RAVINDRA v. GHUGEAND Y. G. KHOBRAGADE, JJ
Legal Reasoning
9808.24wp(1) REPORTABLEIN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.9808 OF 2024Chhabubai Bhimsing Rathod,Age: 54 years, Occu. Service,R/o Plot No.6, Gut No. 102,Matoshri Nagar, Beed By Pass,Satara Parisar, Chhatrapati Sambhajinagar….PETITIONERVERSUS1.The State of Maharashtra,Through its Principal Secretary,Rural Development Deptt.Mantralaya, Mumbai – 400 0322.The Divisional Commissioner,Chhatrapati Sambhajinagar3.The Chief Executive Officer, Zilla Parishad, Chhatrapati Sambhajinagar4.The District Health Officer,Zilla Parishad,Chhatrapati Sambhajinagar ….RESPONDENTS ….Mr S. S. Thombre, Advocate for PetitionerMs Neha Kamble, A.G.P. for Respondent Nos.1 and 2Mr P. R. Nangare, Advocate for Respondent Nos.3 and 4 CORAM : RAVINDRA V. GHUGEAND Y. G. KHOBRAGADE, JJ. DATE : 12th September, 2024 9808.24wp(2) JUDGMENT (PER : Ravindra V. Ghuge, J.)1.Rule. Rule made returnable forthwith and heardfinally, by the consent of the parties.2.The Petitioner, by filing this Petition on 18/08/2024,has put forth prayer clauses (B) and (C) as under :-“B)By issuing a writ of certiorari, orders, directions orany other appropriate writ in like nature, the impugnedsuspension order dated 15.05.2024 thereby placing thepetitioner under suspension issued by Chief ExecutiveOfficer, Zilla Parishad, Chhatrapati Sambhajinagar, maykindly be quashed and set aside and for that purpose issuenecessary orders;C)Pending hearing and final disposal of this writpetition, the impugned suspension order dated 15.05.2024thereby placing the petitioner under suspension issued byChief Executive Officer, Zilla Parishad, ChhatrapatiSambhajinagar, may kindly be stayed and the petitionermay be reinstated in service on his earlier post from whereshe is suspended and for that purpose, issue necessaryorders;”3. The Petitioner had earlier approached this Court inWrit Petition No.14409/2023, seeking issuance of a Writ ofMandamus to the Respondent/Zilla Parishad to transfer her to aparticular Health Centre, as per her choice. Since we showed ourdisinclination to entertain the Petition, the Petitioner prayed that,
Decision
9808.24wp(3) her representation dated 30/09/2023 may be considered by theZilla Parishad. Vide the said representation, she had prayed that,she should be posted at Chhatrapati Sambhajinagar. The WritPetition was disposed off, expecting the Zilla Parishad to dealwith her representation.4.The grievance in this Petition is that, RespondentNo.3/ Chief Executive Officer, Zilla Parishad, ChhatrapatiSambhajinagar, has placed the Petitioner under suspension videthe impugned order dated 15/05/2024. The Petitioner had made agrievance that, she was being harassed by the Medical Officer anda Health Worker. They insisted that, she should reside in the staffquarters and that the Petitioner has frequently quarreled with thesetwo persons. Her medical bill is not cleared and kept pending.Sometimes she is not allowed to sign the muster roll, etc. etc.Hence, she has been deliberately placed under suspension.5.The Petitioner further contends that, this Petition hasbeen filed on the 93rd day of her suspension. The 90 days are overand this Petition, having been filed on the 3rd day after completion 9808.24wp(4) of 90 days of suspension, deserves to be entertained and thesuspension order deserves to be quashed and set aside. 6.It is trite that, a Court should not step into the shoes ofthe Employer and assess, as to whether the Petitioner deserved tobe suspended or not. The fact remains that the Petitioner has beenserved with the charge-sheet cum show cause notice, dated23/08/2024. Around six charges have been levelled upon her.The Zilla Parishad has initiated a Departmental Enquiry againstthe Petitioner. Since the Petitioner has locked her residence (theaddress on the record of the Zilla Parishad), furthercommunications attempted to be served upon her by theRespondent/Zilla Parishad, have proved to be a futile exercise.One such document dated 29/08/2024, along with the report ofwitnesses, is shown to the Court. 7.The learned Advocate for the Petitioner has placedheavy reliance on the judgment of the Hon’ble Supreme Court inAjay Kumar Choudhari Vs. Union of India, [AIR 2015 SC2389]. In the said case, the Appellant’s suspension, dated 9808.24wp(5) 30/09/2011, was extended for a period of 180 days, which wasfollowed by an extension of the same period on the 2nd occasion.On the 3rd and 4th occasions, the extension was for 90 days each.In all, his suspension continued from 30/09/2011 until June 2013,without any disciplinary proceedings. He approached the CentralAdministrative Tribunal (Tribunal), which ordered that, if acharge-sheet has not been issued to the Appellant until21/06/2013, the Appellant would be reinstated in service. TheUnion of India approached the Delhi High Court, which set asidethe order of the Tribunal and it was left to the Central Governmentto decide, as to whether it wished to continue with the suspensionby considering the report of the Central Bureau of Investigation(CBI). 