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HIGH COURT OF CALCUTTA
Sudhir Ranjan Roy, J.
Arun Sankar Majumdar
Vs.
Union of India & Ors.
C.O. No. 11167(W) of 1983
Decided on : 10th March, 1988
EXPORT INSPECTION AGENCY - SUSPENSION - SHOW CAUSE NOTICE - SERVICE RULES - CONDUCT RULES - UNBECOMING CONDUCT - ARREST AND DETENTION - DISCLOSURE - MALA FIDE EXERCISE OF POWER - WRIT OF MANDAMUS - REVOCATION OF SUSPENSION - PAYMENT OF ARREARS - QUASHING OF SHOW CAUSE NOTICE - APPLICABILITY OF GOVERNMENT CIRCULAR - SPECIFICATION OF MISCONDUCT - EX POST FACTO INTERPRETATION - JURISDICTION TO CHALLENGE SHOW CAUSE NOTICE.
Fact of the Case:
The petitioner, an Assistant Director in the Export Inspection Agency, was suspended on the basis of a criminal case against him under ss. 497/498 of the Indian Penal Code. After being discharged from the criminal case, the petitioner requested the respondent to revoke the suspension order and rescind the show-cause notice issued to him for alleged misconduct. The petitioner challenged the continuance of the suspension order and the show-cause notice, contending that they were arbitrary and without authority of law.
Finding of the Court:
The court found that the continuance of the suspension order after the petitioner's discharge in the criminal case was arbitrary and mala fide exercise of power under Rule 6(5)(a) of the Service Rules. The court also held that the show-cause notice was issued palpably without any authority of law as the relevant Service Rules did not specify what acts may amount to misconduct and the Government Circular relied upon by the disciplinary authority was not applicable to the employees of the Export Inspection Agency.
Issues: 1. Whether the continuance of the suspension order after the petitioner's discharge in the criminal case was arbitrary and mala fide? 2. Whether the show-cause notice was issued palpably without any authority of law?
Ratio Decidendi: 1. The court held that the continuance of the suspension order after the petitioner's discharge in the criminal case was arbitrary and mala fide exercise of power under Rule 6(5)(a) of the Service Rules. The court reasoned that there was absolutely no reason for such continuation of the order and it could not be said that any disciplinary proceeding was even contemplated at the material time. 2. The court held that the show-cause notice was issued palpably without any authority of law as the relevant Service Rules did not specify what acts may amount to misconduct and the Government Circular relied upon by the disciplinary authority was not applicable to the employees of the Export Inspection Agency.
Final Decision: The court allowed the writ petition and directed the respondent to revoke the suspension order, allow the petitioner to resume his duties, pay him all his arrear emoluments, and revoke and/or rescind the show-cause notice.
The petitioner sometime on 15th of October, 1970 joined the services of the Export Inspection Council of India as a Junior Technical Officer in the Export Inspection Agency (Jute Scheme) and in course of time became an Assistant Director in the sold Export Inspection Agency.
2. While working as Assistant Director as aforesaid, the petitioner applied for leave on 1st of March, 1982 and leave was granted to him for five days commencing from 8th of March, 1982 to 12th of March, 1982 and he was due to resume his duties on the 15th of March, 1982.
3. The petitioner proceeded for Jasidih in the district of Santhal Parganas in the State of Bihar on 7th of March, 1982 being accompanied by his daughter, aged about 15 years with a view to join his parents who are permanent residents of Jasidih. Before the petitioners arrival at Jasidih his parent had already accommodated a lady by the name of Smt. Srinanda Ghosh at their residence at Jasidih as a guest. The said lady being a private tutress of the petitioner's daughter was known to the petitioner and as a matter of fact, she had become almost a family friend of theirs.
4. However, the petitioner was taken into surprise since he was attempted to be impleaded on a criminal charge under ss. 497/498 of the Indian Penal Code on the basis of a complaint lodged by one Kalyan Kumar Ghosh, the husband of the said Smt. Srinanda Ghosh.
5. In course of the Investigation, the petitioner was taken into custody by the police on 13th or March, 1982 and be was released on bail on 14th of March, 1982 in the afternoon and his period of detention was for about 30 hours.
6. Subsequently, however the petitioner by an order dated 13th of September, 1982 was discharged from his bail bond in the absence of any dependable evidence in support of the charges under ss. 497/498 of the Indian Penal Code.
7. The petitioner, soon after his detention was put under suspension with effect from 23rd of March, 1982 in terms of Rule 6(1)(c) of the Export Inspection Agency Employees (Classification Control & Appeal) Rules, 1978 (in short, the Service Rules) (Annexure 'B').
8. As soon as the petitioner was exonerated of the charge and was discharged from the bail bond he, by his Memo. dated 16th of September, 1982 requested the respondent no. 2 to revoke and/or to rescind the said order of suspension immediately. This was followed up by subsequent reminders (Annexures 'C' and 'C/1")
9. In reply thereto the respondent no. 2 by his letter dated 9th November 1982 informed the petitioner that the matter was being looked into (Annexure 'D').
10. While the petitioner was anxiously waiting for his suspension order to be revoked he was served with a show cause notice dated 8th September, 1983 for holding a disciplinary proceeding on the ground that by suppression of the fact of his arrest by the police he had contravened the provisions of Rule 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964 (Annexure 'E').
11. According to the petitioner, the issuance of the said show cause notice on a purported reference of an independent charge is void ab initio as the same could not be issued during the subsistence of an earlier order of suspension.
12. However, having failed to obtain any redress from the concerned authority the petitioner has come up before this Court under Article 226 of the Constitution for the issuance of a writ in the nature of Mandamus directing the respondent no. 2 to revoke the Order of suspension dated 23rd of March, 1982 and also to revoke and/or to rescind the show-cause notice dated 8th of September, 1983 and for certain other consequential reliefs.
13. In their affidavit in opposition the respondents nos. 2, 3, 4, and 5 have controverted the material averments made by the petitioner in the writ petition.
14. According to the respondents, the petitioner on the expiry of leave attended the office on 15.3.82, but either on the said date or on the subsequent dates, though he attended the office regularly, did not ca
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