The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.12016 of 2024 Hrudananda Sahu …. Petitioner Mr. A.K. Chhatoi, Advocate -Versus- State of Odisha & others Opposite Parties …. Mr. N.K. Praharaj, AGA CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:28.10.2024 1. Instant writ petition is at the behest of the petitioner questioning the judicial propriety of the impugned order dated 1st May, 2024 under Annexure-19 and further to declare the stipulation contained in Annexure-16 to the effect that he shall be allowed to continue under suspension till outcome of the Vigilance P.S. Case No.22 dated 8th November, 2021 registered under Section 7 of the Prevention of Corruption (Amendment) Act, 2018 as illegal, arbitrary and unconstitutional and lastly, to direct the opposite parties and in particular, opposite party No.3 to reinstate him revoking the order of suspension in terms of Rule 12(5) of the OCS (CCA) Rules, 1962 on the grounds stated. 2. It is pleaded by the petitioner that he was appointed as Amin on 22nd December, 1993 and was discharging his duties to the utmost satisfaction of the authorities with an unblemished service career and thereafter, was promoted to the post of Revenue Inspector with effect from 1st June, 2010 and again, as the Revenue Supervisor from 13th December, 2019 under the jurisdiction of opposite party No.3. It is further pleaded that the petitioner was falsely implicated in a Vigilance case registered in the year 2021 with the allegation that he demanded and accepted W.P.(C) No.12016 of 2024 Page 1 of 11 gratification of Rs.20,000/- from the complainant in connection with an inquiry vis-(cid:224)-vis R.P. Case No.890 of 2021(Mutation) pending in the file of opposite party No.4 and was arrested, detained in judicial custody from 9th November, 2021 to 14th December, 2021 and since such detention in custody was for more than 48 hours, he was suspended with effect from 9th November, 2021 invoking Rule 12(2) of the OCS (CCA) Rules, 1962 by order under Annexure-4, however, thereafter, was released on bail vide Annexure-5. The contention is that on the basis of the draft charges submitted by the SP Vigilance, Balasore Division, Balasore by letter dated 16th December, 2021, a departmental proceeding (No.1 of 2022) dated 17th January, 2022 was initiated against him for not maintaining absolute integrity and due decorum of conduct in discharge of official duty; and for dereliction in duty. However, during such proceeding, no documents were supplied as required under Rule 15(3) of OCS (CCA) Rules, 1962 and without the same, he was asked to submit written statement of defence within 30 days from the date of receipt of a copy of the Memorandum (Annexure-6). The further contention is that while the departmental proceeding was pending and also the Vigilance case, awaiting submission of written statement of defence by him, opposite party No.3 being the Disciplinary Authority arbitrarily passed the order of dismissal from Government service vide Annexure-7 and even, he submitted a preliminary written statement of defence on 11th February, 2022 to opposite party No.2 with a request to supply the documents and memo of evidence and also his reinstatement in service revoking the order of suspension as well as dismissal. It
Legal Reasoning
is also pleaded that order of dismissal was challenged in W.P.(C)
Decision
No. 4547 of 2022 disposed of on 15th February, 2022 (Annexure- 10) with the liberty allowed to the petitioner to challenge the same, to which an appeal lies and accordingly, approached W.P.(C) No.12016 of 2024 Page 2 of 11 opposite party No.2, who being the Appellate Authority, passed the order under Annexure-12 and substituted the order of dismissal from service to one of compulsory retirement and again being aggrieved, W.P.(C) No.32791 of 2022 was filed and disposed of on 27th February, 2023 under Annexure-14 series with the order of opposite party No.2 set aside and the matter was remitted back to opposite party No.3 to proceed afresh by providing him an opportunity of hearing on receiving show cause reply and to follow the procedure strictly in accordance with OCS (CCA) Rules, 1962 and to conclude the exercise within a stipulated period. 3. According to the petitioner, neither he was supplied with the copies of the documents cited annexed to the Memorandum of charges nor the representations were considered, though in the meantime, the written statement of defence dated 22nd March, 2023 (Annexure-15) was filed and thereafter, opposite party No.3, pursuant to the order in W.P.(C) No.32791 of 2022, directed by order dated 23rd August, 2023 (Annexure-16) that the petitioner shall remain under suspension till the outcome of the Vigilance P.S. Case No.22 dated 8th November, 2021 and further directed to continue with the departmental proceeding appointing an Inquiring Officer in connection therewith and as such, the order of suspension to continue with the aforesaid direction has caused him immense hardship, inasmuch as, Rule 12(5) of the OCS (CCA) Rules 1962 besides the Office Memorandum dated 3rd February, 2017 of the G.A. Department have not been followed. By describing other events having taken place in between, upon rejection of the representation of the petitioner with an order under Annexure-19, the challenge is with regard to indefinite continuation of suspension by the impugned decision vide Annexure-16 not being in consonance with the W.P.