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Hari Shankar Misra v. State Of U.P. & Others - SPECIAL APPEAL No. 180 of 2007 [2007] RD-AH 3274 (27 February 2007)


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Court No.32

Special Appeal No.180 of 2007

Hari Shankar Misra v. State of U.P. and others.

Hon'ble S. Rafat Alam, ACJ.

Hon'ble Krishna Murari, J.

This intra-court appeal has been preferred against the judgment of the Hon'ble single Judge dated 2.2.2007 dismissing the appellant's writ petition challenging the order of suspension.

Sri D.S. Srivastava, learned counsel for the appellant submitted that the order of suspension has been passed without there being any departmental proceedings pending against the appellant nor it appears from the suspension order that the same is under contemplation. He drew our attention to the order of suspension impugned in the writ petition dated 22.1.2007, a copy whereof is enclosed as annexure-3 to the affidavit filed in support of the stay application.

On the other hand, learned Standing Counsel appearing for the respondent submitted that S.D.O. Naugar, Chandauli has already been appointed as Inquiry Officer by the Divisional Forest Officer, Kashi Wild Life Division Ram Nagar, Varanasi, respondent no.2 vide order dated 1.2.2007 and, therefore, the order of suspension now cannot be interfered with and the writ petition has rightly been dismissed.

We have considered the submissions made on both sides.  The power of suspension of a government servant in a pending proceeding is exercised under sub Rule (1) of Rule 4 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 (for short the Rules), which provides as under: -

"4. Suspension.-(1) A Government Servant against whose conduct an inquiry is contemplated, or is proceeding may be placed under suspension pending the conclusion of the inquiry in the discretion of the Appointing Authority :

Provided that suspension should not be resorted to unless the allegations against the Government Servant are so serious that in the event of their being established may ordinarily warrant major penalty :

Provided further that concerned Head of the Department empowered by the Governor by an order in this behalf may place a Government Servant or class of Government Servants belonging to Group ''A' and ''B' posts under suspension under this rule :

Provided also that in the case of any Government Servant or class of Government Servant belonging to Group ''C' and ''D' posts, the Appointing Authority may delegate its power under this rule to the next lower authority."

From a perusal of the aforesaid provisions it is apparent that a government servant can only be placed under suspension where his conduct is subject matter of inquiry or an inquiry in respect of that misconduct is under contemplation.  In other words, the order of suspension can be passed either in pending departmental proceeding or where such proceeding is under contemplation.  Thus, the order of suspension must disclose that as to whether the government servant is placed under suspension in a pending proceeding or in contemplation of a proceeding.  If the order of suspension does not indicate that any proceeding is pending or in contemplation, it would be laconic and cannot sustain.  Therefore, in the absence of any pending proceeding or contemplated proceeding, the appointing authority has no jurisdiction to place a government servant under suspension.  In the case of Meera Tiwari (Smt.) v. The Chief Medical Officer and others, (2001) 3 UPLBEC 2057 a Division Bench of this Court while considering sub Rule (1) Rule 4 of the Rules held as under:

"3.       From the said rule it appears that a Government Servant against whose conduct an inquiry is contemplated, or is proceeding may be placed under suspension pending the conclusion of the inquiry. The impugned order of suspension does not refer to any contemplated inquiry or the fact that any inquiry is pending."

Further, having noticed that there is no recital in the impugned order of suspension about the pending proceeding or in fact that proceeding is under contemplation further held in para 4 of the judgment that the order of suspension cannot be sustained.  For ready reference para 4 of the judgment is extracted hereinbelow: -

"4. In that view of the matter, we are of the view that the order of suspension is against the provisions of Rule 4 of the Government Servant (Discipline & Appeal) Rules, 1999 and the same cannot be sustained. The learned Single Judge has directed the inquiry to be completed within three months. It was not within the scope of the learned single Judge to direct any inquiry to be made on his own. We are of the view that since the order of suspension is contrary to Rule 4 of the said Rules, the same should be quashed and set aside."

The contention of the learned Standing Counsel that since now an inquiry officer has been appointed on 1.2.2007 and, therefore, the order of suspension cannot now be interfered with because of the pendency of the proceeding can also not be accepted in view of well settled legal position that the order impugned is to be tested on the reason mentioned in the order and the grounds cannot be supplemented by giving fresh reasons in the form of affidavit or by issuing subsequent orders. Reference may be made to the judgment of Hon'ble Apex Court in the case of Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851 wherein the Hon'ble Apex Court has held as under: -

"When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to the court on account of a challenge, get validated by additional ground later brought out."

Therefore, in view of the exposition of law made by the Hon'ble Apex Court the impugned order has to be tested by this Court on the reason or the grounds mentioned therein and the respondents cannot be permitted to supplement the reasons or grounds by filing counter affidavit.  Therefore, we are of the view that the Hon'ble Single Judge having not addressed on that issue fell in error.

In view of the discussions made above and also in view of exposition of law and the Division Bench judgment of this Court in the case of Meera Tiwari (Smt.) (supra) of which one of us (Hon'ble S. Rafat Alam, J.) is also member the order of suspension impugned in the writ petition cannot sustain.  It is accordingly quashed.

In the result, the appeal and the writ petition succeed and are allowed. However, there shall be no order as to costs. It is, however, made clear that it would be open to the department/respondents to proceed departmentally against the appellant or to pass fresh order of suspension if so required in accordance with law.




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