JUDGMENT
B.P. Katakey, J.
1. The writ petitioner in the present Writ Petition has challenged the order dated 27.7.2004 passed by the Commissioner, and Special Secretary to the Government of Assam, Public Works Department suspending the petitioner from service by invoking power under Rule 6 of the Assam Services (Discipline and Appeal) Rules 1964 (hereinafter referred to as the Rules).
2. I have heard Mr. P. Pathak, learned Sr. counsel assisted by Mrs. P. Barman, learned Counsel for the petitioner and also Mr. J. Roy, learned Standing counsel for the P.W.D.
3. The writ petitioner has challenged the aforesaid order of suspension dated 26.7.2004 on the ground that the authority has not exercised the power under Rule 6 of the aforesaid Rules bona fide and keeping in view the allegation on which the writ petitioner was suspended from service, there was no necessity for placing him under suspension as according to the learned Counsel for the petitioner the power of suspension cannot be exercised in an administrative routine manner and the authority before passing an order of suspension is required to take into consideration the gravity of misconduct sought to be investigated or enquired into as well as the nature of evidence placed before him. According to the learned Counsel for the petitioner, the order of suspension was passed in a most mechanical way without taking into consideration the gravity of the alleged misconduct. The further submission of Mr. Pathak is that the petitioner was suspended from service on the ground of his absence from duty, although he was regularly attending his office and even assuming he was not present in the site, the same in any case cannot be considered a grave misconduct even if it is proved in the disciplinary proceeding. The charges being not grave and there being no chance of interfering with the disciplinary proceeding contemplated against the petitioner, there was no necessity to place the officer under suspension. Mr. Pathak, learned Sr. counsel has also submitted that though the petitioner was placed under suspension by order dated 26.7.2004, no show cause notice has been served on him till date and hence the disciplinary proceedings has not commenced in spite of expiry of more than four months from the date of placing the petitioner under suspension. Mr. Pathak has referred to the Government circular whereby it has been directed that the disciplinary proceeding has to be initiated within six months from the date of putting the officer under suspension. Hence, Mr. Pathak has prayed for setting aside of the order of suspension dated 26.7.2004 Mr. Pathak, in support of his contention, relied upon the decision of the Apex Court in State of Orissa v. Bimal Kumar Mohanty .
4. Mr. J. Roy, learned Standing counsel for the P.W.D. relying on the record produced before me as well as the statements made in the Affidavit-in-Opposition, has submitted that the petitioner was suspended from service since he was found absent from duty from 9.7.2004 to 22.7.2004 when the flood waters have submerged and damaged the National Highways and disrupted the traffic flow. The services of writ petitioner as Superintending Engineer of P.W.D. during the flood days are always most essential but since the petitioner did not care to respond to the most critical situation arising out of flood and neglected his duties by keeping himself absent from the Headquarter, the authority has to put the petitioner under suspension by issuing the order of suspension. Mr. Roy has further submitted that infact the charge sheet has been issued on 30.11.2004 thereby initiated the disciplinary proceedings against the writ petitioner. Therefore, Mr. Roy submits that this Court may not interfere with the order of suspension dated 26.7.2004 passed by the disciplinary authority although he is going to retire from service on attaining the age of superannuation on 28.2.2005. Mr. Roy has, in support of his contention that the Writ Court should not interfere with the order of suspension when the same is passed by the authority taking into account the serious acts of omission and commission on the part of the writ petitioner, placed reliance on the decisions rendered by the Apex Court in U.P. Rajya Krishi Utpadan Mandi Parishad and Ors. v. Sanjiv Rajan reported in 1993 Supp (3) SCC 483 and Food Corporation of India and Anr. v. V.P. Bhatia . Mr. Roy has also placed reliance on the decision rendered by this Court in Darshan Singh v. The State of Arunachal Pradesh and Ors. reported in 1997 (I) GLT 30.
5. The Apex Court in State of Orissa v. Bimal Kumar Mohanty (supra) has held that the authority has the power to put the Govt. servant under suspension pending enquiry or contemplated enquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission. The Apex Court has farther held that the appointing authority, before placing the Govt. servant under suspension, is required to take into consideration the gravity of alleged misconduct or the nature of allegations imputed to the delinquent employee. Such suspension order should not be passed as an administrative routine or an automatic order.
6. In U.P. Rajya Krishi Utpadan Mandi Parishad and Ors. v. Sanjiv Rajan (supra) the Apex Court has held that the Court should not interfere with the order of suspension unless they are passed mala fide and without there being even prima facie evidence on the record connecting the employee with the misconduct in question. In the said case the Apex Court has upheld the order of suspension issued by the authority by taking into account the fact that the charges leveled against the delinquent officer were grave and was for embezzlement of fund of a market committee.
7. The Apex Court in the case of Food Corporation of India and Anr. v. V.P. Bhatia (supra) has held that undue delay in initiation of disciplinary proceedings may cause prejudice to the employee concerned in defending him and therefore, the Court should insist that the disciplinary proceedings should be initiated and completed expeditiously. In the said case the validity of the order of suspension was not in issue but whether disciplinary proceeding is to be quashed on the ground of undue delay was in issue before the Apex Court.
