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Delhi High CourtIndian Cases

D.K. Puri vs Municipal Corporation Of Delhi on 17 November 1997

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Delhi High Court
D.K. Puri vs Municipal Corporation Of Delhi on 17 November, 1997
Equivalent citations: 1997VIAD(DELHI)1037, 71(1998)DLT286, 1998(44)DRJ268, 1998RLR114
JUDGMENT

Usha Mehra, J.

(1) The short point involved in this writ petition is whether the petitioner should continue under suspension or his suspension be revoked without prejudice to the right of the respondent to continue with the departmental action initiated against him?

(2) In order to answer this, we may have a look at the relevant facts necessary for the determination of this question. Petitioner was appointed as a Assistant Engineer with Delhi Electric Supply Undertaking (in short DESU) in 1974. He got promotion and became Superintending Engineer in January,1994. While working as Superintending Engineer (SM), Incharge of the Store at Okhla, a complaint was lodged against him that he committed mis-conduct unbecoming of a municipal employee. There was a charge of dereliction of duty as he failed to allot transformers for East circle on 17th July,1995 which were to be replaced with burnt transformers. Secondly he used filthy and abusive language against Mr.Harsh Verdhan, Health Minister of Government of N.C.T. of Delhi. This according to the respondent he did on duty while conversing with the Minister on telephone. On account of this complaint by the Health Minister Mr.Harsh Verdhan, petitioner was placed under suspension on 18th July,1995. Charge-sheet was issued to him containing the two charges, namely, lack of devotion and gross negligence in performing his duties and secondly for using filthy and abusive language to the Minister. This charge-sheet was issued on 3rd August,1995. Mr.A.K.Sarkar an officer of Dhani Service was appointed as Enquiry Officer. Mr.Sarkar was then working as Osd (Enquiry) of DESU. Mr.Sarkar was subsequently posted as Director (Transport) of Government of N.C.T. of Delhi. From August,1995 or say January,1996 when the Enquiry officer was appointed till date the enquiry has not proceeded. Petitioner demanded review of suspension and subsistence allowance in terms of F.R.53 of the Constitution of India. He in order to support the relief of review of suspension relied on various other office orders issued in this behalf but without any fruitful results. Hence approached this court.

(3) Respondents in its defense took the plea that the petitioner had not been cooperating with the Enquiry Officer hence the delay. Secondly he had been filing one after the other petitions on frivolous pleas. That he has alternative remedy by way of appeal/revision under Clause 16/17 of Desu (DMC) Service Regulation,1981. Earlier petition filed by the petitioner whereby challenging the suspension order has already been dismissed. The subsistence allowance has already been enhanced vide order dated 12th June,1996. So far as the relief of review of suspension, it was done by the Disciplinary Authority on 18th April,1996 and found no ground to revoke the suspension.

(4) I heard Mr. R.K. Anand, Senior Advocate for the petitioner and Mr.Jayant Nath for the respondent. My attention has been drawn to the Administrative Reform Committee of Government of India’s report on personnel administration. Where it made the observations in Chapter X (Conduct and Discipline) as under : “Were commend that no person should ordinarily be kept under suspension for a period of more than three months except in case pending in the Court. If reinstatement of the official is considered to be fraud with risk of the evidence of the departmental case being tampered with or department proceedings being tampered, official should be transferred where no such risk exist. Approval of higher authority should be obtained for keeping the official under suspension beyond a period of three months.”