(C) No.12016 of 2024 Page 3 of 11 provision of the OCS (CCA) Rules, 1962 with a direction to opposite party No.3 to reinstate him. 4. Counter affidavit is filed by opposite party Nos.2 and 3 justifying the impugned orders under Annexures-16 & 19 and the reason behind continuation of suspension of the petitioner. It is pleaded that due procedure has been followed and with regard to, whether, the order of suspension to be continued, the views of the GA (Vigilance) Department, Government of Odisha was sought for. It is lastly pleaded that considering the nature of allegation against the petitioner though the orders of dismissal and compulsory retirement have been set aside directing disposal of the departmental proceeding according to the provisions of the OCS (CCA) Rules, 1962, he could not be allowed to be reinstated. 5. Rejoinder affidavit is filed by the petitioner dated 25th August 2024 reiterating the facts pleaded earlier and pleaded that opposite party No.3 could not have allowed the order of suspension to continue till the outcome of Vigilance case, which is again without receiving the views of the GA (Vigilance) Department, Government of Odisha, hence, it is a fit case to revoke the same with the order of reinstatement forthwith. 6. Heard Mr. Chhatoi, learned counsel for the petitioner and Mr. Praharaj, learned AGA for the State opposite parties. 7. The impugned order under Annexure-19 is at the instance of opposite party No.3, as according to which, the petitioner’s representation was considered and disposed of in compliance of the Court’s order in W.P.(C) No.42067 of 2023 denying his reinstatement. As per Annexure-16, opposite party No.3 directed the petitioner to remain under suspension till the outcome of the Vigilance case. Such reinstatement was refused vide Annexure-19 on the premise that after completion of investigation, chargesheet W.P.(C) No.12016 of 2024 Page 4 of 11 dated 21st June, 2022 was filed under Section 7 of the Prevention of Corruption (Amendment) Act, 2018 against the petitioner and the matter is subjudice in the Court of the learned Special Judge (Vigilance), Keonjhar and admittedly, no such view was furnished by the Government, as it was sought for to release the petitioner from suspension. It is pleaded by opposite party Nos.2 and 3 that such views of G.A. (Vigilance) Department, Government of Odisha to consider the fate of suspension order is necessary and accordingly, it was requested. However, before receipt of any such views of the Government, opposite party No.3 declined reinstatement of the petitioner and directed him to remain under suspension vide Annexure-16. The contention of the petitioner is that in absence of the views received from the Government, opposite party No.3 could not have denied his reinstatement revoking the order of suspension and that apart, it was illegal to continue such suspension for an indefinite period awaiting the result in the Vigilance case, hence, therefore, Annexures-16 & 19 are liable to be set aside with a direction for reinstatement lifting the order of suspension, which is necessary in the interest of justice and for being against the sprit of law. Mr. Chhatoi, learned counsel for the petitioner refers to a decision in the case of Ajay Kumar Choudhary Vs. Union of India (Civil Appeal No.1912 of 2015) arising out of SLP (C) No.31761 of 2013 as at Annexure-23 to contend that the order of suspension as has been directed by opposite party No.3 is unconstitutional. Mr. Praharaj, learned AGA for the State reaffirms the views of opposite party No.3 vide Annexure-16 and the decision not to instate the petitioner followed by an order under Annexure-19. 8. The question is, whether, the petitioner should remain under suspension without reinstatement for any such indefinite period awaiting the result of the Vigilance case on the anvil of the orders W.P.(C) No.12016 of 2024 Page 5 of 11 of dismissal and compulsory retirement being set aside with a direction for closure of departmental proceeding initiated against him within a stipulated period? Furthermore, whether, opposite party No.3 was justified to direct the petitioner to remain under suspension vide Annexure-16 without reinstatement followed by Annexure-19 is in consonance with the procedures of the OCS (CCA) Rules, 1962 and in particular, with reference to Rule 12(5) thereof in relation to the order of suspension? Part- IV and Rule 12 of the OCS (CCA) Rules, 1962 deals with the subject of suspension and provides the procedure to be followed stipulating therein that such authority may place a Government Servant under suspension (a) where a disciplinary proceeding against him is contemplated or pending; or (b) where a case against him in respect of any criminal offence is under investigation or trial? Sub- rule (2) of Rule 12 deals with suspension with a deeming effect when a Government servant is detained in custody, whether on a criminal charge or otherwise, for a period exceeding 48 hours. The consequences to follow in the event the order of dismissal, removal or compulsory retirement from service of a Government servant is set aside and the effect of the same on suspicion are stipulated in Sub-rule (3) of Rule 12 and as per Sub-rule (5), an order of suspension made or deemed to have been made at any time may be revoked by the authority to which the Government servant is sub-ordinate. 