FF T XI-HC-22 an^r^i Pt-fi'* 311^1 ?b4-i ^ri^r <, 1-i1 ^ -/ <y ^ •0 ^' ,fc ^s? 'tfww^, ^•al'y'iii, '{^<'II'MII< (? 3TR?r,iq^T iiqciisiTincf? .^''^ 200 Iq^ST' 311^1 ^giW ^Tftd 25-1-2003 Shri Sushii Dubey, counsel; Shri YashwantSingh, Govtj Shri R.K. Soni, Superirltending Department, Bilaspur and Shri Water Resources Department, Bj ofthecase. Heard, Order dictated. Typed Sep^rat ^l'LlT<'1*f1'< ^WVli ^ ft^ <pi1+ri,l< '^sTpgiian^i " Iforthepetitioner. [Adv.,fortheState. Engineer, Water Resources Indrajeet Uikey, Executive Engineer, laspur are also present with the record ately. Signed and dated^ Sd/- Fakhruddin Judge [tft^^fig^ S-, a_, i. .>><' 'y^^^y..^ 2t^"*" -a.^- L' \;^'\0-t<t ^^•^•^•^' ^°". :...--"1" ^.^01 ' 003 IN THE HONOURABLE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.) WRIT PETITION N0. ^f 1 OF 2006 PETITIONER RESPONDENT? ^^"i / ^.^, (Vit 3!<T "W-W Mb4^ ; N. K. Tikariha, aged about 58 years, Son of Late Shri S. R. Tikariha, Occupation-Service, Presently posted as Executive Engineer, Water Resources Department, Division N0.1, Ambikapur, District Surguja (C.G.). VERSUS 1. State of Chhattisgarh, Through: The Principal Secretary, D.K.S. Bhawan, Mantralaya, Raipur (C.G.). 2. The Deputy Secretary, Water Resources Department, D.K.S. Bhawan, Mantralaya, Raipur (C.G.). 3. The Engineer in Chief, Water Resources Department, Sihawa Bhawan, Raipur (C.G.). 4. The Chief Engineer, Hasdeo Basin, Water Resources Department, Bilaspur (C.G.). 5. The Collector, District Surguja Ambikapur, (C.G.). ^-—. ' OQ^ &. The Chief Executive Officer, Zila / Panchayat, Surguja, Ambikapur (C.G.). / WRIT PETITION UNDER ARTICLES 226/227 OF THE CONSTITUTION OF INDIA. 1950 FOR ISSUANCE OF WRIT IN THE NATURE OF CERTIORARI. MANDAMUS ETC. AND FOR APPROPRIATE ORDER/ORDERS, DIRECTION/DIRECTIONS. HIGH COURT OF CHHATTiSGARH AT BILASPUR WRiT PETITION N0.241/2008 N.K. Tikariha Vs. State ofC.G. & ors. Shri Manindra Shrivastava, Sr. Advocate, with Shri Sushil Dubey, counsel for the petitionsr. Shri Yashwant Singh, Govt. Adv., forthe State. Shri R.K. Soni, Superintending Engineer Water Resourc^ Department, Biiaspur and Shri Sndrajeet Uikey, Executive Engineer, Water Resources Department, Bilaspur are also present. ../ , OR D E R With consent, heard finaily. 2. The present petition has been preferred by the petitioner challenging the order dated 9/1/2006 (Annexure-P/1) passed by respondent no.2, whereby he has been suspended on account of irregularities in construction of Jajga Pond, Block Udaipur, District Sarguja. 3. The petitioner is Executive Engineer posted under Water Resources Department, Division No. 1, Ambikapur, District Sarguja. Learned counsel for the petitioner pointed out that the Collector Sarguja vide order No. Vikas, N.F.W.P./2004-05/237/ dated 3-12-2004 granted permission for construction of a new pond at Viliage Jajga, Biock Udaipur under the National Food for Work Programme amounting to Rs. 7 lacs. It is submitted that the petitioner has inspected 117 works in 7 Blocte in Sarguj'a District. Counsel submitted that on a compiaint regarding construction of Jajga pond, an enquiry was made and Shri \R.K. 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J&i5 ^blK n±^} ^ A&Z&jfi/AU" Jffi hfllf^h ^ ^Ii ^yiE /M yk -fyP IBPJfflS A£> 'l&yOftOMie ^ ^ pl^ tafitkl SWIB ^^ ^ ^ Sjt 6it fo»^yaatt^!61K l^ ft Injhlsf Mt Mt& Kh» m3 ^lslKllls 2fiA 2£ /&»'»•^ **> Iffjtlh^j fr Irlilf^j -*(/"€/ fcA fr^&u/ttK ^&Z& Jt lajltlfl ftlWP h^k ^6 &W 008 ^S^ £^^ ft /frp/n ^£ ^ >&fri»P S>atSH. ^f DJiKIS 0> ll'lnflf <";(-» (»&» <& AI®Ji^lh ^afcjEfc^ AfUK,, ^ -s ^c 6. Counse! submits that as per para 4.010 of the W.D. Manua! Voi. 1, the payments must be made by the Sub Divisional Officer in all cases. However, the Executive Engineer may authorize any other S.D.O. or Assistant Engineer (Atteched Officer) to make payments when the concerned S.D.O. is not in a position to make payments or when the Executive Engineer desire so. He further contended that as per Para 4.023 of Manual Voi.l of W.D. Manual, the Sub- Divisional Officer and tiien Sub Engineer are responsible for all the works done. 7. Learned counsel for the petitioner submitted that against Shri R.K. Mishra, Sub Engineer, charge sheet was issued and he was suspended. Thereafter, an enquiry was held and as per the enquiry report (Annexure-P/9), none of four charges have been proved against him and he was reinstated on 10/10/2005 vide Annexure-P/2. Learned counsel further submits that the allegations against Shri R.K. Mishra were substantive whereas the charge against the petitioner is that he did not properiy supervise the working of Shri R.K. Mishra. It is contended that once Shri R.K. Mishra himself has been exonerated and reinstated, there is no case against the petitioner for enquiry or suspension. tt is aiso contended that the suspensjon order has been passed just to malign the image ofthe petitioner in the society when his daughter's marriage is to solemnize on 26/1/2006 and the invitation cards have been distributed. 