P. Lingamurthy v. Government Of Andhra Pradesh

1. The petitioner is serving as Deputy Manager in the Production Centre in the establishment of the second respondent-Society for Training & Employment Programme in the Twin Cities (SETWIN). The petitioner was placed under suspension by the proceedings of the Managing Director of the SETWIN dated 13-3-1996 under Rule 23(iv) of the SETWIN Employees Conduct, Discipline and Appeal Rules, 1983, for short 'the CCA Rules' pending further investigation and enquiry against the petitioner. This order was issued by the Managing Director in pursuance of the order of the Government, G.O. Rt. No.218, Industries and Commerce (SES) Department dated 12-3-1996 directing the management of SETWIN to place the petitioner and four others under suspension pending enquiry. The Government, further, by the impugned proceeding, G.O. Rt. No.235, Youth Advancement Tourism and Culture (Ses) Department dated 18-6-1998 continued the suspension of the petitioner beyond 12-3-1998.

2. No charges are yet framed against the petitioner. However, in the counter filed by the first respondent it is stated that the enquiry revealed that the petitioner had drawn a sum of Rs.45,000/- as advance for purchase of raw materials, but he failed to produce the relevant vouchers, stock entries, and he did not choose to get the advance adjusted immediately. Nothing concrete is said or laid in the counter filed by the management of SETWIN justifying the continued suspension of the petitioner. The allegations arc vague and general in nature.

3. The only question which arises for consideration is whether the continued suspension of the petitioner, in the facts and circumstances of the case, is justified and legal or whether it is arbitrary and unreasonable.

4. The power of the management of SETWIN to place the petitioner under suspension in contemplation of and/or pending departmental enquiry is not contested before the Court. The power of suspension or to extend the period of suspension has to be exercised with circumspection, care and after application of mind. The employer must make a fair and proper assessment of the matter in the given circumstances and carefully scrutinise that prima facie there exists grave and compelling circumstances which in the light of the material available and collected during the preliminary enquiry or investigation would lead to the likelihood of the removal or dismissal of the employee from service. Although suspension of an employee in contemplation of or pending enquiry as such does not violate any of his legal right, it should not be forgotten that the suspended employee is subjected to social ridicule, condemnation and humiliation; he is looked down by colleagues, friends, kith and kin and he lives a life of tarnished image, infamy and agony. A proper judgment exercised would prevent unnecessary harassment and humiliation of suspension. Suspension should not be resorted to as a matter of course unless the allegations against the employee are serious. The employer, before resorting to suspension, shall consider whether the continuation of the delinquent would be detrimental to public interest or would hamper the enquiry or whether the delinquent, if continued in the post, is likely to tamper with official records relating to the allegation or charge or influencing the witnesses. If there are no such facts, suspension of delinquent will not be justified. The Calcutta High Court, in the case of U.S. Singh v. Coal India Limited, 1994 (2) SLR (Calcutta) 77, held that an order of suspension shall not be made in an arbitrary manner and any order of suspension, if casually made, will cause harm and suffering to the concerned employee. If after suspension enquiry is unduly delayed or prolonged, then, it will be an indication to show that the suspension is not bona fide. An employee who is placed under suspension in contemplation of enquiry or pending enquiry is entitled to ask on suspension that the matter should be investigated within the reasonable period of time, and if such a principle of natural justice is not recognised, then, it would imply that the employer is vested with a totally arbitrary and unfettered power of placing its employees under disability and distress for an indefinite duration. The suspension order is bad if it is not followed by the charge-sheet within reasonable time. It is unjust on the part of the employer to pass an order of suspension and then not to take any further action for years.

5. In the instant case the petitioner was placed under suspension more than 31 months back and till date no charges are framed. There is no reasonable explanation for this inordinate delay. The only defence purforth in the counter-

affidavits filed by the respondents is that the preliminary enquiry/investigation is

"entrusted to CBCID and the investigation is under progress and the outcome of the report is awaited,"

