Suspension in service
kehar singh
(Querist) 03 May 2012
This query is : Resolved
Sir, I am Accounts Officer in the State Govt. of Sikkim and I was placed under suspension during October 2010 on charges of dereliction to duties.
The authority issued Article of Charges to me and I denied all the charges in writing in April 2011.
Since then the matter has not been neither presented by the Presenting Officer before the Inquiry Officer nor the Inquiry Officer has called us for interogation.
I have already submitted reminder to the Secretary, twice for early presentation of case before I.O. but all in vain.
I am thinking to go to High Court now, can I ? pl advise me.
ajay sethi
(Expert) 03 May 2012
more than year has passed since charge sheet ahs been framed against you . after framing of charges enquriy oficer has to grant you a personal hearing . he enquiry officer ahs to give his findings on charges against you .
since govt of sikkim is not proceeding in the matter you can file writ
ajay sethi
(Expert) 03 May 2012
P. Lingamurthy vs Government Of Andhra Pradesh And ... on 27 October, 1998
Equivalent citations: 1998 (6) ALD 784
Bench: S Nayak
ORDER
1. The petitioner is serving as Deputy Manager in the Production Centre in the establishment of the second respondent-Society for Training & Employment Programme in the Twin Cities (SETWIN). The petitioner was placed under suspension by the proceedings of the Managing Director of the SETWIN dated 13-3-1996 under Rule 23(iv) of the SETWIN Employees Conduct, Discipline and Appeal Rules, 1983, for short 'the CCA Rules' pending further investigation and enquiry against the petitioner. This order was issued by the Managing Director in pursuance of the order of the Government, G.O. Rt. No.218, Industries and Commerce (SES) Department dated 12-3-1996 directing the management of SETWIN to place the petitioner and four others under suspension pending enquiry
enquiry. The Government, further, by the impugned proceeding, G.O. Rt. No.235, Youth Advancement Tourism and Culture (Ses) Department dated 18-6-1998 continued the suspension of the petitioner beyond 12-3-1998.
2. No charges are yet framed against the petitioner. However, in the counter filed by the first respondent it is stated that the enquiry revealed that the petitioner had drawn a sum of Rs.45,000/- as advance for purchase of raw materials, but he failed to produce the relevant vouchers, stock entries, and he did not choose to get the advance adjusted immediately. Nothing concrete is said or laid in the counter filed by the management of SETWIN justifying the continued suspension of the petitioner. The allegations arc vague and general in nature.
3. The only question which arises for consideration is whether the continued suspension of the petitioner, in the facts and circumstances of the case, is justified and legal or whether it is arbitrary and unreasonable.
4. The power of the management of SETWIN to place the petitioner under suspension in contemplation of and/or pending departmental enquiry is not contested before the Court. The power of suspension or to extend the period of suspension has to be exercised with circumspection, care and after application of mind. The employer must make a fair and proper assessment of the matter in the given circumstances and carefully scrutinise that prima facie there exists grave and compelling circumstances which in the light of the material available and collected during the preliminary enquiry or investigation would lead to the likelihood of the removal or dismissal of the employee from service. Although suspension of an employee in contemplation of or pending enquiry as such does not violate any of his legal right, it should not be forgotten that the suspended employee is subjected to social ridicule, condemnation and humiliation; he is looked down by colleagues, friends, kith and kin and he lives a life of tarnished image, infamy and agony. A proper judgment exercised would prevent unnecessary harassment and humiliation of suspension. Suspension should not be resorted to as a matter of course unless the allegations against the employee are serious. The employer, before resorting to suspension, shall consider whether the continuation of the delinquent would be detrimental to public interest or would hamper the enquiry or whether the delinquent, if continued in the post, is likely to tamper with official records relating to the allegation or charge or influencing the witnesses. If there are no such facts, suspension of delinquent will not be justified. The Calcutta High Court, in the case of U.S. Singh v. Coal India Limited, 1994 (2) SLR (Calcutta) 77, held that an order of suspension shall not be made in an arbitrary manner and any order of suspension, if casually made, will cause harm and suffering to the concerned employee. If after suspension enquiry is unduly delayed or prolonged, then, it will be an indication to show that the suspension is not bona fide. An employee who is placed under suspension in contemplation of enquiry or pending enquiry is entitled to ask on suspension that the matter should be investigated within the reasonable period of time, and if such a principle of natural justice is not recognised, then, it would imply that the employer is vested with a totally arbitrary and unfettered power of placing its employees under disability and distress for an indefinite duration. The suspension order is bad if it is not followed by the charge-sheet within reasonable time. It is unjust on the part of the employer to pass an order of suspension and then not to take any further action for years.
