Illegal order of suspension issued by lower authority
MDS TYAGI
(Querist) 08 September 2016
This query is : Resolved
Suspension Order dated 22.08.2016 (received on 24.08.2016 at 5.25 pm ) issued by CMD, vide which I have been placed under suspension with immediate effect. No allegation is mentioned in the suspension order.
2.Appeal has been made on 29th August to the Board under rule 36 of Conduct, Discipline and Appeal (CDA) Rules, against the above said order of CMD, as the Board of Directors is the Appointing Authority, Disciplinary Authority as well as the Appellate Authority in my case.
3.Without serving prior show cause notice, this suspension order has been issued by CMD out of personal biasness and vindictiveness and this order is also illegal being contrary to the extant CDA rules of the corporation as submitted below.
i) CMD has stated in the order that a disciplinary proceeding is contemplated against me, but CMD, not being my Disciplinary Authority as per CDA rules, is not empowered to decide it as the authority vests in the Board of Directors. By stating that, he exceeded his powers making this order bad in the eyes of law.
ii) As stated in the order, CMD has suspended me “in exercise of the powers conferred by sub-rule 1(a) of Rule 23 of Conduct, Discipline and Appeal Rules, as applicable to the employees of the corporation as per the approval of the Board of Directors”. But he cannot exercise this power since, as per Rule 23(1) of the corporation CDA rules, this power has been conferred to only “the appointing authority or any authority to which it is subordinate or the disciplinary authority or any authority empowered in that behalf by the management by general or special order”. CMD is neither my appointing authority nor disciplinary authority nor has been empowered in that behalf by the management by any general or special order. Therefore, this order is illegally issued against me as nowhere it gets reflected in the order that it has been issued with the authority of the Board. No decision/ resolution of the Board for my suspension duly passed by following due procedure is mentioned. The wordings “as per approval of the Board of Directors” mentioned in para 2 of the order merely conveys approval of the Board for applicability of the rule provisions to the employees of the corporation.
4.The suspension order has been issued by the CMD on the basis of his personal bias against me and vindictiveness due to some some specific reasons/ instances.
Query - Whether court will quash the suspension order before my retirement on 30th of this month.
rajeev sharma
(Expert) 08 September 2016
What court will decide no one can foretell. But you have a fair case and should agitate it before competent court
Kumar Doab
(Expert) 08 September 2016
From your post is can be ascertained that you are well informed and well prepared.
Quashing suspension Order.
Relief from court in 22 days is an expectation.
An aggrieved person looks at courts of law with expectation.
After all Courts are 'Parens Patriae'.
Kumar Doab
(Expert) 08 September 2016
Where the Petitioner's Fundamental Rights are impaired by Legislation or Rules or Government Orders, the Courts can interfere even if it is a matter concerning to service.................
N.K.Assumi
(Expert) 09 September 2016
Agree with the statements of law, given by Expert Kumar Doab,and nothing to add.
Sudhir Kumar, Advocate
(Expert) 09 September 2016
Seen the facts narrated by you.
Prima-facie the suspension is not illegal or irregular on the face of it.
The authority below disciplinary authority can order suspension.
You can move to court but expect only directions to the Appellate Authority to dispose off the appeal in short time (may be after your retirement.
I do not agree that you have a good chance but you can try luck in court.
MDS TYAGI
(Querist) 09 September 2016
Mr. Sushil Kumar, on what basis you say that the authority below the disciplinary authority can order suspension. Please quote it's basis.
MDS TYAGI
(Querist) 09 September 2016
Sorry Mr. Sudhir Kumar. By mistake I typed your name as Sushil Kumar.
Ms.Usha Kapoor
(Expert) 09 September 2016
The impugned order was not issued by appointing.authority.It's a non speaking order. It is a non speaking order. I mean no reasons weer given for suspension orders.No ;proper show cause notice was given thus violating principles of natural justice. Approval of Board of Directors was not taken before issuing suspension order. If you've breached discipline a Memo calling for explanation should've been issued. That has not been done. NO opportunity of calling for explanation was given to you.All this smacks of CMDs vindictiveness towards you.A writ would lie against the suspension order with a petition for stay of suspension.The CMDs action of keeping you under suspension is highly vitiated and smacks of malafides on his part.File either a Writ of Mandamus or Certiorari to quash the CMDs illegal and Unconstitutional suspension order pending which obtain stay of suspension.
MDS TYAGI
(Querist) 09 September 2016
Ms Kapoor's view appears convincing. Let me add another fact that CMD after receipt of my appeal on 30th Aug,16, is not calling for the Board meeting.As per rules, he has to call for the Board meeting to decide on the appeal with in 30 days but he is waiting for 30th day as my retirement date is 30th Sept,16.
Kumar Doab
(Expert) 09 September 2016
You may respond to the points raised by Mr.Sudhir Kumar.
The discussion is for your benefit.
Kumar Doab
(Expert) 09 September 2016
It is noted that you have posted;
"CMD is neither my appointing authority nor disciplinary authority nor has been empowered in that behalf by the management by any general or special order. Therefore, this order is illegally issued against me as nowhere it gets reflected in the order that it has been issued with the authority of the Board. No decision/ resolution of the Board for my suspension duly passed by following due procedure is mentioned."
"nowhere it gets reflected in the order that it has been issued with the authority of the Board. No decision/ resolution of the Board for my suspension duly passed by following due procedure is mentioned. The wordings “as per approval of the Board of Directors” mentioned in para 2 of the order merely conveys approval of the Board for applicability of the rule provisions to the employees of the corporation.'
Kumar Doab
(Expert) 09 September 2016
"4.The suspension order has been issued by the CMD on the basis of his personal bias against me and vindictiveness due to some some specific reasons/ instances."
Kumar Doab
(Expert) 09 September 2016
"CMD after receipt of my appeal on 30th Aug,16, is not calling for the Board meeting.As per rules, he has to call for the Board meeting to decide on the appeal with in 30 days but he is waiting for 30th day as my retirement date is 30th Sept,16."
Kumar Doab
(Expert) 09 September 2016
Have you consulted a very able counsel specializing in service matters and shown all narrated docs,rules etc .
If yes, what is the opinion of your counsel?
MDS TYAGI
(Querist) 09 September 2016
I consulted with an advocate. He said that the court will definitely provide relief and pass strictures against the CMD but he was not sure how much time it will take. I wanted before my date of superannuation.
Raj Kumar Makkad
(Expert) 09 September 2016
Suspension is an administrative action. It is not a recognised penalty but it leaves a deep stigma on the Government servant’s entire career, even though he may be exonerated afterwards. Suspension in Government service is ordered as a deterrent to exhibit the firm determination of the Government to root out corruption or other grave misconduct.
It is a primary step to enforce discipline during departmental inquiries by keeping the Government servant away from access to official records and official witnesses. A thorough understanding of suspension rules and their application is essential apply in the cases of delinquent officials and also to avoid hardship to the suspended employee.
The session aims, by participatory and stimulating discussion, to familiarize the participants with the various provisions relating to the subject.
Raj Kumar Makkad
(Expert) 09 September 2016
Hon'ble the Supreme Court in State of Orissa v. Bimal Kumar Mohanty, AIR 1994 SC 2296 has observed as under:-
"...... the order of suspension would be passed taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of evidence placed before the appointing authority and on application of the mind by the disciplinary authority. Appointing authority or disciplinary authority should consider ?.. 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 should be laid down in that behalf......In other words, it is to refrain him to avail further opportunity to perpetuate the alleged misconduct or to remove the impression among the members of service that dereliction of duty will pay fruits and the offending employee may get away even pending inquiry without any impediment or to provide an opportunity to the delinquent officer to scuttle the inquiry or investigation to win over the other witnesses or the delinquent having had an opportunity in office to impede the progress of the investigation or inquiry etc.
It would be another thing if the action is actuated by malafide, arbitrarily or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry.
Kumar Doab
(Expert) 09 September 2016
Are you a delinquent employee?
Have you committed a misconduct?
You have posted nothing about it.
Kumar Doab
(Expert) 09 September 2016
You have posted that:
"Suspension Order dated 22.08.2016 (received on 24.08.2016 at 5.25 pm ) issued by CMD, vide which I have been placed under suspension with immediate effect. No allegation is mentioned in the suspension order.
2.Appeal has been made on 29th August to the Board under rule 36 of Conduct, Discipline and Appeal (CDA) Rules, against the above said order of CMD, as the Board of Directors is the Appointing Authority, Disciplinary Authority as well as the Appellate Authority in my case.
3.Without serving prior show cause notice,........................................i) CMD has stated in the order that a disciplinary proceeding is contemplated against me, "
Kumar Doab
(Expert) 09 September 2016
You have posted that:
"CMD after receipt of my appeal on 30th Aug,16, is not calling for the Board meeting...................."
Is CMD appellate authority?
" he has to call for the Board meeting to decide on the appeal with in 30 days but he is waiting for 30th day as my retirement date is 30th Sept,16."
What is the genesis?
MDS TYAGI
(Querist) 09 September 2016
Right now my concern is how to get the order of suspension revoked before the retirement date (30th Sept.). Allegation. though not yet conveyed in writing. is baseless and unfounded. CMD only wants to harass n victimize me and to retire me without retirement benefits. What to do at this stage in this situation.
MDS TYAGI
(Querist) 09 September 2016
CMD is not the Appellate Authority which, in fact, is the Board but CMD is the Chairman of the Board and he only calls for board meetings.
Sudhir Kumar, Advocate
(Expert) 09 September 2016
In tend to disagree
"The impugned order was not issued by appointing.authority.It's a non speaking order. "
suspension order need not be speaking order.
"If you've breached discipline a Memo calling for explanation should've been issued. That has not been done. NO opportunity of calling for explanation was given to you.All this smacks of CMDs vindictiveness towards you"
No explanation is needed before resorting to suspension.
Sudhir Kumar, Advocate
(Expert) 09 September 2016
"Right now my concern is how to get the order of suspension revoked before the retirement date (30th Sept.)."
Whether you like it or not.
practically it is not possible to secure any revocation before you retire.
In all probability it may not be possible for them to serve a chargesheet before retirement.
A PSU employee once retired without chargehseet and suspension is off with terminal dues and no action is possible. Thereafter administration resorts to suspension pending chargesheet
Guest
(Expert) 09 September 2016
Dear Shri Tyagi,
As you stated that the lawyer you consulted stated that "the court will definitely provide relief and pass strictures against the CMD," that is quite a misleading statement on his part. May the bias and vindictiveness of the CMD not be denied in general to have played the role behind your suspension, but the question arises, what definite and formal proof you have with you by virtue of which you can prove that bias of your CMD was behind your suspension.
Also, how would you like to effectively link with your suspension, when no specific reason has been quoted for your suspension?
You have not made any mention about that anywhere in any of your statements on this thread.
Guest
(Expert) 09 September 2016
Dear Shri Tyagi,
In view of my previous post, about your question, "whether court will quash the suspension order before my retirement on 30th of this month," my opinion goes against your expectations.
Unless you have some definite evidence in formal shape to prove that only bias and prejudice of your CMD was behing your placement under suspension, all your efforts, time and money would go waste to get any court order in your favour.
I won't like to give you false hope, as I don't see more than 5% chances of your winning the suspension based case in the court of law. Question of judgment in a court case to be decided within the next 22 days is quite impossible. Once approach the court you will have to get tied with the case for at least 2-3 years.
Besides, your court case can tend to infuriate the authorities to further complicate your departmental inquiry case by adding more severe irregularities on your part in the charge sheet, which is still to be issued to you.