8. On the other hand, teamed counsel for the State supported the suspension order and submitted that so far as the enquiry and exoneration of Shri R.K. Mfshra is concerned, this fact is not disputed in view of the enquiry report (Annex.P/9). Leamed State Counsel fairly stated that the enquiry report has been acted upon and Shri R.K. Mishra who has been suspended has been reinstated. Leamed Govt. Advocate submitted that at two different levels the matter was considered. It js further submitted that the fact that the substantive Officer has been exonerated <? has not been considered. He however submits that since the enquiry is at two differsnt levels, it wiii not be such as to vitiate the suspension. 9. Learned State counsei raised a guestion about the maintainability of this petition on the ground that alternative remedy is available. Whereas iearned counsei for the petitioner contended thatthere is no absolute bar and the remedy is not expeditious and efficacious in view of the speciat faets and circumstances of the case inasmuch the suspension order has been passed after distribution of the marriage cards of petitioner's daughter so as to maiign his image in the society. Normally the Court does not interfere in the case where altemative remedy is available, but in the exceptionai and speciat facts and circumstances llke in the present case, where the action is selective, ar&itrary and in violative of Article t4 of the Constitution of India, as heid by this Court in a decision in the case of K.P. Chandrawanshi -v- NaSonal ThermaS Power ComoraS'on Limsted and others reported in 2<M4f1lC.G.L.J. 268, this Court may interfere. Para 1 7 of the decision is retevant and quoted beiow:- "^T In this connection, ihe seWed law is that the auestion of afema&ve remedy is mle of discretion and not ihe rule of iaw. The Hon'We Apex CourS in the mattsr of ABL intemaSonal UmiteS and ancther vs. Export Credit Guarantse Corporation of indi'a Umited and others held tnat, Whsie entertaining an objecSon as to themaintainabilityofa writ petition under AriiGle 226 of fhe Consiitution of India, fee Court shouid bear in mind the fact that ffie power to issue premgattve v-'fiis underArticie 226 ofthe Constiiution js plenary in nature and !s not Simited by any otraer prowsions of the ConsWutlon. Ths High Court having regard to the facts of the case, as a discretton to enteriain or not io enisrtain a writ peWon. The Court has Smposed upon itself csrtain resvicffons in tfie exercise of Ws pcswsr (See : WhiHpool Corporation vs. RegistrarGf Trade Marks, Mumbai and ottwrsj And thls plenary rtght of fte High Court to issue a premgafive writ wiii not nonnally be exercised by the Courf te (he exolusiGn of other avas'lsble remedies unless much acffon of me State or its instrumentality is artiffiary and unreasonable so as io violate fhs consStutional mandate of Artlcle 14 for criher vatid and feg/ffmate reasons, tor wh'ich the <pourtthinks it necessary to exercise the saidjurisdiction." f Therefore, in the opinion of this Court, it is a case where it is just, expedient and necessary to examine the matter. 10. During the course of hearing, the enquiry report (Annex.P/9) was read over by the counsel. Reference was made to page 38 of the writ petition (internat page 7 of the enquiry report). A perusal of enquiry report shows that on all the 4 charges, ShriR.K. Mishra has been exonerated. 11. Learned counsel for the petitioner contended that the suspension order has been passed as a result of 'suspension syndrome'. Present is a case where the petitioner has been suspended just for nothing. tt is further contended that it is an Officer's irritability rather than the employees' trivial lapse which has resulted in suspension. Reiiance is placed upon the judgment ofthe Apex Court in the case of Caofc M. Paul Anthonv vs. Bharat Gold Mines Ltd. and another (1999) 3 SCC 679 (Para 29). 