JUDGMENT
C.K. Thakker, C.J.
1. Rule. Mr. Palkhiwala, learned Advocate, appears and waives service of
notice of rule on behalf of respondent Nos. 1 and 3. Mr. V.P. Sawant, learned
advocate, appears and waives service of notice of rule on behalf of respondent
No. 4. In the facts and circumstances, the matter is taken up for final hearing.
2. This petition is filed by the petitioners as pro bono publico for an
appropriate writ, direction or order quashing and setting aside Resolution No. 6
dated December 10, 2001, passed by Kirkee Cantonment Board, revoking an
order of suspension and reinstating respondent No. 4 in service.
3. It is the case of the petitioners that petitioner No. 1 is a registered union of
Maval Taluka General Kamgar Sanghtna. It is asserted that one of the objects of
petitioner No. 1 is to ensure that dishonest employees are not given any benefit.
Petitioner No. 2 is resident of Kirkee. Respondent No. 3 is an employee of
respondent No. 1-Board. He is Health Superintendent/Garden Superintendent. It is
alleged that respondent No. 4 was caught red handed by the Anti Corruption
Bureau Department of Pune in connection with a complaint lodged by petitioner
No. 2 alleging therein that for installation of illegal steel cabin near a bus stop to
run a business of repairing scooter and motor-cycle etc., respondent No. 4 had
demanded and accepted an amount of Rs. 10,000/- from petitioner No. 2 as illegal
gratification. Police Inspector, Anti Corruption, Pune, wrote a letter to the
President of Cantonment Board, Kirkee, on January 25, 2001, stating that
respondent No. 4 was arrested by police for accepting an amount of Rs. 10,000/-
illegally by promising petitioner No. 2 and allowing him to keep a cabin near bus stop.
4. On January 30, 2001, the respondent-Board unanimously resolved to place
respondent No. 4 under suspension with immediate effect till finalisation of the
case/further orders by the Cantonment Board. The said order is annexed to the
petition at Annexure A-1. He was to be paid subsistence allowance as admissible
under the Rule during the period of suspension.
5. It appears that respondent No. 4 made an application to the Board
requesting his reinstatement in service. Legal opinion was sought and the
application along with legal opinion was placed before the Board. The prayer of
respondent No. 4 was rejected as the inquiry against him was not over. It was,
however, resolved that if the inquiry proceedings against respondent No. 4 would
not conclude within six months, the prayer of respondent No. 4 for reinstatement
would be considered.
6. On December 10, 2001, Resolution No. 6 came to be passed by the
respondent-Board and it was decided to reinstate respondent No. 4 on the post of
Health Superintendent/Garden Superintendent with immediate effect on terms
and conditions mentioned therein. The said order is challenged in the present petition.
7. Notices were issued, pursuant to which the respondents appeared.
Affidavits and counter affidavits have been filed. We have the learned
counsel for the parties.
8. Mr. Anturkar, learned counsel for the petitioners, contended that the
impugned Resolution passed by respondent-Board is illegal, unlawful and
improper. The Board had acted arbitrarily and unreasonably in passing a
Resolution and in reinstating respondent No. 4, though he was caught red hand.
It was also submitted that once respondent No. 4 was arrested, criminal
proceedings were initiated and are pending, no reinstatement should have been
ordered. It was urged that in light of serious allegations levelled against
respondent No. 4, power of reinstatement could not have been exercised by the
Board. Moreover, the action has been taken within six months, though a
decision had been taken earlier that if the proceedings would not be completed
within six months, prayer of respondent No. 4 for reinstatement would be
considered thereafter. Thus, there was colourable exercise of power on the part of
respondent Board. The counsel submitted that even while resolving to reinstate
respondent No. 4, certain conditions were imposed which go to show that there
was prima facie case of a serious offence alleged to have been committed by
respondent No. 4 which did not call for such action. Mr. Anturkar also submitted
that mala fide exercise of power is apparent, if one reads affidavit in reply,
which clearly reveals that by going out way, respondent-Board had supported
respondent No. 4, in passing the impugned resolution. On all these grounds, the
resolution deserves to be quashed and set aside by this Court.
9. Respondent-Board and its Officers, on the other hand, supported the action
taken by the Board. An affidavit in reply is filed on behalf of respondent Nos. 1
to 3 wherein it was stated that the petition was not filed as a Public Interest
Litigation but is an individual grievance. Petitioner No. 2 has disputes with
respondent No. 4. So far as petitioner No. 1 is concerned, the Union is in Maval
area which does not come within the limits of Kirkee Cantonment Board. It was
then stated that a complaint was filed by Anti Corruption Department against
respondent No. 4 for illegal acceptance of Rs. 10,000/- from petitioner No. 2
Cantonment Board has given necessary sanction to the Department to file a
criminal case against respondent No. 4. It was not true that respondent No. 4 was
caught red handed as alleged. From the charge-sheet filed by the Anti Corruption
Department against respondent No. 4, it was clear that Rs. 10,000/- were found in
the file which was placed in a rack near the table occupied by respondent No. 4.