The more harmful aspect cannot further be ruled out, as several aspects of your sound defence may get leaked in seeking court order. During departmental inquiry, the prosecution side can come fully prepared to prove their case by hook or by crook, may that be a false case against you.
Still further, due to court case, you are also likely to lose sympathy of some of your presently supporting executives.
So, I do not recommend taking your case at the very raw stage, merely on the basis of suspension, as suspension is not treated as a penalty.
Rest depends upon your own wisdom.
Guest
(Expert) 09 September 2016
On other aspects, your case is required to be examined in detail. If you like, you may send complete details through email at: sssfi2016@gmail.com or 1962dcg@gmail.com
MDS TYAGI
(Querist) 09 September 2016
I have ample evidence to show that since I refused to follow his instructions to submit a case of an employee's promotion to the Board as it was against the rules, he after removing me from the post of HR and replacing me with his yes-man, got submitted that case to the Board concealing the facts which I intimated directly to the Board members. After that CMD targeted me and dug out a 2 year old medical claim in respect of my dependent parent who gets minimum pension of Rs.3500/-. But he is making it inadmissible claim as the income limit of dependent member mentioned in the 23 years old rule is Rs 500/- p.m. only although it was revised to Rs.3500/- by Govt of India in 2008. This case was informed orally and not officially.
Guest
(Expert) 09 September 2016
Dear Shri Tyagi,
Don't be misled by your own presumptions, as you assume the charge to be based merely on medical reimbursement of your dependant parent. Charge can be any and be much more stringent, if suspended, as medical reimbursement of dependant parent cannot be a cause for your suspension. The CMD must have thought about a very grave irregularity to be formed part of your charge sheet.
I have already stated, your case need be examined in detail. I have further stated, question of judgment in a court case to be decided within the next 22 days is quite impossible. Once approach the court you will have to get tied with the case for at least 2-3 years.
Kumar Doab
(Expert) 09 September 2016
What is the genesis?
It is still not clear!
The speculations won't help.
I agree with expert opinion by Senior Expert Shri P.S.Dhingra.
It shall be certainly better to spend quality time with a very able counsel specializing in service matters and show all docs on record, for a considered opinion.
Sudhir Kumar, Advocate
(Expert) 09 September 2016
" I refused to follow his instructions to submit a case of an employee's promotion to the Board as it was against the rules, he after removing me from the post of HR and replacing me with his yes-man, got submitted that case to the Board concealing the facts which I intimated directly to the Board members."
If such irregularity is there it is subject matter of a separate complaint to CVC from you.
To prove this bias you need to get file copy under rti which is never (never) possible befor eyour retirement.
You have to live with the fact.
Guest
(Expert) 09 September 2016
Dear Shri Tyagi,
With my 36 years of practical experience in Disciplinary, Departmental/ Domestic Inquiry cases, I can say that in not less than 95% cases biases and prejudices of higher authorities do play a vital role in initiation of disciplinary proceedings against an employee, at whatsoever position he may be. But that bias remains always hidden and the charge sheet is prepared in such a perfect manner that not even a slight hint of any prejudice should come to light.
But, any reaction in a hurried manner by losing a patience, can cause more and more complication for the charged employee to defend his case.
For suspension, no show cause notice is required to be given to the employee. Suspension is resorted only when a major penalty charge sheet is intended to be served to the employee that too showing extremely grave charges and to to avoid the employee to tamper with any evidence due to his continued presence that may cause hinderance in preliminary investigation.
So, if you have been suspended that clearly reveals that you are likely to get a major penalty charge sheet with some charge or charges of very severe nature, not merely of the medical reimbursement for dependant parent.
But, unless a charge sheet is issued the concerned employee remains in total dark and guessing position about the exactness of the charge. In that situation, any action taken without waiting for the issue of charge sheet, examining and analysing the contents of the charge with reference to the related documents, concerned rules and the nature of duties and responsibilities of the charged officer, can make the defence of the employee out of track, which becomes difficult thereafter to bring on line. Even detailed reply to the charge on receipt of the same may often make the case of the charged officer haywire, as that more or less tends to reveal the defence strategy of the charged officer.
