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Bhupinder Singh Vs. State of Haryana and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 1710 of 1967 with Civil Misc. No. 795 of 1968
Judge
Reported inAIR1968P& H406
ActsCode of Civil Procedure (CPC) , 1908 - Order 19, Rule 3(1); Evidence Act, 1872 - Sections 101 to 104 and 114; Constitution of India - Articles 226 and 311; Punjab Tahsildari Rules, 1952 - Rules 3, 12 and 13; Punjab General Clauses Act, 1898 - Sections 14
AppellantBhupinder Singh
RespondentState of Haryana and ors.
Appellant Advocate B.S. Kohji and; R.P. Bali, Advs.
Respondent Advocate C.D. Dewan, Deputy Adv. General, Haryana
DispositionPetition dismissed
Cases Referred and Nagendra Nath Bora v. Commissioner of Hills Division
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....ordertek chand, j.1. this is a writ petition under articles 226 and 227 of the constitution of india filed on behalf of bhupinder singh vohra, tehsildar, against the state of haryana. the financial commissioner (revenue) shri b. s. grewal and the commissioner, ambala division, are impleaded as respondents 2 and 3. the state of punjab was allowed to be impleaded as respondent no. 4 under order of sarkaria j., dated the 16th october, 1967.2. in this petition, the petitioner has made two prayers. he has firstly asked for the issuance of a writ of certiorari quashing the order of his suspension dated 14th of august, 1967, pending departmental enquiry against him (an-nexure v). he has further prayed that a writ of mandamus should issue to the state of har-vana to withdraw all the enquiries.....
Judgment:
ORDER

Tek Chand, J.

1. This is a writ petition under Articles 226 and 227 of the Constitution of India filed on behalf of Bhupinder Singh Vohra, Tehsildar, against the State of Haryana. The Financial Commissioner (Revenue) Shri B. S. Grewal and the Commissioner, Ambala Division, are impleaded as respondents 2 and 3. The State of Punjab was allowed to be impleaded as respondent No. 4 under order of Sarkaria J., dated the 16th October, 1967.

2. In this petition, the petitioner has made two prayers. He has firstly asked for the issuance of a writ of certiorari quashing the order of his suspension dated 14th of August, 1967, pending departmental enquiry against him (An-nexure V). He has further prayed that a writ of mandamus should issue to the State of Har-vana to withdraw all the enquiries pending against him from respondent No. 2 and entrust the same to some other suitable officer of competent jurisdiction. The petitioner has alleged that respondent No. 2 was maliciously disposed towards him.

3. The facts ot this case are, that while the petitioner was posted as Tehsildar in Roh-tak in 1961, he received a D.O. letter No. 8494-E(II)-60/645, dated the 10th February, 1961 (Annexure A), from the Revenue Secretary to the Financial Commissioner to the; effect that the confidential report on the petitioner's work and conduct during the year 1959-60 while he was Tehsildar at Ambala showed that he had committed irregularities in the allotment of land in village Sarasgarh, and that the Financial Commissioner (Revenue) trusted that he would remedy the defects which had been brought to his notice. The petitioner said that it appeared to him that the Financial Commissioner Revenue had made some wrong entries in his personal record as he never worked as Tehsildar at Ambala. The petitioner brought this position to the notice of the Financial Commissioner on 7th of April, 1961 that he had never been posted at Ambala throughout the period of his service nor had he done any allotment work, vide Anuexure B. The petitioner received a reply from the Revenue Secretary to the Financial Commissioner on 21-10-1961 that the matter was under consideration. The petitioner then said thai this matter remained pending with respondent No. 2 by over Four tears and he believed that the case must have been placed several times before respondent No. 2 for ex-punction of adverse remarks againsl him, 'unfounded and unjustified as they were, but the said respondent was presumably adamant and considered it below his dignity to admit his mistake and to withdraw those remarks.'

