Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.41425 of 2023 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 *** Pabitra Matia Aged about 57 years Son of Late Bhanua Matia at present working as Administrative Officer Office of the Chief Architect Nirman Soudh, Bhubaneswar, … District: Khordha. -VERSUS- 1. State of Odisha, Represented through Principal Secretary to Government of Odisha, Works Department, Lok Seva Bhawan, Sachivalaya Marg Bhubaneswar District: Khordha. 2. Chief Architect, Odisha Nirman Soudh, Bhubaneswar District: Khordha. … Counsel appeared for the parties: Petitioner. Opposite parties. For the Petitioner : Ms. Saswati Mohapatra and Mr. Niyati Ranjan Samal, Advocates W.P.(C) No.41425 of 2023 Page 1 of 92 For the Opposite parties : Mr. Tarun Patnaik St Additional Standing Counsel P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 26.07.2024 :: Date of Judgment : 20.08.2024 J UDGMENT MURAHARI SRI RAMAN, J.— THE CHALLENGE: Assailing an Order dated 19.10.2023 passed by the opposite party No.1-Principal Secretary to the Government of Odisha in Works Department (Annexure- 11) rejecting the representation dated 09.01.2023 (Annexure-14) seeking to revoke Order dated 14.12.2022 (Annexure-9) placing the petitioner under suspension while initiation of the Disciplinary Proceeding under Rule 15 of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962 was under contemplation, the petitioner has come up before this Court by way of filing the instant writ application craving to exercise extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. 1.1. In addition thereto, the petitioner made prayer to quash the Order dated 07.12.2023 of the opposite party No.1 W.P.(C) No.41425 of 2023 Page 2 of 92 (Annexure-12) appointing Inquiring Officer under Rule 17 read with Rule 15(4) of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962 for the purpose of inquiring into the charges levelled against the petitioner-delinquent. 1.2. The prayers made by the writ petitioner are as follows: “Under the aforesaid facts and circumstances of the case, it is therefore, prayed that this Hon’ble Court may graciously be pleased to: (i) quash the Orders dated 07.12.2023 and 19.10.2023 respectively by under Annexures-12 and 11 concurrently holding the same as bad, illegal and not sustainable in the eye of law and thereby direct reinstatement of the petitioner immediately for the interest of justice; (ii) pass such other order(s) or issue direction(s) as may be deemed fit and proper in the bona fide interest of justice; And for this act of kindness, the Petitioner shall as in duty bound, ever pray. THE FACTS: 2. Factual details as unfurled by the writ petitioner reveals that while working as Administrative Officer, one Sri Tapan Kumar Patra having approached the Promotion Adalat for regularisation of his officiating promotion, the Additional Chief Secretary issued following direction on 28.02.2020: W.P.(C) No.41425 of 2023 Page 3 of 92 “There are 8 numbers of sanctioned post in the Post of Architectural Draughtsman. As per Cadre Rules 50% will be filled up by promotion from among the Assistant Architectural Draughtsman (feeder grade) and the rest 50% will be by direct recruitment. Now there are 4 numbers of employees are holding the post of Architectural Draughtsman, who have been promoted from among the Assistant Architectural Draughtsman. The vacant 4 posts are to be filled up by direct recruitment as per Cadre Rules after obtaining approval of Empowered Committee. So the applicant’s representation merits no consideration. The Department should take a quick decision on the regularisation of the officiating position of Sri Patra.” 2.1. Accordingly the petitioner has stated to have placed files of Sri Tapan Kumar Patra— provisionally appointed as Tracer on purely temporary and on officiating basis vide Office Order No.889, dated 23.02.1989 and promoted as Assistant Architectural Draughtsman on officiating basis vide Office Order No.540, dated 08.02.1990— before the Chief Architect, who accorded deemed promotion in the post of Assistant Architectural Draughtsman on regular basis by virtue of Office Order No.576—EAPF-18/2022, dated 13.04.2022. However, realising mistake committed, the Chief Architect cancelled said Office Order dated 13.04.2022 vide Office Order No.640— EAPF-18/2022, dated 29.04.2022. 2.2. A show cause notice bearing No.8200—WORKS-CON- CASE5-0051-2022/W, dated 22.06.2022 was issued by W.P.