JUDGMENT
S.K. Keshote, J.
1. Heard learned Counsel for the parties.
2. The petitioner herein, Executive Engineer (Mechanical), Gujarat Water Resources Development Corporation Ltd. (hereinafter referred as the Corporation), challenging by this writ petition under Article 226 of the Constitution of India the order No. 5 of 1995 dated 16-12-1995 of the Managing Director of the Corporation placing him under suspension as per Rule 5 of the Gujarat Water Resources Development Corporation Ltd. Employees (Control and Appeal) Rules, 1964 (hereinafter referred as the Rules, 1964) with immediate effect. It is not in dispute that the petitioner has been placed under suspension as a disciplinary proceeding against him is contemplated. In this order it is mentioned “Hence, it is decided to initiate departmental inquiry” and from these words it is clearly borne out that the suspension of the petitioner is ordered in exercise of the power as conferred under Rule 5 of the Rules, 1984 by the Managing Director of the Corporation. The facts, which are necessary for the decision of this writ petition, need to be briefly stated.
3. On repatriation of Shri V.V. Pandya, S.E. (Mech.), the petitioner on 13-7-1995 was given the additional charge of this post. Having apprehension of withdrawal of additional charge of the said post, the petitioner on 14-7-1995 filed Special Civil Application No. 5772 of 1995 before this Court under Article 226 of the Constitution of India. On same day this Court protected the petitioner by granting interim relief to maintain status quo with regard to handing over of the charge of the post of S.E. (Mech.). On 15-7-1995 the petitioner was served with order of the Corporation dated 14-7-1995 transferring him from Ahmedabad to Deesa. Immediately on receipt of the order dated 14-7-1995 the petitioner filed C.A. No. 1453 of 1995 challenging the said order of the transfer. On 17-7-1995 this Court suspended the implementation and further operation of the order of the transfer of the petitioner. The petitioner filed L.P.A. No. 944 of 1995 as interim relief order on 28-9-1995 could not be extended. In L.P.A. the Corporation filed C.A. No. 2970 of 1995 for vacation of the interim relief. This C.A. No. 2970 of 1995 was disposed of by the Division Bench on 6-12-1995. The order of Division Bench reads.
It is clarified that the interim order of status quo does not go beyond the original order of status quo granted by the learned single Judge and does not prevent the applicant-Corporation from taking any departmental action. We are not directing that any such action be taken. We only clarify the interim order.
On same day the petitioner has also withdrawn L.P.A.
4. On 11-12-1995 the Special Civil Application No. 5772 of 1995 has come up for hearing before this Court. Both the respondents therein, i.e., the State of Gujarat and the Corporation gave out that the post of S.E. (Mech.), which fell vacant on repatriation of Shri V.V. Pandya to be filled in by promotion and the Corporation will fill the post by promotion within reasonable time. On these Statements made by the respondents the petitioner has withdrawn the Special Civil Application No. 5772 of 1995. The petitioner joined at Deesa on 15-12-1995. The Corporation placed the petitioner under suspension vide order dated 16-12-1995. This order of the suspension dated 16-12-1995 is challenged on the grounds:
(i) That in the previous proceedings, Special Civil Application No. 5772 of 1995, decided on 11-12-1995 it was not stated by either of the respondents that D.E. or suspension of the petitioner is contemplated. The State Government and the Corporation have made a show before this Court in the previous proceeding as if the case of the petitioner will be considered for promotion to the post of S.E. (Mech.), whereas the ulterior motives on the part of the respondents were to the effect the moment the Spl. Civil Application No. 5772 of 1995 is disposed of, the petitioner should be suspended from the services. The petitioner is victimized in the facts and circumstances of the case and feelings of this Court are disobeyed and flouted wilfully with the complete calculation. It was a calculated motive at the end of the respondents to the effect that it should not be made to appear in any way that the respondent want to suspend the petitioner and the petitioner should be put to such a situation where the respondents can suspend him. All these actions on the part of the respondents constitute wilful disobedience of the order of this Court on the part of the respondents and mala fides.
(ii) The order of the suspension does not contain any reasons and therefore, the same is arbitrary.
(iii) The petitioner was not given an opportunity of hearing or a show-cause notice before the order of suspension dt. 16-12-1995 is made. Not only this, the petitioner was also not served with any memo or letter before suspension.
(iv) The order of suspension appears to have been passed at the behest of the concerned Minister without applying mind in any manner by the respondent-Corporation.