However, a major penalty charge sheet provides a good opportunity to the charged officer to defend his case. On any charge, if not accepted, an oral inquiry has necessarily to be conducted, either by the Disciplinary Authority himself or by appointment of an independent inquiring authority. During that process the employee gets the best opportunity to defend his case by making effective cross-examination of the prosecution witnesses to scrap the theory of the prosecution to scuttle down the Articles of Charge.
I hope, as an HR personnel, you would be quite awar of the fact that so far as suspension of employees in Government/ PSU organizations are concerned, there exists a prescribed proforma on which suspension order has to be issued. But, neither the suspension related rule prescribes making a mention of reason for making suspension, nor that prescribed proforma gives any hint to mention any reason, except giving an indication about contemplated disciplinary action against the employee.
So, any action, if you prefer to take hurriedly, nust be after weighing pros & cons fully, before taking any step. DON'T FORGET, MISTAKES OR NEGLIGENCES COMMITTED BY THE CHARGED EMPLOYEE AT THE DEPARTMENTAL INQUIRY STAGE CAN NEVER BE RECTIFIED AT THE STAGES OF TRIAL IN ANY COURT OF LAW, AS OPPORTUNITY LOST CAN NEVER BE GAINED AGAIN.
IN ANY COURT CASE AGAINST AN EMPLOYER, COURTS TAKE IN TO CONSIDERATION OF MERELY VIOLATION OF RULES OR NEGLECT OF PRESCRIBED PROCEDURES ON THE PART OF THE EMPLOYER.
Must make a wise decision before you make up your mind to go to the court of law at any stage of the departmental inquiry case, including suspension.
Kumar Doab
(Expert) 09 September 2016
As a HR person you can read between the lines and appreciate finer nuances.
It shall be certainly better to spend quality time with a very able counsel specializing in service matters and show all docs on record, for a considered opinion.
MDS TYAGI
(Querist) 10 September 2016
I thank you all for your good suggestions. I am sending details/ particulars of the case to the expert Shri PS Dhingra as advised by him. After knowing the facts of the case, he will get convinced that actually there is no case of misconduct and the CMD has waged personal vendetta against me since I exposed his wrongdoing before the Board members. He issued the suspension order based on unfounded case of my mothers medical claim taken in 2014. Thanks again to all.
Kumar Doab
(Expert) 10 September 2016
After assessment there would be clarity.
MDS TYAGI
(Querist) 10 September 2016
Mr. PS Dhingra, did you receive my email with files attached ?
Guest
(Expert) 10 September 2016
Yes, received with three attachments.
Kumar Doab
(Expert) 10 September 2016
It is private consultation with Shri P.S.Dhingra.
Communication can be on email id already given.
Raj Kumar Makkad
(Expert) 10 September 2016
Better to avail specific professional services of either of the experts in this matter.
Guest
(Expert) 11 September 2016
Dear Shri Tyagi,
Please check your email inbox for my reply to your email.
MDS TYAGI
(Querist) 12 September 2016
O.K. Thank u Shri Dhingra.
Guest
(Expert) 12 September 2016
You are welcome.
Kumar Doab
(Expert) 12 September 2016
For the benefit of readers, participants, if deemed fit, the assessment may kindly be discussed.
Guest
(Expert) 12 September 2016
Dear Kumar,
There is no hint about the charge in his suspension order. Until Mr. Tyagi receives charge sheet, no real assessment is possible.
Kumar Doab
(Expert) 12 September 2016
Respected Senior Expert Shri P.S.Dhingra,
Sir,
Many thanks for your revert.
Kumar Doab
(Expert) 12 September 2016
Author has posted and has received inputs:
"Allegation. though not yet conveyed in writing. is baseless and unfounded. CMD only wants to harass n victimize me and to retire me without retirement benefits. ............................."
