1. This petition has been filed seeking the following main reliefs;
"(A) Direct the respondent that the suspension order dated 23.08.2006 (Annexure-A) stands invalid after completion of 90 days from the suspension date and after completion of that period, the petitioner is to be treated as on duty on original post which he was holding prior to suspension order.
(B) The respondent may please be directed to reinstate the petitioner and pay him regular full salary from aforesaid date along with consequent benefits including revised pay scale and retiral benefits after his retirement along with consequent benefits from aforesaid date.
(C) Direct the respondent to pay subsistence allowance as per rate of 3/4th of his revised basic wages plus dearness allowance for the period beyond three months from the suspension date."
(D) & (E) ....
2. The facts in brief are that while the petitioner herein was serving as Master Technician with the respondent-Indian Oil Corporation, a criminal complaint was registered against him by a Bank for offences punishable u/s.406, 467, 468, 420 and 120-B of the Indian Penal Code. In pursuance of the filing of said complaint, the petitioner was arrested on 08.07.2006. Acting on the said incident, the respondent-Corporation suspended the petitioner from service by order dated 23.08.2006. The petitioner remained in judicial custody until 08.01.2008, i.e. when he was granted regular bail by the competent Court. After his release, the petitioner submitted an application to the respondent-Corporation whereby, the request was made to revoke the order of suspension. However, no action was taken by the respondent-Corporation on such application. Being aggrieved by the same, the present petition has been preferred.
3.0 Mr.
Shalin Mehta learned Sr. Advocate submitted that the petitioner is being paid subsistence allowance at the rate of 25% of his Basic Pay plus admissible allowances only though under the relevant Rules of the respondent-Corporation, he is entitled to get 75% of the Basic Pay plus admissible allowances as subsistence allowance. He submitted that the respondent-Corporation has not issued any order for reduction of the subsistence allowance. Hence, appropriate directions may be issued to the respondent-Corporation to make payment of the actual subsistence allowance which the petitioner is entitled to receive.
3.1 Mr.
Mehta submitted that the petitioner was suspended from service on 23.08.2006 and that the said suspension has continued all throughout. He submitted that trial into the alleged offence is in progress before the competent criminal Court and that it would not get over in the near future. Therefore, the continuation of suspension period is arbitrary and also violative of the fundamental right guaranteed under Article 21 of the Constitution.
3.2 In the alternative, Mr. Mehta submitted that the order of suspension passed by the respondent-Corporation is bad in the eyes of law since the Corporation has not been able to show the source of the power of suspension. The Corporation is unable to show the Standing Order from which it has derived the power to suspend. Therefore also, the impugned order of suspension deserves to be revoked.
4. In support thereof, Mr. Mehta has placed reliance upon a decision of the Apex Court in the case of Chanan Singh v. Registrar, Co-operative Societies, Punjab and Other, (1976) 3 SCC 361 wherein it has been held that where the authority concerned is unable to show the power to suspend an employee pending enquiry, then such power is ultra vires and the employee is entitled to full pay.
5. Mr.
M.R. Bhatt learned Sr. Advocate submitted that the petitioner was arraigned as an accused in a very serious offence for which he had remained in judicial custody for a period of about 1 year and 5 months. He submitted that the power of revocation is inherent and that the respondent-Corporation did not deem it fit to revoke the suspension considering the seriousness of charge levelled against the petitioner.
6.0 In support of his submissions, Mr. Bhatt has placed reliance upon a decision of the Apex Court in the case of R.P. Kapur v. Union of India and Another, AIR 1964 SC 787. In that case, while enumerating the principle of Articles 311 and 314 of the Constitution, the Apex Court held that the appointing authority has power to suspend a public servant pending departmental enquiry or criminal proceedings against him.
6.1 Mr.
Bhatt has also placed reliance on another decision of the Apex Court in the case of Government of A.P. v. V. Sivaraman, AIR 1990 SC 1157 wherein, it has been held that the order of suspension continues until it is revoked in accordance with law and that it cannot be held invalid on the ground that the order continuing suspension was not issued after the prescribed period.