8. This Court in Darshan Singh v. the State of Arunachal Pradesh and Ors. (supra) while dealing with the order of suspension, has held that the order of suspension is not an order imposing punishment and is an order to ensure smooth disposal of the proceeding initiated against the delinquent officer and such proceeding must be expressly concluded. This Court relying on the judgment rendered by the Apex Court in U.P. Rajya Krishi Utpadan Mandi and Others (supra) has held that Court should not interfere with the order of suspension unless it is mala fide and without there being even prima facie evidence to connect with the misconduct alleged.
9. The Apex Court in Capt. M. Paul Anthony v. Bharat Gold Mine and Anr. has held that the employer has an unqualified right to place an employee under suspension. The Apex Court has further observed that instances are not rear where officers have been found to be afflicted by a “suspension syndrome” and employees have been found to be placed under suspension just for nothing. The irritability of the disciplinary authority rather than employee’s .trivial lapse often resulted in placing an employee under suspension. The relevant portion of the judgment is quoted below:
(a) 26. To place an employee under suspension is an unqualified right of the employer. This right is conceded to the employer in service jurisprudence everywhere. It has even received statutory recognition under service rules framed by various authorities, including Govt. of India and the State Governments, (see: for example. Rule 10 of Central Civil Services (Classification, Control and Appeal) Rules. Even under the General Clauses Act, this right is conceded to the employer by Section 16 which, inter alia, provides that power to appoint includes power to suspend or dismiss.
29. Exercise of right to suspend an employee may be justified on the facts of a particular case. Instances, however, are not rare where officers have been found to be afflicted by ‘suspension syndrome’ and the employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employee’s trivial lapse which has often resulted in suspension. Suspension notwithstanding, non-payment of Subsistence Allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nick name of Subsistence Allowance’, so that the employee may sustain himself. This court in O.P. Gupta v. Union of India made the following observations with regard to Subsistence Allowance [Para 15 of AIR]:
An order of a suspension of a Government servant does not put an end to his service under the Government. He continues to be a member of the service in spite of the order of suspension. The real effect of suspension as explained by this Court in Khem Chand v. Union of India AIR 1958 SC 300 is that he continues to be a member of the Government service but is not permitted to work and further during the period of suspension he is paid only some allowance-generally called subsistence allowance which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the departmental inquiry is concluded with a reasonable time, affects a Government servant injuriously. The very expression’ subsistence allowance’ has an undeniable penal significance. The dictionary meaning of the word ‘subsist’ as given in Shorter Oxford English Dictionary, Vol II at P. 2171 is “to remain alive as on food; to continue to exist”. ” Subsistence” means – means of supporting life, especially a minimum livelihood
10. A Division Bench of this Court in Dhirendra Kumar Barthakur v. the State of Assam and Ors. reported in (1983) 2 GLR 459 has held that it is necessary that the authority concerned before passing the order of suspension must address its mind to relevant aspects and come to the bona fide conclusion that a disciplinary proceeding against him is under contemplation. This Court has further held that the idea behind placing an officer under suspension is not to inflict punishment which can be done only when the charges are proved but to safeguard against further loss to the Government, manipulation of records, intimidation of witnesses or embarrassment to Government in the public eye as in the case where moral turpitude is involved. The relevant portion of the said decision is quoted below:
6. No doubt suspension is not a punishment by itself, but it cannot be denied at the same time that in such cases the officers placed under suspension suffer a lot. Apart fro this, suspension of a Government servant is liability on the part of the Government in the sense that not only the person concerned is required to be paid substantial allowance but also a substitute in his place is to be taken. The idea behind placing an officer under suspension is not to inflict punishment which can be done only when the charges are proved but to safeguard against furthers loss to the Government, manipulation of records, intimidation of witnesses or embarrassment to Government in the public eye as in the case where moral turpitude is involved. The Government of Assam, therefore, issued an Office Memorandum No. ABP. 186/69 dated Shillong, the 2nd March, 1971, laying down instructions for guidance of all concerned as to enable them to consider as to whether it is appropriate to place a Government servant under suspension keeping in view the factors indicated above.
11. It is, thus, evident that though the disciplinary authority has an unqualified right to place an employee under suspension, the said power is not to be exercised in a mechanical or routine manner. The disciplinary authority before placing an employee under suspension is required to take into account the gravity of the misconduct sought to be enquired into and whether the employee is required to be put under suspension to safeguard against further loss to the Government or scope for manipulation of records or intimidation of witnesses or embarrassment to Government in the public eye where moral turpitude is involved. The order of suspension should not normally be interfered with by the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India unless it is passed mala fide and without there being even prima facie evidence connecting the delinquent with the alleged misconduct.
12. The Apex Court in Capt. M. Paul Anthony v. Bharat Gold Mines and Anr. (supra) has observed that sometimes the officers have been found to be afflicted by a “suspension syndrome” and the employees are found to be placed under suspension just for nothing. All the decisions, referred to above, are unanimous on the point that whether an order of suspension is to be interfered with depends upon the facts of each case.