It was further stated by the deponent that the Cantonment Board independently
examined the facts and circumstances of the case and formed an opinion that the
allegation made by petitioner No. 2 did not seem to be probable. Further,
allotment of cabin was not within the power of respondent No. 4. Such allotment
can only be made by the first respondent.
10. The Cantonment Board permitted Anti Corruption, Bureau to initiate
prosecution against respondent No. 4 and the matter is sub-judice and “no parallel
disciplinary case can be initiated against the same person on the same charges”. It
was also stated that unless the case is finalized in the court of law, the Board is
not in a position to take any decision in the matter. The Board will take necessary
action on receipt of the verdict of the Court.
11. According to the Board, the decision has been taken in the interest of
administration as in absence of supervisory head of Sanitary Section, the work of
sanitation/health in Cantonment area was getting adversely affected. While
reinstating respondent No. 4, the Board has taken due care and precautionary
measures as is evident from the Resolution passed by the Board. The fourth
respondent will not be given any duty in connection with removal of
encroachment. The deponent had asserted that placing an employee under
suspension or his reinstatement in service is an administrative decision, which is
within the power of the Cantonment Board. Since the prosecution is filed by Anti
Corruption Bureau and the matter is sub judice and it may take considerable time
for its finalisation, the Board cannot afford to keep the post vacant for indefinite
period.
12. It was then stated:
“However the charge against the Respondent No. 4 being a serious
matter makes it necessary for the Board to avoid recurrence of any
such complaint in future. Hence the Board has decided to keep the
said Respondent No. 4 under observation.”
13. Respondent No. 4 has also filed an affidavit controverting the allegations
levelled against him by the petitioners. According to him, the petition is not filed
as a public interest litigation but it is for settlement of private accounts. Petitioner
No. 2 has a serious grudge against respondent No. 4 individually. Petitioner No. 1
has grievance against respondent o. 4, as respondent No. 4 is the President of
rival trade union. It was then stated that the allegations that petitioner No. 2
requested for a cabin in Kirkee Bazar area and had paid an amount of Rs. 10,000/-
to respondent No. 4 by way of illegal gratification for obtaining permission for
such cabin are totally false and baseless. it is denied that the fourth respondent
was caught red handed while accepting money. A false complaint was filed only
for casting a slur on career and reputation of respondent No. 4 and to adversely
affect his promotional chances. The charge-sheet had already been filed in
criminal proceedings against respondent No. 4 in July, 2001. There is no case
against him. Considering the circumstances in their entirety and prayer of
respondent No. 4 to reinstate him in service, a decision has been taken by
Respondent Board to reinstate him in service. Such an action cannot be said to be
illegal, contrary to law to unlawful.
14. It was also stated by respondent No. 4 that at the relevant time, he was in
charge of Sanitation as a Health Superintendent and had no authority to deal with
encroachment cases as they were not within his powers. It is, therefore,
unbelievable that respondent No. 4 could have demanded any sum and petitioner
No. 2 would have paid such amount. The petition, therefore, deserves to be
dismissed.
15. By filing affidavits in rejoinder, the petitioner reiterated what was stated in
the petition and denied the facts stated and averments made by respondent No. 1-Board
as well as by respondent No. 4.
16. In so far as the locus standi of the petitioners is concerned, in the light of
all the facts before us, in our opinion, it cannot be said that the petitioners could
not have approached this Court by invoking jurisdiction under Article 226 of the
Constitution. The first respondent Board is “State” within the meaning of Article
12 of the Constitution. It is, therefore, bound to act in accordance with law and if
an action of such authority is challenged as unlawful, illegal or not in conformity
with well settled principles of law, a grievance can be made. It is, therefore, not
proper to dismiss the petition on the ground that the petitioners have no locus
standi.
17. The allegations of the petitioners that respondent No. 4 was caught red
handed the same been controverted by the respondents. Looking to the record
which has been produced by the parties, it appears that the amount of Rs. 10,000/-
was found in the file which was placed in a rack near table occupied by
respondent No. 4. Thus, it cannot be said that respondent No. 4 was caught red-handed
as alleged. That, however, does not mean that the allegation levelled
against respondent No. 4, by the petitioners is false or no such demand was put
forward by respondent No. 4 and no payment was made by petitioner No. 2 to him.