In the year 1965, the petitioner was inform ed that it had been decided to expunge the adverse remarks represented against vide Annex-lire D. But on 22-6-1965. the petitioner received another communication (Annexure E) stating that on enquiry, it had been found that the petitionei helped his father in-law Shri Sunder Singh in wrongfully obtaining evacuee properties in village Sarasgarh. and that the Financial Commissionei trusted that the petitioner would remedy the defects which had been brought to his notice, In the last para, it was stated that the adverse remarks already conveyed cm 10th of February. 1961 should be treated as cancelled. The petitioner has said that respondent No 2 was 'bent upon spoiling the record of the petitioner on one pretext or the other'. Tha petitioner submitted his explanation on 30th of Sept., 1965 (Annexure F) stating that the agricultural land was rightly allotted to his father-in-law along with the residential house and that the petitioner had no hand in the allotment of that property. In the petition, it was then stated that the petitioner's representation should have been accepted, 'yet respondent No. 2 out of sheer vindictiveness rejected the petitioner's representation' as per Annexure G. Before proceeding to further allegations, the stand taken by the respondents on this item may be noticed.

4. Two returns have been filed: one by Shri Sukhdev Parsad, Deputy Secretary, Revenue Department, on behalf of respondents 1 to 3 and there is also the affidavit filed by Shri B. S. Grewal, Financial Commissioner Revenue, respondent No. 2. It was stated that the reference to the petitioner being Tehsildar, Ambala, was erroneous and, therefore, the adverse remarks first communicated to the petitioner, were withdrawn but in so far as the petitioner had committed irregularities, the position remained the same and the adverse remarks were communicated to the petitioner. As regards the rejection of the petitioner's representation, it was said that it was considered on merits and rejected by the Financial Commissioner Revenue who at that time was Shri A. L. Fletcher and this was done with the approval of the Revenue Minister. Respondent No. 2 had nothing to do with the rejection of the petitioner's representation. It was also said, that the petitioner who was a Tehsildar and an official in the Rehabilitation Department, ought not to have attested the affidavit of his father-in-law as it was intended to secure allotment. Respondent No. 2 in his affidavit said that he was not the Financial Commissioner Revenue when the petitioner's representation was rejected and it did not remain pending with him for any length of time. The earlier confidential remarks were corrected and substituted in so far as they conformed with facts. He denied the allegations made of personal prejudice against him, or that he was bent upon spoiling the petitioner's record. These allegations, according to respondent No. 2, were entirely baseless. The decision for making the adverse remarks against the petitioner was taken on merits and on the ground that he had committed irregularities,

5. The petitioner then stated that in the regular enquiry held against him, it was found thai the petitioner had no hand in the allotment of land in favour of his father-in-law. The petitionei then said that respondent No. 2 then raked up some old remarks made in his confidential reports and he was charge-sheeted. It was said that he had done so as he wanted to teach a lesson to the petitionei for having pointed out a mistake regarding the adverse entry. This allegation has been denied by respondent No 2 as baseless. He has fnrther stated that the decision that the petitioner should be com-pulsorily retired was taken by Shri A. L. Fletcher, Financial Commissioner Revenue as, according to him. the petitioner had consistently a bad record of service.

6. It was next alleged that respondent No. 2 had suspended the petitioner in December, 1966 for some alleged Irregularity committed by him as far back as 1961 in the matter of allotment of 7 1/2 standard acres of evacuee land. The charge-sheet had been delivered to the petitioner a month and a half after the date or his suspension. The matter had been taken up after a lapse of over 6 years and the reason alleged was that the resondent No. 2 was trying his hard to discover some excuse in order to harm the petitioner. In the affidavit, the above allegation is denied as baseless concerning the prejudice of respondent No. 2. It was further stated that the Rehabilitation Department had. on receipt of a complaint, conducted a preliminary enquiry which showed some misdemeanours committed by the petitioner while he was posted as Tehsildar-cum-Managing Officer, Rohtak, in the matter of disposal of evacuee properties in village Kalanaur Khurd. The gravamen of charges justified the petitioner being placed under suspension.