(v) As per the knowledge of the petitioner, the order of suspension might have been based on the ground of certain bogus allegations which has occurred in year 1990, when the petitioner was serving as Executive Engineer at Baroda. There is no reason, if at all it is true, to suspend the petitioner in year 1995, precisely by keeping this Court in complete dark, because when the order was passed on 11-12-1995 in Spl. C.A. No. 5772 of 1995 there was no whisper about the D.E. or action of suspension against the petitioner and a camouflage was created to the effect that the petitioner is defeated in the proceedings of Spl. C.A. No. 5772 of 1995, and therefore, he was suspended. In view of this matter, this is the rarest of rare of case which exhibits mala fide, calculated motives and high handedness on the part of the concerned Minister, which is based on his political ego and political interest.
On 9-1-1996 in this case notice was issued to the respondents.
5. The respondent No. filed a detailed reply to the writ petition. In the reply, it is the case of the respondent-Corporation that the petitioner is placed under suspension for acts of omissions or commissions reportedly committed by the petitioner as regards which disciplinary proceeding is contemplated against him. The petitioner’s suspension felt necessary in the interest of the Corporation and the contemplated proceedings. In para No. 11 of the reply, the Corporation stated:
Even at the cost of repetition, I reiterate that suspension order, dated 16-12-1995 has been necessitated in the interest of the Corporation and in view of the contemplated departmental/disciplinary proceedings since the petitioner has reportedly committed acts of omission and/or commission involving various serious irregularities including financial irregularities which amount to serious misconduct as per the Corporation’s disciplinary rules and regulations and which came to be noticed/reported only recently and, that therefore, the petitioner’s attempt to justify his grievance against the order of suspension on the ground that the subject order deserves to be quashed since it pertains to past incidents, is also baseless and misconceived. In fact, for this very purpose, a Civil Application No. 2970 of 1995 was moved by the Corporation in pending L.P.A. of the petitioner, for modifying the “status quo” order. It was at that time that the Advocate of the petitioner as well as learned Division Bench of the Hon’ble High Court were informed that departmental proceedings including suspension against the petitioner are contemplated and hence there is a need for modification.
6. In reply to the writ petition the respondent-Corporation has not given the acts of omission of the petitioner which constitute misconduct and on which the disciplinary proceedings are contemplated. The respondent-Corporation has come up with statement that the petitioner has been placed under suspension in contemplation of departmental proceedings. The petitioner filed affidavit-in-rejoinder which runs in 16 pages. From reading of the affidavit-in-rejoinder one thing is clear that the petitioner is fully aware of the charges which are against him and on which the disciplinary proceeding is contemplated against him, though the charge-sheet has not been served to him nor the respondent-Corporation has given the details of the same. In para Nos. 3A(i) and (ii) of the affidavit-in-rejoinder the petitioner has given out the charges which are there against him. Whole thrust of the petitioner in the affidavit-in-rejoinder is that he has not committed any misconduct and further he cannot be made liable for the alleged misconduct. The petitioner in affidavit-in-rejoinder raised another ground that the Managing Director is not his appointing authority and as such the order of suspension is made by an incompetent authority. Thus, in the affidavit-in-rejoinder the petitioner raised new grounds which are not there in the main petition. When the petitioner’s case is that the allegations/charges are baseless it is but natural for the respondent-Corporation to file a detailed affidavit-in-sur-rejoinder, which it did in this case. The respondent-Corporation in affidavit in sur-rejoinder gives out the proposed charges against the petitioner. The respondent-Corporation further goes on to say that from the charges it clearly transpires that the nature of the charges against the petitioner regarding which the disciplinary proceedings are contemplated against the petitioner are very serious and grave and considering the nature and gravity of the said charges it has been decided by the Corporation to place the petitioner under suspension. The Corporation contested the other grounds also raised by the petitioner in affidavit-in-rejoinder. The petitioner supplemented the affidavit-in-rejoinder by affidavit-in-sur-sur-rejoinder, running in 27 pages. By this further affidavit, the petitioner is sought to convey that charges are baseless and he has not committed any misconduct. The petitioner reiterated in this affidavit that M.D. is not appointing authority of the petitioner, the suspension is only at the behest of the Minister and with oblique motives to flout the order of this Court passed in Special Civil Application No. 5772 of 1995. The petitioner annexed some documents to this affidavit to show that he cannot be in any manner made responsible or connected with the charges on which the disciplinary proceedings are contemplated against him. The respondent-Corporation then filed affidavit-in-sur-sur-sur-rejoinder and reiterated therein that its action of placing the petitioner under suspension in contemplation of disciplinary proceedings is justified and reasonable. The respondent-Corporation filed Additional affidavit-in-sur-sur-sur-rejoinder to establish the charges against the petitioner. The petitioner filed Affidavit-in-sur-sur-sur-sur-rejoinder.
