W.P.(C) No. 7825 of 2015. Case: Bishnu Prasad Sahoo Vs State of Odisha and Ors.. High Court of Orissa (India)
| Case Number | W.P.(C) No. 7825 of 2015 |
| Counsel | For Appellant: R.K. Rath, Senior Advocate and P.K. Rout, Adv. and For Respondents: Amit Patnaik, Addl. Govt. Advocate |
| Judges | S. N. Prasad, J. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Section 482; Constitution of India - Articles 14, 226, 314; General Clauses Act 1897 - Section 16; Indian Penal Code 1860, (IPC) - Sections 109, 394, 397, 467; Prevention of Corruption Act, 1988 - Sections 13(1)(e), 13(2), 17 |
| Judgement Date | October 14, 2015 |
| Court | High Court of Orissa (India) |
Judgment:
S. N. Prasad, J.
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This writ petition has been filed by assailing the order dated 13.12.2012 passed by the Secretary, Cuttack Development Authority by order of the Vice-Chairman by which order of suspension dated 6.12.2012 has been modified to the effect for fixing headquarters of the petitioner during the suspension period and for payment of subsistence allowance during period of suspension.
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Brief facts of the case is that the petitioner who was working as Junior Town Planner in the Cuttack Development Authority having been joined in service on 8.11.1995, transferred to Bhubaneswar Development Authority in the year 2006, again transferred to Cuttack Development Authority on 10.11.2010 and while working under the Cuttack Development Authority a vigilance raid was conducted in the residential premises of the petitioner by Vigilance Wing of the State and on raid disproportionate property has been seized, petitioner was arrested on 1.12.2012, remanded to judicial custody, petitioner subsequently been released on bail by order passed by this Court in BLAPL No. 32332 of 2012. Petitioner has been put under suspension on the instruction of the Vigilance Department who has directed the opposite party No. 2 vide office order dated 10.12.2012 to put the petitioner under suspension since petitioner has remained under custody for period of 48 hours on the allegations made under section 13(2) r/w 13(1)(e) of the Prevention of Corruption Act, 1988 read with section 109 of the Indian Penal Code, accordingly petitioner was put under suspension vide memo No. 22857 dated 13.12.2012 fixing headquarters at BDA, Bhubaneswar.
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Learned senior counsel appearing for the petitioner has submitted that since the date of suspension no charge sheet has been submitted even lapse of about three years from the date of raid, hence authorities have got no power to keep the petitioner under suspension for indefinite period that too without any latches on his part.
Further contention of the learned counsel for the petitioner is that the authority is supposed to revoke the order of suspension in view of the instructions dated 29.5.1995 but the authorities are not following the same.
Petitioner has relied upon judgments in the case of (1) P.L. Shah - vs- Union of India and another, reported in AIR 1989 SC 985, (2) Bhaktram Purohit v. Chief Engineer, Electricity reported in 1996(I) OLR 369, (3) Manas Ranjan Das v. State of Orissa, reported in 1973(2) SLR 553, Ajay Kumar Choudhury v. Union of India,(Civil Appeal No. 1912 of 2015 disposed of on 16.2.2015) and Public Service Tribunal Bar Association v. State of U.P. and another reported in AIR 2003 SC 1115.
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Assailing the correctness of order of suspension learned Senior Counsel appearing for the petitioner has vehemently argued that the authority cannot keep an employee under suspension in an indefinite period, power of suspension has to be exercised with utmost care, authority has power to keep an employee under suspension but the period of suspension cannot go for indefinitely, the investigation is still going on and even after lapse of about three years charge sheet has not been submitted, hence the petitioner cannot be put under suspension.
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On the basis of the counter affidavit filed by the Cuttack Development Authority submission has been advanced on behalf of the authority that petitioner has been put under suspension in exercise of power conferred under Sub-Rule(2) of Rule 12 of the Orissa Civil Service (Classification, Control and Appeal) Rules, 1962, (hereinafter referred to as OCS Rule, 1962) vide order dated 6.12.2012 on the ground that petitioner has been found to be in possession of property/assets which is not known to his known sources of income and accordingly regular case has been registered against the petitioner and his wife Smt. Dipti Choudhury under section 13(2) r/w 13(1)(e) of the Prevention of Corruption Act, 1988 read with section 109 of the Indian Penal Code, in course of investigation petitioner was found to be in possession of disproportionate assets to his known sources of income to the tune of Rs. 1,39,72,290/- and as such invoking power conferred under section 12(2) of the OCS Rule, 1962 petitioner was put under suspension. Petitioner is being paid subsistence allowance initially to the extent of 50% but subsequently it has been enhanced under statute to the extent of 75% and at the moment he is getting 75% subsistence allowed.
