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  • S. Sarwar Ali
  • S.K Choudhary, JJ.
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  • S. Sarwar Ali
  • S.K Choudhary, JJ.
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Smart Summary

Judgment Summary — Sarwar Ali, J. (with S.K. Choudhary, J. concurring)

Factual and Procedural Background

The State Department of Agriculture operated seed-production farms at Piprakothi and Musahari under the supervision of Junior Assistant Agronomists and overall control of the Regional Director, Agriculture Research Institute, Dholl (Muzaffarpur). For the 1969–70 crop year potatoes produced at those farms (1177.40 quintals and 769.60 quintals respectively) were stored in cold storage under tender; Himalaya Ice and Cold Storage (proprietor: Sri Jugal Kishore Banka) was one of the contractors whose tender was accepted.

The stored potatoes deteriorated. On 24.10.1970 Sri Banka wrote to the Junior Assistant Agronomist stating that he had discarded part of the potatoes, sold some damaged potatoes and retained proceeds to adjust storage rent, attributing deterioration to machinery breakdown. The Director of Agriculture called for explanations from several persons, including the petitioners in these writs.

Criminal and civil proceedings were initiated against Sri Banka: a criminal trial court on 8.3.1975 committed Sri Banka to the Court of Session (a Criminal Miscellaneous application challenging that commitment is pending in this Court), and Money Suit No. 28 of 1973 was filed to recover damages. It was decided to file an additional suit for damages which had not yet been filed.

On 18.8.1977 orders of suspension (Annexure-1) were issued suspending the petitioners; the petitioners filed writ applications (including C.W.J.C. Nos. 2146, 2149/77 and 1493/77) seeking quashing of those suspension orders.

Legal Issues Presented

  1. Whether Annexure-1 lawfully suspended the petitioners by stating they were "prima facie found guilty" of misappropriation of foundation seed potatoes where, according to the respondent's own affidavits, there was no material to support such a prima facie conclusion.
  2. Whether an order of suspension that, by express decision, is to continue and no departmental enquiry is to be held until disposal of a connected criminal case against another person is permissible under the Bihar Service Code (notably Rules 99 and 100), or whether such an indefinite suspension is arbitrary and unsustainable.
  3. Whether the State's asserted "subjective satisfaction" in passing the suspension order renders the order non-justiciable.

Arguments of the Parties

Petitioners' Arguments

  • The suspension purportedly rested on a finding that the petitioners had misappropriated foundation seed potatoes, but there was no material to support even a prima facie finding of actual misappropriation; the State consistently asserted that Sri Banka was the one who had misappropriated.
  • The suspension order is penal in nature and was passed without adherence to principles of natural justice.
  • Earlier steps (explanations sought in 1970, later promotions, and decisions to sue Sri Banka) indicated that the petitioners' explanations had been accepted and that there were no allegations justifying action against them.
  • Delay of seven years between the incident and the initiation of departmental steps amounted to arbitrary and mala fide exercise of power.
  • The suspension was made before framing of departmental charges, rendering it illegal.
  • The Government decided to suspend the petitioners and to withhold departmental enquiry until the criminal cases against Sri Banka were disposed of; that form of suspension is not contemplated by the Bihar Service Code and is arbitrary.
  • Specifically for C.W.J.C. 1493/77: Government records showed the petitioner was not found at fault until 14.7.1977, making the sudden suspension arbitrary in the circumstances.

State's Arguments

  • The State's counsel contended that Annexure-1 reflected the subjective satisfaction of the Government and that such an order was not justiciable (i.e., not open to court review on the basis of the Government's stated subjective satisfaction).
  • On the wording of Annexure-1 the State argued that the petitioners were prima facie found guilty "in connection with" the misappropriation (a narrower reading), rather than being prima facie found guilty of actual misappropriation.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Somar Puri v. Shyam Narain Gir, AIR 1954 Patna 586 When words in a document are clear, courts should not put a gloss on the language used; plain meaning controls. The court relied on this principle to interpret Annexure-1's wording ("Gaban Ke Arop Ke Lie") as stating the petitioners were prima facie found guilty of misappropriation (not merely involved "in connection with" misappropriation), and held that the clear language must be accepted.
Barium Chemicals Ltd. v. Company Law Board, A.I.R. 1967 S.C. 295 at 383 Authority for the proposition that an asserted subjective satisfaction by an administrative body is not necessarily immune from judicial review. The court cited this decision to reject the State's argument that the Government's subjective satisfaction rendered the suspension order non-justiciable; the court held that absent factual foundation for a reasonable conclusion of guilt, the order could be quashed.
Secretary of State v. Tameside, 1976-3-All E.R. 665 (per Lord Diplock) Failure by an authority to ask itself the right question and to take reasonable steps to acquaint itself with relevant information amounts to misdirection in law. The court applied this principle to find that the authority that passed Annexure-1 did not take reasonable steps to obtain and consider relevant information and thus misdirected itself in law, supporting quashing of the suspension.