7. The petitioner's next allegation was that he submitted a representation on 21st December, 1966, to the Revenue Minister, Haryana, and the latter made a note that enquiry might go on but that it would be better that he should not be suspended. As no action was taken on the note, the Revenue Minister again on 7th January 1967, enquired as to what action had been taken on his order staying suspension and reinstatement of the petitioner. It was alleged that respondent No. 2 was resisting the execution of the orders of the Revenue Minister and on 12th of January, 1967. the Revenue Minister passed an order reinstating the petitioner pending the enquiry. When the order of the Minister was conveyed to respondent No. 2, the latter felt resentful and directed that the petitioner should appear before him. When the petitioner reported himself to the Deputy Secretary. Revenue, he was informed that he could bo reinstated only if he applied for one month's leave which he did. Despite this, no orders regarding his reinstatement were passed but he was told that he should apply for four months' leave and the petitioner had no alternative but to comply with this. It was on 28th of January, 1967, that the reinstatement of the petitioner was ordered and it was mentioned in the same order that he be granted four months' leave from the date of reinstatement. The petitioner stated that this was a great hardship as he had exhausted all his leave and tbat he should he allowed to resume duty but he was not permit-fed to do so. In the return, it is stated that no compulsion was used on the petitioner ordering him to proceed on leave. He was required to take leave because the Revenue and Development Minister had desired that the petitioner should he reinstated on the clear understanding that he would have to remain on leave till enquiry against him was finalised.

8. The petitioner then alleged that the taking of any further leave meant leave without pay and he approached respondent No. 2 with a request that his posting orders might lie issued. On 3rd of August. 1967, he availed on respondent No. 2 in connection with his posting orden but the latter told the petitioner that he could not be retained in the Ravenna Department and that he should tender hit resignation. He was also threatened that he would place the petitioner under suspension again. to the return, respondent No. 2 has vehemently denied what was imputed to him by the petitioner. What he said to the petitioner was that full opportunity would be given to him to ex-plain his case and on the question of his remaining on leave, he was carrying out the orders of the Minister.

9. On 4th of August, 1967, the petitioner submitted an application to respondent No. 2 to the effect that he could not expect Justice and fair-play from him and, therefore the petitioner's case be heard by some other officer who could deal with the matter with open mind vide Annexure T. Respondent No. 2 has denied that the petitioner would not get justice or fair-play from him. He said that although the giving of a personal hearing was not provided under the rules, he had granted the petitioner's request to be heard in person.

10. The petitioner then says that on 8th of August, 1967, he had submitted a representation to the Chief Minister, Haryana, who was holding the charge of the Revenue Department. He also said that respondent No. 2 was busy making out some fresh case for the victimisation of the petitioner. He had sent one R. L. Chawla, an Assistant in his office, to collect some papers involving the petitioner which were put up before respondent No. 2 who, on 9th of August, 1967, passed an order suspending him with immediate effect. This was done in hot haste lest the representation made by the petitioner to the Chief Minister on 8th of August, 1967, be considered favourably. No orders in fact were passed by the Chief Minister on the petitioner's representation. Respondent No. 2 has denied having sent R. L. Chawla, an Assistant or any other official to collect papers for being used against the petitioner as he never knew if any case was pending at Karnal against him. The suspension order dated 9th of August 1967, was communicated to the petitioner through the Commissioner, Ambala Division, on 14th of August, 1967

11. On the basis of above allegations, the quashing of the impugned suspension order by issuance of a writ of eertiorari is prayed for. The withdrawal of all enquiries pending against tbe petitioner before respondent No. 2 and their entrustment to some other suitable officer of competent jurisdiction has also been prayed.

