Suggestions as regards suspension of government servants

To,
The Secretary,
Department of Personnel and Training
Ministry of Personnel, Public Grievances and Pensions,
Government of India,
New Delhi- 110001

Subject- Suggestions as regards suspension of government servants

Sir,

1.     

 That the petitioner Amitabh Thakur is an IPS officer from UP Cadre (1992 batch) though he is writing this letter in his individual capacity as a citizen of India. Previous to this, the petitioner has also sent two representations presenting suggestions as regards making suitable amendments in the Conduct Rules to permit media interaction by public servants in cases of corruption, irregularities etc. and also for changing the present top-down performance appraisal to 360 degree feedback system. He later preferred a Writ Petition No 4600 of 2013 (M/B) on these two issues in the Hon’ble Allahabad High Court, Lucknow Bench where the Hon’ble Court through its order dated 01/07/2013 directed as follows- “Learned counsel for Union of India prays for and is granted two weeks' time to seek instructions.”  

2.      That through this representation, the petitioner presents another important issue related with suspension of the Government servants, which is of wider importance not only to him as a member of the All India Services but to all the government employees in the Central and the State governments. This issue is also being widely discussed in public all over the country, particularly in the aftermath of the suspension of an IAS officer from UP Cadre, Ms Durga Shakti Nagpal. The petitioner has personally suffered because of this provision of suspension when he was suddenly suspended on 31/12/2004 and only after a long travail; he was finally found not-guilty in the matter and was exonerated of the charges after a period of around 30 months, through the State government order dated 10/05/2007.

3.      That the petitioner is not the only one who would have suffered because of such suspension but there would be many others in government services in the Center and the States who find themselves suddenly suspended only to be found non-guilty or innocent at a later stage. Such a situation gives an inkling that many a times suspensions might be taking place on extraneous, political or improper reasons or because the employee has earned the wrath of some senior officer or a political bigwig or to earn some political mileage or for any other flimsy reasons. As can be proved through specific instances, there are also cases when suspension is done to cow down a whistleblower or an honest employee. In many of these cases, the suspended government employee/public servant is later found to be innocent. In many cases, the charges are not substantiated. In all such cases, the public servant/government employee, who had been placed under suspension, has to undergo the financial, emotional, social, administrative trauma associated with suspension done without any merit, completely for extraneous reasons.

4.      That the petitioner’s wife, Dr Nutan Thakur, a social activist, has done some work on suspension of State employees and the results she has obtained are startling.

5.      That as per the letter No Ja.Soo.Cell Go. 116/2013 dated 27/02/2013 through which RTI reply about suspension of policemen in district Gorakhpur between 01/01/2009 to 13/02/2013 was provided, of the total of 243 employees suspended during this period, 73 were found “Nirdosh” (completely exonerated of the charges). These include 21 policemen (put at Serial No 15 to 35 of this RTI reply) suspended on one date (19/06/2009) and all of them later found innocent of these charges. Similarly, as per the RTI reply through letter No DG-14-Ja.soo.A.-Lucknow Pari-22(A)/13 dated 25/02/2013, during the same period, 5 IPS officers were suspended but no one has been found guilty so far. Two of them have already been found not-guilty. As per the RTI reply through letter No DG-14-Ja.soo.A.-Lucknow Pari-22/13 dated 25/02/2013, during the same period, 24 PPS officers were suspended out of which in 8 cases the concerned officers have already been found not-guilty and the departmental proceedings have been dropped.

6.      That the situation is not confined to the Police Department. As per the RTI information provided by the Engineer in Chief Office, PWD Department through its letter No 3814 EF(Ka)/C-26EF-TC-48 (Ja.Soo.)/11 dated 04/10/2012, among 13 PWD officers in “Kha” category suspended between 01/03/2012 to 03/09/2012, in 3 cases (Sri Kripa Shankar Verma, Sri Anil Kumar and Sri N K Puri), no framing of charge sheet could be done.  Among various PWD officers suspended in “Ka” category, there was also a case of Sri Bhagwan Din Verma, Assistant Engineer who was suspended on 13/04/2012 only to be found later on 15/09/2012 that he was not even working on the Lucknow-Kanpur road regarding whose alleged irregularity he had been suspended.

7.      That all these information from various departments seem to state that there could be possibilities of anomalies and discrepancies in suspension of employees by the Governments and their instrumentalities and agencies

8.      That it is a settled law of suspension that “Suspension” is no punishment. A Constitution Bench of the Hon’ble Supreme Court in R.P. Kapur v. Union of India' (1964 AIR 787, 1964 SCR (5) 431 laid the law-“The general principle therefore is that an employer can suspend an employee pending an inquiry into his conduct and the only question that can arise on such suspension will relate to the payment during the period of such suspension”, reiterated in Balvantrai Ratilal Patel v. State of Maharashtra (1968 AIR 800, 1968 SCR (2) 577) and V.P. Gidroniya v. State of M.P (AIR 1967 MP 231)

9.      That at the same time, it has also been iterated time and again that power of suspension should not be used by the authority as a matter of routine.

