Murli Manohar Vyas vs Registrar, Co-operative Societies and Others

Nirmaljit Kaur, J.—The prayer in the present petition is for quashing of the order dated 29.10.2014 vide which the petitioner was transferred from Circle Baap to Circle Bhopalgarh including the order dated 11.11.2014 vide which he was kept Awaiting Posting Orders and the head office of the petitioner was changed from the Sub Registrar, Cooperative Societies, Jodhpur to the office of the Sub Registrar, Cooperative Societies, Jaisalmer as well as the order dated 14.11.2014 placing the petitioner under suspension.

The notice of the petition was issued by this Court vide order dated 20.11.2014. The respondents were duly served. The matter came up for hearing on 8.1.2015. No one was present on behalf of the respondents in spite of service. On 8.1.2015, the following order was passed:--

"No one has put in appearance on behalf of the respondents in spite of service. Accordingly, the matter shall be heard and decided ex parte.

To come up for final disposal on 21.1.2015."

Today also, no one is present on behalf of the respondents. It is therefore apparent that the respondents are not interested in contesting the matter.

The petitioner is stated to have been suspended under Rule 7(4) of the Rules of 1971 which reads as under:--

"7. Taking part in politics and elections.-

(4) No Government servant shall canvass or otherwise interfere with or use his influence in connection with, or take part in an election to any legislature or local authority;

Provided that -

(i) a Government servant qualified to vote at such election may exercise his right to vote, but where he does so, he shall give no indication of the manner in which he proposes to vote or has voted;

(ii) a Government servant shall not be deemed to have contravened the provisions of this rule by reason only that he assists in the conduct of an election in the due performance of a duty imposed on him by or under any law for the time being in force"

Normally, this Court would not interfere in the order of suspension but however, the facts enumerated herein make out a case of harassment, malafide and seem to have been passed only as a matter of punishment.

Learned counsel for the petitioner submitted that the State Election Commission announced election schedule for 46 Municipal Bodies in the State of Rajasthan and the model code of conduct came into force on 28.11.2014. The wife of the petitioner was declared candidate for Ward No. 19 of Indian National Congress Party for the election of Municipal Board, Phalodi. The seat of Chairman of Municipal board, Phalodi is reserved for woman category and the opposing candidate is the wife of ex-chairman. The petitioner was shocked to receive an order dated 14.11.2014 on 17.11.2014 issued by respondent No. 1 placing the petitioner under suspension for violation of Rule 7(4) of the Rajasthan Civil Services (Conduct) Rules, 1971. It is stated that the petitioner is being harassed by the respondent-authorities right from 22.1.2014 onwards.

As per the facts stated in the petition and as contended by the learned counsel for the petitioner, while the petitioner was working as Chief Manager, Co-operative Societies, Phalodi, an order dated 22.01.2014 was issued directing him to report to the office of Joint Registrar, Co-operative Societies, Bikaner and await his posting orders. Another order was passed on 4.3.2014 and the head office of the petitioner was changed from Bikaner Division to the office of Joint Registrar, Cooperative Societies, Jodhpur. Again on 1.5.2014, the petitioner was transferred from Jodhpur to Pali and yet again on 9.10.2014, he was sent from Pali to Jodhpur. Vide order dated 20.10.2014, the petitioner was ordered to take charge for Circle Baap and Circle Osiyan, Co-operative Societies, Phalodi. In spite of the State Election Commission having announced the model Code of Conduct which came into force on 28.10.2014, the respondent authorities issued yet another letter dated 29.10.2014 and transferred him from Circle Baap to Circle Bhopalgarh. The petitioner could not join at Bhopalgarh on account of his severe back pain problem and was on medical leave. However, once again on 11.11.2014, the petitioner was ordered to go to Jaisalmer and await his posting orders.

The above facts are shocking on the face on it. As many as seven orders of transfer have been passed in a span of ten months and most of the time, the petitioner was first kept under awaiting posting orders and then all of a sudden, the suspension order was issued on 14.11.2014. However, the said suspension order was not accompanied by any charge-sheet. Admittedly, till date, no charge-sheet has been issued to the petitioner.

