MALVINDERJIT SINGH Vs. STATE OF PUNJAB AND ORS.

JUDGEMENT

(1.) THIS petition under Articles 226 and 227 of the Constitution filed by Malvinderjit Singh, is directed against three orders, dated 18th of January, 1963, 23rd of November, 1963 and 16th of August, 1965, passed by the Secretary to Government, Punjab, Medical and Health Department.

(2.) ACCORDING to the allegations of the Petitioners, he joined Government service in July, 1955 in V.J. Hospital, Amritsar, in the grade of Rs. 140 - -10 - -250. Subsequently, he was selected by the Punjab Public Service Commission for the gazetted post of a Dietician in the grade of Rs. 250 - -20 - -550 and he was sent to Rajendra Hospital, Patiala, where he joined on 9th of May, 1959. Before the Petitioner joined the Patiala hospital, the Medical Superintendent of the said hospital, Respondent No. 4, held the charge of the Diet Department. He had complete control over the Store -keeper and the working of the Stores Department was carried on under his personal directions. When the Petitioner joined the said hospital, Respondent No. 4 was relieved of those duties. Apart from teaching the students, the duties of the Petitioner were of a purely supervisory nature. The stores and provisions of the hospital were in the custody and under the care of a Store -keeper and the kitchen staff used to run the kitchen where food for patients was prepared. The Petitioner exercised powers of supervision over those branches as well. After assuming charge of his duties at Patiala, the Petitioner observed that a number of irregularities were being committed by the staff. He, therefore, submitted a number of reports and proposals to Respondent No. 4 for the improvement of efficiency in the departments under his control. His reports contained allegations against the Store -keeper and the Contractors who supplied provisions to the hospital. Respondent No. 4, however, did not take notice of most of those reports and suggestions. The Director, Research and Medical Education, Punjab, Respondent No. 2, received a report from the Superintendent, Rajendra Hospital, Patiala, that on 22nd of October, 1962, the Store -keeper attempted to take away a tin of ghee from the hospital and that on physical verification of the store, huge excess was noticed. Thereupon res -pendent No. 2 appointed Jagdish Rai Garg, Accounts Officer, to make a report after checking the diet store of the hospital. Jagdish Rai made his report on 3rd of September, 1962. The checking by him was done under the supervision and direction of Respondent No. 2. Evidence was taken by him during the absence of the Petitioner and without affording any opportunity to him to cross -examine the Witnesses. His report contained aspersions against the Petitioner and that was done without giving any chance to the Petitioner to tender his explanation. On 18th of January, 1963, by means of the first impugned order, the Petitioner Was suspended from service with immediate effect. The said order was passed without affording the Petitioner a reasonable opportunity of showing cause against the said action. That order had been made not as a punishment, but pending the holding of a departmental enquiry. Although the Suspension order subsisted for more than 10 months, no charge -sheet or summary of allegations was served upon the Petitioner. On 23rd of November, 1963, by the second impugned order, the Petitioner was re -instated with immediate effect, but it was laid down that the period, which he had spent under suspension, would not be treated as period spent on duty, but would be converted into leave of the kind due and that, in any case, the Petitioner would not be paid more than what he had already drawn as subsistence allowance for the said period. This order, according to the Petitioner, was contrary to law. During the course of the Petitioner's suspension from service, the Vigilance Department held a confidential enquiry to which the Petitioner was not made a party and evidence was recorded by the said department in the absence of the Petitioner without giving him an opportunity to cross -examine the witnesses. He was not called to disprove any charge against him or lead any evidence. On 18th of April, 1963, he was interrogated by an officer of the Vigilance Department and his answers were recorded in the form of a statement. In November, 1963, he was served with a show -cause notice together with a statement of allegations against him. He was called upon to give his reply within 21 days. By means of the said notice, the Petitioner was informed that if for the purpose of preparing the written statement, he wished to have access to the relevant official records, he could inspect the same after making prior appointment. He was, however, to be shown only such documents as were in the possession of Respondents 2 and 4 and which were strictly relevant to the case. He was not allowed to inspect the record of the confidential enquiry conducted by the Vigilance Department. In the said show -cause notice, the action proposed to be taken against the Petitioner was (1) to recover the shortage, amounting to Rs. 6,582, found in fuel wood and basmati rice from the Petitioner, as this shortage occurred due to his negligence in supervision; and (2) to stop the Petitioner's two increments with cumulative effect. Before tendering his reply to the show -cause notice, the Petitioner complained that he had not been charge -sheeted before holding any enquiry, that he had not been afforded an opportunity to cross -examine the witnesses who gave evidence against him and that he had not been given any chance to disprove any charge against him. He asked for a copy of the report of the enquiry officer and pending the receipt of the said report, gave his reply to the show -cause notice. The said report was not supplied to the Petitioner at all. On 16th of August, 1965, the Petitioner received the third impugned order of the Governor of Punjab imposing the two punishments on him, viz., (1) recovery of Rs. 6,034, i.e., the cost of fuel wood found short and (2) stoppage of his next two increments with cumulative effect. That led to the filing of the present writ petition on 28th of October, 1965.

(3.) IT may be stated that this point, in the way it had been argued before me, was not taken in the writ petition. It appears that a report had been received against the Petitioner and according to the return filed by the State, preliminary investigation showed that he was quite inefficient and negligent in performing his duties and it was not considered desirable to retain him against that post and it was on that ground that he was suspended, but it was an suspension had not been passed as a punishment, but it was an order pending the holding of an enquiry against him. According to the usual practice, the said enquiry, according to the return, was entrusted to the Vigilance Department immediately after his suspension and on receipt of the enquiry report from the Vigilance Department, he was charge -sheeted after adopting the usual procedure. It is true that the departmental enquiry had actually not been started against the Petitioner, when the order of suspension was passed against him. The question is whether it is essential that a departmental enquiry must either be initiated or actually pending at the time when the order of suspension is made against a particular officer. In the two authorities relied upon by the Petitioner, this precise point was not before the courts,, inasmuch in R.P. Kapur's case, a criminal case was actually pending against him when he was suspended by the Governor of Punjab, while in K. K. Jaggia's case also, a departmental enquiry was actually pending against him when the order of suspension was passed. It is common ground that there is no rule empowering the Government to suspend an officer except by way of punishment. It is only by virtue of the inherent powers vested in an employer that he can suspend his employee. Can he do so only if a departmental enquiry is pending against him? In my view, no limitation of that kind can be placed on the power of the Government who is the employer of the Government servant, because it is not by virtue of any specific rule that the Government has such a power and if that had been the case, the Government would have been bound by the limitations prescribed in the rule itself. It is, as I have already said, by virtue of the inherent powers of an employer that the Government can do so and it is difficult to fix a limitation of that kind on the inherent power possessed by the employer. This point has been dealt with in the Supreme Court decision in Section Partap Singh v. State of Punjab : A.I.R. 1964 S.C. 72. While dealing with Rule 7 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952, Raghubar Dayal, J., who prepared the minority judgment in that case on his own and Mudbolkar, J.s behalf, observed in paragraph 54 of the judgment: