP, issued show-cause notice dated11/13-10-2023 against the petitioner, asking as to whyappropriate action of suspension should not be takenagainst him and he was asked to submit his explanation andremain present for hearing, which he done. In the said showcause notice it was alleged that the petitioner while postedat Primary Health Centre at Kachner, ChhatrapatiSambhajinagar, his behavior with the patients was notproper and while distributing the medicines amongst thefemale patients, he misbehaved with them and suchcomplaint was received by them. Hereto annexed andmarked as EXHIBIT - C is a copy of show cause noticedated 11/13-10-2023 issued by Respondent No.4 to thepetitioner.”.5.The learned Advocate for the Respondent/ZillaParishad, Chhatrapati Sambhajinagar has vehemently opposedthis Writ Petition and submits that, a baseless cause of action isput forth and the Writ Petition deserves to be dismissed withexemplary costs.6.He, therefore, submits that, suspension of thePetitioner, dated 01/01/2024, is strictly in accordance with theRules. The very next date, on 02/01/2024, he was transferred outof the location from Kachner, Taluka and Dist. ChhatrapatiSambhajinagar, where he was suspended, to the Primary Health 7692.24wp(5) Centre at Borsar, Taluka Vaijapur, Dist. ChhatrapatiSambhajinagar. Since the Petitioner did not join at Borsar for thelast more than seven months of his suspension, he has not beenpaid suspension allowance. The learned Advocate hastens to add,on instructions, that the entire suspension allowance will becredited to the salary account of the Petitioner, within 8 to 10days.7.The learned Advocate for the Zilla Parishad has drawnour attention to Rule 3 of the Maharashtra Zilla Parishads DistrictServices (Discipline and Appeal) Rules, 1964. It would beapposite to reproduce Rule 3, for ready reference, as under :-“3. Suspension :- The Appointing Authority or any otherOfficer of the Zilla Parishad to whom such AppointingAuthority is subordinate or any other officer of the ZillaParishad empowered by the Chief Executive Officer in thatbehalf may place a Parishad servant under suspension - (a) where a disciplinary proceeding against him iscontemplated or is pending, or (b) where a case against him in respect of anycriminal offence is under investigation or trial :Provided that, where the orders of suspension aremade by an authority lower in rank than the AppointingAuthority, such authority shall forthwith report to the 7692.24wp(6) Appointing Authority the circumstances in which the orderwas made. (2) A Parishad servant who is detained in custody,whether on a criminal charge or otherwise, for a periodexceeding forty-eight hours shall be deemed to have beensuspended with effect from the date of detention, by anorder of the Appointing Authority and shall remain undersuspension until further orders.(3) Whether a penalty of dismissal, removal orcompulsory retirement from service imposed upon aParishad servant under suspension is set aside in appeal orrevision under these rules, and the case is remitted forfurther inquiry or action or with any other directions, theorder of his suspension shall be deemed to have continuedin force on an from the date of the original order ofdismissal, removal or compulsory retirement and shallremain in force until further orders.(4) Where a penalty of dismissal, removal or compulsoryretirement from service imposed upon a Parishad servant isset aside or declared or rendered void in consequence of, orby, decision of a Court of law and the DisciplinaryAuthority, on a consideration of the circumstances of thecase, decides to hold a further inquiry against him on theallegations on which the penalty of dismissal, removal orcompulsory retirement was originally imposed, theParishad servant shall be deemed to have been placedunder suspension by the Appointing Authority from the dateof the original order of dismissal, removal or compulsory 7692.24wp(7) retirement and shall continue to remain under suspensionuntil further orders.(5) An order of suspension made or deemed to have beenmade under this rule may, at any time, be revoked by theauthority which made or is deemed to have made the orderor by any authority to which that authority is subordinate.”8.It appears from Rule 3, more specifically Clause 3(1)(a) that, when a disciplinary proceeding against an employee iscontemplated or is pending, the Competent Authority can suspendsuch an employee pending initiation of the disciplinaryproceedings. However, from 01/01/2024, till this date, not even ashow cause notice has been issued to the Petitioner, though, theZilla Parishad was expected to issue a charge-sheet cum showcause notice, considering the law laid down in ManagingDirector ECIL, Hyderabad, Etc. Vs. B. Karunakar, Etc,(1993) 4 Supreme Court 727. It is stated in the order ofsuspension that, because the Petitioner threw medicines on thewomen and female minor girl from the village, a notice wasissued to him on 13/10/2023 and his reply dated 18/10/2023, wasconsidered. 