It is not the case of the respondent tliat the petitioner is involved in a scries of malpractices and blame-worthy transactions and therefore the CBCID requires more time to investigate into malpractices. The only allegation as set out in the counter is that the petitioner drew a sum of Rs.45.000/- as advance for purchase of raw materials, but he has failed to produce the relevant vouchers, stock entries and he did not choose to get the advance adjusted immediately. I am at a loss to understand how more than 31 months time is not sufficient for the CBCID to investigate and submit report. The investigating agency cannot take its own time for investigation which is comparable to a preliminary enquiry at its pleasure and at the peril of the delinquent employee; it is expected that the investigating agency should act with promptitude and diligence. That is why this Court in number of opinions handed down in the cases involving review of suspension orders held that an employer having placed an employee under suspension in contemplation of or pending enquiry should act with promptitude and diligence, frame the charges within the reasonable time and conduct and conclude the enquiry and pass appropriate order without much loss of time. Such a course is not only imperative in the interest of the charged employee but also in the best interest of the maintenance of healthy employer-employees relationship and to maintain harmony in an organisation or an industry. Be that as it may, if there is a delay on the part of the CBCID in investigating and submitting the report, the respondents should have taken up the matter with the CBCID and directed it to investigate and submit the report without much loss of time. It is not forthcoming from the records that such a course was adopted by the respondents.

6. The Orissa High Court in Manasaranjan Das v. State of Orissa, 1973 (2) SLR 553 (Ori HC), while reviewing the validity of the suspension order of an employee held that if there was a delay on die part of the Vigilance department in investigating the offence, then the department should have taken up the matter with the police authority and that the prolonged suspension of the employee was unjustified. To the same effect is the decision of the Supreme Court in Bharat Sugar Mills Ltd. v. Jai Singh, 1961 (2) LLJ 644 (SC). The Madras High Court in D.S. Mohammed Khan v. Secretary to Government, Rural Development and Local Administration Department, 1983 Lab.IC 1743 (Mad- HC) held that an employee cannot indefinitely be kept under suspension pending issue of charge-sheet and the continued suspension of the employee is penal in character. In the case of J. S. Chauhan v. State of U.P., 1978 SLJ 421 the Court held that the continued suspension of the employee for a period of 2-1/2 years without framing the charge-sheet and without any reasonable explanation for the delay is unjustified. These decisions show that even in those cases where there is no time limit to issue charge-sheet after suspension; the employer is obligated to investigate into the allegations and frame charges and conclude the disciplinary proceedings within a reasonable time with diligence and promptitude.

7. The Government of Andhra Pradesh has issued G.O.Ms. No. 86, General Administration (Services-C) Department dated 8-3-1994. Sub-clause (iii) of Clause 3 of the Government Order provides for an outer limit of two years for suspension of a public servant and it states tliat only in exceptional cases having regard to the gravity of the charges levelled against an employee, suspension be extended beyond a period of two years. Here is a very pathetic case. The outer limit of time prescribed under the above Government Order spent itself even before the charges are framed. The charge to be framed against the petitioner-delinquent is not in the sight anywhere and it seems to be indefinite. In that view of the matter, it should be held that the continued suspension of the petitioner by the impugned order of the Government without disclosing reasons is unjustified and unwarranted. Even then, the Court would not have intervened if the respondents are likely to frame the charges against the petitioner in the near future. In the course of the hearing, the Court pointedly asked the learned Counsel appearing for the respondents as to whether the respondents intend to frame the charges against the petitioner in the near future. There is no satisfactory and responsible response to the Court's query. On the other hand, stock reply of the learned Counsel for the respondents is that investigation is pending and they would take steps only after submission of the report by the CBCID and that it is the prerogative of the employer to place an employee under suspension in contemplation of or pending departmental enquiry. There is no sign of the second respondent framing the charges against the petitioner in the near future and the respondents do not show any inclination or anxiety or urgency to frame the charges without further loss of time. The lamentable callousness of the respondents cannot be countenanced by the Court. The power of employer to place the employee under suspension in contemplation of or pending departmental enquiry, which power repeatedly called' 'prerogative'' by the learned Government Pleader in her wisdom, is not a Royal prerogative nor a prerogative of an absolute monarch or despot. The power vested in the employer to place an employee under suspension is not an absolute power. The word "absolute power" does not find a place in the dictionary of our Constitutional and Administrative Laws. The power to suspend an employee vested in the respondents is a public power; every public power is a limited power, and the donee of that power is expected to exercise that power reasonably and fairly and not arbitrarily and capriciously. That is what Article 14 mandates and commands.

8. In the result, the writ petition is allowed with no order as to costs and the impugned order of the Government G.O. Rt. No.218, Industries and Commerce (SES) department dated 12-3-1996 is quashed. However, it is made clear that this order shall not come in the way of the respondents framing the charges and conducting departmental enquiry against the petitioner. Liberty is also reserved to the respondent to seek review of this order if they find the petitioner indulging in tampering of the official records relating to the allegations or influencing the witnesses.