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Judgment
The petitioner who was in the year 1968 appointed as Honorary Assistant Professor of Orthopaedic Surgery at the K.M. School of Post-Graduate Medicine and Research was subsequently appointed as Professor in the same Institute and was working as such when he came to be suspended by an order dated 24th September 1987 pending departmental inquiry on the charge of prescribing mainly the drugs of Om Pharmaceutical Company to the patient taking treatment in Orthopaedic Unit-III of which the petitioner was the Head. The petitioner has challenged the said order of suspensions on various grounds.
The facts leading to the filing of this petition may be briefly stated. The petitioner was working as Honorary Professor in the month of September 1987. He was on leave upto 30th September 1987. On 22nd September 1987, Dr. Surendra Patel. Shri Anilbhai Chinai and Dr. Vora who are members of the Board of Management of this institution took a round of Wards Nos. 5 and 9 of the V.S. Hospital to which the petitioner was attached in his capacity of Honorary Professor. They found during their visit that so far as Unit-III of which the petitioner is the Head is concerned, medicines of Om Pharmaceuticals alone were prescribed at the instance of the petitioner who has got financial interest in that Om Pharmaceutical Company. They found on inquiry from the staff that these medicines were not prescribed when they were working in the other hospitals but they started prescribing these medicines after coming to Unit-III. The said members of the Board inferred that this was not possible unless the petitioner who was Head of the Unit must be insisting to prescribe these medicines. They felt that the petitioner had misused his position and given directions to the resident staff to prescribe medicines of only Om Pharmaceutical Company, which was serious matter. They wrote a letter dated 24th September to the Mayor, Ahmedabad Municipal Corporation who also happens to be the Chairman of the Board of Management of the V.S. Hospital, Ahmedabad. On receiving that letter, the Mayor, in his capacity as the Chairman of the Board of Management of V.S. Hospital, wrote a letter to the Superintendent, V.S. Hospital bringing these fact to his notice and directed that in anticipation of the approval of the Board of Management, departmental inquiry may be started against the petitioner and pending the inquiry, the petitioner may be immediately suspended. This letter was received by the Superintendent on that day at 5.30. P.M. as per the endorsement made by him below the said letter and on that very day at 6 P.M. the Superintendent, V.S. Hospital in his capacity as the Director of the Institute and Superintendent of the V.S. Hospital, passed an order placing the petitioner under suspension. It is stated in the said order that the order was being passed on the directions of the Chairman of the Board of Management of the Institute and that the suspension was pending departmental inquiry on the charge of prescribing mainly the drugs of Om Pharmaceutical Company to the patients taking treatment in Orthopaedic Unit-III. The petitioner was on leave at that time and he filed this petition on 25th September 1987.
Mr. M. A. Panchal, learned Advocate who has filed caveat on behalf of respondents Nos. 1 and 2. viz., the Board of Management of V.S. Hospital and the Superintendent of V.S. Hospital, appeared and after having heard Mr. Desai for the petitioner and Mr. M. A. Panchal for these two respondents, ad-interim relief was granted and it was mentioned in that order that the petitioner shall continue on leave upto 30th September 1987 as per the statement made by Mr. Desai for the petitioner. That interim relief has been continued on the same terms pending hearing and final disposal of this petition. After the arguments of Mr. Desai were heard and before the arguments of Mr. Panchal for respondents Nos. 1 and 2 and Mr. Sudhir Nanavati for respondent No. 3 were heard, Rule was ordered to be issued with the consent of the learned Advocates and the matter was taken up for final hearing on 3rd November 1987. Mr. Desai stated that he has already advanced his arguments as earlier and, therefore, he did not want to advance any further arguments after the issuance of the Rule. This is how the matter has now been finally heard instead of hearing only with regard to the interim relief.
The first contention of Mr. Desai for the petitioner is that the petitioner being an honorary could not have suspended. He submitted that there are no rules under which the petitioner could have been suspended. Mr. Panchal drew may attention to a Resolution passed by the Standing Committee of the Ahmedabad Municipal Corporation on 28th June 1973 stating therein that the Rules which govern the Municipal Corporation employees will apply to even the Honorary Doctors and that the said Resolution of the Standing Committee of the Municipal Corporation has been adopted by this Institute by a Resolution dated 2nd August 1973. These two documents which are at pages 28 and 29 prima facie make out a case that the petitioner could have been suspended, as per Regulation 20(A) of Ahmedabad Municipal Corporation Regulations and Delegation of Powers Manual II. Regulation 20(A) reads as follows :
"An officer or servant may be suspended from service pending inquiry against him."
The order of appointment of the petitioner which is at page 105 also shows that the petitioner was subject to the Rules and Regulations of the Hospital that were in force at the time of his appointment and that may be made from time to time. The petitioner has even entered into an agreement to that effect at the time of his appointment, copy whereof has been produced on record. In view of this, I do not find any substance in the contention of Mr. Desai that the petitioner could not have been suspended pending inquiry.