'No explanation is needed before resorting to suspension.'
‘In all probability it may not be possible for them to serve a chargesheet before retirement.
A PSU employee once retired without chargehseet and suspension is off with terminal dues and no action is possible. Thereafter administration resorts to suspension pending chargesheet’
‘Also, how would you like to effectively link with your suspension, when no specific reason has been quoted for your suspension?’
‘Unless you have some definite evidence in formal shape to prove that only bias and prejudice of your CMD was behing your placement under suspension, all your efforts, time and money would go waste to get any court order in your favour.’
‘During departmental inquiry, the prosecution side can come fully prepared to prove their case ‘
‘Rest depends upon your own wisdom.’
‘I have ample evidence to show that since I refused to follow his instructions to submit a case of an employee's promotion to the Board as it was against the rules, he after removing me from the post of HR and replacing me with his yes-man, got submitted that case to the Board concealing the facts which I intimated directly to the Board members. After that CMD targeted me and dug out a 2 year old medical claim in respect of my dependent parent who gets minimum pension of Rs.3500/-. But he is making it inadmissible claim as the income limit of dependent member mentioned in the 23 years old rule is Rs 500/- p.m. only although it was revised to Rs.3500/- by Govt of India in 2008. This case was informed orally and not officially.’
‘The CMD must have thought about a very grave irregularity to be formed part of your charge sheet.’
‘To prove this bias you need to get file copy under rti which is never (never) possible befor eyour retirement.’
‘So, if you have been suspended that clearly reveals that you are likely to get a major penalty charge sheet with some charge or charges of very severe nature, not merely of the medical reimbursement for dependant parent.’
‘However, a major penalty charge sheet provides a good opportunity to the charged officer to defend his case.’
‘During that process the employee gets the best opportunity to defend his case by making effective cross-examination of the prosecution witnesses to scrap the theory of the prosecution to scuttle down the Articles of Charge.’
‘I hope, as an HR personnel, you would be quite awar of the fact that so far as suspension of employees in Government/ PSU organizations are concerned, there exists a prescribed proforma on which suspension order has to be issued. But, neither the suspension related rule prescribes making a mention of reason for making suspension, nor that prescribed proforma gives any hint to mention any reason, except giving an indication about contemplated disciplinary action against the employee.’
‘There is no hint about the charge in his suspension order. Until Mr. Tyagi receives charge sheet, no real assessment is possible.’
Kumar Doab
(Expert) 12 September 2016
The author has to provide the inputs on discussion.
Can arbitrary, perverse or malafide decision, be concluded!
The absence of precedent does not deter the court.
However with what on your hands you want to approach the court?
You have consulted an advocate as posted by you.
What is your own advocates opinion on ::what is in your hands with which you can approach the court?
Guest
(Expert) 12 September 2016
Dear Shri Kumar,
Your statement, "A PSU employee once retired without chargehseet and suspension is off with terminal dues and no action is possible," is not relevant with reference to a PSU, as departmental inquiry can be made against a PSU employee even if he has retired. Even a charge sheet can be served to a retiree within four years of his retirement for his past offence during the service period.
I don't think more or less repetition of the previously made replies on the thread can serve any more purpose to the querist.
Kumar Doab
(Expert) 12 September 2016
Respected Senior Expert Shri P.S.Dhingra,
Sir,
The following is not my statement:
"A PSU employee once retired without chargehseet and suspension is off with terminal dues and no action is possible,"
Kumar Doab
(Expert) 12 September 2016
Respected Senior Expert Shri P.S.Dhingra,
Sir,
I got your point.
Guest
(Expert) 12 September 2016
Dear Shri Kumar,
I knew that the statement was not yours, but that part of statement of some other expert was repeated in your latest post without reference to the author of the statement. So, the same could cause confusions in the mind of the querist, as well as other readers.
Anyway, it is fine, if you got my point.
Rajendra K Goyal
(Expert) 21 September 2016
Well advised, nothing more to add from my side.