13. In the present case it appears from the order of suspension dated 26.7.2004 that the petitioner was placed under suspension because of his absence from the site for the period from 9.7.2004 to 22.7.2004 during which period the flood water of rivers and tributaries of the districts of lower Assam have submerged and damaged the National Highways and disrupted the traffic flow. The writ petitioner during that crucial period, when he was required to be present in the site, was found to be absent.
14. The records produced by the Government of Assam also reveal the existence of a report from the Chief Engineer to the effect that during the period of construction of subway by the P.W.D. and installation of Brailly Bridge by the Army on the breach of culvert at Banekuchi on National Highway No. 31, when he visited the site almost every 5-6 days, the writ petitioner, who was the Superintending Engineer, was no way in sight on the site at the emergency time. Therefore, it cannot be said that there is no prima facie evidence on record connecting the delinquent to the alleged misconduct.
15. The other ground on which an order of suspension can be challenged is mala fide. The allegation of mala fide has to be specific and demonstrable. From a bare reading of the statement made in the writ petition it is evident that there is no specific allegation of mala fide against the disciplinary authority who passed the impugned order, except the statement made in Paragraph 9 of the writ petition which reads as follows:
(9). That your petitioner states that the respondent No. 3 in the most mala fide and arbitrary manner issued the impugned order of suspension only to malign the petitioner in public esteem. A bare perusal of the impugned order of suspension dated 26.7.2004 would reflects total malice in law and in fact. The language used is also unbecoming and derogatory in nature. The cause allegedly shown in the impugned order of suspension is absolutely false, baseless as admittedly the days which were shown in the impugned order of suspension as absent from duty by the petitioner was in facts false. The petitioner clearly mentioned in his representation dated 31.7.2004 filed before Respondent No. 3 the work done by the petitioner during the period of time, i.e., from 9th July to 22nd July, 2004. That apart the attendance register of the concerned office also prove beyond reasonable doubt that the petitioner duly attended his office during that period and discharged his day to day official duties.
Photocopy of the attendance register for the month of July, 2004 is annexed herewith and marked as Annexure D and a statement showing the letter issued by the petitioner during the period from 14th July, 2004 to 22nd July, 2004 from the office of the PWD, Nalbari NH Circle is annexed herewith and marked as Annexure DI.
16. The Apex Court in E.P. Royappa v. State of Tamil Nadu and Anr. reported in AIR 1974 SC 555 has held that the burden of establishing mala fide is very heavy on the person who alleges it. The allegation of mala fide is often more easily made than proved and the very seriousness of such allegation demands proof of higher order of credibility. The Apex Court in M. Sankaranarayanan, IAS v. State of Karnataka and Ors. has held that it may not always be possible to demonstrate malice in fact with full and elaborate particulars and it may be permissible in an appropriate case to draw reasonable inference of mala fide from the facts pleaded and established but such inference must be based on factual matrix and such factual matrix cannot remain in the realm of insinuation, surmise or conjecture. In Rajendra Roy v. Union of India and Anr. the Apex Court has held that the vague allegation of mala fide is not sustainable.
17. From the statement of the writ petition as quoted above, it is thus apparent that there is absolutely no material even to prima facie prove the allegation of mala fide against the disciplinary authority who passed the order of suspension.
18. The Writ Court while exercising its power of judicial review of administrative action of putting an officer under suspension is required to scrutinize whether there is any evidence on record connecting the delinquent with the misconduct alleged for which he is put under suspension or whether such administrative action is vitiated by mala fide. This Court cannot go into the factual details. Though the writ petitioner in the writ petition has disputed the allegation that he was absent from duty from 9.7.2004 to 22.7.2004, the disputed fact cannot be gone into by the Writ Court and can only be decided by the disciplinary authority during disciplinary proceedings.
19. The respondent authority also at the same time cannot keep an officer under suspension for an indefinite period and under Sub-rule 5 of rule 6 of the Rules, is duty bound to undertake periodical review of the order of suspension, that is to say, the authority is required to review the situation and consider whether continued suspension of an officer is necessary keeping in view the nature of allegations of misconduct, the period for which the officer is under suspension, whether there is any scope of interference by the officer with the disciplinary proceeding. The authority while reviewing the order of suspension is also required to take into consideration the fact that by placing an officer under suspension, the Government is paying the subsistence allowance without being able to extract the services of the officer concerned.
20. In view of the above discussions, I dispose of the writ petition by directing the Commissioner and Special Secretary to the Government of Assam, Public Works Department to undertake the review of the order of suspension on the basis of the representation filed by the petitioner and in the light of the observations made by this Court in this Judgment and to pass a speaking order within 10 days from today. It is needless to say that the petitioner shall have to be paid the subsistence allowance for the period of his suspension.
21. The writ petition is accordingly disposed of with the observations and directions made above. Keeping in view, the facts and circumstances of the case. I do not make any order as to cost.