Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. Muralidhar and B. P. Routray, JJ.,  quashed the impugned suspension order and allowed the petition.

The facts of the case are such that petitioner 1 is a Company engaged inter alia in the business of manufacturing sponge iron, pellet and other steel products in the State of West Bengal, with a two licences one for procurement of Iron ore and coal for processing, end-use and sale of residuals outside the State of Odisha on 7-04-2016, which was valid till 6-04-2021 and the other for manufacture of iron ore pellet and beneficiation of iron ore, for which a licence issued on 07-04-2016, valid till 06-04-2021, both of which stands renewed on 20-02-2021. There were three monthly return forms required to be submitted by Petitioner wherein noticing certain discrepancies show-cause notices were issued, the licences were suspended and the transit permits were also cancelled. Pursuant to the SCN petitioner filed a reply seeking to rescind rescission of the transit permits/licenses pointing out that there was a bona fide clerical error in filling out the figures in the forms. Later, Opposite Party 2 wrote a letter to Opposite Party 3 noting that a ‘fresh observation’ to be made by REAC, which prima facie pointed to “irregularities committed by the various entities of the Rashmi Group of Companies and their promoters”, which were under investigation of the Ministry of Environment of Forest and Climate Change (i.e. MoEF and CC). Despite the above revocation of suspension of the licences, there was a sudden stoppage in dispatch of iron ore, coal and manganese ores which led Petitioner 1 to send an email to Opposite Party 3 seeking the reasons therefor. Petitioner No.1 then made a representation to the Government of Odisha on 22-02-2021 protesting against the stoppage of issuance of transit permits. When no response was received, the present petition was filed.

Counsel for the petitioners Mr Pinaki Mishra submitted that that there were “fresh observations made by REAC as stated in the minutes of meeting dated 25-27th November 2020” from which “prima facie it appears that irregularities committed by the various entities of the Rashmi Group … are under investigation of MoEF & CC”. It was further submitted that the licenses issued to Petitioner 1, which incidentally have been renewed recently, pertaining to not just to iron ore, but also coal and manganese ore, all of which are required for running the units of Petitioner 1. It is submitted that the impugned order will cause great inconvenience, if the units are compelled to shut down. It was also submitted that revised forms have been filed.

Counsel for the respondents Mr Ashok Kumar Parija submitted that the discrepancy in forms A, E and L and to the fact that the revocation of suspension of license was made subject to Petitioner 1 rectifying the discrepancies in the said forms ‘immediately’ and undertaking ‘not to repeat such type of mistake’. It was further submitted that Petitioner 1 should be asked to file an affidavit stating that it has rectified the discrepancies.

The Court relied on judgment Commissioner of Police v. Gordhan Das Bhanji, AIR 1952 SC 16 and observed that the impugned action of suspension of the issuance of transit passes ought to have been preceded by an enquiry, that prima facie discloses wrong doing by Petitioner 1 in the form of violation of the terms of the license. The suspension of a licence even before the inquiry reveals prima facie violation of the terms of the license would obviously be vulnerable to invalidation on the ground of it being arbitrary and irrational.

The Court thus held that “the Court sees no justification in the Opposite Parties continuing to suspend the issuance of transit passes/permits to Petitioner No.1.”

In view of the above, petition was disposed off.[Orissa Metaliks Private Ltd v. State of Odisha, 2021 SCC OnLine Ori 148, decided on 08-03-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Gauhati High Court: Manojit Bhuyan, J., while allowing the present petition, directed to reinstate the petitioner on and from the date when he was under suspension.

The petitioner while working as Assistant Conservator of Forest, in the Office of the Divisional Forest Officer was placed under suspension under Rule 6 (2) of the Assam Services (Discipline and Appeal) Rules, 1964, pending drawal of departmental proceedings. The said order dated 09-02-2016 was issued under the hand of the Secretary to the Government of Assam, Environment and Forest Department. As per records, the memorandum of charges was served upon the petitioner after about 4 years by means of a show-cause notice dated 08-09-2020, together with the statement of allegations. It is also submitted that neither any exercise of review for continuance of the suspension order was undertaken nor subsistence allowance was paid following the order of suspension. Reliance was placed on Division Bench judgment of this Court in Rakibuddin Ahmed vs. State of Assam, 2019 (5) GLT 600, as well as in the case of Ajay Kumar Choudhary v. Union of India, (2015) 7 SCC 291.

What did the Supreme Court held in Ajay Kumar Choudhary v. Union of India?

The Court while discussing about the imposition of limits on suspension order, said,

 “…the currency of a suspension order should not extend beyond three months if within this period the memorandum of charges/charge-sheet is not served on the delinquent officer/employee and if the memorandum of charges/charge-sheet is served, a reasoned order must be passed for the extension of the suspension.