8.In paragraph No.11 of Ajay Kumar Choudhari(supra), the Hon’ble Supreme Court relied upon Abdul RehmanAntulay Vs. R. S. Nayak [1992 (1) SCC 225] and reproducedparagraph No.86 in the said judgment. The relevant observationsfor the purpose of deciding the case in our hands, are noticed inparagraph Nos. 86 (10 and 11) and paragraph No.12, 14 and 15 of 9808.24wp(6) the judgment in Ajay Kumar Choudhari (supra), which read asunder :-“86. In view of the above discussion, the followingpropositions emerge, meant to serve as guidelines. We mustforewarn that these propositions are not exhaustive. It is difficultto foresee all situations. Nor is it possible to lay down any hardand fast rules. These propositions are: (1) …………………………………(10) It is neither advisable nor practicable to fix anytime limit for trial of offences. Any such rule isbound to be qualified one. Such rule cannot also beevolved merely to shift the burden of provingjustification on to the shoulders of the prosecution. Inevery case of complaint of denial of right to speedytrial, it is primarily for the prosecution to justify andexplain the delay. At the same time, it is the duty ofthe court to weigh all the circumstances of a givencase before pronouncing upon the complaint. TheSupreme Court of USA too has repeatedly refused tofix any such outer time-limit in spite of the SixthAmendment. Nor do we think that not fixing anysuch outer limit ineffectuates the guarantee of rightto speedy trial. (11) An objection based on denial of right to speedytrial and for relief on that account, should first beaddressed to the High Court. Even if the High Courtentertains such a plea, ordinarily it should not staythe proceedings, except in a case of grave andexceptional nature. Such proceedings in High Courtmust, however, be disposed of on a priority basis. 9808.24wp(7) 12. State of Punjab v. Chaman Lal Goyal (1995) 2 SCC570 deserves mention, inter alia, because action wasinitiated on 25.3.1992 and a Memorandum of Charges wasissued on 9.7.1992 in relation to an incident which hadoccurred on 1.1.1987. In the factual matrix obtaining in thatcase, this Court reserved and set aside the High Courtdecision to quash the Inquiry because of delay, but directedthat the concerned officer should be immediatelyconsidered for promotion without taking the pendency ofthe Inquiry into perspective.13……………..14.We, therefore, direct that the currency of aSuspension Order should not extend beyond three monthsif within this period the Memorandum of Charges/Charge-sheet is not served on the delinquent officer/employee; ifthe Memorandum of Charges/Charge-sheet is served areasoned order must be passed for the extension of thesuspension. As in the case in hand, the Government is freeto transfer the concerned person to any Department in anyof its offices within or outside the State so as to sever anylocal or personal contact that he may have and which hemay misuse for obstructing the investigation against him.The Government may also prohibit him from contactingany person, or handling records and documents till thestage of his having to prepare his defence.……………………..15.So far as the facts of the present case are concerned,the Appellant has now been served with a Charge-sheet,and, therefore, these directions may not be relevant to himany longer. However, if the Appellant is so advised he maychallenge his continued suspension in any manner knownto law, and this action of the Respondents will be subject tojudicial review.” 9808.24wp(8) 9.It is, thus, clear that, in every case, as a matter ofcourse, a suspension order cannot be set aside only because thesuspension continued beyond 90 days, except in such cases,where the suspension has been continued without issuance of anycharge-sheet and it being evident that the Employer does notintend to initiate a Departmental Enquiry. 10.In Union of India vs Ashok Kumar Aggarwal, [2013(16) SCC 147], the Hon’ble Supreme Court concluded inparagraph 9, that the power of suspension should not be exercisedin an arbitrary manner. The suspension should be in a case,wherein the circumstances indicate a strong prima facie caseagainst the delinquent employee and the allegations involvedgrave misconduct or indiscipline which, if proved, would result inawarding punishment to the employee. 11.The Hon’ble Supreme Court further held in AshokKumar Aggarwal (supra), by relying upon Pritam Singh Vs.the State, [AIR 1950 SC 169], and Karam Kapahi and othersVs. M/s Lal Chand Public Charitable Trust and another, [AIR2010 SC 2077], that, “It is a settled legal proposition that 9808.24wp(9) jurisdiction under Article 136 of the Constitution is basically oneof conscience. The jurisdiction is plenary and residuary.Therefore, even if the matter has been admitted, there is norequirement of law that court must decide it on each and everyissue. The court can revoke the leave as such jurisdiction isrequired to be exercised only in suitable cases and very sparingly.The law is to be tempered with equity and the court can pass anyequitable order considering the facts of a case. In such asituation, conduct of a party is the most relevant factor and in agiven case, the court may even refuse to exercise its discretionunder Article 136 of the Constitution for the reason that it is notnecessary to exercise such jurisdiction just because it is lawful todo so. …………...”12.In Sunita Chandrakant Kalekar Vs. Zilla Parishad,Kolhapur and others, [2017 (1) Mh.L.J. 629], this Courtconcluded that suspension of a Parishad Servant can be orderedwhere disciplinary proceedings against the Servant is eithercontemplated or is pending. Merely because in the order ofsuspension, it is not mentioned that an enquiry is in 9808.24wp(10) contemplation, the order of suspension cannot be vitiated. It hasto be seen as a whole in totality of the background facts. 13.In matters of such nature, when the Employer hadapplied it’s mind and issued an order of suspension and has alsoissued the charge-sheet cum show cause notice, which has beenserved upon the Petitioner, we do not find it appropriate toexercise our Writ jurisdiction, as if this Court is sitting in anAppeal over the order of the Employer. While exercisingsupervisory jurisdiction, it has to be assessed, as to whether theimpugned order is evidently perverse and illegal or is issuedwithout authority of law. There is no dispute as regards theauthority of the Employer in issuing the impugned order. Onmerits, we are not convinced that the suspension order deserves tobe interfered with.14.Considering the above, being devoid of merits, thisWrit Petition is dismissed. 15.Rule is discharged. (Y. G. KHOBRAGADE, J.) (RAVINDRA V. GHUGE, J.)sjk