(C) No.41425 of 2023 Page 4 of 92 the Principal Secretary to Government of Odisha in Works Department, the opposite party No.1, to four employees including the petitioner citing that: “*** Sri Patra filed another case before the Hon’ble High Court of Orissa, Cuttack bearing W.P.(C) No.34598 of 2021 challenging the Works Department Order No.11399, dated 13.08.2021, which is pending before the Hon’ble High Court, Orissa, Cuttack. While the matter is sub judice as such the Office Order by the Chief Architect, Odisha and his officials dated 13.04.2022 contradict the Order No.11399, dated 13.08.2021 of this Department, seems completely biased and misinterpreted with an intention to favour Sri Tapan Kumar Patra (the petitioner of W.P.(C) No.34598 of 2021) by undermining the very rules and regulations of the Government, which has the State Exchequer and future tantamount to (a) gross misconduct; (b) dereliction of duty; (c) causing wrongful pecuniary loss to Government; (d) not maintaining absolute (e) disobedience of integrity; Government Orders which amounts to violation of Odisha Government Servants’ Conduct Rules, 1959. repercussions to They are, therefore, instructed to explain the reason as to why suitable action as deemed proper shall not be initiated against them for such lapses. ***” 2.3. In terms of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962 (“OCS CCA Rules”, for brevity), object of which is deterrent from wrong doing for Government servant, when the Disciplinary Proceeding under Rule 15 ibid.—“Procedure for imposing Major Penalties”— was under contemplation, the Page 5 of 92 W.P.(C) No.41425 of 2023 opposite party No.1 placed the petitioner under suspension vide Order No.18076— WORKS-CON- CASES-0051-2022, dated 14.12.2022 (Annexure-9). 2.4. Filing petition, being W.P.(C) No.30112 of 2023 on 12.09.2023 before this Court, the petitioner complained that “neither any charge has been framed nor the Order of suspension revoked”. This Court disposed of the said case on 26.09.2023 with the following Order: “Considering the submissions, the writ application is disposed of directing the Principal Secretary, Works Department (opposite party No.1) to consider and dispose of the representation submitted by the petitioner on 09.1.2023 in accordance with law positively within a period of ten days under intimation to the petitioner.” 2.5. However, in the meanwhile, a Memorandum bearing 15441—CON-CASES-0051-2022/W., dated 14.09.2023 has been issued to the petitioner by the opposite party No.1 proposing to hold inquiry under Rule 15 of the OCS CCA Rules on the Article of Charge that the petitioner
Legal Reasoning
19. Whether the employee should or should not continue in office during the period of inquiry is a matter to be assessed by the concerned authority. Ordinarily, the Court should not interfere with orders of suspension unless they are passed mala fide, and without there being even prima facie evidence on record connecting the employee with the misconduct in question. [Sanjiv Rajan Vrs. Director, Rajya Krishi Utpadan Mandi Parishad, 1993 Supp (3) SCC 483]. The court W.P.(C) No.41425 of 2023 Page 22 of 92 cannot act as if it is an appellate forum de hors the power of judicial review. [Ashok Kumar Aggarwal, (2013) 16 SCC 147]. The Court or the Tribunal must consider each case on its own facts, and no general law or formula of universal application can be laid down in this regard. [Ashok Kumar Aggarwal, (2013) 16 SCC 147; Bimal Kumar Mohanty, (1994) 4 SCC 126 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727]. Each case must be considered depending on the nature of the allegations, gravity of the situation, and the indelible impact it creates on the the delinquent service employee in service pending inquiry or contemplated inquiry or investigation. The authority should also keep in mind the public interest of the impact of the delinquent’s continuance in office while facing departmental inquiry or trial on a criminal charge. [Bimal Kumar Mohanty, (1994) 4 SCC 126 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727 = 2015 SCC OnLine Hyd 183]. the continuance of for 20. Bearing these principles in mind, let us now examine the submission of Sri Tapan Singh, learned counsel for the appellant, that, in view of the law declared by the Supreme Court, in Ajay Kumar Choudhary, (2015) 7 SCC 291, and since neither a charge memo was issued to the petitioner nor a charge sheet filed in the criminal case within 90 days of his being placed under suspension, the order of suspension stands automatically revoked. 