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Santi Kumar Ganguly v/s The State of Tripura & Others

    Civil Rule No. 9 of 1980

    Decided On, 27 January 1981

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE N. IBOTOMBI SINGH

    For the Petitioner: A.K. Lodh, Advocate. For the Respondents: P.K. Mazumdar, Govt. Advocate.



Judgment Text

Singh, J.

1. The petitioner was a senior lecturer in Economics in N.B.B. College, Agartala, and he was confirmed to that post with effect from 27.6.69. He was transferred on 20.1.1976 to the Bir Bikram Evening College and was declared Head of the Department, Department of Economics. He was subsequently designated as Assistant Professor. While working in that capacity in B.B. Evening College, by an order of the Governor of Tripura, dated 9.9.1979, he was suspended on 26.10.79 under sub-rule (1) of rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, as applicable to the employees of the Government of Tripura, (hereinafter called the ‘said Rules’). The circumstances under which the petitioner was placed under suspension were the alleged tampering of figures in G.P.F. statement of accounts and submission of withdrawal application showing such alleged tampered figures which were considered to be a gross misconduct for a Government servant. The petitioner made representation on 22.11.1979 to the Respondent No. 2, Secretary to the Government of Tripura, Education Department, Agartala, for revocation of the suspension order, but no action was taken on it, whereupon the petitioner after demand notice filed the present writ petition on 19.12.1980, challenging the validity of the suspension order and its continuance. The State of Tripura, Secretary to the Government of Tripura Education Department, Agartala and the Principal B.B. Evening College, Agartala, arrayed as Respondents in the petition, contested the writ petition by filing a joint counter-affidavit sworn to by the Secretary, Education Department, Government of Tripura. It was filed on 20.5.1980. According to the respondents, the petitioner submitted an application for an advance of Rs. 1,500/- only from his Central Provident Fund with a statement of account for the year 1977-78 i

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ssued by the office of the Accountant General Tripura, showing a balance of Rs. 22,175/-to his credit. But on comparison with the records, this figure appeared to be incorrect. The Principal, B.B. Evening College, referred the matter to the office of the Accountant General showing the General Provident Fund statement as submitted by the petitioner. The Accounts Officer of the Accountant General office intimated that the statement was incorrect and was also tampered with by the subscriber. The accounts officer of the motive behind such alleged tampering in the figures, according to the Respondents, was to enable him to get a larger amount of advance then what was actually due to him and this was considered to be a serious misconduct on the part of the petitioner. Since prima facie, it appeared to be a case of misconduct, according to the Respondents, the petitioner was placed under suspension with effect from afternoon of 26.10.1979, under sub-rule (1) of Rule 10 of the said Rules. It is also averred in the counter-affidavit on behalf of the respondents that the case has been referred to the Vigilance Authority of Tripura for investigation and the drawing up of departmental proceedings may take some time. It is, however, stated that in case it is seen that the completion of investigation of the case is likely to be delayed, then the question of revocation of the suspension order may be considered; but at this stage of the investigation, the question of revocation of the suspension order does not arise at all.

2. Mr. Lodh, learned counsel for the petitioner, made two-fold submissions. First, the suspension order is not in terms of Rule 10(1)(a) of the said Rules, as it is not in terms of Rules 10(1)(a) expressly stated in the suspension is in contemplation. In the suspension order, it is urged, it is simply stated that there are allegations under investigation against the petitioner and as such the Governor has been pleased to place him under suspension with immediate effect as per sub-rule (1) of Rule 10 of the said Rules. In substance, his argument is that the authority has power to suspend a Government servant only when the authority forms an opinion that a disciplinary proceeding against him is in contemplation; and at a stage anterior to the formation of such an opinion, it cannot be said that a disciplinary proceeding is under contemplation.

3. Learned Government Advocate submits that the circumstances under which the order of suspension was made were mentioned in the order of suspension itself and that on the consideration of the allegations, the Disciplinary Authority was satisfied itself that the allegations have some substance and that in due course formal disciplinary proceeding might be taken against him, though further investigation was considered necessary to collect more materials. It is contended that the suspension order was in compliance with Rule 10(1)(a) of the said Rules.

4. The controversy, therefore, centres on the meaning and scope of the expression ‘where a disciplinary proceeding against him is contemplated’ appearing in clause (a) of sub-rule (1) of Rule 10 of the said Rules.

5. According to the Oxford English Dictionary, Volume II, page 893, the word ‘contemplate’ means-

1. To look at with continued attention, gaze upon, view, observe; To observe or look at thoughtfully.

2. To view mentally; to consider attentively, mediate upon, ponder, study.

3. To consider in a certain aspect; to look upon; regard.

4. To have in view, look for, expect; take into account as a contingency to be provided for.

b. To have in view as a purpose; to intend purpose.

c. To regard, respect, have reference to.

5. To be occupied in contemplation; to mediate muse.

6. The dictionary meaning of the word ‘contemplate’ leads as to conclude that whenever it is in the mind of the appointing authority that a formal disciplinary proceeding shall be held or there exists a contingency for such a proceeding, one can say that a formal disciplinary proceeding is contemplated. To contemplate in the context is to have in view to expect, or take into account as a contingency.