12. On behalf of the petitioner, an application dated 7th of December, 1967, was made praying that two affidavits by way of replications to the two returns filed on behalf of respondents 1 to 3 and by respondent No. 2 respectively, may be permitted to be placed on the record vide X/1. and X/2. Along with X/l, he has also attached three Annexures P. Z/1 to P. Z./3. This request was allowed subject to just exceptions. The affidavit X/l by way of replication is a very lengthy document in which a large number of new facts and incidents have been introduced which are neither covered by the petition nor referred to in the respondents' affidavits.

13. One noticeable feature of the two affidavits X/1 and X/2 is that invectives and opprobrious epithets have been freely used against respondent No. 2 and also against Shri Sukhdev Parsad, Deputy Secretary Revenue Department who swore an affidavit by way of return on behalf of respondents 1 to 3. Respondent No. 2 has been accused of vindictiveness and malice and it is stated that it appeared that he approached the Deputy Commissioner. Rohtak, in order to influence him to recommend punishment against the petitioner. It was also stated that respondent No 2 had made a question of prestige to keep the petitioner out of service and had deliberately disobeyed the orders of the Revenue Minister in order to harass and victimise the petitioner. It was also stated that the statement of Shri Sukhdev Parsad that the petitioner did not see respondent No. 2 on 30th of May, 1907. was false.

14. The several affidavits of the petitioner contain the verification that their contents are 'true and correct to the best of my knowledge and belief.

15. No attempt has been made to state how the petitioner had derived knowledge with respect to the factual allegations contained in his affidavits in respect of incidents at which he was not personally present. Most of the allegations as to the malice of respondent No. 2 instead of being factual are inferential and argumentative. The petitioner has been prefacing his allegations against respondent No. 2 on the ground of his belief or because the mind of respondent No. 2 seemed to him to have work-ed that way or that this was how he must have used his undue influence on his subordinate officers. The petitioner has avoided placing facts from which inference of malice could be drawn but has given his conclusions supported on the basis of surmises and conjectures. Such allegations were grossly libellous, as they imputed injustice, unfair conduct, victimisation and falsity to respondent No. 2.

16. Order 19, Rule 3 (1) of the Code of Civil Procedure requires:

'Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted; provided that the grounds thereof are stated'.

In no affidavit, has the petitioner said which part was based on information and which on belief. Nowhere he has divulged the source of his information or the grounds of his belief. Where the matter deposed to is not based on personal knowledge but on information, the sources of information ought to be clearly disclosed. The petitioner's several affidavits infringe the provisions of Order 19. Rule 3, when they should have been strictly observed. Such affidavits being violative of the requirements of the mandatory provisions of law, deserve to be Ignored. The words that the contents of the affidavit 'are true and correct tt> the best of my knowledge and belief carry no sanctity, and such a verification cannot be accepted. It has been held over and over again that affidavits must be either affirmed as true lo knowledge, or from information received provided the source of information is disclosed, or as to what the deponent believes to be true provided that the grounds for such belief were stated. Such affidavits where the verification lacks the essential requirements, are valueless.

17. In Padmabati Dasi v. Rasik Lal Dhar, (1910) ILR 37 Cal 259, Jenkins C. J. and Wood-roffe J. observed: --

'We desire to impress on those who propose to rely on affidavits that, in future, the provisions of Order 19, Rule 3, must be strictly observed, and every affidavit should clearly express how much is a statement of the deponent's knowledge and how much is a statement of his belief, and the grounds of belief must be stated with sufficient particularity to enable the Court to Judge whether it would be safe to act on the deponent's belief'.

This enunciation of the principle was endorsed by the Supreme Court in State of Bombay v. Purushottam Jog Naik, AIR 1952 SC 317. Then is a catena of decided cases supporting this proposition and among others, reference may be made to Durga Das v. Nalin Chandra Nandan, AIR 1934 Cal 694, Bisakha Rani Ghose v. Satish Chandra Roy, AIR 1958 Cal 496 and Dipendra Nath Sarkar v. State of Bihar. AIR 1962 Pat 101

