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Girish Chandra Sharma v. State Of U.P. & Others - SPECIAL APPEAL No. - 1713 of 2007 [2007] RD-AH 18885 (17 December 2007)

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Court No. 32

Special Appeal No. 1713 of 2007

Girish Chandra Sharma


State of U.P. & others

Hon'ble S. Rafat Alam, J.

Hon'ble Sudhir Agarwal, J.

Heard learned counsel for the appellant and also perused the order of the Hon'ble Single Judge.

Learned counsel for the appellant vehemently contended that since the charge/allegation is not so serious, which warrants major punishment, if proved, the order of suspension, in the circumstances, was not justified. He further submits that the fact finding enquiry was not made against the petitioner and, thus, there being no involvement of the petitioner-appellant, he could not be placed under suspension.

We do not find any force in the submission for the reason that, admittedly, in respect of the allegations, it appears from the impugned order, a departmental proceedings is under contemplation. It is a well settled legal position that an employee, who is facing a departmental proceeding or any such proceeding is under contemplation, can be placed under suspension. In the case in hand, since the departmental proceeding is under contemplation, there is no reason to interfere with the order of suspension. The question as to whether the allegations are serious enough warranting major punishment, in our view, should not be considered at this stage, since any observation in this respect may prejudice the pending or contemplated disciplinary proceeding against the petitioner and, therefore, it is not the stage at which this aspect of the matter can be gone into and dealt with in detail. Prima facie, we are of the view that it cannot be said that the allegations are not so serious, if proved, may warrant major penalty. So far as holding of a fresh final enquiry is concerned, the same having already been held and is also mentioned in the impugned order of suspension, the contention is factually incorrect. We, therefore, do not find any substance in both the submissions warranting any interference. No other irregularity or illegality could be pointed out by learned counsel for the appellant. The Hon'ble Single Judge has also recorded in the order that learned counsel for the petitioner failed to demonstrate that the order of suspension suffers from any illegality or irregularity, which may require interference under Article 226 of the Constitution of India. In the matter of suspension in pending or contemplated enquiry, it has been repeatedly held by the Apex Court as well as this Court that suspension in such contingencies by itself is not a punishment. In State of Orissa Vs. Bimala Kumar Mohanty AIR 1994 SC 2296, the Apex Court held "Suspension is not a punishment but is only one way of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity or 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 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." Earlier a Six Judges Constitution Bench of the Apex Court in P. R. Nayak v. Union of India AIR 1972 SC 554 took the similar view and held " Fifthly, there can be suspension of a Government servant after a preliminary investigation when disciplinary proceedings in the form of departmental inquiry are contemplated. This suspension is not a punishment but a disciplinary matter in aid of disciplinary proceedings. Suspension is ordered to facilitate free investigation and collection of evidence............."

In view of the aforesaid discussion, we are of the view that no interference is called for at this stage and the Hon'ble Single Judge has not erred either factually or otherwise in dismissing the writ petition refusing to interfere with the impugned order of suspension challenged in the writ petition. The appeal, therefore, is without merit and is dismissed summarily.

Dt. 17.12.2007



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