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During pendency of the criminal case a departmental proceeding has been initiated against the petitioner under Rule 15 of the OCS Rule, 1962 in which petitioner has been served with memo of charges, with a direction to give reply within 30 days but till date no reply has been submitted by the petitioner in the departmental proceeding. Vigilance Department is continuing with the investigation and as such at this moment order of suspension needs no interference on account of serious nature of allegations otherwise there is every likelihood of tampering with the evidence and the employee against whom serious charge of moral turpitude is alleged, his continuance in service will encourage corruption.
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Opposite party-State has appeared, opposed prayer of the petitioner by filing counter affidavit stating therein that the petitioner being an employee of the Housing and Urban Department has been dealt with by exercise of power conferred upon the State under section 12(2) of the OCS Rule, 1962 considering serious nature of allegation related to moral turpitude.
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Heard learned counsel for the parties and perused the documents available on record.
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Some of the disputes which arise for consideration in this writ petition are:
"(i) Whether the authority, who has placed a government servant under suspension is statutorily bound to review the suspension, when he is facing investigation into a criminal case/trial of an offence, involving moral turpitude, like corruption, embezzlement, misappropriation or for such other serious offences before the Criminal Court and if review of suspension is not done by the authority, who has placed the government servant under suspension or by the higher authority, whether the said order would become automatically invalid?
(ii) Whether time limit prescribed for revocation of suspension in Memo No. 21934 dated 29.5.1995 is applicable mandatorily?
(iii) Whether the Courts can merely strike down orders of suspension issued against the government servant and continued, pending disposal of the investigation/trial of offences involving moral turpitude, particularly, corruption, on the sole ground that there is no progress in the investigation or trial for a considerable period, there is no likelihood of tampering with the witnesses or prolonged suspension, pending investigation or trial, causes agony and humiliation?
(iv) Whether a government servant placed under suspension for involvement in serious offences/misconduct, involving moral turpitude can seek for retention in service in any insignificant post or seek for transfer, on the sole ground that the suspension is prolonged pending investigation/trial?
(v) Whether judgment rendered in the case of A.K. Choudhury is applicable in the facts and circumstance of this case."
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Suspension, as per Wharton's Law Lexicon, 14th Edn., is a temporary stop or hanging up as it were of a right for a time, also a censure on ecclesiastical persons, during which they are forbidden to exercise their office or take the profits of their benefices.
'Suspension' means, "action of debarring or state of being debarred, especially, for a time, from a function or privilege; temporary deprivation of one's office or position, or again, state of being temporarily kept from doing or deprived of something.
Suspension connotes temporary cessation of something as right, work or labour. The basic idea underlying the root word, suspend and all its derivatives is that a person while holding an office and performing its functions of holding a position or privilege should be interrupted in doing so and debarred for the time being from further functioning in the office or holding the position and privilege. He is intercepted in the exercise of his functions of his employment of the privilege and put aside, as it were, for a time, excluded during the period from his functions or privileges. Such is the concept of a suspension order.
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In the case in hand petitioner while working as Junior Town Planner and when his houses were raid huge assets have been recovered which was not known to his known sources of income and accordingly criminal case was instituted under the provisions of under section 13(2) r/w 13(1)(e) of the Prevention of Corruption Act, 1988 read with section 109 of the Indian Penal Code and the petitioner was taken into judicial custody and when petitioner was suspended remained in judicial custody for more than 48 hours, he was put under suspension in exercise of power under Rule 12 of the OCS Rule, 1962. Power of the State Government to place a Government servant under suspension is given under Rule 12 of the OCS Rule, 1962 which reads as follows:
12-Suspension- (1) The appointing authority or any authority to which it is subordinate or any authority empowered by the Government or the appointing authority in that behalf may place a Government servant under suspension-
(a) Where a disciplinary proceeding against him is contemplated or is pending, or
(b) Whether a case against him in respect of any criminal office is under investigation or trial.
(2) A Government servant who is detained in custody whether on a criminal charge or otherwise, for a period exceeding forty-eight hours shall be deemed to have been suspended with effect from the date of detention, by an order of the appointing authority and shall remain under suspension until further orders.
(3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant...
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