President Cantonment Board, Ranikhet and others vs Kamaluddin

K.M. JOSEPH, C.J. (Oral)

The appellants are the respondents in the writ petition. The writ petitioner had called in question the order dated 11.12.2017 (Annexure-4 to the writ

petition), by which, the services of the writ petitioner as Toll Moharir / Peon stood suspended. A direction was also sought to initiate the preliminary

inquiry in the matter and till then he may be permitted to continue on the post of Toll Moharir / Peon.

Briefly put, the case of the writ petitioner is as follows :-

The writ petitioner was appointed in the office of Cantonment Board as Office Peon on 10.11.1995. The petitioner was allotted the work of Collection

of Toll. The petitioner was issued a show cause notice dated 20.11.2017 containing allegations against him to the following effect:

That on 07.11.2017, the petitioner has collected Rs.150/- from a vehicle and had issued a receipt of Rs.10/-, thus, was prima facie held guilty of

illegally benefiting himself and causing financial loss to the Board, which would amount to be misappropriation of money while discharging official

duty.

The petitioner gave reply on 27.11.2017. He averse that he is an honest person, he has never misused the liberty given to him and he has done his

duty as per the Rules with due diligence. The allegation against the petitioner appears to be of embezzlement of Rs. 140/- which he denies as to be

wrong. It is, thereafter, that the petitioner came to be placed under suspension by the impugned order.

The learned Single Judge by the impugned judgment dated 03.05.2018 has set aside the impugned order of suspension. The learned Single Judge

finds that a perusal of the impugned order reveals that no misconduct has been mentioned in the suspension order and there is no reference to a

contemplated inquiry against the petitioner. The learned Single Judge further reasons that if the suspension order does not depict any particular

misconduct of the delinquent officer, which may lead to imposition of major penalty and termination of the service, then the suspension order should

not be passed in a routine and casual manner, which is the situation here. It is further stated that the order does not reveal that there is any reference

that the petitioner has committed any misconduct which may lead to major penalty and there was no contemplated inquiry. Without assigning any

reason and conducting any contemplated inquiry, an employee should not be put under suspension. Though suspension is not a punishment but putting

an employee under suspension without assigning reason, humiliates the employee which may have an adverse effect on his social status. The learned

Single Judge finally finds that the suspension order has been issued in a cursory manner with liberty to the appellant to proceed with the inquiry as

chargesheet has already been issued and the suspension order was set aside.

We heard Shri Sanjay Bhatt, learned counsel for the appellants and Shri Kurban Ali, Advocate for the respondent / writ petitioner.

The case of the appellant appears to be that the judgment of the learned Single Judge cannot be sustained. It is pointed out that the suspension order

is issued under Rule 10 (1)(A) of the Cantonment Fund Servants Rules, 1937. He submits that in the same, for suspending a person, there is no

statutory requirement that the suspension order should state that a case is made out for imposition of major penalty. He would submit that there are

serious charges against the writ petitioner regarding being negligent, holding conspiracy against the Board, causing loss of revenue and illegal recovery

etc. Further, these are not isolated incidents but in the past also, he was punished for misconduct, as such, there was no occasion for interfering with

the order of suspension.

Per contra, Shri Kurban Ali, learned counsel for the respondent / writ petitioner would support the order of the learned Single Judge. He would point

out that he is only a Peon and he would submit that he has given his explanation to the show cause.

The allegations against the writ petitioner would appear to be contained in the following pararagraph of the counter affidavit. The same read as

under :-

“8.That it is pertinent to mention here that the petitioner is an honest person and doing his duty with dedication and always obey the orders of the

superior officer and no complaint has ever been recorded before 2012 against the petitioner but in the year 2012 the petitioner approach to the

respondents to discontinue from the job of toll collector as he was working from long time in the toll gate and the duty of toll gate is very hard as there

is no holiday even on the day of any of the festival and the petitioner from long time working alone but the respondents have despite of taking

positively show cause to the petitioner on 11th of December 2012, the copies of the show cause notice are annexed as annexure no.5 to the writ

petition.

That the petitioner replied to the notice and its contents as per his capacity and also asked about his duty at Toll gate and also informed to the

authority regarding the problem which was faced by the petitioner during the service hours, a copy of the reply of the notice is annexed as annexure

no.6 to the writ petition.

That the respondent dissatisfied with the reply of the petitioner framed the charges against the petitioner with certain allegations like disobedient of

superior officer and negligence with the work etc in which the petitioner properly replied to the respondents and the petitioner has repeatedly

requested to the respondent to change his duty from toll gate as he was appointed as office peon and not able to work as toll collector, a copy of the

reply of the charge dated 16-4-2013 is annexed as annexure no.7 to the writ petition.â€​

We find that there is no rejoinder affidavit filed.

As far as the impugned order of suspension is concerned, it would reveal that a show cause was issued to the writ petitioner before the order of

suspension was passed. The petitioner gave his reply. It is after finding the reply to be unsatisfactory, that it was decided to place the petitioner under

suspension.

In the order of suspension, itself, it is indicated that an inquiry is contemplated. This is evident from the fact that in the order of suspension, it is

indicated that chargesheet would be issued separately. We cannot possibly invalidate otherwise a valid order of suspension on the ground that the

words are not used in a particular manner. What is important is the substance of the matter. Therefore, the suspension order was issued in this case

after giving show cause and after reply was given by petitioner and after considering the same.

We have noticed the nature of the allegations against the writ petitioner. We cannot say that the suspension is done for a trivial matter; particularly

there had been antecedents of similar nature. (We make it clear that we have not for a moment pronounced on the merit of the case of the petitioner

in this regard)

Therefore, in such circumstances, we would think that the learned Single Judge was not correct in interfering with the order of the suspension.

Accordingly, the impugned judgment of the learned Single Judge cannot be sustained. We set aside the judgment of the learned Single Judge to the

extent that he interfered with the order of suspension. The writ petition in the said regard will stand dismissed.

We, however, direct that the inquiry, which is already progressing (it is brought to our notice that chargesheet has been issued and the reply of the

petitioner has also been received) will be concluded as early as possible, at any rate, within a period of ten weeks from today. We further make it

clear that the disciplinary proceedings will be conducted without being influenced in any manner by any observation made by us in this judgment or the

granting of relief to the appellants. We make it clear that the direction to conclude inquiry within ten weeks from today is subject to the conditions that

the writ petitioner will cooperate in the expeditious conducting of the inquiry. No order as to costs.