21. Where there is power to suspend under a statute, or the rules framed thereunder, the order of suspension the has relationship of master and servant. [Balvantrai Ratilal Patel, AIR 1968 SC 800; Bimal Kumar temporarily suspending the effect of W.P.(C) No.41425 of 2023 Page 23 of 92 Mohanty, (1994) 4 SCC 126 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727]. The Supreme Court, in Ajay Kumar Choudhary, (2015) 7 SCC 291, drew a distinction between cases where a charge sheet is filed within 90 days of the order of suspension, and cases where it is not. The latter has been held to result in putting to an end the order of suspension, while the former has been held to require a reasoned order, extending the period of suspension, to be passed by the Government. However, in Tarak Nath Ghosh, (1971) 1 SCC 734, the Supreme Court held that, in principle, there is no difference between the position of an officer against whom definite charges have been framed to which he is required to put in his written statement and a situation where, on receipt of allegations of grave misconduct against him, the Government is of opinion that it would not be proper to allow the officer concerned to function in the ordinary way. Again, in Ashok Kumar Aggarwal, (2013) 16 SCC 147, the Supreme Court held that the delinquent cannot be considered to be any better off, after the charge-sheet has been filed against him in the Court on conclusion of the investigation, than his position during the investigation of the case itself. 22. After referring to the earlier Judgments in O.P. Gupta Vrs. Union of India, (1987) 4 SCC 328, where it was held that suspension of an employee was injurious to his interests and must not be continued for an unreasonably long period and, therefore, an order of suspension should not be lightly passed; to K. Sukhendar Reddy Vrs. State of A.P., (1999) 6 SCC suspension 257, which perpetuated indefinitely in circumstances where other persons involved had not been subjected to castigated selective W.P.(C) No.41425 of 2023 Page 24 of 92
Arguments
“has shown undue favour to Sri Tapan Kumar Patra, by proposing to regularise his officiating service period in the post of Tracer and Assistant Architectural Draughtsman and deliberately disobeyed the Government Order as well as misinterpreted the Order of the Promotion Adalat”. 2.6. In compliance of direction contained in the Order dated 26.09.2023 passed in W.P.(C) No.30112 of 2023, the W.P.(C) No.41425 of 2023 Page 6 of 92 opposite party No.1 disposed of the representation with the following observation: “*** And whereas, the petitioner the petitioner was served a Show Cause Notice No.8200/W, dated 22.06.2022 with a direction to explain as to why suitable action as deemed proper shall not be initiated against him. In response, he submitted his reply on dated 05.07.2022; And whereas, the reply to the Show Cause Notice, as above, was considered with reference to the allegations levelled against him & the relevant records available, Since the reply was not satisfactory, it was rejected and decided to place Shri Matia under suspension; And whereas, accordingly Shri Matia, the petitioner was placed under suspension vide this Department Order No. 18076/W., dated 14.12.2022; the And whereas, the Suspension Case of the Petitioner was placed before concerned Suspension Review Committee in its meeting held on dated 01.07.2023. Taking into account the gravity of the case, the Committee didn’t recommend to re-instate the petitioner into Govt. Service and accordingly the Govt. decided not to re-instate the petitioner into Govt. Service for the time being; And whereas, a Disciplinary Proceedings has been instituted against him under Rule 15 of the OCS(CC&A) Rules, 1962 vide Memorandum No. 15441/W., dated 14.09.2023; And whereas, the Written Statement of Defence, as called for in the Memorandum dated 14.09.2023 is W.P.(C) No.41425 of 2023 Page 7 of 92 yet to be received from the petitioner. The case of suspension of the petitioner shall be placed before the next periodical Suspension Review Committee for a decision; Now therefore, in obedience to the order of Hon’ble High Court, as above, the representation of the petitioner dated 09.01.2023 was examined with reference to the above facts, materials & records available & the decision of the Govt. in the matter of reinstatement into Govt. Service and was rejected. Communicate to all concerned.” 