7. Usually before a disciplinary proceeding is initiated, a summary investigation either in the form of the secret enquiry or inspection of records by the authority is made to see if the allegations made against the Government servant have substance. Such an investigation may be followed by detailed fact finding enquiry which takes the form of an open enquiry before taking the final decision to initiate disciplinary proceeding. A disciplinary proceeding is contemplated when on an objective consideration of the materials, the appointing authority considers the case as one which might lead to a formal disciplinary proceeding. The formation of such an opinion may be on the basis of inspection of the records, though further investigation in some cases may be considered necessary to collect more materials for formal disciplinary proceeding. The Disciplinary Authority at that early stage can have in view of a contingency for disciplinary proceeding and suspend the Government servant, in exercise of its power under Rule 10(1)(a) of the said Rules.

8. In the present case, it is mentioned in the suspension order that there are allegations under investigation against the petitioner and the Governor has been pleased to place him under suspension with immediate effect as per sub-rule (1) of Rule 10 of the said Rules. In the counter-affidavit, it was averred that the allegations prima facie appeared to be a case of misconduct and as such the petitioner was placed under suspension. The investigation mentioned in the suspension order means the investigation into the allegations by the Vigilance Authority of Tripura to which the case has been referred. Obviously, the investigation was intended to collect more materials on the subject for a formal disciplinary proceeding against him. In my view, the suspension order does not suffer from any infirmity as contended and it falls within the ambit of Rule 10(1)(s) of the said Rules. The first contention of learned counsel for the petitioner is rejected.

9. Learned counsel for the petitioner next contends that Office Memoranda issued by the Government of India, namely, (i) G.I., MHA. O.M. No. 221/18//65-AVD, dated the 7th September, 1965, and (ii) G.I., G.S., (Department of Personnel) O.M. No. 39/39/70-Ests. (A). dated the 6th February, 1971, appended to Rule 10 of the said Rules on the heading ‘Speedy follow up action in suspension cases’ were not acted on illegally by the Disciplinary Authority. It is urged that these executive orders issued by the Central Government were binding on the Government of Tripura. Reliance is placed in support of his contention on the decision of the Supreme Court in J. Fernandes & Co. vs. The Deputy Chief Controller of Imports & Exports and others, AIR 1975 SC 1208. Learned Government Advocate does not controvert this proposition of law. He, however, controverts the first proposition of law.

10. In my opinion, the contention of the learned counsel for the petitioner appears to be correct. The material part of the memoranda of 7th September, 1965, and that of 6th February 1971, relied on by the learned counsel for the petitioner are reproduced below:

Speedy follow up action in suspension cases

* * * *

* * * *

1. Even though suspension may not be considered as a punishment, it does constitute a very great hardship for a Government servant. In fairness to him, it is essential to ensure that this period is reduced to the barest minimum.

2. It, therefore, has been decided that in cases of officers under suspension, the investigation should be completed and a charge-sheet filed in a court of competent jurisdiction in cases of prosecution or served on the office in cases of departmental proceedings within six months as a rule. If the investigation is likely to take more time, it should be considered whether the suspension order should be revoked and the officer permitted to resume duty. If the presence of the officer is considered detrimental to the collection of evidence, etc., or if he is likely to tamper with the evidence, he may be transferred on revocation of the suspension order." (G.1. M.H.A., O.M. No. 22l/18/65-AVD, dated 7th September, 1965).

* * * *

In the Ministry of Home Affairs O.M. No. 221/18/96-AVD, dated the 7th September, 1965 the attention of all disciplinary authorities was drawn to the need for quick disposal of cases of Government servants under suspension and it was desired, in particular that the investigation in such cases should be completed and a charge-sheet filed in court, in cases of prosecution, or served on the Government servant, in cases of departmental proceedings, within six months. The matter was considered further at a meeting of the National Council held on the 27th January, 1971 and in partial modification of the earlier orders it has been decided that every effort should be made to file the charge-sheet in court or serve the charge-sheet on the Government servant, as the case may be, within three months of the date of suspension, and in cases in which it may not be possible to do so, the disciplinary authority should report the matter to the next higher authority explaining the reason for the delay. (G.I.C.S. (Dep. of Personnel) O.M. No. 39/39/70-Ests. (A). dt. 6th February, 1971).

11. Tripura became a Part ‘C’ State when the Constitution came into force on 26.1.1950; and it became a Union Territory in 1963 and thereafter it attained Statehood with effect from 21.1.1972 under the North-Eastern Areas (Reorganisation) Act, 1971. The said Rules were adopted and followed by the Government of Tripura while it was a Union Territory. Under Article 239 of the Constitution of India, Tripura while a Union Territory was administered by the President acting, to such extent as he thinkts fit, through an administrator to be appointed by him with such designation as he may specify. The said Rules were extended to the Union Territory of Tripura. The President acts on the aid and advice of the Council of Ministers under the Constitution. The President in Article 239 is the Union Government. The Union Government has power to issue direction to the Administrator of a Union Territory which the administrator of the Union Territory is bound to carry out order or direction given by the Central Government because of the combined effect Articles 73 and 246 of the Constitution of India which confers power on the Union Executive to exercise powers in respect of matters with respect to which Parliament has competence to make laws. The office memoranda in question are undoubtedly instructions of the Union Executive made under Articles 73 and 246 read with proviso to Article 309 of the Constitution which were binding on the Govt. of Tripura, I am fortified in this view by the decision of the Supreme Court in J.Fernandes & Co. (Supra).