7692.24wp(8) 9.Further allegations are levelled in the brief suspensionorder. We would not lend much importance to what has been saidin the order of suspension since it is trite law that the order ofsuspension need not assign reasons as regards allegations levelledupon an employee. The allegations are to be set out in the charge-sheet, which has to be accompanied with show cause notice,which is the first right available to the Petitioner in view of the15th and 42nd Amendments to Article 311 of the Constitution ofIndia. Be that as it may, the fact remains that, a charge-sheet cumshow cause notice has not been issued to the Petitioner.10.The Petitioner has been transferred from Kachner,Taluka and Dist. Chhatrapati Sambhajinagar, to the PrimaryHealth Centre, Borsar, Tq. Vaijapur, Dist. ChhatrapatiSambhajinagar, which is around 70 Kms away from the place,where the Petitioner was working. If the Petitioner was misfit towork at Kachner, he could be suspended. We do not find anywisdom in transferring him to Borsar and asking him to report tothe Primary Medical Health Centre at Borsar, primarily for thereason that it would amount to a punitive transfer. 7692.24wp(9) 11.At the same time, informing him that, during hisentire suspension period, he would not take up any job orassignment or work anywhere, is justified. So also, Rule 3pertaining to Suspension of an Employee, does not authorize theCompetent Authority, suspending the employee, to transfer him toanother place while issuing the order of suspension. If thetransfer is on account of the allegations against him, the samewould tantamount to a punitive transfer, when neither a charge-sheet is issued to the Petitioner, nor any charge is proved againsthim. There is no criminal offence or investigation or trial pendingagainst the Petitioner.12.The Petitioner has relied upon the judgment deliveredby the Hon’ble Supreme Court in Ajay Kumar Choudhari Vs.Union of India (UOI) and Ors., (AIR 2015 SC 2389), whereinthe issue of continuance of a suspension order without issuance ofthe memorandum of charges/charge-sheet, was considered.13.In Ajay Kumar Choudhari (supra), the Hon’bleSupreme Court held in paragraph Nos.7 to 10, as under :- 7692.24wp(10) “7.Learned senior Counsel for the Appellant, however,has rightly relied on a series of Judgments of this Court,including O.P. Gupta v. Union of IndiaMANU/SC/0670/1987 : 1987 (4) SCC 328, where this Courthas enunciated that the suspension of an employee isinjurious to his interests and must not be continued for anunreasonably long period; that, therefore, an order ofsuspension should not be lightly passed. Our attention hasalso been drawn to K. Sukhendar Reddy v. State of A.P.MANU/SC/0272/1999 : 1999 (6) SCC 257, which is topicalin that it castigates selective suspension perpetuatedindefinitely in circumstances where other involved personshad not been subjected to any scrutiny. Reliance on thisdecision is in the backdrop of the admitted facts that all thepersons who have been privy to the making of the Office-notes have not been proceeded against departmentally. Sofar as the question of prejudicial treatment accorded to anemployee is concerned, this Court in State of A.P. v. N..Radhakishan MANU/SC/0278/1998: 1998 (4) SCC 154, hasobserved that it would be fair to make this assumption ofprejudice if there is an unexplained delay in the conclusionof proceedings. However, the decision of this Court inUnion of India v. Dipak Mali MANU/SC/1909/2009 : 2010(2) SCC 222 does not come to the succour of the Appellantsince our inspection of the records produced in originalhave established that firstly, the decision to continue thesuspension was carried out within the then prevailingperiod and secondly, that it was duly supported byelaborate reasoning.8. Suspension, specially preceding the formulation ofcharges, is essentially transitory or temporary in nature,and must perforce be of short duration. If it is for anindeterminate period or if its renewal is not based on soundreasoning contemporaneously available on the record, this 7692.24wp(11) would render it punitive in nature.Departmental/disciplinary proceedings invariablycommence with delay, are plagued with procrastinationprior and post the drawing up of the Memorandum ofCharges, and eventually culminate after even longer delay.9. Protracted periods of suspension, repeated renewalthereof, have regrettably become the norm and not theexception that they ought to be. The suspended personsuffering the ignominy of insinuations, the scorn of societyand the derision of his Department, has to endure thisexcruciation even before he is formally charged with somemisdemeanour, indiscretion or offence. His torment