18. On behali of the petitioner, three points nave been urged which may now be considered. The first contention is that the petitioner feels aggrieved with the attitude of respondent No. 2 towards him and it bas been urged that the order of suspension passed by him deserves to be quashed on account of his mala fides. Before going into the particular acts on the strength of which the allegation of mala fide is founded, reference to basic principles is desirable. Bad faith, mala fides and malice are synonymous terms though not admitting of precise definition. Malice, according to Pollock on Torts, page 237, fifteenth edition, is 'a wish to injure the party, rather than to vindicate the law'. It is indicative of an evil mind which is disdainful of duties, social or legal, and disregards the duties to others. In common parlance, malice means ill-will against a person but in legal acceptation it means a wrongful act done intentionally without just cause or excuse, vide Bromage v. Prosser, (1825) 4 B and C 247 (255), Clark v. Malyneux. (1877) 3 QBD 237 (247), Alien v. Flood, (1898) AC 1, McPherson v. Daniels, (1829) 10 B and C 263 (272) and Johnson v. Emerson, (1871) LR 6 Ex 329 (373). It is the doing of a wrongful act to another without legal excuse or justification wilfully or purposely. Malice indicates varying shades of wickedness and includes cool depravity and hardness of heart, vindictiveness, perpetration of injurious acts without lawful excuse, cruelty, recklessness of consequences and regardless of one's obligation. It is a disposition which impels injury to another without cause, from a spirit of revenge, or from personal gratification. It may be implied from a deliberate intention to do a wrong without justification. It is not necessarily hate or ill-will, but it is a state of mind which is reckless of law and ot the legal rights of others. All acts done with an evil disposition or unlawful motive with an intention to cause injury and without a lawful excuse may be characterised as malicious. Malicious act is not one which is done accidentally, thoughtlessly or negligently but designedly, wilfully or wantonly. The term 'bad faith' is a shade milder than malice, and implies breach of faith or wilful failure to respond to one's known obligation or duty. Bad judgment or negligence is not 'bad faith', which imports a dishonest purpose, or some moral obliquity and implies conscious doing of wrong. It is much more than a mistake of judgment and is synonymous with dishonesty.

19. A person is entitled to accept that the conduct of the party even when engaged in discharging an administrative or executive function ought to be fair, candid and unprejudiced; not arbitrary, capricious, or biassed; much less, warped by resentment, or personal dislike, vide R. v. Askew, (1768) 98 ER 139 (141).

20. Whenever mala fides or abuse of power is alleged in respect of an official act, the presumption is that officials discharge their duties honestly and in accordance with law, and this presumption is hightened in the case ot the conduct of high officials occupying superior and responsible positions in centra-distinction to minor or petty officials. It is, therefore, for the party alleging bad faith or malice to substantiate it, vide Matajog Dobey v. H. G. Bhari, AIR 1956 SC 44 (48), Pannalal Binjraj v. Union of India, AIR 1957 SC 397 (408) and Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar, ATR 1958 SC 538 (551). In the last mentioned case, it was remarked by the Supreme Court, that if the law was administered with an evil eye and an unequal hand or for an oblique or unworthy purpose, the arms of the Court would be long enough to reach it and strike down such abuse with a heavv hand.

In this case, if seems that the petitioner has flung allegations of mala fides recklessly without endeavouring to substantiate them by placing such material from which prejudice or ill-will of respondent No. 2 might be logically deducible. The petitioner has not hesitated to impute certain orders made against him, to res-pondent No. 2, when in fact, they were passed by another Financial Comrnissioner. In Para 3 of the petition, it has been said that a representation of the petitioner remained pending with respondent No. 2 for a period of over four years for the expungement of adverse remarks against him which were unfounded and unjustified but 'the said respondent was presumably adamant and considered it below his dignity to admit his mistake and to withdraw those remarks'. In fact, this representation of the petitioner was processed and finalised in the office of the Financial Commissioner Revenue and respondent No. 2 did not occupy that position at that time.