12. There can be no two opinions that the memoranda deal with matters which are not in consistent with the provisions of Central Civil Services (Classification, Control and Appeal) Rules, 1965, and they form also conditions of service of the employees. In Union of India vs. K.P. Joseph and others, AIR 1973 SC 303, the Supreme Court relying on its earlier decision in Sant Ram Sharma vs. State of Rajasthan, AIR 1967 SC 1910, held that although Government cannot supersede statutory rules by administrative instruction yet, if the rules framed under Art. 309 of the Constitution are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructions not inconsistent with the rules already framed and these instructions will govern the conditions of service.

13. The next question is whether such orders are enforceable in such a proceeding. The Supreme Court in Union of India vs. M/S. Indo Afghan Agencies Ltd. AIR 1968 SC 718, in considering the nature of the Import Trade Policy, observed:

'Granting that it is executive in character, this Court has held that Courts have the power in appropriate cases to compel performance of the obligations imposed by the Schemes upon the departmental authorities.'

14. The Supreme Court in K.P. Joseph (Supra), after referring to the above observation, held:

"To say that an administrative order can never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties. It is because an administrative order can abridge or take away rights that we have imported the principle of natural justice of audi alteram partem into this area.

15. In my view, these decisions have settled the proposition of law that office memoranda already referred to are enforceable against the Government by an appropriate writ or writ in the nature of mandamus, in case the Disciplinary Authority or the Government has wrongly declined to exercise jurisdiction or deal with the matter. The High Court in exercise of its discretionary power under Article 226 of the Constitution of India can give direction by a writ in the nature of mandamus to take up the matter as to give effect to the object of the memoranda and pass an appropriate order.

16. In the present case, though the petitioner was suspended on 26.10.1979, no formal charge in the disciplinary proceeding has been drawn up as yet. In the course of the argument, learned Government Advocate refers to the application dated 16 8 1980 filed by the Govt. to this Court in which it was stated that certain original documents and records connected with the writ case have been seized by the police on 217.1980 in connection with FIR 33(7)-80 under section 468/420/511 I.P.C. of East Agartala P.S. registered against the writ-petitioner relating to the alleged tampering of the G.P.F. statement of Accounts. Learned Government Advocate simply submits orally that the investigation is likely to be completed soon and charge submitted but he has not been able to produce the record to show the exact position of the investigation, though several chances were given. He also could not throw any light about the progress of the investigation by the Vigilance Department of Tripura as to how the matter stands. It cannot be doubted that there has been undue delay in the investigation of the case by the Vigilance Department or by police. It is surprising also that a reference was made to the police only on 21.7.1980 long after the filing of the counter-affidavit on 20.5.1980 on behalf of the Government.

17. The object of the two office memoranda referred to above is to see that the authority concerned should scrupulously observe the time limit laid down in the instructions. It is incumbent on the part of the authority to examine as to whether any need exists for keeping the official under suspension by reviewing his case of suspension from time to time and in case the suspension is not really necessary, the suspension order is to be revoked by the authority under clause (c) of sub-rule (5) of Rule 10 of the said Rules. It is to give effect to these Rules that executive instructions were issued by the Government from time to time. The power or duty cast on the authority is intended to be used or discharged according to the rules of reasons and justice, not according to private opinion but according to law and not humour.

18. The Government has also admitted in its counter-affidavit that in case it is seen that the completion of investigation of the case is likely to be delayed, then the question of revocation of the suspension order may be considered. The petitioner has been suspended for mora than 1year 2 months. I am, therefore, of the opinion that the order of suspension has to be reviewed for an appropriate order, keeping in view the various circumstances attending on it and the delay in the investigation as also instructions issued by the Government from time to time bearing on the subject. It cannot be lost sight of that undue and long suspension, while putting the Government employee to undue hardship, involves payment of subsistence allowance without the employee performing any useful service to the Government. The police investigation in the present case will not debar the Disciplinary Authority from reviewing the suspension order of the petitioner and passing an appropriate order under Rule 10 of the said Rules, as the petitioner can face the trial in case the charge-sheet is ultimately filed against him on completion of the investigation.

19. For the reasons stated above, the petition is allowed. A writ in the nature of mandamus is hereby issued commanding the Govt. of Tripura and/or Disciplinary Authority to review the suspension order of the petitioner and piss an appropriate order, within one month from the date of this order. Respondents 1 and 2 shall pay Rs. 200/- as costs to the petitioner.
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