The learned Single Bench of this Court in the case of Dr. B.M. Bohra v. State of Raj. reported in 1991(1) RLR 383 while dealing with as to how the power to suspend should be exercised observed that same should be passed after taking into consideration the gravity and seriousness of the offence, holding a preliminary enquiry, if possible and such an administrative act should be free from arbitrariness. It should be bona fide and in public interest. Para 32 of the said judgment reads thus:--

"The principles of law enunciated hereinabove show that the every Governmental action including purely administrative acts have to be free from arbitrariness. Wherever, the order is made by a public authority affecting a member of public (he may be a Government employee), it must be made bona-fide, in good faith and in public interest. Fairness in State action is part and parcel of the rule of law, on the edifice of which our Constitution rests. It is no doubt true that the public employer including the Government has a right to suspend its employee at any time in contemplation or during the pendency of inquiry or during investigation or trial of criminal case, in which an employee is involved. But such power of suspension has to be exercised sparingly and after due care. It is necessary that the competitive (sic competent) authority must objectively apply its mind to the nature of the allegation made against the employee, its gravity and seriousness, the record of the Government servant and the likely impact on service or the public interest of the alleged act of delinquency of the employee. The power of suspension cannot be exercised as a matter of course. No unfettered discretion is vested with the competent authority to pass order of suspension of an employee according to its sweet will, whim and fancy. The suspension of an employee results in serious adverse consequences to him because his image is shattered in the eye of public and the society in which he moves. Not only he but his whole family has to bear the burnt and the entire family is looked with contempt by the fellow employees and the members of the society. It is, therefore, necessary that this power of suspension must be exercised after thorough consideration of the matter from different angles. The guidelines contained in the various circulars of the Department of Personnel of the Government of Rajasthan, no doubt, do not have the force of law and it also cannot be said that they must be followed in strict sense, but nonetheless these guidelines cannot be ignored in totality. The guidelines have to be kept in mind and the spirit with which these guidelines have been issued must form part of the consideration, which every competent authority is required to make before passing the order of suspension. As and when the order of suspension is challenged before a court of law and the Government is called upon to justify the order of suspension, it must show from the material on record that there has been application of mind by the competent authority to the relevant factors referred to in the guidelines of the Government. These guidelines cannot be disregarded arbitrarily. They cannot be ignored in totality. The Government, which has issued these guidelines must feel normally bound by the guidelines and if the court finds that there has been a whole-sale breach of these guidelines that will be a strong circumstance to invalidate the order of suspension, because these guidelines clearly provide for consideration of the factors like involvement of Government servant in the allegation of moral turpitude or the allegation levelled against him involve grave misconduct or failure to carry out the orders of superior authority or where there is a likelihood of major penalty of dismissal or removal being imposed on him. It is also necessary that except in exception circumstances, a preliminary enquiry is made before the order of suspension is made against a Government servant. The Government servant should ordinarily be given an opportunity to explain his conduct before a decision is taken to suspend him. Of course, this may not be necessary in cases requiring urgent action for preventing injury to the public interest. At times, allegations are made against the Government servants with ulterior motives or extraneous reasons and if he is called upon to submit his explanation, he may satisfy the competent authority that the allegations are baseless, unfounded, malicious or motivated. Then the appropriate authority concerned may not pass an order of suspension against the delinquent Government servant." 10. Coming back to the facts of the present case, it appears that the petitioner has been made escaped goat just because his wife was contesting the election at Phalodi. The opposing candidate of the wife of the petitioner is also ex-chairman. It is contended and stated in the petition that the petitioner has no role to play in the municipal election. He has not misused his authority in any manner or participated in the said election process.

The malafide is evident from the fact that the petitioner was transferred almost seven times in the last ten months and ultimately placed under suspension vide order dated 14.11.2014. The above events in themselves show that the petitioner is being harassed continuously. It is a matter of record that the petitioner is suffering from back pain and slip disk problem and was not in a condition to move and walk and even doctors had advised him to take complete bed rest. The authorities are probably aware of the hollow allegations and therefore, it is no wonder that no charge-sheet has been issued till date.

In any case, the allegations alleged in the petition have not been controverted. In fact no one is present on behalf of the respondents in spite of service. It is obvious that they do not wish to contest the present petition.

In view of the above, the present writ petition is allowed. The impugned order dated 29.10.2014 (Annex.8), order dated 11.11.2014 (Annex.9) and order dated 14.11.2014 (Annex.11) are set aside.