Court's Reasoning and Analysis

The court limited its consideration to the petitioners' key contentions, especially that the suspension purported to be based on a prima facie finding of misappropriation (paragraph 5(a)) and that the Government's decision was to suspend and withhold departmental enquiry until the criminal proceedings against Sri Banka were disposed of (paragraph 5(f)).

The first analytical step was textual: the court examined Annexure-1's language. Applying the settled rule that clear words in a document must be given their plain meaning (citing Somar Puri v. Shyam Narain Gir), the court concluded that Annexure-1 stated that the petitioners were prima facie found guilty of misappropriation ("Gaban Ke Arop Ke Lie"), not merely involved in matters connected with misappropriation. The court rejected the narrower construction urged for the State (that the petitioners were prima facie guilty only "in connection with" the misappropriation).

The court then compared that textual reading with the evidentiary record: the counter-affidavit filed by the State showed there was no material on which a prima facie inference could be drawn that the petitioners actually misappropriated seed potatoes. Because there was no factual foundation for the positive conclusion stated in Annexure-1, the suspension order was unsustainable on that basis alone.

The State's contention that the order rested on the Government's subjective satisfaction and was therefore non-justiciable was rejected. The court referred to the Supreme Court authority in Barium Chemicals Ltd. to the effect that such subjective satisfaction does not place an administrative act beyond judicial review where the factual foundation is lacking. The court found the authority that passed Annexure-1 had not asked itself the right question nor taken reasonable steps to acquire relevant information — conduct characterized as misdirection in law, with direct reference to Secretary of State v. Tameside (Lord Diplock's formulation).

Turning to the announced policy disclosed in paragraph 14 of the supplementary affidavit (undisputed), the court noted the Government had decided both to suspend the petitioners and not to hold departmental enquiry until the criminal cases against Sri Banka were disposed of. The court examined the Bihar Service Code (Rules 99 and 100) and concluded those rules do not contemplate suspension of an officer indefinitely because of pendency of criminal proceedings against another person. The court distinguished the common-law master-and-servant situation (where an employer may forbid work and the servant retains full pay) from the statutory discipline regime under the Bihar Service Code, where suspension typically results in subsistence allowance rather than full pay. Given this statutory framework, the court held that the indefinite suspension contemplated by the Government could not be sustained.

In light of: (a) the clear but unsupported finding of prima facie guilt in Annexure-1; (b) the absence of factual material to sustain such a finding; (c) the authority's failure to take reasonable steps to acquaint itself with relevant information; and (d) the undisputed governmental decision to suspend pending the criminal case against another person, the court concluded Annexure-1 was legally unsustainable.

The court expressly limited its disposition: although each petitioner had been served with a departmental charge-sheet after the suspension, the court did not express any opinion about the validity of those charge-sheets or about the continuance of any proposed departmental proceedings.

Holding and Implications

Holding: The court quashed Annexure-1 in all three writ applications and allowed the applications. The core ruling is stated as: Annexure-1 (the suspension orders dated 18.8.1977) is quashed; the applications are allowed.