9. In the case at hand, the contention is that after the orders of dismissal and compulsory retirement have been set aside with a direction in W.P.(C) No.32791 of 2022 and the disciplinary proceeding was directed to be disposed of within a stipulated period, opposite party No.3 was not justified, rather, committed illegality denying reinstatement of the petitioner and further in passing the order under Annexure-16. It is settled law that order W.P.(C) No.12016 of 2024 Page 6 of 11 of suspension cannot be indefinite without any certainty, as in such a case, it would be in gross violation of principles of natural justice. An authority has a bounden duty to consider revocation of suspension order with a review at regular intervals, which is also supported by the Office Memorandum dated 3rd February, 2017 (Annexure-22) of G.A. Department, Government of Odisha, wherein, it was decided and directed that Committees at different levels are to be constituted to review the suspension cases meticulously in every six months and to record the reasons for its continuation for further period of six months and on a case to case basis with adequate justification. Interestingly, in the instant case, opposite party No.3 requested the views of the Government and before it was received, declined to reinstate the petitioner by order under Annexure-19. From the necessary correspondence as at Annexure A/2 of the counter affidavit of opposite party Nos.2 and 3, it is revealed that the investigation in a Vigilance case was concluded with the chargesheet being filed, consequent upon which, the Court of learned Special Judge, Vigilance, Keonjhar took cognizance of the offence under Section 7 of the Prevention of Corruption (Amendment) Act, 2018 on 1st August, 2022, whereafter, the police papers were supplied to the petitioner on 13th October, 2022 and by then, the charge had not been framed, with the matter being posted to 28th February, 2024, which means, inquiry is in progress without the trial commenced. The Vigilance case was registered in the year 2021 and in 2022, the chargesheet was filed and till 28th February, 2024, charge was yet to be framed by the Court of learned Special Judge, Vigilance, Keonjhar. At present, the status of the Vigilance case is not known and whether, the trial has commenced in the meantime. Against the aforesaid backdrop, it may be alleged that there is a less chance that the trial could be concluded soon when nearly one and half years was consumed from the date of chargesheet filed W.P.(C) No.12016 of 2024 Page 7 of 11 to conclude the inquiry. Under the above circumstances, whether, the impugned decision of opposite party No.3 not to reinstate the petitioner instead to allow him to continue under suspension is fair and justified? 10. As earlier discussed, a procedure is prescribed under Rule 12(5) of the OCS (CCA) Rules, 1962 to consider to reinstatement upon revocation of suspension of a Government servant. Apart from that, as per Annexure-22, duty is cast upon the authority concerned to review the orders of suspension every six months and with adequate reasons, to direct continuation of the same for a further period of six months. The petitioner is placed under suspension by order under Annexure-16. Before that, the petitioner was under suspension on account of judicial custody after he was arrested in connection with the Vigilance case. Later to the order of dismissal by opposite party No.3 and decision of opposite party No.2 to substitute it to one of compulsory retirement disposing of the appeal and both being set aside by this Court in W.P.(C) No. 32791 of 2022, it was followed by Annexure-16 and thereafter, Annexure-19, which means reinstatement was denied and the petitioner was continued to be under suspension till the result in Vigilance case. For such a long period, ever since the order under Annexure-16, the petitioner is under suspension. The reinstatement of the petitioner was declined vide Annexure-19 and earlier to that, was not released from suspension and the decision of opposite party No.2 is again before receipt of the views of the Government. In the peculiar facts and circumstances of the case narrated above, the Court is inclined to reach at a conclusion that opposite partyNo.3 was not justified denying reinstatement of the petitioner placing the latter to remain under suspension till the trial is concluded in the Vigilance case with the result being received, as its early disposal W.P.