7. Heard learned counsel for the respective parties. It appears from the record that the petitioner was suspended from service on account of the registration of a criminal complaint against him by a Bank. The petitioner is alleged to have committed offences punishable u/s. 406, 467, 468, 420 and 120-B of the Indian Penal Code and it is reported that trial into the alleged offence is not yet over. Considering the seriousness of the charges levelled against the petitioner and since the petitioner had remained in judicial custody for a period exceeding 48 hours, the respondent-Corporation suspended him from service by order dated 23.08.2006. The said order of suspension is in operation even today. The petitioner has challenged the order of suspension mainly on the ground of arbitrariness and also being in violation of the right guaranteed under Article 21 of the Constitution.
8. It appears that the petitioner has been suspended from service on account of the pendency of criminal proceedings against him. The usual ground for suspension, pending criminal proceeding, is that the charge is connected with his position as an employee or is likely to embarrass him in the discharge of his duties or involves moral turpitude. In such a case, a public servant may be suspended pending investigation, enquiry or trial relating to a criminal charge. In my opinion, such suspension is clearly related to disciplinary matters. If the trial or criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted. The usual practice is that where a public servant is being tried on a criminal charge, the Government postpones holding a departmental enquiry and awaits the result of the criminal trial and departmental proceedings follow on the result of the criminal trial. Therefore, suspension during trial relating to a criminal charge is intimately related to disciplinary matters and the respondent-Corporation has the power to pass such order since the same is inherent and is derived from the Constitution.
9. It is true that procedure prescribed in the Standing Orders has not been followed before passing the order of suspension. However, it may be noted that the petitioner was arrested in connection with the criminal complaint in question on 08.07.2006 and had remained in judicial custody for a period of about 1 year and 5 months. The respondent-Corporation came to know about the arrest of the petitioner only when they were informed about the same by the Police Inspector, Economic Cell, Anand, vide letter dated 31.07.2006, during which time, the petitioner was in judicial custody. There is nothing on record to show that the petitioner had informed the respondent-Corporation about his arrest. Therefore, the respondent-Corporation did not have the opportunity to follow the procedure of suspension, as prescribed in the Standing Orders. The factum of arrest and detention of the petitioner came to the knowledge of the respondent-Corporation at a belated stage by which time the petitioner was in judicial custody. Therefore, undoubtedly, there was no lapse on the part of the respondent-Corporation while passing the order of suspension against the petitioner.
10. It is a matter of record that the petitioner was released on bail in connection with the criminal complaint in question after languishing in jail for a period of about 1 year and 5 months. It is reported that trial into the alleged offence is not yet over. The respondent-Corporation has continued the order of suspension on account of the pendency of criminal proceedings against the petitioner and it is vested with the power to take such decision. The petitioner cannot say that he has been subjected to arbitrariness by the respondent-Corporation on the ground that the order of suspension has not been revoked till now.
11. On general principle, the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him. The petitioner herein was arrested on 08.07.2006 and when it came to the knowledge of the respondent-Corporation that he has been detained in judicial custody for a period of more than 48 hours, he was suspended from service by order dated 23.08.2006. Thus, the ground of suspension was the arrest of the petitioner and his subsequent detention for a period of more than 48 hours. In fact, the petitioner had remained in judicial custody for a period of about 1 year and 5 months, which necessitated the respondent-Corporation to continue the suspension period for all these years. The stand taken by the respondent-Corporation of not revoking the order of suspension is just and legal. It is within the purview of the respondent-Corporation to refrain from revoking the order of suspension since the petitioner is alleged to have committed a very serious offence and the trial into the same is still pending. If, ultimately, the petitioner is acquitted from all the charges, then the respondent-Corporation may pass an order in favour of the petitioner. But, the continuation of suspension by the respondent-Corporation, during the pendency of criminal proceedings against the petitioner, is intra vires and the respondent-Corporation is justified in not revoking the order of suspension.
12. In the case of V. Sivaraman (supra), the Apex Court has categorically held that the order of suspension continues until it is revoked in accordance with law. In the present case, it appears that the respondent-Corporation has not revoked the order of suspension on account of the pendency of criminal proceedings against the petitioner. The continuation of suspension period for a long time would not grant an automatic right to the petitioner of being reinstated in service. The petitioner could not claim reinstatement until the order of suspension is revoked by the respondent-Corporation. Thus, the contention raised that the petitioner has been subjected to arbitrary treatment and his fundamental right has been violated is misconceived and devoid of any merits.