The next submission of Mr. Desai is that no departmental inquiry was initiated against the petitioner and, therefore, as per Regulation 20(A), the petitioner could not have been suspended. Mr. Panchal submitted that for suspending the petitioner by virtue of Regulation 20(A), it is not necessary that an inquiry should be started. He submitted that even when an inquiry was contemplated, the petitioner could have been suspended. It is difficult to accept this submission of Mr. Panchal. If the authority which has framed the regulation intended that even when an inquiry was contemplated, suspension could be ordered, the said authority would have expressed that intention specifically, because it can be said that an inquiry is pending only when the inquiry has started. The words ''pending inquiry'' clearly show that the inquiry is, in fact, pending when the suspension is ordered. Mr. Panchal referred to Corpus Juris Secundum, Vol. 70 at page 421 wherein it is explained as to what is meant by ''pending''. Mr. Panchal submitted, relying upon the words ''also, during the time intervening before'', used in the aforesaid book, that this shows that even if an inquiry was contemplated, it can be said that suspension before starting of the inquiry would mean ''pending inquiry''. He also relied upon Black''s Law Dictionary, Fifth Edition, at page 1021, where it is stated as to what is meant by ''pending''. It will be proper to reproduce from the aforesaid book as to what is meant by pending''.
"Pending, Began, but not yet completed; during; before the conclusion of; prior to the completion of, unsettled; undetermined; in process of settlement or adjustment. Thus, an action or suit is "pending" from its inception until the rendition of final judgment. Pending means awaiting an occurrence or conclusion of action, period of continuance or indeterminancy."
It will appear from what has been reproduced above that ''Pending'' mean awaiting an occurrence and relying upon the said phrase, Mr. Panchal submitted that ''pending inquiry'' means awaiting inquiry which would show that the petitioner could have been suspended even before the initiation of the inquiry. If we look at the dictionary meaning of the word ''pending'' in its isolation, then Mr. Panchal''s submission may be accepted. But we cannot take the word ''pending'' it its isolation. We have to read the whole phrase ''pending inquiry''. When a Legislature or rule-making authority intends to provide that even when an inquiry is contemplated, suspension can be ordered, then the authority will express its intention by laying down that suspension can be ordered pending inquiry or when inquiry is contemplated. In the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 there is a provision for suspension and it is provided therein that a Government Servant may be placed under suspension where a disciplinary proceedings against him is contemplated or is pending. If the authority which has framed the Regulations, so far as the Ahmedabad Municipal Corporation is concerned, intended that even when a departmental inquiry was contemplated an employee can be suspended, then the said authority would have used the phraseology more or less similar to that used in the Gujarat Rules. Suspension adversely affects an employee though it is not punishment and, therefore, while interpreting the Regulation, we cannot simply take the dictionary meaning of the word ''pending'' in its isolation. It may also be mentioned here that in the letter written by the Chairman of the Board to the Superintendent, which is at page 24 of the compilation, the Superintendent was directed to start the inquiry and immediately suspended the petitioner pending inquiry. Even in the order passed by the Superintendent at page 27, the words used are ''pending departmental inquiry''. Even in the Resolution passed by the Board an 29th September 1987 which is at page 62 whereby the action of suspending the petitioner as per the directions of the Chairman in anticipation of the approval of the Board was approved, the words used are that the departmental inquiry should be started and the petitioner should be suspended pending the inquiry. This clearly shows that even the concerned authorities very well knew that the petitioner could be suspended only pending inquiry and not when an inquiry was contemplated. The wordings of the order passed by the Superintendent on 24th September 1987 would make it appear that the departmental inquiry was already started and it was pending and during the pendency of the inquiry, the petitioner was being suspended. But apart from this, it is difficult to accept the submission made by Mr. Panchal that the petitioner could have been suspended even before the initiation of the inquiry when inquiry was contemplated. If the petitioner could be suspended only after initiation of an inquiry and not prior to that, it is clear that the order of suspension passed against the petitioner before initiation of the inquiry is, on the face of it, bad.
In the case of P.R. Nayak Vs. Union of India (UOI), , the Supreme Court has held that if the Rules provide for suspension only after an inquiry is initiated, suspension cannot be ordered before the inquiry is initiated. The Supreme Court has held that when an inquiry is contemplated, suspension cannot be ordered unless the Rules provide to that effect. It is true that the Supreme Court was dealing with All India Services Rules, But the ratio of this decision is that if the Rules do not provide for suspension when inquiry is contemplated, then suspension cannot be ordered when inquiry is only contemplated and not initiated. The order of suspension which is passed by the Superintendent as per the directions of the Chairman and which is ex post facto ratified by the General Board on 29th September 1987, therefore, can be said to be bad on the face of it and is required to be quashed.
Mr. Desai also contented that it was only the Board which could have suspended the petitioner if at all he could be suspended and that the Chairman could not have directed the suspension in anticipation of the sanction by the Board. Mr. M. A. Panchal was not in a position to support the order passed by the Superintendent on the direction of the Chairman. In fact, it appears that because the respondents felt that the suspension order passed by the Superintendent on 24th September 1987 as per the direction of the Chairman cannot be supported, the Board passed a Resolution on 29th September 1987 ratifying the said decision of the Superintendent as per the direction of the Chairman. The order of suspension passed on 24th September, 1987 by the Superintendent is also, therefore, on the face of it, bad and is required to be quashed on that ground also.
