Setting aside suspension of employee when he falsely implicated

Bombay High Court : Setting aside the suspension of a BMC employee who was trapped by the anti-corruption bureau (ACB), a division bench comprising of S J Vazifdar and K R Shriram, JJ, held the suspension to be "illegal" and directed BMC to reinstate the petitioner forthwith and pay his arrears as the BMC had itself concluded that he was innocent and was a victim of dishonest acts of others and that there were no defaults on his part and that BMC had proceeded to mechanically suspend him without considering the facts and on an incorrect interpretation of Rule 80 (1) of BMC Service Rules. The petitioner had claimed that due to his action against unauthorized slums and shops, he received threats from certain persons who had then framed him in a trap, he was subsequently granted bail but was not permitted to resume duty even after his superior recommended his case to be considered sympathetically and an internal inquiry report suggested that no action be taken against him. The Court noted that there were previous police complaints against those certain persons and another colleague had been similarly trapped by ACB and after a 4-year suspension, was found innocent and reinstated. The Courts observed that under suspension, a person not only gets less pay but goes through the ignominy of having to face all his colleagues, family and friends and though the said Rule 80 (1) does empower the competent authority to suspend an employee but it is a discretionary power which should be exercised fairly and in a bonafide manner. [Prakash Kondiba Gole vs. Municipal Corporation of Greater Mumbai, Writ Petition No. 2214 0f 2012, decided on October 11, 2013]1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2214 OF 2012
1) Prakash Kondiba Gole ]

Versus
1) Municipal Corporation of Greater ]

CORAM : S.J. VAZIFDAR &
K. R. SHRIRAM, JJ.

FOR PRONOUNCEMENT ON : 11TH OCTOBER 2013.
JUDGMENT (PER K.R. SHRIRAM, J.) :
1 This is a case of an employee of Municipal Corporation, Greater Bombay
-Respondent No.1, who prays the suspension order against him be set aside and
he be permitted to resume his duties.
2 The petitioner joined the Municipal Corporation, Greater Bombayrespondent
No.1 sometime in February 1992 as Multipurpose Worker in Health
Department. He was appointed as Junior Secretarial Assistant (Marathi) in the
Municipal Secretary's Department in May 2000 and was appointed as Inspector
for Shop and Establishment in S-Ward, Bhandup in March 2011. It is the case
of the petitioner that the S-Ward covers a huge area where there are unbridled
encroachment in the way of slums and unauthorised shops and in view of his
taking action against these unauthorised slums/shops, he started receiving threats
from two individuals - Arasu Gaudar and Ramesh Birwadkar (hereinafter
referred to as 'the said Gaudar and Birwadkar). These two persons are alleged to
be local goondas who act as agents/brokers for all those persons who are
encroaching into municipal lands. Due to the continued threats and harassment
from the said Gaudar and Birwadkar, the petitioner lodged complaint with the
Shraddha Talekar PA 2/11

Assistant Commissioner (S-Ward) of respondent No.1 by a letter dated 3rd July
2012. However, no action was taken. It seems that the said Gaudar and
Birwadkar had been also harassing the other staff in S-ward and predecessors of
the petitioner who did not bend or succumb to their illegal threats. It seems
sometimes in 2006, they had trapped one Senior Inspector by the name Shrikant
T. Devalalkar in S-Ward in a false case through the Anti Corruption Bureau like
they did to the Petitioner and the said Devlalkar who was suspended following
that incident was acquitted in March 2010, almost four years later and has since
then been reinstated by respondent No.1. It also appears that in view of the
harassment by the said Gaudar and Birwadkar, staff of S-ward had also lodged
complaints with the Police Department.
3 It is the petitioner's case that on or about 16th July 2012, the said Gaudar
and Birwadkar placed some money into the petitioner's pocket and framed him in
an anti corruption trap. The petitioner was arrested but within less than 24 hours
of his arrest, the petitioner was granted bail. In the bail order also the fact that
the petitioner had lodged a complaint to his superior officer on 3rd July 2012
about harassment and threat of the said Gaudar and Birwadkar before he was
trapped was taken into consideration.
4 The petitioner by his letter dated 18th July 2012 to the Assistant
Commissioner (S-Ward) requested that he be permitted to resume duties. The

petitioner had also relied upon a Circular dated 10th September 2007 issued by
the first respondent whereby it is mentioned that 'under the Maharashtra Civil
Services (Discipline & Appeal) Rules, 1989, the Appointing Authority can
suspend the Government servant who has been kept under detention for more
than 48 hours in Police or Judicial Custody on criminal or other charges.' It is
the petitioner's case that he was innocent and in any event he was granted bail
within less than 24 hours of his arrest and therefore he should not be kept under
any suspension, as, to be kept under suspension, the Government Servant has to
be kept under detention for more than 48 hours.
5 Following this incident, the Assistant Commissioner (S-Ward), had
submitted a confidential note dated 3rd August 2012 addressed to the Deputy
Municipal Commissioner (Z-VI), Additional Municipal Commissioner (Shop and
Establishment) and the Municipal Commissioner whereby it is confirmed that
there have been complaints filed against the said Gaudar and Birwadkar and that
even the petitioner had filed a complaint before he was trapped. It also appears
that the Assistant Commissioner, S-Ward in effect feels that the petitioner was
innocent and has been trapped by the said Gaudar and Birwadkar. The Assistant
Commissioner sought permission to prohibit the entry of the said Gaudar and
Birwadkar in the S-Ward office and it is recommended that the petitioner's case
be also considered sympathetically. The petitioner, however, was not permitted
to resume duties.

6 In fact, the Deputy Chief Officer Enquiry In-charge Zone-VI had also
conducted an enquiry in the case of trap laid against the petitioner. A preliminary
enquiry was held with the limited intention of verifying whether there is any
default in discharge of duties or discipline by the petitioner in the said matter to
hold the departmental enquiry along with criminal action. The Deputy Chief
Officer in his confidential report dated 9th November 2012, which is after the
petition was filed, recommended that no action requires to be taken in this case.
It is also endorsed in the report that any further action in the matter of the
petitioner could be taken after the disposal of the petition.
7 Relying on these reports as well as the complaint made by the petitioner
earlier, the counsel for the petitioner submitted that the petitioner was absolutely
innocent and the question of suspension does not arise. The admitted position is
that there has been no enquiry conducted thereafter against the petitioner by the
respondents. The petitioner has been suspended with effect from 3rd September
2012 and the petitioner is praying in this petition for the suspension order to be
revoked and to permit him to resume his duties. The petitioner is also seeking a
direction to the respondents to pay the arrears and wages and other consequential
monetary dues with effect from 18th August 2012.
8 The respondents admit the above facts. They do not contend that the
petitioner is guilty of any offence. The respondents have placed the petitioner
under suspension only in view of Rule 80 of the Mumbai Municipal Corporation

(Service) Rules, 1989 (for the sake of brevity referred as 'the said Rule'), which
reads as under :
“ Rule 80 – Pay and allowances to an employee committed to
prison for debts or on a criminal charge :
(1) The competent authority empowered by
general or special order may place a Municipal
servant under suspension--
(a) where a disciplinary proceeding against
him is contemplated or is pending, or
(b) where in a opinion of the authority
aforesaid, he has engaged himself in activities
prejudicial to the interest of the security of the
Municipal Corporation, State & Central Govt., or
(c)where a case against him in respect of any
criminal offence is under investigation, inquiry or
trial :
(2) A Municipal servant shall be deemed to have been
placed under suspension by an order of competent authority –
(a) with effect from the date of his
detention, if he is detained in police or judicial
custody, whether on a criminal charge or
otherwise, for a period exceeding forty eight
hours;
(b) with effect from the date of his
conviction, if, in the event of a conviction for an
offence, he is sentenced to a term of imprisonment
exceeding forty eight hours and is not forthwith
dismissed or removed or compulsory retired
consequent to such conviction.
Note (1) – The period of forty eight hours referred to in clause
(b) of this sub rule shall be computed from the commencement
of the imprisonment after the conviction and for the purpose,
intermittent period of imprisonment, if any, shall be taken into
account.

9 Under Rule 80(2) a Municipal servant is “deemed” to have been placed
under suspension, if he is detained, whether on a criminal charge or otherwise for
a period exceeding 48 hours. In this case, admittedly, the petitioner was detained
for less than 24 hours. Therefore, Rule 80(2) is not applicable. Only rule 80(1)
(c) has to be considered. It provides that the Competent Authority “may” place a
Municipal servant under suspension if a criminal offence against him is under
investigation, inquiry or trial.
10 Rule 80(1) does empower the Competent Authority to suspend an
employee against whom a criminal case is under investigation, enquiry or trial.
The provision, however, is only an enabling provision. The term “may” vests a
discretion in the Competent Authority whether or not to suspend an employee in
the circumstances enumerated in Section 80(1). It is a discretionary power that
has to be judicially exercised by giving cogent reasons. Suspension is a very
drastic action and has very drastic consequences. The Competent Authority while
passing an order should keep in mind the adverse effect which its order may
have on the rights, liberties or interest of persons keeping in mind the purpose
the rules framed were intended to serve. The person not only gets less pay but
goes through the ignominy of having to face all his colleagues, family and
friends while under suspension. He is shamed. The word 'discretion' means
unrestrained exercise of choice or will; freedom to act according to one's own
judgment; the liberty or power of acting without control other than one's own

judgment. When applied to public functionaries, it means a power or right
conferred upon them by law, of acting officially in certain circumstances
according to the dictates of their own judgment and conscience, uncontrolled by
the judgment or conscience of others. Discretion is to discern between right and
wrong; and therefore, whoever, hath power to act at discretion, is bound by the
rule of reason and law. When it is said that something is to be done within the
discretion of the authorities, that something is to be done according to the rules
of reason and justice, not according to private opinion; according to law and not
humour. It is to be not arbitrary, vague and fanciful but legal and regular. And it
must be exercised within the limit, to which an honest man, competent to the
discharge of his office ought to confine himself. The said discretionary power
has to be exercised fairly and bona-fide.
11 The respondents have proceeded on the erroneous basis that suspension
necessarily follows the mere existence of the circumstances stipulated in Section
80(1). The respondents, therefore, failed to exercise the jurisdiction vested in
them.
12 The facts of this case compel the exercise of discretion in the petitioner's
favour. The petitioner was detained for less than 24 hours. There were
complaints against the said Gaudar and Birwadkar. Police complaints against
them are pending for harassing and threatening Municipal employees. Even the
petitioner had complained to his superiors about the threats from the said Gaudar

and Birwadkar. This has also been confirmed. Another employee of respondent
No.1 was earlier trapped by the said Gauder and Birwadkar using the Anti-
Corruption Bureau like they did to the petitioner and, who, after being kept under
suspension for 4 years, was found innocent and reinstated. Even the petitioner's
superior has recommended that the petitioner's case be considered
sympathetically. Even the internal confidential report suggests no action be
taken against the petitioner.
13 Despite the above facts, the petitioner is suspended by the Competent
Authority mechanically without considering any of these factors and without
following the rules of natural justice on an incorrect interpretation of Rule 80(1).
14 In the circumstances, we have no hesitation in holding that the suspension
order of the petitioner is illegal and requires to be set aside.
15 Normally, we would have directed the respondents to pass a fresh order
after affording the petitioner an opportunity of being heard. In the facts of this
case, it is not necessary to do so. The impugned order is passed only in view of
the erroneous view that Rule 80(1) mandates an order of suspension merely due
to the existence of the circumstances mentioned therein, irrespective of any thing
else and even without affording the employee an opportunity of being heard. In
this case, the respondents have themselves come to the conclusion that the

petitioner is innocent, that he was a victim of the dishonest acts of others and that
there were no defaults on the petitioner's part. The Deputy Chief Officer in fact
recommended that no action ought to be taken against him.
This stand has not been changed even before this Court. To direct the
respondents to pass a fresh order after hearing the petitioner would in these
circumstances be an empty formality.
16 In these circumstances, Rule is made absolute in terms of prayer clauses
(a) , (a-1) and (a-2) which read as under :--
(a) this Hon'ble Court be pleased to invoke its writ
jurisdiction under Article 226 of Constitution of India and/or
writ, direction or order in the nature mandamus and direct the
respondents to permit the petitioner to resume his duties in
the Corporation services;
(a-1) direct the respondents to treat the petitioner as on
duty from 18/08/2012 and direct the respondents to pay the
arrears of wages and other consequential monetary dues
w.e.f. 18/08/12 to petitioner.
(a-2) quash and set aside the impugned suspension order
dated 03/09/12 (Exh.S) issued by the Respondent No.5.

17 The application for stay is refused. The petitioner shall be entitled to join
his post forthwith. However, the payments as directed by this order shall be
made within 8 weeks from today. There shall be no order as to costs.
[K. R. SHRIRAM, J.] [ S.J. VAZIFDAR, J.]