2.7. The opposite party No.1 issued Order dated 07.12.2023 appointing the Commissioner for Department Inquiry (CDI), General Administration and Public Grievance Department, Odisha, Bhubaneswar as the Inquiring Officer under Rule 171 read with Rule 15(4)2 of the OCS CCA Rules. 1 [17. (1) (2) 2 15. (4) Joint Inquiry.— Where two or more Government servants are concerned in any case, the Governor or any other authority competent to impose the penalty of dismissal from service on all such Government servants may make an order directing that disciplinary action against all of them may be taken in a common proceeding. Subject to the provision of sub-rule (4) of rule 14 any such order shall specify— (i) the authority which may function as the disciplinary authority for the purpose of such common proceedings; the penalties specified in rule 13 which such disciplinary authority shall be competent to impose; and (ii) (iii) whether the procedure prescribed in rule 16; may be followed in the proceedings. Procedure for imposing major penalties.— *** On receipt of the written statement of defence or, if no such statement is received within the time specified, the disciplinary authority may itself inquire into such of the charges as are not admitted or, if it considers it necessary so to do, appoint a Board of Inquiry or an inquiring officer for the purpose. Provided that if, after considering the written statement of defence, the disciplinary authority is of the view that the facts of the case Page 8 of 92 W.P.(C) No.41425 of 2023 2.8. Being aggrieved by order of rejection of representation of the petitioner for revocation of prolonged suspension by the opposite party No.1 on the ground that suspension should be of short duration, the afore-noted writ petition has been preferred. Hearing: 3. Ms. Saswati Mohapatra, learned Advocate for the petitioner insisted for setting aside the order of rejection to revoke order of suspension, and the pleadings being completed, on consent of Sri Tarun Patnaik, learned Additional Standing Counsel, the matter is taken up for final hearing. 3.1. This matter is heard on 26.07.2024 and kept reserved for Judgment. Submissions of the counsel for respective parties: 4. It is submitted by Ms. Saswati Mohapatra, learned Advocate that the order of suspension cannot be kept for a long period. Since the Works Department delayed in commencing the Disciplinary Proceeding and there is feeble scope for its culmination in near future, the Order of suspension dated 14.12.2022 is required to be revoked. Notwithstanding period stipulated in the do not justify the award of a major penalty, it shall determine, after recording reasons thereof, what other penalty or penalties, if any, as specified in Clauses (i) to (v) of rule 13 should be imposed and shall after consulting the Commission where such consultation is necessary, pass appropriate order.] W.P.(C) No.41425 of 2023 Page 9 of 92 Guidelines dated 06.03.2010 issued by the Government of Odisha in General Administration Department to the effect that Disciplinary Proceeding is required to be initiated within 30 days from the date of suspension, it is only on 07.12.2023 that the Works Department has appointed Inquiring Officer even while the Memorandum was issued on 14.09.2023. Since the action of the opposite party No.1 is not in consonance thereof, she insisted for indulgence by issue of direction to the opposite party No.1 to revoke the suspension. 4.1. Ms. Saswati Mohapatra, learned Advocate amplified her argument further by urging that the appointing authority of the petitioner being the opposite party No.2, the opposite party No.1 has no authority to place the petitioner under suspension. 4.2. She would further submit that mere placing the file concerning Sri Tapan Kumar Patra on oral instruction before the competent authority-opposite party No.2 cannot be attributed as grave misconduct. It is the competent authority, who is required to take decision whether to regularise the promotion. Using the expression “gravity of the case” without ascribing reason to refuse to revoke order of suspension would not tantamount to fair and even handed exercise of power. There being no allegation of embezzlement of money or serious dereliction of duty, the Order of suspension W.P.