SARBESH BHATTACHARJEE Vs. DEPARTMENT OF HEALTH & FAMILY WELFARE THROUGH ITS PRINCIPAL SECRETARY, GOVERNMENT OF NCT OF DELHI

JUDGEMENT

(1.) There is minimal interference by Courts and Tribunals in the matter of suspension of a Government employee. From amongst the limited grounds, however, it is settled proposition of law that one ground to interfere in the matter of suspension would be where the order may not have been passed by the competent authority. This precisely is the primary plea of the applicant in the present Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985, questioning the order of suspension dated 02.11.2011 passed by the Principal Secretary (H&FW), Government of NCT of Delhi, the first respondent herein, less than three months prior to the date when the applicant was to superannuate. The Original Application during its pendency has been amended twice. We will make mention of the amendments brought about in the Application during its pendency at the relevant time.

(2.) The facts as extracted from the amended OA, insofar as the same are relevant, would need a necessary mention at this stage. The applicant joined in Arunachal Pradesh as Medical Officer on ad hoc basis on 15.01.1976 and was regularized through UPSC in Central health Services General Duty Medical Officer (GDMO) Sub Cadre with effect from 30.10.1976. It is his positive case that the Union of India, the third respondent herein, is his appointing authority. The applicant has given by and large details of the places of his postings and the promotions he earned from time to time. There would be no need to refer to the service progression of the applicant from 1976. Suffice it may, however, to mention that the applicant was given the charge of Additional Director (HQ) in February, 2009 along with the charge of East Zone till 21.08.2009, when he was transferred to the Delhi Government and was posted as Director Health Services (DHS) on 26.08.2009 and assumed the charge on the same date. In 2010, he was entrusted with the job of medical coverage of the Commonwealth Games, 2010 and it is his case that he did the same just within one year and five days, which was termed as world class health care even by the Games Federation Chief Michael Fennel in his speech of the closing ceremony. It is pleaded that the applicant had to establish one super specialty hospital in the Games Village and 37 athletes medical room and unlimited number of first aid posts (FAP) and field of play (FOP) as per demand of the Organizing committee, and he established all these within time. It is further pleaded that considering the time limit, the applicant had done the best job done by any one in the history of the games; even media reports confirmed the same. It is then the case of the applicant that since he could not give much time to his family due to his involvement in the Commonwealth Games and his official work for one long year, he lost his elder daughter who died due to neurological disorder, and he still feels guilty that had he given more time to her, he could have saved her, and that he was shattered due to his daughters untimely death. On 10.03.2011, the applicant was once again shifted from DHS by the Delhi Government, though he was the senior -most officer in GDMO sub -cadre and was presently posted as Medical Superintendent, DDU Hospital, when the suspension order came to be passed just before his retirement. The applicant claims an excellent, efficient and impeccable service record. Till date, he claims, he did not receive a single warning from any of his superiors or the Government he served. It is pleaded that having rendered over 35 years of unblemished service with very good/outstanding record, he was legitimately expecting that he would be retiring peacefully on 31.01.2010. However, the first respondent, it is pleaded, illegally and mala fidely in contravention of rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter to be referred as the Rules of 1965) issued the suspension order, and that no report as mandated under rule 10 of the Rules aforesaid, had been sent to the appointing authority, i.e., the third respondent, by the first respondent while suspending the applicant. The applicant, in addition to challenging the order dated 02.11.2011, has also questioned the order dated 28.11.2011, vide which during pendency of the present OA the third respondent has approved the confirmation of suspension, primarily on the ground that an illegal order issued by incompetent authority could not be ratified even by approval of the third respondent. Inasmuch as, reply to the unamended OA had since already been filed, in the amended OA the applicant who came to know the reasons of his suspension through the reply filed on behalf of the respondents, has touched the subject on merits as well. The applicant is said to have been suspended so as to prevent any interference in the investigation/inquiry and any tampering/destruction of the records pertaining to the case. The irregularities are alleged to have been committed by the applicant while working as Director, Health Services. It is the case of the applicant that he is no longer in the said department, and that in fact he had been transferred from there in March, 2011 itself, and has since been working as Medical Superintendent, DDU Hospital, Delhi, which has nothing to do with the Directorate of Health Services.