(C) No.12016 of 2024 Page 8 of 11 by the Court of learned Special Judge (Vigilance), Keonjhar cannot be predicted. In normal course, with exceptions, trial in a criminal case consumes a good amount of time. In so far as the case of the petitioner is concerned, till February, 2024, charge had not been framed and it is not known and as earlier stated, cannot be anticipated as to when the inquiry and trial is likely to be concluded. With such uncertainty, the fate of the petitioner’s reinstatement hangs on fire and therefore, it is just and fair to claim that continuation of suspension without reinstatement is an arbitrary decision and also unconstitutional. At the cost of repetition, the Court is of the view that review of order of suspension is necessary in view of Annexure-22 and as it appears, without justifiable reason and merely on the premise that it is to continue awaiting result in the Vigilance case, decision of opposite party No.3 cannot be sustained. The Court has taken cognizance of the decision in Ajay Kumar Choudhary (supra) relied upon by Mr. Chhatoi, learned counsel for the petitioner. Apart from above, there are catena of decisions to justify that the impugned action of opposite party No.3 is not legally tenable. The above view receives support from a decision of the Apex Court in Public Service Tribunal Bar Association Vrs. State of UP and others AIR 2003 SUPREME COURT 1115, wherein, it has been observed that if a suspension continues for indefinite period or the order of suspension passed is malafide, then it would be open for the employee to challenge the same invoking jurisdiction under Article 226 of the Constitution of India. In a decision of the Allahabad High in Paras Nath Singh Vrs. State of U.P and others MANU/UP/0593/2011 referring to the decision of the Apex Court in Public Service Tribunal Bar Association (supra) and taking judicial notice of one of its earlier decisions in Anshu Bharati Vrs. State of U.P. and others MANU/UP/1248/2008 proceeded to conclude that suspension, if prolonged unreasonably without W.P.(C) No.12016 of 2024 Page 9 of 11 holding any inquiry or by prolonging itself would be penal in nature and cannot be sustained. In Anshu Bharati (Supra) as referred to in the case of Paras Nath Singh, the Allahabad High Court concluded that prolonged suspension is clearly unjust and unwarranted; the question deals with the agony and mental torture of a suspended employee, where inquiry either had not commenced or proceeded at a snail’s pace; a prolonged suspension by itself is penal, which is neither just nor in larger public interest. In the present case, the petitioner is to face the disciplinary proceeding and again the Court is in dark as to its current status. Before the disciplinary proceeding being concluded which is to take some time to finish, it would not be justified for a Government servant to be allowed to remain under suspension indefinitely or for a prolonged period. Neither Annexure-22 nor the provisions of OCS (CCA) Rules, 1962 ever contemplate continuation of suspension in anticipation of result in a criminal case being received. As earlier discussed, regular review of order of suspension as per Annexure-22 is necessary, which is a requirement considering the interest of the Government servant. The public interest is also involved and any such continuation of suspension without reinstatement of a Government servant during the pendency of disciplinary proceeding is most likely to shatter the faith reposed on the system. In one more case of Allahabad High Court in Suresh Chandra Gautam Vrs. State of U.P. and others 2013 SCC OnLine All 10084, a similar view was expressed, wherein, referring to the decision in Public Service Tribunal Bar Association (supra), the order of suspension was held to be not sustainable. The Court is not to burden the judgment with other authorities to reach at the above conclusion as there is no tenebrosity in the settled principle of law that prolonged suspension order without definiteness or certainty is unconstitutional denying reinstatement during the pendency of W.P.(C) No.12016 of 2024 Page 10 of 11 the disciplinary proceeding without review and justification or for that matter, awaiting result in a criminal case as has been held by opposite party No.3. So therefore, the final conclusion of the Court is that opposite party No.3 has taken a decision not in confirmity with Annexure-22 and provisions of the OCS (CCA) Rules, 1962 and in particular, Rule 12(5) thereof and as per the settled legal position discussed herein before, hence, as a necessary corollary, the impugned decision cannot be held legally tenable. 11. For a moment, the Court thought it proper to remit the matter back for reconsideration with the views of the Government being obtained but since it has already formed an opinion with a conclusion that that the impugned decision to be not legally sustainable, no real purpose would, therefore, be achieved with a remand. 12. Hence, it is ordered. 13. In the result, the writ petition stands allowed. As a necessary corollary, the impugned order dated 1st May, 2024 under Annexure-19 is hereby set aside including the stipulation contained in Annexure-16 to the effect that the petitioner shall be allowed to continue under suspension till outcome of the Vigilance P.S. Case No.22 dated 8th November, 2021 registered under Section 7 of the Prevention of Corruption (Amendment) Act, 2018 with a direction to opposite party No.3 to reinstate him immediately revoking the same and further ensuring closure of the departmental proceeding at the earliest and within a reasonable time. 14. In the circumstances, however, there no order as to costs. Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 01-Nov-2024 14:51:00 (R.K. Pattanaik) Judge Balaram W.P.(C) No.12016 of 2024 Page 11 of 11