7. Thrust of both the parties in the pleadings subsequent to the writ petition and affidavit-in-reply is that the charges are baseless as per the petitioner and charges are very serious and the petitioner has rightly been placed under suspension in contemplation of disciplinary proceedings, of the respondent-Corporation. What really the petitioner intents in these proceedings that this Court should inquire in the truth and correctness of the charges on which the disciplinary proceeding is contemplated against him. This Court, as per the case of the petitioner, should act as an enquiry officer and give its verdict on the charges though even so far charge-sheet is not served upon him by the respondent-Corporation. Learned Counsel for the Corporation contended that at this stage where even charge-sheet is not served, this Court may not go into the correctness or truth of the charges. It has next been contended that the petitioner was placed under suspension in contemplation of disciplinary proceedings on very serious charges including the charge of causing loss to the Corporation to the extent of more than Rs. 5 lacs and in these facts and circumstances, it cannot be said to be mala fide merely because petitioner says so.
8. The charges against the petitioner, as it comes out from the pleadings of the parties, are as under:
(a) The petitioner is responsible for excessive issue and sale of winding wire in repairing of Submersible pumps in Vallabhvidyanagar Workshop and has thus, committed financial irregularity. It is recently been brought to the notice that during his tenure as Executive Engineer-in-charge of Vallabhvidyanagar Workshop about 2,526 Submersible pumps were repaired in the said workshop, wherein under his instructions, excessive winding wire to the tune of nearly 75,000 metres calculated on an average and pro-rata basis, is reported to have been used, because of which the Corporation is reported to have sustained huge financial loss.
(b) Prior to the taking over of the charge of G.W.D. by the petitioner, the then Director, G.W.D., Danapit, had instructed the supplier to supply oil emmersed starters with silver quoted tips and also as per item No. 2 of inspection report of M/s. RITES, the inspecting agency, non-silver quoting on contact tips was considered to be defective. It is reported that inspite of above, the petitioner as Executive Engineer, instead of following the required specifications and tender conditions, recommended the S.E., G.W.D., to recover the cost of silver quoting from the bills of the supplier and at the same time by virtue of his holding the charge of the post of S.E., he instructed the E. Eng. (himself) to accept the contact tips of oil emmersed starters without silver quoting. The said reported action of making the proposal himself as Executive Engineer and approving the same as Superintending Engineer, G.W.D., seems to be utter misuse of delegation of powers by the petitioner.
The learned Counsel for the petitioner contended that charge to have caused loss of Rs. 5/- lacs by the petitioner to the Corporation is improper and should not be relied upon inasmuch as the same is based on technical fault, as well as delay of period of five years. In reply to the writ petition, at page No. 52, the Corporation has come up with the case that this matter came to be noticed/reported only recently. In this case, there are two charges against the petitioner and delay in contemplation is only for one of them. No delay whatsoever is attributed for the other charge nor delay in respect therefor is stated by the petitioner. The Apex Court in the case Stale of Punjab and Ors. v. Chaman Lal Goyal reported in 1995(2) SCC 570, has considered the effect of delay in service of charge-sheet on the departmental enquiry as well as a question whether on this ground the charges are vitiated. In para No. 9 of the Judgment the Court observed:
Now remains the question of delay. There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceedings must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent and is thus not also in the interest of administration. Delayed initiation of is bound to give room for allegation of bias, mala fides and misuse of power. If delay is too long and is unexplained, the Court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the Court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the Court has to indulge in a process of balancing.
The principles to be borne in mind in this behalf have been set out by a Constitution Bench of this Court in A.R. Antulay v. R.S. Nayak. Though the said case pertained to criminal prosecution, the principles enunciated therein are broadly applicable to a plea of delay in taking the disciplinary proceedings as well. In paragraph 86 of the Judgment, this Court mentioned the propositions emerging from several decisions considered therein and observed that “ultimately the Court has to balance and weigh the several relevant factors-balancing test or balancing process-and determine in each case whether the right to speedy trial has been denied in a given case.” It has also been held that, ordinarily speaking, where the Court comes to the conclusion that right to speedy trial of the accused has been infringed, the charges, or the conviction, as the case may be, will be quashed. At the same time, it has been observed that that is not the only course open to the Court and that in a given case, the nature of the offence and other circumstances may be such that quashing of the proceedings may not be in the interest of justice. In such a case, it has been observed, it is open to the Court to make such other appropriate order as it finds just and equitable in the circumstances of the case.