5. In the instant case the petitioner was placed under suspension more than 31 months back and till date no charges are framed. There is no reasonable explanation for this inordinate delay. The only defence purforth in the counter- affidavits filed by the respondents is that the preliminary enquiry/investigation is "entrusted to CBCID and the investigation is under progress and the outcome of the report is awaited," It is not the case of the respondent that the petitioner is involved in a scries of malpractices and blame-worthy transactions and therefore the CBCID requires more time to investigate into malpractices. The only allegation as set out in the counter is that the petitioner drew a sum of Rs.45.000/- as advance for purchase of raw materials, but he has failed to produce the relevant vouchers, stock entries and he did not choose to get the advance adjusted immediately. I am at a loss to understand how more than 31 months time is not sufficient for the CBCID to investigate and submit report. The investigating agency cannot take its own time for investigation which is comparable to a preliminary enquiry at its pleasure and at the peril of the delinquent employee; it is expected that the investigating agency should act with promptitude and diligence. That is why this Court in number of opinions handed down in the cases involving review of suspension orders held that an employer having placed an employee under suspension in contemplation of or pending enquiry should act with promptitude and diligence, frame the charges within the reasonable time and conduct and conclude the enquiry and pass appropriate order without much loss of time. Such a course is not only imperative in the interest of the charged employee but also in the best interest of the maintenance of healthy employer-employees relationship and to maintain harmony in an organisation or an industry. Be that as it may, if there is a delay on the part of the CBCID in investigating and submitting the report, the respondents should have taken up the matter with the CBCID and directed it to investigate and submit the report without much loss of time. It is not forthcoming from the records that such a course was adopted by the respondents.
6. The Orissa High Court in Manasaranjan Das v. State of Orissa, 1973 (2) SLR 553 (Ori HC), while reviewing the validity of the suspension order of an employee held that if there was a delay on die part of the Vigilance department in investigating the offence, then the department should have taken up the matter with the police authority and that the prolonged suspension of the employee was unjustified. To the same effect is the decision of the Supreme Court in Bharat Sugar Mills Limited v. Jai Singh, 1961 (2) LLJ 644 (SC). The Madras High Court in D.S. Mohammed Khan v. Secretary to Government, Rural Development and Local Administration Department, 1983 Lab.IC 1743 (Mad- HC) held that an employee cannot indefinitely be kept under suspension pending issue of charge-sheet and the continued suspension of the employee is penal in character. In the case of J. S. Chauhan v. State of U.P., 1978 SLJ 421 the Court held that the continued suspension of the employee for a period of 2-1/2 years without framing the charge-sheet and without any reasonable explanation for the delay is unjustified. These decisions show that even in those cases where there is no time limit to issue charge-sheet after suspension; the employer is obligated to investigate into the allegations and frame charges and conclude the disciplinary proceedings within a reasonable time with diligence and promptitude.
7. The Government of Andhra Pradesh has issued G.O.Ms. No. 86, General Administration (Services-C) Department dated 8-3-1994. Sub-clause (iii) of Clause 3 of the Government Order provides for an outer limit of two years for suspension of a public servant and it states that only in exceptional cases having regard to the gravity of the charges levelled against an employee, suspension be extended beyond a period of two years. Here is a very pathetic case. The outer limit of time prescribed under the above Government Order spent itself even before the charges are framed. The charge to be framed against the petitioner-delinquent is not in the sight anywhere and it seems to be indefinite. In that view of the matter, it should be held that the continued suspension of the petitioner by the impugned order of the Government without disclosing reasons is unjustified and unwarranted. Even then, the Court would not have intervened if the respondents are likely to frame the charges against the petitioner in the near future. In the course of the hearing, the Court pointedly asked the learned Counsel appearing for the respondents as to whether the respondents intend to frame the charges against the petitioner in the near future. There is no satisfactory and responsible response to the Court's query. On the other hand, stock reply of the learned Counsel for the respondents is that investigation is pending and they would take steps only after submission of the report by the CBCID and that it is the prerogative of the employer to place an employee under suspension in contemplation of or pending departmental enquiry. There is no sign of the second respondent framing the charges against the petitioner in the near future and the respondents do not show any inclination or anxiety or urgency to frame the charges without further loss of time. The lamentable callousness of the respondents cannot be countenanced by the Court. The power of employer to place the employee under suspension in contemplation of or pending departmental enquiry, which power repeatedly called' 'prerogative'' by the learned Government Pleader in her wisdom, is not a Royal prerogative nor a prerogative of an absolute monarch or despot. The power vested in the employer to place an employee under suspension is not an absolute power. The word "absolute power" does not find a place in the dictionary of our Constitutional and Administrative Laws. The power to suspend an employee vested in the respondents is a public power; every public power is a limited power, and the donee of that power is expected to exercise that power reasonably and fairly and not arbitrarily and capriciously. That is what Article 14 mandates and commands.
8. In the result, the writ petition is allowed with no order as to costs and the impugned order of the Government G.O. Rt. No.218, Industries and Commerce (SES) department dated 12-3-1996 is quashed. However, it is made clear that this order shall not come in the way of the respondents framing the charges and conducting departmental enquiry against the petitioner. Liberty is also reserved to the respondent to seek review of this order if they find the petitioner indulging in tampering of the official records relating to the allegations or influencing the witnesses.
Sankaranarayanan
(Expert) 03 May 2012
No more details need. Already filled by mr sethi
Sudhir Kumar, Advocate
(Expert) 03 May 2012
First of all stand corrected. IO is not going to call you for interogation. You have a right of silence if not opting to be witness. He has to follow laid down procedure for giving you opprtuinity of defence which you must avail when given.
Also stand corrected that non-presentatation of the case is not your grievance. You grreivance is non-completion of Inquiry.
You can file writ as advised by Mr Sethi most likely the Court in such cases issue orders for time bound completion of Inqiury.
Shonee Kapoor
(Expert) 04 May 2012
Ld. Sethi has replied in detail.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
V R SHROFF
(Expert) 04 May 2012
nothing to add after Shri Sethi's reply .
kehar singh
(Querist) 05 May 2012
Thanks for reply to all, The presenting Officer is not presenting the case before I.O and on the other hand when requested I.O. he says he has not received any case papers from disciplinary authority i.e department of Personnel.
However, what type of writ should I file. Can I file it without the help of lawyers.
Guest
(Expert) 05 May 2012
It is the duty of the P.O. to get all the case related documents from the Disciplinary Authority to present the case, as he is supposed to present the case on his behalf only.
If the PO is not presenting the case, his mere presence during the inquiry proceeding has no meaning and his failure to present the case should be deemed to be failure of the prosecution to prove the charge. So, request in writing to the I.O. that if the prosecution is intentionally not presenting his case, he may decide the case ex-parte in your favour. Remind the I.O. in writing on every date of hearing or every fortnightly in the absence of hearing date to that effect to get your stand recorded on the inquiry records.
kehar singh
(Querist) 08 May 2012
kind attention to :Dhingra Sir.
The I.O. has not called me for personal hearing yet. Following ur reply I am planning to request in writing to fix a date for personal hearing. Till then thanks to all members.
Guest
(Expert) 08 May 2012
Dear Kehar Singh,
Please take the help of a learned defence assistant to guide you from time to time before, during and after the inquiry proceedings.
kehar singh
(Querist) 28 May 2012
Hello members,
my next date for appearance before the Inquiring authority is on 6th June 2012. On that date I have to cross examine the witnesses of the department. So pl give me some tips as to how is cross examination done.
e.g if the witness says wrong answer to my question,but I know the correct answer and I possess the evidence as well. So should I state the right answer before the I.O. on the same date.
Pl help me .
V R SHROFF
(Expert) 28 May 2012
also consult labour law practicing advocate , or engage him for this job.
Guest
(Expert) 28 May 2012
Depends upon the art of cross-examination, which cannot be explained in just a few words, that too hypothetically without seeing the statments of witnesses recorded during preliminary investigation prior to issue of chargte sheet.
So, as advised by Shri Shroff, it would be better for you to hire services of some services law expert to defend your case and to cross-examine the witnesses. Be cautious, any raw method of cross-examination by yourself may ruin your own case.
kehar singh
(Querist) 29 May 2012
As per our rule the suspended official cannot take the help of a lawyers in front of I.O. unless the P.O is a lawyers or having law background. So my P.O. is also not a lawyers so we have to cross examine each others witnesses as per our own idea. I have gained little idea from TV serial and Film in which cross examination is shown.