 Relying on the aforementioned observation, the Court allowed the present petition observing, “The inescapable fact, as emerging in the present case, is that memorandum of charges/charge-sheet was not served upon the petitioner within 3 months from the date of suspension. Although the same came to be done on 08-09-2020, which is after more than 4 years from the date of the order of suspension, this Court is of the view that the same would serve no purpose and cannot operate as a saving grace in so far as the impugned order is concerned.” [Mrigen Barua v. State of Assam, 2020 SCC OnLine Gau 4587, decided on 11-12-2020]

Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Allahabad High Court: Rajesh Singh Chauhan, J. while issuing the writ of mandamus commanded the opposite parties to reinstate the petitioner and post him at any place where the Competent Authority deems fit and proper within two weeks from the date of production of a certified copy of this order.

In the instant petition, the petitioner had assailed the impugned suspension order of 14.08.2019 passed by the Additional Director of Education (Basic), U.P., Prayagraj.

Counsel for the petitioner, Manish Kumar submitted that petitioner was working as a Steno-cum-Clerk when the suspension order was passed by Additional Director of Education (Basic) other than Joint Director of Education (Basic) who has the authority to suspend.

The Counsel objected to the contents of the instructions letter of 21.11.2019 produced by Counsel of the respondent, J.B.S. Rathour, wherein it was indicated that the petitioner was serving on the post of Personal Assistant Grade-II (as promoted) at the time of suspension. As proof, salary certificates and preliminary inquiry reports were provided.

Counsel drew the attention of this Court towards the Division Bench judgment of this Court in re Ashok Kumar Singh v. State of U.P, (2006) 3 UPLBEC 2247, in which it was categorically held that the order of suspension can be passed only by the Disciplinary Authority. However, the order to initiate the disciplinary proceedings may be passed by the Superior Authority. In ESI v. T. Abdul Razak, (1996) 4 SCC 708, the Supreme Court had laid down the same law as Ashok Kumar.

After considering the submissions of the parties and law laid down in various judgments put before the Court, the Court observed that suspension order of 14.08.2019 was not passed by the Competent Authority; therefore, it is liable to be quashed.[Jai Prakash Tiwari v. State of U.P., 2019 SCC OnLine All 4950, decided on 22-11-2019]

Case BriefsHigh Courts

Tripura High Court: The Bench Arindam Lodh, J. set aside petitioner’s suspension order in view of Rule 10(6) and (7) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965.

Petitioner, a State Veterinary Officer (TVS, Grade V) was placed under suspension by order dated 12-04-2018. The seminal issue to be determined in the present petition was whether the suspension order could be continued even if not reviewed before the expiry of 90 days from the effective date of suspension in view of the rules mentioned above?

A. Bhowmik, Advocate appearing for the petitioner prayed for setting aside of the suspension order passed by the Joint Secretary, Animal Resource and Development Department, Government of Tripura.

The High Court noted that Rule 10(6) and (7) obligates the appointing authority to constitute a committee review whether the extension of suspension order is necessary. in the present case, no review committee was formed even after expiry of 6 months after the expiry of 90 days. Relying on Union of India v. Dipak Mali, (2010) 2 SCC 222 the Court held that in such cases the suspension order lapses after the period of 90 days. Further, it was clarified that the matter has to be reviewed before the expiry of 90 days from the date of suspension. In such view of the matter, petitioner’s suspension order was set aside.[Ankur Debnath v. State of Tripura, 2019 SCC OnLine Tri 19, decided on 08-01-2019]

Case BriefsHigh Courts

Kerala High Court: A Single judge bench comprising of A.Muhamed Mustaque, J. while hearing a civil writ petition against a University’s order of suspension against its employee, ruled that suspension must only be continued if there is a threat of tampering of evidence/ materials gathered.

Petitioner, an Assistant in the respondent University, was removed as a member of the respondent’s employee association, subsequent to which he made certain sarcastic posts on social media depicting activities of powerful persons. In his posts, he did not name any institution or person and there was nothing on the face to conclude that his posts were directed against the respondent University or its officials. Respondent thought that it was an attack on the University and/ or its administration, and suspended the petitioner from its service. This writ petition was filed challenging the said suspension.

The court noted that petitioner had been suspended for nearly 60 days. Relying on its decision in K.K. Ramankutty v. State of Kerala, 1972 SCC OnLine Ker 96 the High Court held that suspension cannot be used as a weapon to penalize and continuation of suspension must be in larger public interest. If the service of an employee poses threat to an ongoing inquiry, then such delinquent employee need not be reinstated pending such enquiry.

Adverting to the facts of the case, it was observed that in the present case there was no need to keep the petitioner under suspension for long because what could amount to alleged misconduct was already there in the form of his social media posts. There was no scope for him to interfere with any material(s) gathered. Therefore, larger public interest demanded that his services should not be kept in suspension.

Lastly, the court clarified that it had not ruled on the legality of the suspension order and the merits of the matter in relation to what would amount to ‘misconduct’. [Anil Kumar A.P. v Mahatma Gandhi University,2018 SCC OnLine Ker 4004, decided on 28-09-2018]