BHAKTARAM PUROHIT Vs. CHIEF ENGINEER ELECTRICITY

JUDGEMENT

(1.) The petitioner, a quondam employee of the Orissa State Electricity Board, has filed this petition which has come to be registered as a writ petition in which he has prayed quashing of the suspension order and the departmental proceedings pending against him since 1980. He has further prayed for a direction to the opposite parties to pay him the pensionary benefits.

(2.) FACTS : At the material time, the petitioner was serving as Junior Engineer under the Orissa State Electricity Board (hereinafter referred to as 'the Board') which is a statutory body. It is the allegation of the opposite parties that in the year 1933, the petitioner although received about Rs. 73,0600/ - from the office of the Board to supply cables through his son in the name and style of 'Ashok Electrical' but he did not supply any material. On the said allegation, he was placed under suspension on 30 -6 -1980 and a departmental proceeding was started against him in the same year which is still pending, although meanwhile he has retired from the service of the Board on attaining the age of superannuation on 28 -2 -1994. The petitioner had filed a writ petition bearing OJC No. 962 of 1994 praying, inter alia, for quashing of the order of suspension as well as the departmental proceedings and for grant of subsistence allowance from September, 1993 to February, 1994. In the said case, the Board fifed counter -affidavit contending that the departmental proceedings could not be completed because of non -submission of reply by the petitioner to the 'show -cause notice'. The case was disposed of by order dated 4 -4 -1994 by giving liberty to the petitioner to submit his reply within two weeks from the date of the order and the Board was directed to conclude the proceeding within three months thereafter. Till now, the departmental proceedings have not been concluded. Besides, the petitioner was departmentally proceeded against, on the self -same allegation he was also prosecuted in G.R. Case No. 134 of 1980 for an offence of criminal breach of trust. The said criminal case ended in acquittal. The Board also filed a civil suit for realisation of the contracted amount and obtained a decree in its favour. The petitioner has filed a First Appeal in this Court challenging the said decree which is pending for disposal. Pursuant to the order of this Court in the aforesaid OJC No. 962 of 1994, the petitioner filed his reply on 16 -4 -1994 and in terms of the order, the departmental proceeding was required to be concluded by the opposite parties by 16 -7 -1994, which has not yet been done.

(3.) IN course of hearing of the case, the learned counsel for the opposite parties could not bring to our notice any provision authorising the Board to continue the departmental proceeding after the petitioner was superannuated. In absence of any such provision or regulation, the departmental proceeding against the petitioner is liable to be quashed being without jurisdiction. The proceeding is also liable to be quashed on the ground of delay. It is an undisputed fact that the departmental proceeding was initiated as back as in the year 1980 and the petitioner was placed under suspension and since then he continued as such till ha was superannuated. Meanwhile, more than 14 years have lapsed without making any progress in the proceeding. We may state here that a departmental proceeding initiated against an employee is to be concluded with reasonable diligence and within a reasonable period of time. If any such principle is not evolved, it would imply that the employer (here, a statutory Board) is at its free will to conclude the proceeding placing his/its officers under disability and distress for an indefinite period. The apex Court in O.P. Gupta v. Union of India and Ors. : AIR 1987 SC 2257, while showing its concern over keeping a departmental proceeding alive for a pretty long period and placing the delinquent officer under suspension by paying mere subsistence allowance, observed in paragraph 15 of the judgment as follows : 'We have set out the facts in sufficient detail to show that there is no presumption that the Government always acts in a manner which is just and fair. There was no occasion whatever to protract the departmental inquiry for a period of 20 years and keeping the appellant under suspension for a period of nearly 11 years unless it was actuated with the maid fide intention of subjecting him to harassment. The charge framed against the appellant was serious enough to merit his dismissal from service. Apparently, the departmental authorities were not in a position to substantiate the charge. But that was no reason for keeping the departmental proceedings alive for a period of 20 years and not to have revoked the order of suspension for over 11 years. An order of 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 the order of suspension as explained by this Court in Khem Chand v. Union of India : 1958 SCR 1080 : (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 within 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. Although suspension is not one of the punishments specified in Rule 11 of the Rules, an order of suspension is not to be lightly passed against the government servant. In the case of Board of Trustees of the Post of Bombay v. Dilipkumar Raghavendranath Nadkarni : (1983) 1 SCR 828: (AIR 1983 SC 109) the Court held that the expression life' does not merely connote animal existence or a continued drudgery through life. The expression 'life' has a much wider meaning. Suspension in a case like the present where there was no question of inflicting any departmental punishment prima facie tantamounts to imposition of penalty which is manifestly repugnant to the principles of natural justice and fair play in action. The conditions of service are within the executive power of the State or its legislative power under the proviso to Article 309 of the Constitution, but even so such rules have to be reasonable and fair and not grossly unjust. It is a clear principle of natural justice that the delinquent officer when placed under suspension is entitled to represent that the departmental proceedings should be concluded with reasonable diligence and within a reasonable period of time. If such a principle were not to be recognised, it would imply that the Executive is being vested with a totally arbitrary and unfettered power of placing its officers under disability and distress for an indefinite duration.'