T. Surya Prakash vs Chairman and Managing Director, Singareni Collieries Company Limited, Hyderabad

T.N.C. Rangarajan, J.—This writ petition challenges Rule 24.4 of the Conduct, Discipline & Appeal Rules, 1989 of the respondent-Company, as unconstitutional. The rule reads as follows :

24.4 During the period of suspension the employee shall not enter the work-place/office premises except with the written permission of the suspending authority or any other authority competent to give such permission, nor shall he/she leave station without the written permission of the competent authority. No leave shall be granted during the period of suspension.

The petitioner was working as Deputy Chief Mining Engineer in the respondent-Company when he was suspended by order dated 29-12-1992 pending inquiry into certain irregularities for which charges were framed by letter dated 27-4-1993. In the letter of suspension, his headquarters was fixed at Ramakrishnapuram. The petitioner states that all the facilities available to an employee on duty at Ramakrishnapuram such as gun-man, watchman, conveyance, telephone connection etc., have been withdrawn and he was also prohibited from visiting the offices with the result that he was unable to contact the office for permission to go to Hyderabad where his wife was ill, and his letters and personal requests for re-consideration of the embargo on leaving the headquarters failed to evoke any response. It is also stated that for his alleged absence from the headquarters, deductions have been made from the subsistence allowance inspite of his furnishing the certificate that he was not employed elsewhere. He thereafter filed writ petition No. 493 of 1994 for payment of full subsistence allowance which lead to writ appeal No. 1246 of 1994 where a direction was given to the respondent to pay subsistence allowance to the extent of the full salary without any deduction considering the long delay in completing the departmental-enquiry, and reserved their right of the petitioner to challenge Rule 24.4, the subject matter of this writ petition. It is pointed out that the enquiry is being carried on at Hyderabad from 5-1-1994 and there is no indication of the time that will be taken. It is further stated that by withdrawing the facilities and keeping the petitioner at a remote place, he was being exposed to the risk of danger to life and he is undergoing a kind of social boycott which is a greater punishment than what may be given even he is found guilty of misconduct in the enquiry.

The learned counsel for the petitioner submitted that the rule itself was void relying on the decisions in Narendra Narayan Bhattacharjee Vs. Secretary to the Government of West Bengal and Others, ; Bhabesh Kumar Paul Vs. The State, and Zonal Manager, F.C.I. v. Khaleel Ahmed 1982 LI.C. 1140 (A.P.). He also argued that full salary was being paid as subsistence allowance without putting him on duty and therefore there was no purpose in requiring him to be at the headquarters particularly when the enquiry was being held at Hyderabad. He, therefore, pleaded for allowing, freedom of movement.

The learned counsel for the respondent submitted that the rule was valid and was incidental to the holding of an effective enquiry. It was submitted that the petitioner was required to be away from Hyderabad because the transactions in respect of which misconduct was alleged happened at Hyderabad and the witnesses were in Hyderabad. It was also stated that subsequent to the filing of the writ petition, a letter was written on 24-6-1995 by the General Manager informing the petitioner that during his stay at the headquarters, he will be provided with the usual facilities such as transport, medical health, club etc., as well as giving him quarters with phone and whenever he was required to attend to emergency work he may obtain prior written permission before leaving the headquarters.

The order of suspension dated 29-12-1992 stated that the petitioner shall not leave the headquarters without obtaining previous permission of the Managing Director. The impugned order dated 30-3-1995 stated that the petitioner shall not leave the headquarters without written permission and his salary will be proportionately cut if he is away from the headquarters viz., Ramakrishnapur. Both these orders are passed under Regulation 24.4 extracted above. This regulation consists of three parts. The first being that the suspended employee shall not enter the work-place or its premises; the second being that he shall not leave the station; and the third being that leave shall not be granted during the period of suspension. The first part is probably the key to the entire regulation since it underwrites the fact that the suspended employee is not on duty with the consequence that he is not entitled to enter the office or work-place without permission. The stipulation as to not granting the leave also means that the leave earned by the employee is protected without being set off against the suspension period unless at the time of re-instatement the absence from duty in regularised by adjustment against leave. In this background, the only inference will be that the suspended employee who is neither on leave nor on duty would have no obligation to stay at the headquarters. If that were the position then the holding of the domestic enquiry may be jeopardised either by the suspended employee not being available for service of notice, or by the suspended employee interfering with the conduct of the enquiry or evidence in some way. That is the rationale for the regulation insisting that he shall not leave the station without permission.

The contention of the learned counsel for the petitioner that the rule is unreasonable and void, cannot be accepted because of this rationale. The decision in Bhabesh Kumar''s case (supra) referred to requiring that the suspended police officer shall reside in the police lines for an indefinite period and that was found to be inconsistent with Section 7 (b) which provided for confinement to quarters as a punishment since the confinement would amount to punishment before the officer is found guilty. The decision of the Calcutta High Court in Bhattacharjee''s case (supra) related to requiring that the suspended employee should report at a particular place from day to day even though he was not on duty, and it was found to be an unreasonable requirement. The other decision of this Court in Khaleel Ahmed''s case (supra) referred to a direction to the employee to mark attendance every day which was inconsistent with the position that he was not on duty. These three cases relied upon by the learned Counsel for the petitioner did not hold that the requirement that the suspended employee should not leave the headquarters without permission was by itself arbitrary or illegal. In fact the edge of the arbitrariness, if any, is blunted by the provision of granting permission to leave headquarters. But, such a permission cannot be unreasonably denied. The impugned rule is, therefore, valid.

In the present case, the complaint of the petitioner is that he had not facility for applying for such a permission as he was being kept in an isolated place without any line of communication and he had no hope of getting any such written permission urgently when he was required to go and attend to his wife who was ill. It is possibly because of this untenable situation which was presented by this writ petition that good sense has prevailed so that the respondent has hastened to write a letter dated 24-6-1995 assuring the petitioner that his lines of communication will be preserved and he may obtain prior written permission to leave the headquarters. If such permission is granted the question of any deduction out of the subsistence allowance does not arise, and, therefore, the question whether the respondent has the power to make any deduction for unauthorised absence will be academic.

In the circumstances, I direct the respondent to continue to pay full salary as subsistence allowance as ordered by this Court without any deduction. I also direct the respondent to respond to any request for permission to leave the headquarters, immediately and if such permission has to be refused, a speaking order must be passed. This will be necessary implication of the rule as the doctrine of legitimate expectation requires that the exercise of any power must be transparent and fair, which will be apparent only if the reasons are recorded. In view of the assurances given in the letter dated 24-6-1995, I trust and hope that the petitioner will not be driven to this Court again. I, therefore, dispose of the writ petition with the directions given above, No costs.