Guest
(Expert) 29 May 2012
You can nominate some knowledgeable colleague from your own department or any knowledgeable person from some other department to represent you as a defence aassistant in the case. I.O. can't deny you taking assistance of another Government servant to defend your case.
kehar singh
(Querist) 11 June 2012
Dear members,
The presenting officer has already taken adjournment two times one on the ground that one witness to the case has got injure in his leg and one saying that some papers is yet to prepare.
I would like to know can I challenge the adjournment because the injure person is attenting his office regularly though his leg is injured. Secondly the PO is studying my case since August 2011 and there should not be any question of not getting the paper prepared yet.
Since deptt do not have even single proof to produce against me so I feel the PO is taking adjournment. Pl advise.
Guest
(Expert) 11 June 2012
You can definitely raise objection during the inquiry proceedings and request for non-grant of extension with specific instance like, if the witness can attend office duty why he cannot attend the inquiry proceedings. Unnecessary extensions on vague grounds must be objected to and the I.O. be insisted to record objection in the daily order sheet for the proceedings of the day. if the I.O. fails to record such objection, must give in writing and take acknowledgment of the I.O.
kehar singh
(Querist) 12 June 2012
Thanks sir,
I will be requesting for your help until my case is over.
kehar singh
(Querist) 01 July 2012
Sir,
during cross examination with witness of other party, e.g if the witness says "I was not present in the station on the date of incidence".
but if I have any evidence to prove that he was in the station on the date.
In such a situation should I produce my evidence before the I.O. immediately after the statement of witness or wait till the date of argument.
Guest
(Expert) 01 July 2012
If you really have some proof against the statement of the witness, at first just ask the witness to produce some substantial proof of his being out of station on the date of incedent. Only after that you may request to the I.O. to call him again for evidence, as you intend to produce evidence against his statement.
However, that is fine, if you can produce the evidence before the IO instantly. In that case you need not wait for the date of argument to prove the evidence of the witness as false.
kehar singh
(Querist) 24 July 2012
1.One deptt witness was supposed to be examined by PO today but in absence of one evidence to support the statement of Presenting Officer the P.O. asked for adjournment.
Is such practice is admissible under law ?
2. I have notice in the past that whenever the next hearing date has to be fixed the Inquiry Officer asked the Presenting Officer to give suitable date as per his convenience.But he do not ask me anything.
Can I raise any objection against this decision of I.O.
Sudhir Kumar, Advocate
(Expert) 24 July 2012
FOR SHED OUT THE IMPRESSIN THAT YOU KNOW CROSS-EXAMINATIN SIMPLY BECAUSEYOU HAVE SEEN SO IN FILMS.
In films and serials the actors are paid in lakhs to speak what is written in scripts. The actor posing as judge is alw paid and scripted to tolerate discoutesy of the hero or heiroine if appearing as laywer, accused, witness. THE SCRIPT WIRTERS HAVE NEVER GONE TO LAW SCHOOL AND DO NOT KNOW EVNE BASISCS OF CORUT PROCEDURE.
i believe the inquiry against you is not in cinema nor it is scrcipted.
i knwo you cannot call alwyer in Inqiry but you have been time and against advised to engage a SERVING OR RETIRED GOVT SERVANT DEFENCE ASSTT WHO WILL ARGUE FOR YOU AND WHO KNOWS ALL THE ANSWERS YOU ARE POSING.
this is a legal advise forum and not a tutorial where you can get reply of your problems well in advance.
PLEASE DO NOT PUT YOUR CAREER TO EXPERIMENT BY YOUR NO-KNOWLEDGE.
kehar singh
(Querist) 28 September 2013
Respected learned members, with the help of your support from time to time I could present the argument in my suspension case perfectly and now I have been acquitted of all the charges leveled by the Disciplinary Authority. The I.O. has submitted the report saying "the case is unsustainable on behalf of prosecution in absence of proper evidence in accordance with Civil Procedure Code...."
Now the suspension revoke order is yet to issue withing 2-3 days. But my friends are suggesting me to file defamation case to the Department for the mental, financial problem occurred in my family etc during the suspension period.
But before taking any decision I would like to take the suggestion of learned members whether such attempt will sustained in the court or not, please.
