12 Nov 2009

Chief Minister's actions unjust: High Court

Leaving no stone unturned to set an examine of the unjust conduct of the then Chief Minister of Haryana, in a recent decision the High Court has not only put on record its criticism of the mockery of rules and regulations by the elected representatives but has in fact a step ahead to grant liberty to the aggrieved person to seek compensation against the Chief Minister personally.

The High Court noticed the facts of the Petitioner as under;
Arrogance of power by the Chief Minister seems to be at play in this case. Visit of the then Chief Minister to Yamuna Nagar on 4.2.2001 with the slogan `Sarkar Aap Ke Dwar' came with a bitter pill for the petitioner. While addressing the Press conference, the Chief Minister made certain allegations against the petitioner and ordered his suspension there and then in the said press conference itself. Present days, Deputy Commissioner would hardly dare to stand and would easily buckle. The Deputy Commissioner sent a memo on 4.2.2001 for issuing formal order placing the petitioner under suspension. The Financial Commissioner-cum-Secretary meekly succumbed and obligingly issued order on 6.2.2001 placing the petitioner under suspension with immediate effect.
Having placed the petitioner under suspension, the Financial Commissioner wrote to Registrar for preparing and sending a draft charges against the petitioner. The department was, thus, on the look out for finding reason to justify the suspension as the same was ordered without any justification. As per the rules, the suspension of an employee can be ordered where the disciplinary proceeding against him is contemplated or is pending or where a case against him in respect of any criminal offence is under investigation, enquiry or trial. Chief Minister would not care to know these niceties of law and the officers would not dare to point out the same. They would rather become party to find ways and means to justify this patent illegal action. Registrar Cooperative Society, who was apparently concerned with the issue of suspension, when approached to forward draft charge sheet wrote back to the Financial Commissioner that it was not possible for his office to do so. His communication would give out the ill of this misconceived and arbitrary exercise of powers of suspending the petitioner in this manner.
According to the High Court, the actions prompted by the Chief Minister lead to a senior functionary, working as Assistant Registrar in Co-operative Society being shown disdain and humiliated in public without any officer coming to his rescue. The officers of the State are also shown in a poor light in as much as the Court observed that "they all rather became instrumental in perpetuating this arrogated illegality. This can happen in democratic set up governed by Rule of law would make it look as if we are living in some dictatorial era of archaic vintage."

The decision of the High Court notes that once having placed the person under suspension reasons were being looked for to support the suspension. To this regard the letters written by various departments to each other have been extracted in the decision. It notes, "When the petitioner approached the Financial Commissioner after seven months of the date of his suspension, the authorities seems to have woken up from slumber to make another attempt to get hold of material to justify the suspension. Deputy Registrar, Cooperative Society then wrote to Assistant Registrar for taking steps to see if the petitioner had committed any irregularity. Surprisingly, he wrote 'in case any irregularity has been committed by him or any complaint is received against him, the details with effect from November 2000 should be furnished to this office.' Thus, a search was on to find material to support suspension, which was ordered seven months earlier. What else could be a misuse of power?"

The High Court goes in further details to note the discrepancies and inconsistencies in the stand of the Government to justify the suspension as under;
The Registrar then informed the Deputy Registrar that neither any complaint was available against the above officer in the office nor had he committed any irregularity during his tenure in the office. Still the officials were to somehow prepare and serve a memo of charges to the petitioner and they did so on 27.3.2002, making some flimsy allegations. Charges reads as under:-
“1. That Shri Kanwar Bhan had only completed the inspection of 27 societies against the target number of 99 societies w.e.f 1.4.2000 to 16.2.2001 and as such he has failed to maintain his complete devotion to his duties.
2. That Shri Kanwar Bhan had registered the DPS Computers Cooperative Industrial Society keeping in view his self interest and without the prior approval of the Deputy Registrar, Cooperative Societies and as such violated the instructions of the Registrar Cooperative Societies, Haryana.”
Having served this memo of charges on 27.3.2002, the suspension order of the petitioner was revoked and the petitioner reinstated vide order dated 28.3.2002. Though this order was passed on 28.2.2002 but was forwarded only on 28.3.2002. Posting order of the petitioner was also issued. It appears that the charge sheet was issued only because the petitioner had filed Civil Writ Petition No.16025 of 2001 against his suspension order. This was disposed of on 20.3.2002 with directions to the Government. The effect of this unfair and unjust order would reveal from the subsequent events. After issuance of charge sheet and revocation of the suspension order, the petitioner submitted his reply on 5.6.2002. Nothing happens thereafter. The petitioner retires from service on 31.1.2005. The disciplinary proceedings against him initiated on this charge sheet are still pending. The petitioner submitted his application for speedy disposal of the charge sheet. He is denied all the retiral benefits. The Government even does not give any reply to the prayer made by the petitioner. No enquiry is commenced or proceeded against the petitioner. Having waited so long, the petitioner files another Civil Writ Petition No.2243 of 2007 before this Court on 6.2.2007. Division Bench of this Court directs the respondents to complete the enquiry within a period of six months from the date of receipt of copy of the order. Nothing still was done. The enquiry was not completed within the stipulated period, as per the directions. The retiral benefits of the petitioner were still not released. Having, thus, waited, the petitioner has now filed the present writ petition to seek quashing of this charge sheet and for the release of his retiral benefits.
The respondents would still make an attempt to justify their stand. Rather, they would say that writ petition is not maintainable in the present form. The petitioner is even accused of misleading the Court, as if they are fair in dealing with the petitioner. The respondents would say that the petitioner was charge sheeted under Rule 7 prior to his retirement. They would then refer to the orders dated 27.3.2002 and 15.3.2004 and would aver that the charge sheet dated 27.3.2002 was decided on 10.4.2008 and the charges made against the petitioner were dropped. Respondent make reference to another charge sheet dated 15.3.2004, which is stated to be under active consideration. Though a mention is made to the second charge sheet dated 15.3.2004, but no charge sheet is forthcoming or placed on record. It is not even disclosed as to what are the charges alleged against the petitioner in this charge sheet.
This appears to be another red-herring. In his replication, the petitioner has pointed out that this second charge sheet was never served upon him before his retirement. He had, however, received a show cause notice dated 13.7.2007 on the basis of an exparte enquiry proposing to impose 5% cut in his pension. The petitioner promptly replied to this show cause notice on 24.7.2007. The petitioner pleads that the second charge sheet, which was not served on him and the show cause notice to be fabricated one and are brought out of hat as an after thought to justify this illegal and unjustified act on the part of the respondents. The petitioner is also justified in making a grievance that first the Chief Minister had suspended him on the basis of a loose talk in the press conference and thereafter the officials of the Government have attempted to justify their own mistakes on the one pretext or the other. The petitioner would term this case to be “a proof of worst ugly look of Indian democracy”. He may be an aggrieved person but his anger is justified to refer this treatment to be an ugly face of democracy. Is not it dictatorial display of power in democratic set up? Final order is yet to be passed regarding this charge sheet. It is orally pointed out that the charge sheet is finalised on 16.9.2009. It is done without holding any enquiry or associating the petitioner in any manner. How can this be sustained in this background?
In these facts, the High Court observed as under;
The suspension of the petitioner was wholly unjustified. There is no scope of any different view in this regard from the facts as these would emerge from record. The respondents can not show any thing to justify this arbitrary order passed against the petitioner by the Chief Minister. The officials made best efforts but still failed in their attempt to justify this suspension. Even after having charged the petitioner, the respondents were left without any option but to revoke the suspension order. Could there be any justification for suspending the petitioner, when there was no charge against him. Respondents revoked the same, when they served a memo of charges. This would only show that the entire exercise undertaken on the dictates of the Chief Minister was illegal and without any justification in law or otherwise. Such arbitrary action can not be permitted go un-escaped and unchecked in a democratic set up. The Constitutional provisions are checks on the exercise of such arbitrary powers. Any arbitrary exercise of power is amenable to correction. The sweep of justice would be wide enough to mete out injustice wherever it is seen. 
What more can be said to term this order to be unjustified, when the memo of charges framed with strained efforts had to be dropped without proceedings or holding any enquiry whatsoever. An employee cannot be allowed to be treated in this whimsical manner? The casual, careless and arbitrary approach on the part of the respondents is, thus, clear and apparent from the writ petition. The petitioner, apparently was placed under suspension without any justification. The respondents thereafter could not find any material to charge sheet the petitioner. No justification was forthcoming even for this action in serving the memo of charges. It appears only to support the illegal action already taken. All this was nothing but to unduly and unnecessarily harass the petitioner. Chief Minister was bound to inform himself of the well known maxim “be you ever so high, the law is above you.” . A Chief Minister has also to act in accordance with law. If the petitioner was placed under suspension without justification, the proper course was to undo this injustice. Rather, an attempt was made to insist with perpetuating this injustice illegally. The petitioner has been maltreated, harassed and humiliated. The result is that he is yet to receive his full pension and is deprived of his right to property and in turn to his right to life and livelihood. 
The attempt to withhold pensionary benefits is again justified in another illegal manner. Thus, one illegality is following another illegality to justify the arbitrary action. The respondents would still fail in their attempt. The case reflects total non-application of mind and total surrender by senior Government functionaries. By denying pensionary benefits to the petitioner for over a period of four and a half years, the respondents have certainly deprived the petitioner of his legal and fundamental right to livelihood and his life. The provisional pension may have been a source of subsistence for the petitioner, but he certainly could not have been denied or deprived of the benefits, which would have accrued to him immediately after his retirement.
The charges first served on the petitioner have been dropped. The second charge sheet, which is referred to is without making any mention to or without disclosing the charges against the petitioner, can not also be allowed to stand. This appears to have been made just to justify the illegalities committed by the respondents.
As per the petitioner, charge sheet dated 15.3.2004 was never served upon him. This charge sheet has not been shown to the Court. It is referred to in the reply without even mentioning as to what are the allegations contained therein. Even if everything stated is taken as a gospel truth, still to order any punishment, enquiry would be needed. It is not the case that any enquiry was held. This would not only reveal another illegality but would show that a false and fabricated defence is raised to justify the illegal acts committed by the respondents with impunity. This will aggravate their illegal, unfair approach and an added reason to see them with suspicion. This will aggravate their misadventure. A charge sheet which remain unserved is not disclosed even to the Court but has remained pending for over five years and is now shown to have been finalised suddenly. It is orally brought to the notice of the Court when it is in the process of deciding the case. It would speak volumes about the unfair attitude of the respondents. It is bordering on contempt or is attempt to over-reach the Court.
What should be the fate of this charge sheet and the punishment that has followed, though informed orally, would be a question? If the conduct of the respondents is ignored even now, then it would mean that Court has given a nelson eye to this serious misdemeanour on the part of the respondents.
In view of the above, the High Court concluded thus;
The harassment, which the petitioner has faced, need to be appreciated and imagined. The respondents, thus, have made themselves fully responsible for this plight of the petitioner on account of the illegalities that have been pointed out and which the respondents have failed to justify in any cogent or reasonable manner. They all are to be held accountable for this . This would include even the then Chief Minister, who initiated this illegal process and did not intervene to correct the illegality ever thereafter. ... The petitioner, thus, is entitled to receive all the pension and pensionary benefits, which have been denied to him for almost five years by now. Since there has been unexplained delay, which is squarely attributable to the conduct of the respondents, all the pension and pensionary benefits due to the petitioner are directed to be released within a period of one month from the date of receipt of copy of this order with interest @ 10% per annum from the date these were respectively due to the date of payment. The interest awardable shall be recovered from all the officers and including the Chief Minister, who were either responsible for placing the petitioner under suspension or in perpetuating the illegality and had unnecessarily charged and harassed the petitioner. ...
A case is made out for award of adequate compensation to the petitioner for harassment, humiliation caused to him and for depriving him of his dues without justification. No justification is forthcoming for all this, whereas the charge framed in the year 2002 is dropped in 2009 after seven years for keeping the petitioner in this suspended animation stage. Liberty is, therefore, given to the petitioner to seek compensation for the harassment caused to him by approaching any appropriate Forum, including Civil Court, where he can seek this compensation even from the then Chief Minister.
Have a look at the decision.

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