Since the matter is pending before competent criminal court, we refrain from
making any observation one way or the other on that aspect in the present
proceedings.
18. The question before us is whether the order of suspension which had
been passed against respondent No. 4 could or could not have been revoked and
the action of respondent-Board in reinstating respondent No. 4 is legal and is in
accordance with law?
19. In this connection, it may be stated that the ground which weighed with
the respondent-Board as mentioned in the Resolution dated December 10, 2001
was that in absence of Health Superintendent, the sanitation work in the
Cantonment area had been adversely affected as there was lack of overall
supervision over Sanitary Inspectors and distribution of duties among them. No
other ground has been specified in the Resolution. At the same time, however,
certain conditions were imposed on respondent No. 4, even while reinstating him
in service.
20. In the affidavit in reply, however, the Board had stated many things
justifying the action of instatement of respondent No. 4. The Board also took
upon itself even before the disposal of criminal trial by expressing opinion on
merits of the case. It was stated that the Board had independently studied the facts
and circumstances of the case and upon reviewing the same, it was of the opinion
that the “allegations made by petitioner No. 2 were not probable”. It may be stated
that that was not the ground mentioned in the Resolution. It is further stated that
criminal proceedings have been initiated against respondent No. 4 and the matter
is sub judice and “no parallel disciplinary case can be initiated against the same
person on the same charges”. The learned counsel for the petitioners contended
that this is not the well settled position of law. Even if the contention of the
petitioners is not upheld that the said observation has been made by the
Cantonment Board in the affidavit in reply with a view to favour respondent
No. 4, it can be said that apprehension of the petitioners cannot be said to be ill-founded,
particularly when the Board has gone to the extent of saying that unless
the case is finalized in a court of law, “the Board is not in a position to take any
decision in the matter”. From the affidavit in reply of the Board, it is clear that
the Board itself is of the opinion that charges leveled against respondent No. 4
were very serious, and hence certain conditions were imposed on him.
21. The learned counsel for the petitioners is also right in submitting that
prima facie case has been made out against respondent No. 4. The Anti
Corruption. Bureau had asked the Board to grant sanction to prosecute respondent
No. 4 which was granted. Criminal proceedings have been initiated and even
charge-sheet is submitted. It, therefore, cannot be said that the petitioners were
not right in urging that prima facie case had been made out against respondent No. 4.
22. We are also not impressed by the argument of respondents that fourth
respondent was not in charge of demolition of encroachment and had no power
to oblige respondent No. 4, and, hence, the allegations were baseless. That also, in
our opinion, can be considered by competent criminal court.
23. The learned counsel for the first respondent Board drew our attention to a
legal opinion sought by the Board from the Legal Advisor of the Cantonment
Board. According to that opinion, under the relevant Rules, the power to suspend
an official was discretionary and not mandatory which was clear from the
expression “may” used in Rule 10 of Central Civil Service (Classification
Control and Appeal) Rules, 1965.
24. We may only state that as per settled law, in serious cases, which may
result in major punishment if the conditions laid down in the Rules are present,
such power “must” be exercised. Keeping in mind the allegations leveled against
respondent No. 4 that he had demanded and accepted an amount of Rs. 10,000/- by
way of illegal gratification from petitioner No. 2, it appears to us that the
allegations are very serious and if proved, in all probability they would result in
imposition of one of the major penalties. In the circumstances, in our considered
opinion, the power of suspension had to be exercised.
25. From the resolution, it is clear that the only thing weighed with the Board
in passing the Resolution and in reinstating respondent NO. 4 was that it would be
in the interest of administration and to ensure that the administration is not
adversely affected in absence of Health Superintendent. In our opinion, no
reinstatement could have been ordered ignoring the allegations and pendency of
proceedings in competent court. The said action, therefore, deserves to be
quashed and set aside.
26. For the foregoing reasons, the petition deserves to be allowed and is
accordingly allowed. The Resolution No. C.B.R. No. 6 dated December 10, 2001
passed by the first respondent-Board is hereby quashed and set aside. It is
however, clarified that it is open to the first respondent-Board to take appropriate
decision in accordance with law, keeping in mind relevant Circulars and
Resolutions applicable to the first respondent-Board and our order will not come
in the way of the Board in reconsidering the matter in accordance with law.
27. We may also clarify that all observations made us hereinabove have
been made only for the purpose of deciding the present petition and we may not
be understood to have expressed any opinion one way or the other on merits of
the matter and as and when the matter will come up for consideration, either in
criminal court or before the Board in future, the same will be decided on its own
merits, without being inhibited by the aforesaid observations. Rule is accordingly
made absolute. In the facts and circumstances, however, there shall be no order as
to costs.
Certified copy expedited.