Implications:

  • Direct effect on the parties: The suspension orders that had been issued against the petitioners were quashed. The petitioners are thereby relieved of the suspensions imposed by Annexure-1.
  • The court did not determine or endorse the validity of subsequent departmental charge-sheets served after the suspension; it declined to express any view about the continuance of proposed departmental proceedings.
  • The court's decision was grounded on the mismatch between the clear wording of the suspension orders and the absence of evidentiary material to justify a prima facie finding of actual misappropriation, and on the unsustainability of an indefinite suspension ordered to last until resolution of criminal proceedings against a third party under the Bihar Service Code.
Application allowed.
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    Dr. Shyama Nand Singh v. Vindeshwar Choudhary

    Sarwar Ali, J.:— These writ applications have been heard one after the other and are being disposed of by a common judgment. In all these writ applications the petitioners pray for quashing of the orders of suspension which are Annexure 1 in all the three applications. All these orders have been passed on 18.8.1977

    2. The department of the Agriculture of the State maintains farms at different places for seed production. Two of such farms are at piprakothi and Musahari. The farms are under the management and supervision of Junior Assistant Agronomist. The Regional Director of Agriculture Research Institute, Dholl, (Muzaffarpur) had over all control over the farms and the officers concerned. In the year 1969-1970 the total production of potatoes in the two farms aforesaid was 1177.40 quintals and 769.60 quintals respectively. For safe storage of these potatoes tenders were invited from different Cold Storages. Himalaya Ice and Cold Storage, Muzaffarpur, was one of the tenders. Its tender having been accepted, potatoes were stored in the said cold storage. It may be stated that Sri Jugal Kishore Banka was the proprletor of the said firm. For reasons which need not be discussed here the potatoes which were stored in the said cold storage deteriorated. On 3.11.1970 Junior Assistant Agronomist received a letter dated 24.10.1970 from Sri Banka wherein he Intimated that he had thrown away the deteriorated potatoes and partly sold the damaged potatoes and he had kept the sale proceed with himself for adjusting towards the rental of the cold storage. In the said letter it was storage that deterioration took place due to the breakdown of machineries. The entire matter having been brought to the notice of the Director of Agriculture, Bihar, explanations were called for from different persons including the petitioners. Subsequently it was decided to file criminal and civil cases against Sri Banka. The petitioners in C.W.J.C Nos. 2146 and 2149/77 filed complaint petitions against Sri Banka for misappropriation of seed potatoes which were entrusted to Himalaya Ice and Cold Storage. In the criminal cases the trial court has passed an order on 8.3.1975 committing Sri Banka to the court of Sessions. A Criminal Miscellaneous application being Criminal Miscellaneous No. 4313 of 1975 challenging the order aforesaid is pending in this Court. A civil suit has also been filed bearing money suit No. 28 of 1973 in respect of the damage sustained by the State in relation to part of the potatoes entrusted to the Cold Storage. It has been decided to file another suit for damages but the suit has not been filed as yet (for reasons which need not be discussed here).

    3. It is in the context of the damage and loss sustained by the State of Bihar in relation to the storage of the potatoes aforesaid that the impugned orders of suspension have been passed.

    4. In the view that we are taking in this case it is not necessary to give further facts in detail but it would be proper to notice some of the main contention that have been urged in this case. We, may, however, Indicate that it would be necessary to adjudicate in relation to some of the contentions only.

    5. On behalf of the petitioners in C.W.J.C Nos. 2146 and 2149/77 it has been contended that:—

    (a) The suspension of the petitioners is for having misappropriated foundation potatoes seeds stored in the Cold Storage. There was no material on the basis of which even a prima facie conclusion to this effect could have been arrived at. Indeed the State has throughout asserted that it was Sri Banka who had misappropriated. The order of suspension has thus been passed without application of the mind to the materials that were available to the State. Such an order is not sustainable in law.

    (b) The impugned order is penal in nature. It can only be passed after complying with the requirements of natural justice. This not having been done the order is fit to be set aside.

    (c) The petitioners were asked to give explanation as early as in the year 1970. Thereafter the petitioners were promoted. There was also decision to file criminal and civil cases against Sri Banka. All these lead to the irresistible conclusion that the explanation of the petitioners had been accepted and there were no allegations against the petitioners which could form a basis of any action against them.

    (d) Taking the totality of the facts and circumstances into consideration the start of departmental proceedings after seven years of the incident amounts to arbitrary exercise of power and is; therefore, mala-fide in law.

    (e) The impugned orders were passed before framing of charges against the petitioners. The orders of suspension were thus illegal.

    (f) The State has decided to suspend the petitioners and not to hold departmental proceedings till the disposal of the criminal case against Sri Banka. This kind of suspension is not envisaged in law and amounts to arbitrary exercise of power.

    6. On behalf of the petitioner in C.W.J.C 1493/77 it was further contended that the Government records themselves show that the petitioner was never found to be at fault till 14-7-1977. A sudden decision to suspend the petitioner could not but be said to be arbitrary in the facts and circumstances of the case.