In Para 6 of the petition, it is alleged that 'respondent No. 2, out of sheer vindictiveness rejected the petitioner's representation'. In actual fact, the representation was rejected by Shri A. L. Fletcher, Financial Commissioner Revenue and with the approval of the Revenue Minister. Again in Para 9 of the petition, the petitioner has stated that while some enquiry was pending against him in December, 1966 in the department of respondent No. 2, the latter suspended him for some alleged irregularity committed by him in 1961. In fact, the enquiry had proceeded against the petitioner on the basis of a complaint and a preliminary enquiry had been conducted by the Rehabilitation Department. The petitioner was charge-sheeted and also placed under suspension as the gravamen of charges warranted it.

Another allegation against respondent No. 2 is that despite the wishes of the Revenue and Development Minister to whom a direct representation had been made by the petitioner that he should not be suspended but reinstated, respondent No. 2 disregarded it and the Revenue and Development Minister had then ordered his reinstatement. Respondent No. 2, in his affidavit, has stated that though the Revenue Minister had passed orders for his reinstatement, it was on the orders of the Minister that he was required not to be taken in office but to be required to remain on leave during the pendency of the enquiry. Respondent No. 2 has also denied that he had verbally told the petitioner that he should tender his resignation as he could not be retained by him in the Revenue Department. The threat said to have been held out by the respondent of putting the petitioner under suspension, has been denied by respondent No. 2 as baseless. The allegation made by the petitioner to the effect that respondent No. 2 had sent an Assistant Mr. Chawla to Karnal to collect material against the petitioner has been denied. The allegations are vague and have not been substantiated and they have been denied by the Financial Commissioner, respondent No. 2. The allegations and their tenor taken singly or cumulatively do not establish malice or mala fides in respondent No. 2. They have been made recklessly with scant regard to actual facts.

21. The tendency to hurl opprobriout epithets against high officers, making reckless imputation of malice or bad faith and indulging in language which is libellous and making grave allegations of dishonesty, ill-will and unfairness which have no foundation in fact, noticeable in writ petitions, is to be deprecated and strongly reprobated. Scurrilous attacks on the integrity of high placed officers have been made in these writ petitions more with the intention to cause them mental pain and to bring down their reputation, than from any lawful object of showing actual ill-will, partiality or hostility.

22. In J. L. Mair v. State of Punjab, 1967 SLR 607 = (AIR 1968 Punjab 324), Mehar Singh C.J. sitting in Division Bench observed:

'It has become almost a fashion to dub an order or action taken by an authority as mala fide, but merely to say that an order or action taken is mala fide has no meaning. When mala fide is alleged, the particulars and details of facts on which it is based or the reasons upon the basis of which it is urged have to b' stated in the petition so as to enable the authority concerned to have an opportunity to give a proper reply to any such allegation. In the case of mala fide on the ground or bias, the facts and circumstances leading to the conclusion of bias alleged must be stated, and in the case of mala fide on the ground mat the decision is not of the authority making it but it is mere acceptance of the advice of an advisory body, it has to be alleged to be so, while in the case of an allegation of mala fide on the ground other than that appears on the face or the order, it has to be stated what that ground is and how it is said that although one ground is stal ed in the order but quite another is the real basis of it. These are illustrative matters in regard to allegations of mala fide and whenever mala fide is alleged the grounds as the basis of it and the facts and circumstances on which the same are based must be clearly alleged so as to enable the authority whose order is impugned to be able to give a proper and appropriate repiy to the same. As I nave said, mere reference to the expression 'mala fides' in the petition has no meaning'.

23. Reference may also be made to A. H. Magermans v. S. K. Ghose, AIR 1966 Cal 552 (565). This petition cannot be sustained on the allegation of mala fides on the part of respondent No. 2.