(C) No.41425 of 2023 Page 10 of 92 which was passed on 14.12.2022 could not have continued till date particularly when the Disciplinary Proceeding was not initiated within the period stipulated in the Guidelines dated 06.03.2010. 4.3. She would also submit that the petitioner has placed the concerned file before the opposite party No.2, who is the competent authority to take decision on regularising officiating service in the posts of Tracer and Assistant Architectural Draughtsman of Shri Tapan Kumar Patra in obedience to his oral instructions pursuant to the direction of the Promotion Adalat. Had he not placed the file before the opposite party No.2, he would have disobeyed the direction of the Additional Chief Secretary in Promotion Adalat. 4.4. It is contended that as the Chief Architect got retired in the meantime and thereby he is left scot free as no Disciplinary Proceeding could be initiated against him. 4.5. Therefore, it is strenuously argued that continuance of suspension of the petitioner would not enure to the benefit of none. This apart, the terms of Guidelines dated 06.03.2010 of the General Administration Department though are requires to be followed scrupulously, no Suspension Review Committee is held monthly. W.P.(C) No.41425 of 2023 Page 11 of 92 5. Sri Tarun Patnaik, learned Additional Standing Counsel having forcefully argued would submit that the petitioner misled the Chief Architect by submitting the files relating to Sri Tapan Kumar Patra, whose case for promotion was sub judice before this Court in W.P.(C) No.34598 of 2021 challenging the Order dated 13.08.2021 of the Works Department, with positive note to grant regular promotion in the rank of Architectural Draughtsman. 5.1. He further went on to submit that since the Departmental Proceeding has been pending and now that the Inquiring Officer in terms of Rule 17 read with Rule 15(4) of the OCS CCA Rules being appointed, reinstating the petitioner in service by revoking Order of suspension would affect the course of such proceeding. 5.2. Mere non-institution of the Disciplinary Proceeding within 30 days from the date of suspension as per Guidelines dated 06.03.2010 would vitiate neither the Disciplinary Proceeding nor the Order of suspension, more so when the petitioner has not submitted his written statement of defence. 5.3. Refuting the allegation with regard to competence of the opposite party No.1 to suspend the petitioner, the learned Additional Standing Counsel vehemently submitted that though the Head of Office in respect of the petitioner is the opposite party No.2, the W.P.(C) No.41425 of 2023 Page 12 of 92 Administrative Department is opposite party No.1 and the Order of suspension being issued by the latter, no illegality can be attached to such action so as to exercise power of judicial review. Perspective of suspension: 6. Before delving into examine whether continuance of suspension of the petitioner is justified even after initiation of Disciplinary Proceeding by issuing Memorandum along with Charges, it may be convenient to understand the purport of “suspension”. 6.1. The dictionary meaning of the word “suspend” is “to debar; usually, for a time, from any privilege, from the execution of an office or from the enjoyment of an income”. It is temporary deprivation of office, or privilege. By reason of suspension the person suspended does not lose his office nor does he suffer any degradation. He ceases to exercise the powers and to discharge the duties of the office for the time being. His rank remains the same and his pay does not suffer any deduction. He cannot draw his salary during the period of suspension. His powers, functions and privileges remain in abeyance. 6.2. In Khem Chand Vrs. Union of India, (1963) Supp.1 SCR 229 it has been succinctly stated that, “An order of suspension of a Government servant does not put an end to his service under the Government. He W.P.(C) No.41425 of 2023 Page 13 of 92 continues to be a member of the service in spite of the order of suspension. *** There is no basis for thinking however that because of the order of suspension he ceases to be a member of the service.” 6.3. In Mohammad Ghouse Vrs. State of Andhra, (1957) 1 SCR 414 it has been observed that an order of suspension pending final orders is neither one of dismissal nor of removal of service within Article 311 of the Constitution of India. 6.4. It has been observed in Nahid Jahan Vrs. State of M.P., 2017 SCC OnLine MP 2173 = ILR 2017 MP 2947 as follows: “13. The Supreme Court emphasized the need of applying mind before placing an employee under suspension. Author M.S. Nila in the Book “Law of Suspension” (Eastern Book Co., Lucknow) expressed the view that “suspension on technical irregularities and lapses is unreasonable” (Page 20). Another Author Shri S.K.P. Shriniwas in “Law of Suspension and Reinstatement” (Orient Publishing Co.) opined that authority passing suspension order must not be afflicted with suspension syndrome. An order of suspension must not be passed whimsically, capriciously, unduly, fancifully and unreasonably. Contrary to these, such an order must be a reasoned one. 14. Wording of suspension order clearly shows that the allegations against the petitioner are relating to a clerical error of including the name of a dead person in the portal. For this alleged “misconduct”, the respondents placed her under suspension. It is Page 14 of 92 W.P.(C) No.41425 of 2023 profitable to refer to the judgment of Supreme Court in this regard. In (1979) 2 SCC 286 (Union of India Vrs. J. Ahmed), Desai J. held that ‘it is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in in performance of duty or error of evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability is very high.’ ***” judgment 6.5. Gamut of “suspension” has been discussed by the Uttarakhand High Court in the case of Naresh Kumar Vrs. State of Uttarakhand, Special Appeal No.576 of 2019, vide Judgment dated 18.06.2019 in the following lines: “10. Suspension means the action of debarring, for the time being, from a function or privilege or temporary deprivation of working in the office. [Union of India Vrs. Ashok Kumar Aggarwal, (2013) 16 SCC 147]. Suspension, according to the Oxford Dictionary, means the action of suspending, or the condition of being suspended; the action of debarring or state of being debarred, especially for a time, from a function or privilege; temporary deprivation of one’s office or position. One of the word in the Chambers 20th “suspension”, as given the meaning of W.P.(C) No.41425 of 2023 Page 15 of 92 dictionary, is: to defer, to debar from any privilege, office, emolument etc., for a time. Suspension is, ordinarily, a temporary act. [Dr. G. Thimma Reddy Vrs. State of Andhra, AIR 1958 AP 35; Govt. of India, Ministry of Home Affairs Vrs. Tarak Nath Ghosh, (1971) 1 SCC 734; Halsbury’s Laws of England, Third Edn., Vol. 25, Article 9895; Buddana Venkata Murali Krishna Vrs. State of A.P., 2016 (3) ALT 727 = 2015 SCC OnLine Hyd 183]. 11. A public servant may be suspended as a mode of punishment or he may be suspended during the pendency of an enquiry against him if the order appointing him, or the statutory provisions governing his service, provide for such suspension. He may merely be forbidden from discharging his duties during the pendency of an enquiry against him, which act is also called suspension. The right to suspend as a measure of punishment, as well as the right to suspend the contract of service during the pendency of an enquiry, are both regulated by the contract of employment or the statutory provisions regulating the conditions of service. But the last category of suspension is the right of the master to forbid his servant from doing the work, which he had to do, under the terms of the contract of service or the provisions governing his conditions of service, at the same time keeping in force the masters’ obligations under the contract. In other words the master may ask his servant from rendering his service, but he must fulfil his part of the contract. [V.P. Gidroniya Vrs. State of M.P., (1970) 1 SCC 362; B.R. Patel Vrs. State of Maharashtra, AIR 1968 SC 800 and R.P. Kapur Vrs. Union of India, AIR 1964 SC 787]. So far as suspension as a punishment is concerned, it is a to refrain W.P.(C) No.41425 of 2023 Page 16 of 92 disciplinary matter. [R.P. Kapur, AIR 1964 SC 787 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727 = 2015 SCC OnLine Hyd 183]. 