Mr. Panchal submitted that whatever defect was there in the order passed by the Superintendent on 24th September has been cured on account of the Board having passed a Resolution on 29th September 1987 and, therefore, the order cannot be struck down. It is difficult to accept this submission of Mr. Panchal. Neither the Chairman nor the Superintendent were competent to suspend the petitioner. It was only the Board of Management which had appointed the petitioner which could suspend the petitioner. The order passed by the Superintendent of the Hospital on the instructions of the Chairman of the Board being initially illegal, invalid and inoperative, cannot be ratified by the Board later on. I am supported in this view of mine by a decision of a Division Bench of the Calcutta High Court reported in Siten Bose v. Anand Bazar Patrika, 1980 L & I.C. 466. The Board was expected to take an independent decision whether to suspend the petitioner or not. The Superintendent, having already suspended the petitioner as per the direction of the Chairman, it is difficult to say that the Board independently took its decision to suspend the petitioner. We may also have a look at the resolution passed by the Board on 29th. The Resolution passed by the Board which is at page 62 shows that the Board of Management did not itself pass the Resolution to suspend the petitioner but approved the action taken by the Superintendent as per the direction of the Chairman in anticipation of the sanction by the Board. The subject which was placed for consideration before the Board was not whether the petitioner should be suspended, but whether the order of suspension passed by the Superintendent should be approved or not. This shows that the members of the Board do not appear to have independently considered the question whether the petitioner should be suspended pending inquiry. The Resolution at page 62 does not indicate that the members of the Board applied their mind to the question whether the petitioner should be suspended or not. It may also be mentioned at this stage that the petitioner was, in fact, suspended on 24th September 1987 and thereafter, the Board passed the Resolution on 29th September 1987 when the petitioner was still on leave. It is the allegation made by the petitioner that before the meeting of the members of the Board was held on 29th September 1987, a meeting of the Board was held earlier on 23rd September 1987 and it was resolved by the Board that no action should be taken against the petitioner as the same would be obviously vindictive and without authority of law. That allegation has been made by the petitioner at para 10(d) introduced by way of amendment, dated 30th September 1987. The Chairman of the Board respondent No. 1 has filed an affidavit-inrejoinder with regard to the amendment and that is dated 12th October 1987. So far as the allegation made by the petitioner at para 10(d) of the amendment is concerned, the Chairman of the Board-respondent No. 1 has stated at para 4, page 55 that no formal meeting of the Board of Management was held on 23rd September 1987, much less was it resolved that no action should be taken against the petitioner, as alleged. It is pertinent to note that it is not stated in the affidavit-in-rejoinder that no meeting of the Board of Management was held on 29th September 1987. If we read para 10(d) of the amendment with para 4 of the affidavit-in-rejoinder dated 12th October 1987 at page 55, it appears that there is much substance in say of the petitioner that a meeting of the Board of Management was probably held on 23rd September 1987. Even if no formal meeting of the Board of Management was held on 23rd September 1987 but an informal meeting was held on that date, we do not know whether this subject was discussed at the informal meeting of the Board or not. It is pertinent to note that the Chairman does not say in the affidavit-in-rejoinder with regard to the amendment that the subject was not discussed at all. It is, therefore, not improbable that the members of the Board may not have been inclined on 23rd September 1987 to suspended the petitioner and, therefore, directions were given on 24th September 1987 by the Chairman to the Superintendent to suspend the petitioner and the petitioner was within half an hour of receipt of the directions from the Chairman suspended on that very day. What was required to be done by the Board of Management was to independently consider the questions of suspension and come to a decision whether the petitioner should be suspended and not only to consider the question of approving the action taken by the Superintendent. In the case of Mohd. Dilawar Ali Vs. Andhra Pradesh Muslim Wakf Board and Others, , services of an existing employee of the respondent-Board were terminated by a Committee consisting of the Board-member and some outsiders and it was ratified by the Board. The Andhra Pradesh High Court took the view that the Board had to show by some evidence that it considered the case of the employee before terminating his services and mere formal ratification by the Board will not cure the defect of termination by the Committee. The above decision of the Andhra Pradesh High Court supports the view which I am inclined to take so far as the ratification by the Board is concerned.
....... ....... ....... ....... 9. It is alleged by the petitioner that there were political considerations in passing the order of suspension. I do not propose to go into those allegations as I am inclined to quash the order of suspension for the reason stated above. All that I would like to observe is that it was a very hasty step on the part of the Chairman of the Board of Management to have directed the Superintendent to pass the order of suspension. It was, on the face of it over-enthusiasm on the part of the Chairman that resulted in the passing of the order of suspension by the Superintendent. Such undue haste and over-enthusiasm should not have been exhibited by the Chairman while taking a serious action of suspending the petitioner in the present case.
(Rest of the Judgment is not material for the Reports)