13. The decision in the case of Chanan Singh (supra) relied upon by learned counsel for the petitioner is, undoubtedly, a good law but, the same shall not apply to the present case since the order of suspension has been passed on account of the pendency of criminal proceedings against the petitioner. In that case, the appellant was charged with misconduct and was, therefore, suspended from service. However, it was found that the authority concerned, who had passed the order of suspension, was not authorized to pass such order and therefore, the order of suspension was quashed. However, in this case, the authority concerned, who has passed the order of suspension, is vested with the jurisdiction to pass such order. In fact, it is not even pleaded on behalf of the petitioner that the order of suspension is without jurisdiction. The authority concerned has passed the order of suspension, in exercise of the powers derived from the Standing Orders of the respondent-Corporation, which has its origin in Article 314 of the Constitution. Therefore, it cannot be said that the respondent-Corporation did not have the power to pass the order of suspension.
14. On the issue of subsistence allowance, it is the case of the petitioner that he is being paid subsistence allowance at the rate of 25% of his Basic Pay plus admissible allowances though under the relevant Rules of the respondent-Corporation, he is entitled to get 75% of the Basic Pay plus admissible allowances, as subsistence allowance. Along with the memo of petition, a copy of the Standing Orders in respect of the respondent-Corporation has been annexed vide Annexure-E. Rule 24-(IV) of the Standing Orders pertain to "suspension pending enquiry". Sub-clause (d) of Rule 24-(IV) is relevant for our purpose and therefore, the same is reproduced here under for ready reference;
"(d) An employee under suspension shall be entitled to subsistence allowance equal to half his basic wages plus dearness allowance equal to half his basic wages plus dearness allowance for the period of his suspension. If, however, the period of his suspension exceeds 3 months for reasons to be recorded in writing, for which the employee is not responsible, subsistence allowance will be at the rate of 3/4 th of his basic wages plus dearness allowance for the period beyond 3 months. Where, however, the employee is responsible for extension of the suspension period beyond 3 months, the amount of his subsistence allowance may be 1/4th of his basic wages plus dearness allowance for the period beyond 3 months. The payment of subsistence allowance will be subject to a written declaration by the employee that he is not engaged in any other employment, business, profession or vocation."
14.1 It is undisputed that the petitioner is being paid subsistence allowance at the rate of 25% of his Basic Pay plus dearness allowance during the suspension period. The order of suspension was passed on 23.08.2006 and it has not been revoked so far. Indisputably, the petitioner is not responsible for extension of the suspension period in excess of three months. In the above background, the petitioner would, therefore, be entitled to receive subsistence allowance at the rate of 75% of his Basic Pay plus dearness allowance instead of 25% in view of the provision of Clause (d) of Rule (IV). Of course, the same shall be subject to his giving a written declaration that he is not engaged in any other employment, business, profession or vocation.
14.2 Under the circumstances, the petitioner is entitled to get subsistence allowance at the rate of 75% of his Basic Pay plus dearness allowance for the period of suspension subject to his filing a written declaration before the respondent-Corporation that he is not engaged in any other employment or business.
15. In view of the above discussion, I find no merits in the present appeal. However, on the issue of subsistence allowance, it is held that;
(I) The petitioner is entitled to get subsistence allowance at the rate of 75% of his Basic Pay plus dearness allowance instead of 25% of the Basic Pay plus dearness allowance in view of the provision of Clause
(d) of Rule 24-(IV).
(II) The petitioner shall be paid subsistence allowance at the rate of 75% of his Basic Pay plus dearness allowance for the entire period of suspension subject to his filing a written Declaration that he is not engaged in any other business, profession or employment.
(III) The arrears of subsistence allowance shall be paid within a period of one month from the date of receipt of writ of this order and written Declaration from the petitioner, as required under Clause (d) of Rule 24-(IV), whichever is later.
(IV) If, ultimately, the petitioner is acquitted from the criminal charges, the respondent-Corporation may revoke the order of suspension within a period of one month, if it deems it appropriate.
With the above observations and directions, the petition stands disposed of.
[K.
S. JHAVERI, J.] Pravin/* Top