12. Suspension, in the present case, is not a substantive punishment, and interim order pending is an enquiry/criminal proceedings. [Sasa Musa Sugar Works (P) Ltd. Vrs. Shobrati Khan, AIR 1959 SC 923]. Suspension of this kind is not a punishment, but only forbids or disables the petitioner from discharging the duties of his office or the post held by him. In other words it is to restrain him from availing further opportunities of perpetrating the alleged misconduct, or to remove the impression among members of the service that dereliction of duty would pay and the offending employee can get away 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 the witnesses, opportunity in office to impede the progress of the investigation or inquiry etc. [State of Orissa vs. Bimal Kumar Mohanty, (1994) 4 SCC 126 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727 = 2015 SCC OnLine Hyd 183]. the delinquent or affording 13. An order of interim suspension can be passed against the employee while an inquiry/investigation is pending against him. Suspending an officer, and thereby disabling him from performing the duties of his office on the basis that the contract is subsisting, is always an implied term in every contract of service. When an officer is suspended, in this sense, it means that the Government merely issues a direction to the officer that, so long as the contract is subsisting and till the time the officer is legally 6 W.P.(C) No.41425 of 2023 Page 17 of 92 dismissed, he must not do anything in the discharge of the duties of his office. In other words, the employer is regarded as issuing an order to the employee which, because the contract is subsisting, the employee must obey. [Balvantrai Ratilal Patel Vrs. State of Maharashtra, AIR 1968 SC 800; T. Cajee Vrs. U. Jormanik Siem, AIR 1961 SC 276; R.P. Kapur, AIR 1964 SC 787; Bimal Kumar Mohanty, (1994) 4 SCC 126; V.P. Gidroniya, (1970) 1 SCC 362; Jammu University Vrs. D.K. Rampal, AIR 1977 SC 1146 and Buddana Venkata Murali Krishna, 2016(3) ALT 727]. Where the power to suspend is provided for either in the contract of employment or in the statute or the rules framed thereunder, the order of suspension has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service, and the master is not bound to pay his full salary and allowances. [Balvantrai Ratilal Patel, AIR 1968 SC 800; Hanley Vrs. Pease & Partners, Ltd., (1915) 1 KB 698; Wallwork Vrs. Fielding and Boston Deep Sea Fishing and Ice Co. Vrs. Ansell, (1922) 2 KB 66 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727 = 2015 SCC OnLine Hyd 183). the contract of service and 14. If the order of suspension is a valid order, it has suspended the government servant is entitled to receive only such subsistence allowance as might be payable under the rules and regulations governing his terms and conditions of service. (D.K. Rampal, AIR 1977 SC 1146). As an employer can suspend an employee pending an inquiry into his conduct, the only question that can arise, on such suspension, will relate to the payment during the period of such suspension. If there is a provision in the Rules W.P.(C) No.41425 of 2023 Page 18 of 92 for the scale of payment during providing suspension, the payment would be in accordance therewith. On general principles, therefore, the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental inquiry into his conduct or pending a criminal in a proceeding, which may eventually result departmental inquiry against him. [R.P. Kapur, AIR 1964 SC 787; V.P. Gidroniya, (1970) 1 SCC 362; U. Jormanik Siem, AIR 1961 SC 276; Balvantrai Ratilal Patel, AIR 1968 SC 800; Tarak Nath Ghosh, (1971) 1 SCC 734; Bimal Kumar Mohanty, (1994) 4 SCC 126 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727 = 2015 SCC OnLine Hyd 183]. 15. An order of suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority should also keep in mind the public interest of the impact of the delinquents’ continuance in office while facing departmental inquiry or trial of a criminal charge. [Ashok Kumar Aggarwal, (2013) 16 SCC 147; Bimal Kumar Mohanty, (1994) 4 SCC 126; R.P. Kapur, AIR 1964 SC 787; Balvantrai Ratilal Patel, AIR 1968 SC 800 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727]. The importance and necessity of proper disciplinary action being taken against government servants for inefficiency, dishonesty or other suitable reasons, cannot be over emphasised. While such action may be against the immediate interest of the government in the servant, yet interests of the general public for serving whose interests the government machinery exists and functions. Suspension of a government servant, pending an enquiry, is a necessary part of the is absolutely necessary it W.P.(C) No.41425 of 2023 Page 19 of 92 procedure for taking disciplinary action against him. [Khem Chand Vrs. Union of India, AIR 1963 SC 687]. 