    7. In my view these writ applications can be disposed of on consideration of the contentions mentioned in paragraph 5(a) and (f). It is, therefore, first necessary to see as to what Annexure-1 purports to do. That it suspends the petitioners is not in dispute. It is the ground or reason for which action is taken which is subject matter of controversy. Learned counsels for the petitioners says that the order of suspension has been passed because, according to Annexure-1, the petitioners have been prima facie found guilty of misappropriation of foundation seed potatoes. Learned counsel for the State on the other hand says that Annexure-1 means that the petitioners have been found prima facie guilty in connection with the misappropriation of seed potatoes. We have, therefore, to examine the wording of the ianguage employed in Annexure-1. It is well settled that where the words used in a document are clear, there is be scope for putting gloss over the language used See (1) Somar Puri v. Shyam Narain Gir AIR 1954 Patna 586. Here also the language is clear and explicit. What has been stated is that the petitioners have been found guilty of misappropriation, and not that they have been found guilty of playing some part in connection with the misappropriation of potato seeds. The words used are “Gaban Ke Arop Ke Lie”. Had the Intention been as suggested by the learned counsel for the State, words like “Gaban Ke Arop Ke Sambandh Men’ or similar words would have been used. I am, therefore, clearly of the view that the language employed in Annexure-1, is clear and as such it has to be held that, as disclosed in Annexure-1, the petitioners have been suspended on the ground that they were prima facie found guilty of misappropriation of potato seeds. If that be the correct Interpretation of Annexure-1, I have no doubt that the aforesaid Annexure is unsustainable in law. A perusal of the counter affidavit filed on behalf of the State makes it clear that there was no material on the basis of which an inference could be drawn that the petitioners had actually or factually misappropriated seed potatoes. Thus there was no material on the basis of which a prima facie conclusion could be arrived at that the petitioners were guilty of actual misappropriation of seed potatoes. On this ground alone the order contained in Annexure-1 in all the three applications is fit to be quashed.

    8. Learned counsel for the State contended that the order of suspension is passed on subjective satisfaction of the State Government. Such an order was not justiciable. We do not think that this argument can be accepted, contrary as it is to the decision of the Supreme Court see (2) Barium Chemicals Ltd. v. Company Law Board. A.I.R 1967 S.C 295 at 383. Had there been factual foundation on the basis of which reasonable conclusion could be arrived at that the petitioners were guilty of actual misappropriation it would have been a different matter. Here it appears that the authority passing the Impugned order did not ask itself the right question and take reasonable step to acquaint itself with the relevant information to enable it to answer it correctly. This amounts to misdirection in Law sec. (3) Secretary of State v. Tameside 1976-3-All England Report 665, 696 per Lord Diplock. I am therefore, of the view that Annexure-1 is fit to be quashed for the reasons already discussed.

    9. Paragraph-14 of the supplementary affidavit which has not been denied, clearly disclosed that the decision of the Government is to suspend the petitioners and not to hold departmental enquiry till the disposal of the criminal cases against Sri Banka. Learned counsel for the petitioners contended and. In my view, rightly that the Bihar Service Codek does not envisage suspension of this nature. The relevant rules in relation to suspension are Rules 99 and 100. These rules do not envisage that because of pendency of a criminal proceedings in a connected matter against some other persons a public servant should be suspended and the suspension should continue indefinitely till the disposal of the criminal case against such person. True it is that under the general law of master and servant a master may forbid the servant from working. In such a situation the servant is entitled to full pay. The present order, however, is not of that nature. It is an order of suspension in the purported exercise of powers under the Bihar Service Code where the Government Servant is only entitled to the subsistence allowance and not fully pay. In the circumstances indefinite suspension of the petitioners cannot be sustained.

    10. I am therefore, of the view that Annexure-1 to all the three writ applications has to be quashed and I would order accordingly.

    11. After the order of suspension was passed each of the petitioners have been served with a charge-sheet. I am not expressing any opinion about the validity of the same or about the continuance of the departmental proceeding which is proposed, it appears, to be taken against the petitioners.

    12. S.K Choudhary, J.:— I agree.

    Application allowed.

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    Comments

    Dr. Shyama Nand Singh v. Vindeshwar Choudhary
    (Apr 18, 1978)