10.  That in State of Orissa Vs. Bimal Kumar Mohanty (A.I.R. 1994 Supreme Court, 2296), the Hon’ble Apex Court said-"12. It is thus settled law that normally when an appointed authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority.  Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action.  It would not be as an administrative routine or an automatic order to suspend an employee.  It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee.  The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending enquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the enquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or enquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending enquiry or contemplated enquiry or investigation.  It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose.  The suspension must be a step in aid to the ultimate result of the investigation or enquiry.  The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental enquiry or trial of a criminal charge."

11.  That the Hon’ble Allahabad High Court in Vijay Kumar Sharma Versus State of Uttar Pradesh and another (Writ Petition No. 1587 (S/B) of 2012) said-“It is a settled law that the order of suspension is not to be passed in a routine manner but the competent authority is required to consider the gravity of the misconduct sought to be enquired into or investigated and the nature of the evidence placed before the appointing authority and thereafter by application of mind by the said authority. A non-objective and automatic order of suspension cannot sustain in law, unless the competent authority has exercised its power by considering the gravity of the alleged misconduct or the nature of the allegations levelled against the delinquent employee.”

12.  That the Hon’ble Allahabad High Court again said in Amar Nath Tripathi vs State Of UP (S/B No 7668 of 2011)- “In Union of India versus Jhaneendra Nath Deb, (1991) 5 S.L.R. 527, it has been held that suspension should be resorted to only in case when a major penalty is likely to be imposed suspension for imposition is not justified. In Shoorvir Singh Versus Lt. Governor, Delhi reported in 1988, 7 A.T.C. 535, it has been clearly spelt out that the object of suspension is to safeguard any kind of tampering of evidence by the delinquent employee when there is no scope for the delinquent employee to interfere in the smooth progress of inquiry, the suspension order will seem to be out of place, and it should be revoked.”

13.  That similarly, it has also been spelt by the Hon’ble Orissa High Court in Arunendu Singh v State of Orissa, 1992 (II) OLR (ATC) 34 that order of suspension should not be passed just for somebody’s personal whims and to derive sadistic pleasure.

14.                          That in Nikka Ram Sharma v Central Social Welfare Board (1990) 4 SLR 407, it was stated that an order of suspension is not to be lightly passed against an employee for it cannot be ignored that the suspension brings to bear on an employee consequences far more serious in nature than several of the penalties prescribed under the rules. It has disastrous impact on the fair name and good reputation that may have been earned and built up by him in the course of many years of service. It is, therefore, imperative that utmost caution and circumspection must be exercised in passing orders of suspension

15.  That what the above rulings state are as follows

(a)  The Employer has almost compete right to suspend his employee

(b)  Suspension is not generally treated as some kind of punishment

(c)   Yet suspension does attract many kinds of hardships and disastrous impact

(d)  hence suspension order shall not be passed arbitrarily

(e)  before suspending any employee, there shall be proper application of mind and the evidence and facts on record shall be carefully ascertained, analyzed and an appropriate decision arrived at

16.  That all the above information and facts give rise to the possibility that there could be cases in which the officer is suspended whimsically, for all kinds of extraneous reasons, without any proper application of mind

17.  That in all such cases when an employee is suspended today and reinstated within a week or two, when an employee is suspended and was later found to be completely non-guilty and hence exonerated, one might tend to assume that there has been non-application of mind in passing such orders.

18.  That the few solutions that the petitioner finds appropriate to ameliorate this situation are to suitably amend the rules related with Suspension of various government servants in the Center and the various State governments so that very clear instructions are specified in the Rules of Suspension that-

(a)              in all such cases where no charge was substantiated against the suspended employee or he was later completely exonerated and /or found not-guilty, the case of suspension shall be specially scrutinized and a preliminary enquiry be conducted to find out the facts behind such improper and unwarranted suspension and to fix responsibility of the officers who played key/crucial role in such suspension, while the officer so suspended shall be suitably compensated for all the pains, travails, humiliations and sufferings he had to undergo because of that wrongful and irregular suspension

(b)              Suspension shall be resorted to in appropriate cases after proper application of mind on a case to case basis, only where there are substantial/reasonable documents/facts/reasons to suspend a public servant and not all and sundry on whims and fancies or any other extraneous reasons, particularly in light of the various orders issued by the Hon’ble Supreme Court and various other Hon’ble High Courts in various cases related with suspension.

PRAYER

(A) It is humbly prayed that above facts are taken into consideration, studied and analyzed and the Rules of Suspension related with Central Government are accordingly amended, if these suggestions are found useful and as per the provisions of law.

(B) It is also humbly prayed that the various State governments be also directed to make suitable amendments as regards the Rules of Suspension of State government employees in consonance with the amendments made at the Central government level.  

Letter No- AT/Suspension/01                                                                    Regards,
Dated- 11/08/2013
                                                                                                            (Amitabh Thakur)
                                                                                                            5/426, Viram Khand,
                                                                                                            Gomti Nagar,
                                                                                                            Lucknow-226010
                                                                                                       amitabhth@yahoo.com