16. Ordinarily, a Government servant is placed under suspension to restrain him from availing the further opportunity to perpetrate the alleged misconduct or to scuttle the inquiry or investigation or to win over the witnesses or to impede the progress of the investigation or inquiry, etc. It would also remove the impression, among members of the service, that dereliction of duty would pay. [Ashok Kumar Aggarwal, (2013) 16 SCC 147; Bimal Kumar Mohanty, (1994) 4 SCC 126 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727 = 2015 SCC OnLine Hyd 183]. When serious allegations of misconduct are imputed against a member of a service, normally it would not be desirable to allow him to continue in the post where he is functioning. The Government may rightly take the view that an officer, against whom serious imputations are made, should not be allowed to function anywhere before the matter has been finally set at rest after proper scrutiny and holding of departmental proceedings. [Tarak Nath Ghosh, (1971) 1 SCC 734]. The purpose of suspension facilitate a is generally departmental enquiry and to ensure that, while such enquiry is going on, it may relate to serious lapses on the part of a public servant, he is not in a position to misuse his authority in the same way in which he might have been charged to have done so in the [R.P. Kapur, AIR 1964 SC 787 and enquiry. Buddana Venkata Murali Krishna, 2016 (3) ALT 727 = 2015 SCC OnLine Hyd 183]. to 17. The effect on public interest, due to the employees’ is also a relevant and continuation in office, W.P.(C) No.41425 of 2023 Page 20 of 92 determining factor. Suspension is a device to keep the delinquent out of the mischief range. The purpose is to complete the proceedings unhindered. Suspension is an interim measure in the aid of disciplinary proceedings, so that the delinquent may not gain custody or control of papers or take advantage of his position. At this stage, it is not desirable for the court to find out as to which version is true when there are claims and counter claims on factual issues. [Ashok Kumar Aggarwal, (2013) 16 SCC 147 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727 = 2015 SCC OnLine Hyd 183]. No conclusion can be arrived at without examining the entire record. It is always advisable to allow disciplinary proceedings to continue unhindered. If he is exonerated, he would then be entitled to all the benefits from the date of the order of suspension. [U.P. Rajya Krishi Utpadan Mandi Parishad Vrs. Sanjiv Rajan, 1993 Supp (3) SCC 483; Bimal Kumar Mohanty, (1994) 4 SCC 126 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727]. The usual ground for suspension, pending a criminal proceeding, is that the charge is connected with his position as a government servant or is likely to embarrass him in involves moral the discharge of his duties or turpitude. In such a case a public servant may be suspended pending investigation, enquiry or trial relating to a criminal charge. [R.P. Kapur, AIR 1964 SC 787 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727 = 2015 SCC OnLine Hyd 183]. 18. The power of suspension should, however, not be exercised in an arbitrary manner and without any reasonable ground or as a vindictive misuse of power. A suspension order cannot be actuated by mala fides, arbitrariness, or be passed for an ulterior W.P.(C) No.41425 of 2023 Page 21 of 92 the gravity of purpose. [Ashok Kumar Aggarwal, (2013) 16 SCC 147 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727]. An order of suspension should not be passed in a perfunctory or in a routine and casual manner, but with due care and caution after taking all factors into account. [Ashok Kumar Aggarwal, (2013) 16 SCC 147 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727]. It should be made after the alleged consideration of misconduct or the nature of the allegations imputed to the delinquent employee. The authority should also take into account all available material as to whether, in a given case, it is advisable to allow the delinquent to continue to perform his duties in the office or his retention in office is likely to hamper or [Ashok Kumar Aggarwal, frustrate the (2013) 16 SCC 147 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727]. Ordinarily, an order of suspension is 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 it, on application of mind by the 9 [Ashok Kumar Aggarwal, disciplinary authority. (2013) 16 SCC 147; Bimal Kumar Mohanty, (1994) 4 SCC 126 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727]. inquiry.