is hisknowledge that if and when charged, it will inexorably takean inordinate time for the inquisition or inquiry to come toits culmination, that is to determine his innocence oriniquity. Much too often this has now become anaccompaniment to retirement. Indubitably the sophist willnimbly counter that our Constitution does not explicitlyguarantee either the right to a speedy trial even to theincarcerated, or assume the presumption of innocence to theaccused. But we must remember that both these factors arelegal ground norms, are inextricable tenets of common lawjurisprudence, antedating even the Magna Carta of 1215,which assures that-"We will sell to no man, we will not denyor defer to any man either justice or right." In similar veinthe Sixth Amendment to the Constitution of the UnitedStates of America guarantees that in all criminalprosecutions the accused shall enjoy the right to a speedyand public trial. Article 12 of the Universal Declaration ofHuman Rights, 1948 assures that "No one shall besubjected to arbitrary interference with his privacy, family,home or correspondence, nor to attacks upon his honourand reputation. Everyone has the right to the protection of 7692.24wp(12) the law against such interference or attacks". More recently,the European Convention on Human Rights in Article 6(1)promises that "in the determination of his civil rights andobligations or of any criminal charge against him, everyoneis entitled to a fair and public hearing within a reasonabletime...." and in its second sub article that "everyonecharged with a criminal offence shall be presumed innocentuntil proved guilty according to law".10. The Supreme Court of the United States struck down theuse of nolle persequi, an indefinite but ominous andomnipresent postponement of civil or criminal prosecutionin Klapfer v. State of North Carolina 386 U.S. 213 (1967).In Kartar Singh v. State of Punjab MANU/SC/1597/1994:(1994) 3 SCC 569 the Constitution Bench of this Courtunequivocally construed the right of speedy trial as afundamental right, and we can do no better the extract theseparagraphs from that celebrated decision-86. The concept of speedy trial is read into Article 21as an essential part of the fundamental right to lifeand liberty guaranteed and preserved under ourConstitution. The right to speedy trial begins with theactual restraint imposed by arrest and consequentincarceration and continues at all stages, namely thestage of investigation, inquiry, trial, appeal andrevision so that any possible prejudice that may resultfrom impermissible and avoidable delay from the timeof the commission of the offence till it consummatesinto a finality, can be averted. In this context, it maybe noted that the constitutional guarantee of speedytrial is properly reflected in Section 309 of the Codeof Criminal Procedure. 7692.24wp(13) 87. This Court in Hussainara Khatoon (1) v. HomeSecretary, State of Bihar while dealing with Article 21of the Constitution of India has observed thus:No procedure which does not ensure areasonably quick trial can be regarded as'reasonable, fair or just and it would fall foul ofArticle 21. There can, therefore, be no doubtthat speedy trial, and by speedy trial we meanreasonably expeditious trial, is an integral andessential part of the fundamental right to lifeand liberty enshrined in Article 21. The questionwhich would, however, arise is as to what wouldbe the consequence if a person accused of anoffence is denied speedy trial and is sought tobe deprived of his liberty by imprisonment as aresult of a long delayed trial in violation of hisfundamental right Under Article 21. Would hebe entitled to be released unconditionally freedfrom the charge levelled against him on theground that trying him after an unduly longperiod of time and convicting him after suchtrial would constitute violation of hisfundamental right Under Article 21.”14.In view of the above, this Writ Petition is partlyallowed. The order of suspension dated 01/01/2024, is quashedand set aside from the date of this judgment. Consequentially, therelieving order dated 01/02/2024 and the direction to report at 7692.24wp(14) Borsar, would not survive. The Petitioner shall be permitted tojoin duties w.e.f. 21/08/2024.15.Since the Zilla Parishad is depositing the suspensionallowance as per Rules in the salary account of the Petitionerwithin a period of 8 to 10 days, we are not required to pass anyfurther order. Needless to state, if the employer desires to initiatedisciplinary action against the Petitioner in accordance with law,there would be no impediment on account of this judgment,quashing and setting aside the impugned order dated 01/01/2024with effect from the date of the Judgment. All the contention ofthe parties are kept open.16.Rule is made partly absolute in the above terms. (Y. G. KHOBRAGADE, J.) (RAVINDRA V. GHUGE, J.)sjk