In this case, the petitioner has not prayed for issuance of a writ of Prohibition against the respondent-Corporation to restrain it from initiating disciplinary proceedings against the petitioner on charge No. 1. The petitioner is failed to successfully controvert the fact that the subject-matter of the charge No. 1 came to the notice or reported to the respondent-Corporation recently. Immediately, on the subject-matter of charge Nos. 1 and 2 came to the notice of the Corporation, the necessary action and steps for initiation of disciplinary proceedings against the petitioner were taken. In earlier proceedings before this Court, it has been brought to the notice of this Court by the respondent-Corporation that the disciplinary proceedings and suspension of the petitioner is in contemplation. On this statement, this Court modified the interim order of maintaining status quo. There is no allegation in the writ petition that any of the witnesses whom the petitioner wanted to examine in defence are since dead or have become unavailable and said fact would cause prejudice to his case. Prima facie the charges against the petitioner are very grave and serious. The financial irregularities alleged to have been committed by the petitioner resulted in loss of about Rs. 5/- lacs to the respondent-Corporation. The petitioner in this writ petition made only challenge to the order of the respondent-Corporation placing him under suspension and not the action of the Corporation to initiate disciplinary proceedings against him. There is no delay in initiation of disciplinary proceedings against the petitioner on and in respect of charge No. 2, which is prima facie also very grave and serious. The post on which the petitioner is claiming promotion fell vacant in recent past. The suspension and contemplated disciplinary proceedings will not come in way of the petitioner in consideration of his case for promotion on the post of the S.E. (Mech.). This Court has already ordered, in previous proceedings, for the consideration of the case of the petitioner for promotion and that order has to be complied with. The Counsel for the respondent-Corporation very fairly admits this position. It is different matter that the result of the consideration of the case of the petitioner for promotion to the post of S.E. (Mech.) may be put by the Departmental Promotion Committee in sealed cover. Taking into consideration all these facts and circumstances, it is not the case wherein delay in initiation of disciplinary proceedings has been made by the Corporation. If we go by the length of time in between the year of committing the financial irregularities by the petitioner and the year of initiation of disciplinary proceedings against him, applying the balancing process, I am of the opinion the quashing of the order of suspension is not warranted in the facts and circumstances of the case. Furthermore, looking to the stage where the petitioner has come before this Court, it is neither advisable nor desirable to prove further in the matter otherwise it may result in causing prejudice to the defence of the petitioner which he may propose to take in the Departmental enquiry.
9. The learned Counsel for the petitioner placing reliance on some unreported decisions of this Court contended that, looking to the allegations/charges, which are baseless and bogus, made against the petitioner, the respondent-Corporation acted highly arbitrary in placing the petitioner under suspension. What the learned Counsel for the petitioner by advancing this contention attempts that this Court should go into the correctness or truth of the allegations/charges which are there against the petitioner. In the case of Union of India v. Upendra Singh , the Apex Court held.
In the case of charges framed in a disciplinary inquiry the Tribunal or Court can interfere only on the charges framed (read with imputation or particulars of charges, if any); no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the Tribunal has no jurisdiction to go into the correctness or truth of the charges. The Tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into, Indeed, even after the conclusion of the disciplinary proceedings if the matter comes to Court or Tribunal, they have no jurisdiction to look into the truth of the charges or into correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may. The function of the Court/Tribunal is one of Judicial review, the parameters of which are repeatedly laid down by this Court.
In para No. 7 the Court held.
Now, if a Court cannot interfere with the truth or correctness of the charges even in a proceedings against the final order, it is understandable how can that be done by the Tribunal at the stage of framing of charges? In this case, the Tribunal has held that the charges are not sustainable (the finding that no culpability is alleged and no corrupt motive attributed), not on the basis of the articles of charges and the statement of imputations but mainly on the basis of the material produced by the respondent before it, as we shall presently indicate.