(3.) Delving further on the merits of the controversy, it is stated that the respondents, as mentioned in their reply, have suspended the applicant on the allegation that while posted as Director, Health Services, he had issued a supply order for sterile gloves to a firm M/s MRK Healthcare, which was valid for two years. The said rate contract with the firm was cancelled within eight months, i.e., even before the expiry of one year, without issuing any show cause notice to the firm for failing to supply any more quantities of sterile gloves during that year. Even within 15 days of issuance of supply order or before commencement of supplies, a security deposit of 5% of the total costs was also required to be obtained from the contractor, which the applicant was alleged to have failed to do. He was also alleged to have not initiated any penal action against the supplier for refusing to supply the total requirement of sterile gloves, and instead the GNCTD hospitals were informed by him to make their own arrangements for purchase of sterile gloves, which the hospitals thereafter purchased at much higher prices, and various hospitals, especially Lok Nayak Hospital, placed order for supply of sterile gloves with M/s Pharmatech (which was the sole distributor of M/s MRK Healthcare) at double the cost (Rs.12/ -) than the rate contract entered into with M/s MRK Healthcare (Rs.6/ -). In that regard, it is the case of the applicant that the reasoning and basis for passing the suspension order would be completely mala fide, illegal, arbitrary and discriminatory. It is his case that an agreement dated 03.04.2010 had been entered into between the Director, Health Services, GNCTD and M/s MRK Healthcare. The said firm had to supply sterile gloves for a period of two years. The firm, however, wrote a letter indicating its inability to do the same. The applicant, therefore, cancelled the contract and forfeited the earnest money deposit. It is the case of the applicant that the said action can surely not form the basis of suspension order against the applicant, since the failure to supply was on the part of the firm and the applicant had only cancelled the contract and forfeited the earnest money deposited by the firm. It is further his case that the reply of the respondents itself states that the firm mentioned therein, i.e., M/s MRK Healthcare had failed to supply the sterile gloves, and it is thus apparent that the failure to supply would be on the part of the said firm, and, therefore, there was no question of the applicant having favoured the said vendor. Further, perusal of the record of the case would show that the said firm had written a letter indicating its inability to supply the gloves, and in such a situation, the applicant cancelled the contract with the firm. The allegation that no show cause notice had been issued to the firm, it is pleaded, could be a ground for the firm to challenge the cancellation, but surely could not be a ground to allege favouritism on the part of the applicant. As regards the allegation that a security deposit of 5% of total cost was also required to be obtained from the contractor, but the applicant had failed to do so, it is the case of the applicant that in all supply contracts, normal practice is to take an earnest money deposit, and the condition of security deposit of 5% of the total cost is never taken since the total cost of supply would not be known to the Directorate; the said total cost would be known to the concerned hospital when the actual supply is made to it and, therefore, since the total cost itself would not be known, there would be no question of taking 5% of the said cost as earnest money deposit. Moreover, it is pleaded, it is the regular practice of the Directorate to take only an earnest money deposit and security deposit of 5% of total cost is not taken. As regards the applicant not taking penal action against the supplier for refusing to supply the total requirement of sterile gloves, it is the case of the applicant that the penal action/black listing is to be undertaken by the special purchase committee and not by the applicant. It is pleaded that the applicant had cancelled the contract and forfeited the earnest money deposit. In response to an RTI query regarding the action taken against other firms who had also failed to honour their commitments under a contract for supply of various articles, the applicant received information vide letter dated 15.11.2011, perusal whereof would show that when one firm M/s Neon Labs, had in spite of entering into an agreement with the Directorate, expressed its inability to supply injection heparin, the issue was discussed at the State level special purchase committee under chairmanship of Dean, Maulana Azad Medical Committee, and it was decided to forfeit the earnest money deposit as also that M/s Neon Labs may be allowed to supply other approved drugs after submission of fresh earnest money of Rs.3 lakhs. It was stated in the letter aforesaid that the earnest money deposit of the firm was thus forfeited and it continued to supply other drugs through CPRAC to all Delhi Government hospitals. From the facts as mentioned above, it is the case of the applicant that the respondents are acting in an arbitrary and discriminatory manner against him, inasmuch as, in similar circumstances, the Directorate had only forfeited the earnest money deposit, and far from taking any penal action against the firm in question, allowed it to continue supplying other drugs after submission of fresh earnest money deposit.