24. The second contention of the petitioner was, that the order of suspension could only have been passed by the Commissioner, Ambala Division, who alone was the competent authority under the Punjab Tehsildari Rules, 1952. Rule 13 provides that the authorities specified in column 3 of Appendix 'A' are empowered to impose upon the members of the service mentioned in column 1, the penalties specified in column 2. In the second column of Appendix A are enumerated the several penalties including suspension, removal or dismissal. The third column shows that the punishing authority in the case of suspension of Tehsil-dar being imposed as penalty is, the Commissioner, and in case of removal or dismissal, the Financial Commissioner. The order of suspension dated 14th of August, 1967, signed by the Commissioner, runs as under:--

'As ordered by the Financial Commissioner, Revenue, Haryana, Shri Bhupinder Singb Vohra, Tehsildar (on leave) is placed under suspension with immediate effect pending decision of a departmental enquiry against him', vide An-nexure V.

The argument by the learned counsel for the petitioner overlooks the distinction between suspension bv way of punishment and suspension pending enquiry Appendix A referred to above, relates to suspension by way of punishment and does not purport to deal with suspension pending enquiry. In the event that the official concerned is found guilty, he is liable to removal or dismissal. The order of suspension clearly indicates that the petitioner was put under suspension pending the decision of departmental enquiry against him. Rule 12 lists the penalties which can be imposed upon a member of the service and suspension figures as one of such penalties not as an ad interim step taken while the enquiry is proceeding. A public servant is liable to be suspended either pending departmental enquiry in which case the suspension is ad interim; and if as a result of the enquiry he has been found guilty the suspension may be imposed as a substantive punishment, vide R. P. Kapur v. Union of India, AIR 1964 SC 787. Moreover, according to Rule 3, the appointing authority to the post of Tehsildar is the Financial Commissioner. As provided in Section 14 of the Punjab General Clauses Act (1898), power to appoint includes the power to suspend or dismiss any person. This power to suspend has not been taken away by any provision of the Tehsildari Rules. The contention thus raised of want of jurisdiction in the Financial Commissioner, is devoid of merit.

25. The last argument canvassed on behalf of the petitioner is that the impugned order of suspension was bad in so far as it was violative of departmental instructions dated 21st of April, 1961 (Annexure W). In a letter No. 3624-GS-61/14607, dated the 21st of April, 1961, from the Chief Secretary to Government, Punjab, to all Heads of Departments, it was said:--

'It should be a matter of firm principle to be deviated from only in cases of rare urgency, that no official is suspended until a proper charge-sheet is served upon him and his explanation obtained and found unsatisfactory. A departmental enquiry can only begin at this stage and this stage should be started forthwith. Since it may not be possible to complete the inquiry in all cases in one month, Government has decided that the Enquiry Officer should complete all the proceedings and submit his report within a period of three months and the punishing authority should not take much longer to decide the case (obtaining the advice of the Punjab Public Service Commission, where required expeditiously). In no case should the period between suspension, if ordered, and final order exceed six months'.

In this case, the order of suspension preceded the charge-sheet which was served on 17th February, 1968. The latest circular instructions are to be found in Revenue Department letter No. 7159-E (II)-63/3689, dated the 8th August, 1963, wherein it has been laid down that in suitable cases, the suspension of an officer can be ordered even before serving on him the charge-sheet. These instructions have not the force of a statutory rule and the enquiry cannot be vitiated because of charge-sheet having been served upon the petitioner after he was suspended. There is no suggestion of any prejudice having been suffered by the petitioner in consequence of the suspension order having preceded service of charge-sheet Moreover, the executive instructions are not mandatory but regulatory. The instructions referred to above are administrative and have not the force of statutory rules. Even if there has been any breach of such executive instructions, the breach does not become justiciable and would not justify the issue of a writ, vide G. J. Fernandez v. State of Mysore, AIR 1967 SC 1753, R. Abdulla Rowther v. State Transport Appellate Tribunal, Madras, AIR 1959 SG 896 and Nagendra Nath Bora v. Commissioner of Hills Division, AIR 1958 SC 398.

26. There is no merit in any one of thearguments advanced on behalf of the petitioner.For reasons considered in details above, thispetition deserves to fail and is consequently dismissed. In the circumstances there will be noorder as to costs.


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