12. So far as suspension is concerned, it is well settled that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending enquiry or contemplated enquiry orpending investigation into grave charges of misconduct or defatcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be enquired into or investigated and the nature ofthe evldenee placed before the appointing authority and on application of mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whsther it is expedient to keep an employse under suspension pendlng aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration oi the gravity of the alleged misconduct >r the nature of the ailegations imputed to the delinquent employee. tn the instant /6 ^^ case, it has been done otherwise. Reliance is placed upon the judgment of the Apex Court in the case of State of Orissa vs. Blmal Kumar Mohantv f1994) 4 SCC 128. in ttiis connection para 13 of the judgment is relevant and quoted betow:- "13. It is thus settled law that noimally when appointing authority or the disciplinary auffiority seshs te suspend an employee, pending inquiry or contemplated inquiry or pentiing invesegaffon into grave charges of misconduci or defalcatton of funds or serious acts of omission and commlssion, the order of suspension woukt be passed aHer taking into consideration Vw gravity of fte misconduct sought to be inciuired into or I'nvesSgated and the nature of Sw evidence placed befors ihe appointing auttwrity anti on appiication ofthe mind bydisciplinaryauthonty. Appointing authority or disciplinary authority should consider the above aspects and cfec/cfe wiTether it is expedlent to.keep an emptoyee under suspenston pending afoiesaid action. tt would not be as an administrative routlne oran suteinatic order te auspend an employee. It should fce on considerafion cf OTB gravity of >e allegect misconciuct or the natuw of the allegaSons jmputed to fhe delinquerst empioyee. The Court or the Tnbunai must consider each case on its own facts and nogeneral iaw could be laid down in ffiiat behalf. Suspension Is not a punishment but is only one offoitidding w disabling an empioyee to discharge fhe duti'es of offics or posi held by him. in otiTer words it Ss to refrain nssn to avall furffier opportunKy to perpetrste ffje allegsd mssconduct or to remove the impression afnong the members of sewlce ihat derelicvon of duty wouki pay ftuits and fte offending employee could get away even pending inquiry withoiit any impedimenf or to prevenf an opportunity to the delincfuent ofKGer te souitie ttie inquiry or investigaSon or to win over ffte witnesses or the delinquent hawng had the opportunity in offics to impede fhe progress of ths investigation or inquiry eto. But as stated earlter each case must be considered depending on the nature of the allegations, gravity of the sifuaSon and the mdeKbSe impact Si creates on the seivics for fhe conVnuance of ttie cSelinquent empioyee in sesvice pendlng inqujry or confemplated inqulry or snvestigation. It would be another fhing if fhe action is actuated by ma'ia ffdes, amitrary or fbr uiterior purpose. The suspension must be a step in aid to the uWmate result of fte investigaGon or inquiry. The Quff'iority also shouid keep in mind public interest of ff?e impact of the cSeSSnquent's conSnuance in office wfiile faclng departmental inguiry or trial oia criminal charae." 13. Learned counsei also ptaced reiiance upon the judgment of Apex Court in the case of K. Sukhendar Reddv vs. State ofA.P. & Another (1999} 6 SCC 257 and contended that it is a discriminatory and seiective suspension. He referred to paras 6 & 8 ofthe said judgment, which are quoted below:- "6. The appellant was pSaced under suspension on 6-2-1997by an order passed by ie Chief Secretary fo the Govemment ofAndhra Prsdesh under 6' sub-niie (1) of Ruie 3 till the completion of the disciplinary pmcsedings sgainst him. This order was subsequently replsced by anofher order passed on 12-3-1997, in which It was ciearly spett out that disciplinary proceedings agamst the appellant ware not at all contemp'atsd, but since he was involved In Cnrne Case No.327 of 1996 registered under secttons 468, 471, ete. byAnakapSli Town PolSce Station, he was being placed under suspensson. Thss matter is stsll under investsgafion by the CID and a charge sheet nas not yet been flSecl In the case. 8. We, ffierefoie, allow this appeal and set aside the suspension order dated 12-3-1997 wi i ff?e direciion ihat She appelisnt shall be puf backio awy' and shaSI be paid alt hls arrears of saiary up to tfate minus ttie suspension allowance, if any, already paid to him, leaving ii open fo the State Govemmem consider the feasibility of piacing ttie appeilant under suspension, ifand when a charge-sheet is tiled by CID." 14. lt is borne out from the record that the substantive responsibiiity in the instant case is of Sub Engineer Shri R.K.Mishra. The charges levelled againsf him have been reproduced in para 4 of the petition. Charge sheet was issued and an enquiry was held and enquiry report is Annexure P-9. Annexure P-9 is a detailed report wherein the entire material collected has been considered. After elaborately discussing, none of the 4 charges have been heid to be proved against Shri Mishra. The Charges against the petitioner are reproduced in para 5 of this order. Ali the charges are like that he helped Shri R.K. iVlishra and the Sub Divisional Officer in committing irreguiarity. There is great force in the contention that when after enquiry charges have not been proved against Shri Mishra and he has been exonerated and there is no other material against the petitioner, the suspension order has been mechanically passed holding that the petitioner is guilty. The finding recorded in the enquiry report in respect of Shri R.K. Mishra has not admittedly been considered in the petitioner's case. Shri Singh, learned State Counsef was pointedly asked and he only stated that since the enquiries were held at two levels, this has occurred. it has been held in Stste of Orissa fsuoral that suspension jias to be after taking into consideration the gravity of the misconduct sought to be enquired into or investigated and the nature of the evidence placed ^before the appointing authority and on application of mind by the disciplinary authority. It shouid not be as an administrative routine or an automatic order to suspend an employee. in the instant case, Enquiry Report Annexure P-9 has not at all been considered. Though report was lodged but substantive atlegation is against Shri R.K. Mishra and he has been reinstated. Learned Government Advocate was also questioned about Annexure P-9. He submits that Annexure P-9 has been accepted in the case of Shri R.K. Mishra and he has been reinstated. It is a case where Annexure P-9 has been accepted in respected of charges against Shri R.K. Mishra, Sub Engineer faut in respect of the charges against the petitioner, the sams report has not been considered. Had it been considered in the case of petitioner ateo, he might not have been held guiity as the substantive allegation was against Shri Mishra. There is nothing on record that the Enquiry Report Annexure P-9 has been chailenged. Learned Government Advocate is not abie to ppint out any document and nothing has been placed on record regarding non-supervision or otherwise by the petitioner. 15. In view of the discusstons made in earlier paragraphs and especially the fact that the substantial officer has been exonerated from the charges and reinstated, the suspension order dated 9-1-2006 (Annexure-P/1) is discriminatory and selective and it is not sustainable and is accordingly set aside. 16. Learned counsel for the State submitted that tiberty be given to the State to consider the case and as and when any material is collected or challan is filed, the Stete may proceed in accordance with law. Liberty as prayed for, is granted. It is further made clear that the observations made hereinabove are relating to suspension order on the basis of material placed on record. They are not the expression ofany opinion on the merits or otherwise ofthe Department Enquiry or the investigation pending before the investigating Agency. Those proceedings wili ^be conducted and decided on their own merits and it will be open to the competent ^ 10 's authority that as and when the State gets any material or the challan is filed by the potice, the case may be considered on its own merits in accordance with law. 17. Subject to what has been stated above, the petition stands disposed of. Consequentiy, pending appiications, ifany, also stand disposedaf. i Sd/- Fakhruddin Judge HP.'-