10. In this case, so far the charge-sheet is not served upon the petitioner. The charges on which the disciplinary proceeding is contemplated against the petitioner are of serious nature. From these charges, on which the disciplinary inquiry is contemplated against the petitioner, it is difficult to conclude that no misconduct or irregularities alleged is made out. I find from the charges which have been stated by the petitioner himself that the allegations against the petitioner are grave inasmuch as they indicate that because of irregularities of the petitioner the Corporation suffered loss of Rs. 5/- lacs. The second charge is also equally grave. It is case of utter misuse of delegations of powers. In the matters of this kind, it is advisable that the petitioner is kept out of the mischiefs range. If the petitioner is exonerated, he would be entitled to all his benefits from the date of the order of the suspension. Whether the petitioner should or should not continue in his office, on the post of Executive Engineer, during the period of inquiry is a matter to be assessed by the respondent-Corporation and ordinarily, this Court should not interfere with the order of suspension unless it is passed mala fide and without there being even prima facie evidence on record connecting the petitioner with the misconduct alleged against him. On the record the material produced by the petitioner and the respondent-Corporation and on persual of the same it can be said that there is sufficient material on the record to connect the petitioner with the misconduct alleged against him. So far the mala fide is concerned the petitioner has not pleaded any mala fide against Managing Director, who made the order of the suspension. The petitioner has come up with the case that the order of his suspension has been passed at the behest of the concerned Minister. The allegations against the Minister are too vague, indefinite and hardly sufficient to draw an inference that the Minister was in any manner instrumental in passing of the order of the suspension of the petitioner. In the absence of clear allegation against the Minister and in the absence of impleading him leo nomine so as to enable him to answer the charge against him, the charge of mala fide cannot be sustained. In the case of State of Orissa v. Bimal Kumar Mohanty , the Apex Court said that the suspension is not punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words, it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending enquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the enquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or enquiry etc. But each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending enquiry or contemplated enquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or enquiry. The authority also should keep in mind public interest of the impact of the delinquent’s continuance in office while facing departmental enquiry or trial of a criminal charge.
11. Challenge to the order of suspension on the ground that M.D. was not competent to make the same, is also devoid of any merits. Undisputedly the order of the appointment of the petitioner was made by the M.D. To answer this challenge of the petitioner it is not necessary to go into the question whether the M.D. or the Personnel Committee is the Appointing Authority of the petitioner, as the contention raised by the petitioner in this regard can be answered with reference to the Rule 5 of the Rules, 1984. The Rule 5 of the Rules 1984 reads:
Suspension
1. The Appointing Authority or any authority empowered by the Board in that behalf may place an employee under suspension.
(a) if a disciplinary proceeding against him is contemplated or is pending or,
(b)…
Provided that where the order of suspension is made by the authority subordinate to or lower in rank of the Appointing Authority, such authority forthwith reports to the Appointing Authority the circumstances in which the order of suspension was made.
May be M.D. is not the Appointing Authority of the petitioner but being an authority subordinate to or lower in rank of the Appointment Authority, is competent to place the petitioner under suspension. Only obligation on the authority subordinate to or lower in rank of Appointing Authority is to forth with report to the Appointing Authority the circumstances in which the order of suspension was made. It is not the case of the petitioner that the M.D. has not forthwith reported to the Appointing Authority the circumstances in which the order of suspension was made. The petitioner, referring to item No. 2-Delegation of powers, raised ground that his Appointing Authority is the Personnel Committee. Item No. 2(2) reads as follows:
The level of approving select list upto Class II level is to be at the Zonal Authority/Managing Director level as specified; in case of Class I and II level posts this will be finalised by Personnel Committee….
After approval of the list the appointment has to be made from the select list and the petitioner has failed to point out any provision of the Rules, 1984 or any other rule, regulation, circular etc., of the Corporation that M.D. of the Corporation was not competent to make the appointment of the petitioner. Rule 2(a) of the Rules 1984 reads:
Appointing Authority means authority empowered to make appointment to the post or grade/cadre of the post, which employee for the time being holds.
The petitioner has not come up with the case that the M.D. was not empowered to make the appointment of the petitioner.
12. Now only two points remain to be considered, that the order of suspension contains no reasons and secondly the order of suspension has been made without notice or opportunity to the petitioner of hearing. Both these grounds are also devoid of any merits. Order of suspension is made in contemplation of disciplinary proceeding. No reasons more than what has been given need to be given in the order of suspension. Similarly, no notice or opportunity of hearing is required to be given to the petitioner. The petitioner was placed under suspension on 16-12-1995 but though more than two months have passed the charge-sheet was not given to the petitioner, which is not fair and reasonable. The learned Counsel for the respondent-Corporation stated that as the petitioner immediately after order of suspension approached this Court and this writ petition is pending, the charge-sheet was not served. He undertakes that not only the charge-sheet will be served immediately but the enquiry shall also be completed with reasonable time.
13. In the result, this writ petition fails and same is dismissed. No cost. Looking to the facts of this case, it is just reasonable and in the interest of justice to direct the respondent-Corporation to conclude the enquiry against the petitioner within four months from today. The petitioner shall co-operate in completion of the enquiry. It is obvious that if the petitioner does not so co-operate, it shall be open to the Disciplinary Authority or the enquiry officer, as the case may be, to proceed ex parte. Notice discharged.