(5) These recommendations were examined by the Government of India and the Ministry of Home Affairs. Office memorandum No.221/18/65/AVD dated 7th September,1965 emphasised the need for quick disposal of cases of suspension. Vide office memorandum dated 14th February,1971 instructions were issued by the Department of Personnel. It was as a result of discussions in the National Council of Joint Consultative Machinery it was emphasised that every effort should be made to serve the charge-sheet on the Government servants within three months of the date of suspension and in case in which it might not be possible to do so, Disciplinary Authority to report the matter to the next higher authority explaining the reason for the delay. After discussing with the Joint Consultative Machinery, the Central Government has already reduced the period of suspension during investigation from six months to three months barring exceptional cases which are to be reported to the higher authority. Thus, according to the office memorandum of 4th February,1971 in the cases other than those pending in the Court total period of suspension both in the case of investigation and disciplinary proceedings should not ordinarily exceed six months. It is only in exceptional case where it is not possible to adhere to this limit, the Disciplinary Authority should report the matter to the next higher authority explaining the reason for delay. The Government took serious note of the instances which came to its notice when the charge-sheeted employees were kept under suspension for a long period. When such instances came to its notice, the Government again emphasised through the Ministry of defense office memorandum dated 14th September,1978 that unduly long suspension, while putting the employees concerned to undue hardship involve payment of subsistence allowance without performing any useful service to the Government. It was, therefore, impressed upon by the authorities concerned that they should scrupulously observe the time limit laid down in the office memorandum dated 16th December,1972 and that when there is delay beyond six months, the authority must review the case of suspension to see whether continued suspension in such a case was really necessary. Keeping in view these instructions issued by the Government from time to time in the form of office memorandums, to my mind, Mr.R.K.Anand rightly contended that the petitioner has been kept under suspension from 18th July,1995 till date without holding or even starting the enquiry. The petitioner is under suspension for such a long time without any justification. Hence his continuous suspension is not against the instructions issued by the Government of India but also against the principle of natural justice. The respondent has not been able to justify as to why this continuous suspension of two years of the petitioner was necessary. Not even a plausible explanation has been given to justify the continuous suspension of the petitioner. It is not the case of the respondent that by reinstating the petitioner he would tamper with any record. After all the charge for non-supply of the transformer is based on record which is in possession of the respondent. Secondly the charge of using filthy and abusive language to the Minister of Health Mr.Harsh Verdhan on telephone, that also cannot be tampered with. Mr.Harsh Verdhan will have to prove the same before the Enquiry Officer. This charge is based on the verbal or written complaint of the Minister. There is no question of tampering with such a record. Therefore continuous suspension of the petitioner in this backdrop is against the instructions issued by the Government of India and the spirit of the rules. Contention of Mr.Jayant Nath that the Disciplinary Authority reviewed his case and found that the suspension should continue. To my mind, this argument is belied from the original record produced before this Court. The original record was called and perused. Perusal of the same speaks volumes against the argument taken by Mr.Jayant Nath. The higher authorities of the Disciplinary authority took the view on the file that suspension of the petitioner should be revoked. This view was expressed by the higher authority keeping in view that the continuous suspension of the petitioner for nearly two years without substantial progress in departmental enquiry was not justified. Once the superior authority to the Disciplinary Authority took this view then as per the Government of India’s instructions issued by office memorandum No.39/33/72-Estt.(A) dated 16th December,1972, the Disciplinary Authority after the expiry of six months ought to have reviewed the case and by this time revoked the same because the enquiry proceedings in this case have not even started. According to the Government of India’s instructions in exceptional cases where it is not possible to adhere to the time limit the Disciplinary Authority should report the matter to the next higher authority explaining the reason for the delay. If the next higher authority finds that continuation of suspension is not justified as in this case, then I see no reason why the Disciplinary Authority should have allowed the continuation of the suspension of the petitioner for all this period. In similar circumstances in the State of Himachal Pradesh Vs. B.C.Thakur, (1994) 27 Administrative Tribunal Cases page 567, the Supreme Court while dealing with a case of suspension which continued for nearly two years without substantial progress in departmental enquiry opined that the decision of the Administrative Tribunal in setting aside such suspension was justified. Observation of the Apex Court squarely apply to the facts of this case. I find no justification nor furnished the same by the respondent for the continuous suspension of the petitioner particularly when there is no progress of the Departmental proceedings. I accordingly hold that the suspension of the petitioner which is now beyond two years and when there is no progress in the departmental enquiry is not justified. The order of suspension is accordingly set aside.