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Kripa Shanker Mani Tripathi v. State Of U.P. And Others - WRIT - A No. 68910 of 2006  RD-AH 673 (11 January 2007)
Civil Misc.Writ Petition No.68910 of 2006
Kripa Shanker Mani Tripathi ...... Petitioner
State of U.P. and others ...... Respondents. :Present:
(Hon'ble Mr.Justice Amitava Lala & Hon'ble Mr.Justice Sanjay Misra)
For the Petitioner ...... Sri Shashi Nandan
Assisted by Sri A.K.Pandey
For the Respondents ...... Sri Vrijendra Singh
Chief Standing Counsel
Amitava Lala,J- The petitioner has challenged the order of suspension dated 19th November,2006. He contended that the charges are as such that no major penalty can be imposed upon the petitioner. From the order of suspension it appears to this Court that the disciplinary proceeding was contemplated for non furnishing desired information in time and also for poor quality and below standard of progress of cleaning work of silt and being slow and loose control over his subordinate officials.
Mr.Shashi Nandan, learned Senior Counsel appearing for the petitioner contended that this is a case which is in totality hit by first proviso of Rule 4 of U.P.Government Servant (Discipline and Appeal) Rules, 1999 ( hereinafter referred to as the Rules,1999). First proviso of Rule 4 of the Rules, 1999 is as follows:
"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."
Learned Senior Counsel further contended that the charges leveled against the petitioner, as above, are general in nature. We found from the Rule 3 of the U.P.Pradesh Government Servant Conduct Rules 1956 which deals the general nature of duty of a Government servant and such general nature appears to be in respect of absolute integrity and devotion to duty. So far as the sub rule (2) of Rule 3 of the Rules 1956 is concerned, every Government servant shall at all times conduct himself in accordance with the specific or implied orders of Government regulating behaviour and conduct which may be in force. This also appears to be general in nature.
Learned Chief Standing Counsel contended before this Court on the basis of the affidavit that ''misconduct' covers not only corruption or criminal intent but also unfitness of person in discharging his duty in the office which may likely to embarrass the administration. Misconduct is bad management, mismanagement and malfeasance or culpable neglect of an official in regard to his office. He further contended that duty of the Chief Engineer Level II is almost at par with the Chief Engineer Level I.
Learned Senior Counsel on behalf of the petitioner on the other hand contended that the allegation is very much specific in paragraph 6 of the counter affidavit itself. It shows that the charges are lack of effective supervisory administrative control over his subordinate staff. Therefore for such charge no major penalty can be imposed. He further brought to our notice the Government Order dated 5th February,1983 to establish that duty of the Chief Engineer Level II is not at part with the Chief Engineer Level I. The responsibility lies with the Chief Engineer. The Chief Engineer has direct control over the Superintending Engineer who in turn, is controlling the Executive Engineer. The Executive Engineer is holding overall charges of such nature. Therefore, in totality the Chief Engineer Level II has no such responsibility as indicated in the order of suspension. He has specifically stated that unless and until some unseen forces are there, the order of suspension cannot be issued on 19th November,2006 from Lucknow on the basis of happening on the very date in Etawah and can be followed by charge sheet dated 20th November,2006. Therefore, even if the matter is sent for the purpose of due consideration of the cause of withdrawal of suspension on the contemplation of minor punishment, if at all, no fruitful result will come out. He further contended hypothetically that at best petitioner can be punished for withholding his increments.
Learned Chief Standing Counsel on the other hand by virtue of the earlier judgment delivered by this Court in Civil Misc.Writ Petition No.39154 of 2006 ( Gurinder Singh Seth vs State of U.P. and another) being dated 20th September,2006 contended that over all out look is to be taken on the basis of the charge sheet to come to an appropriate finding which cannot be done by the writ court not being a fact finding court.
In any event this is such case where we cannot ignore the question withdrawal of suspension. But the question is who will consider such question, the Court or by the appropriate authority of the Government?
We are of the view that since the materials are lying with the appropriate authority of the State, therefore, application has to be made at first before such authority for the purpose of due disposal of the application of withdrawal of suspension, if it is advised to be made. We have to keep hope and trust upon the Government up to the last extent. We cannot ignore every thing on the basis of probabilities. We find that minor distinction is available in respect of the minor and major penalties in some of the cases like withholding of the increments. Therefore, we cannot grant any mandatory relief in favour of the petitioner but relief in the following forms. Firstly there should not be any delay on the part of the State but inquiry is to be completed preferably within a period of two months from the date of communication of this order. Secondly the petitioner may approach the appropriate authority of the Government by way of filing application for the purpose of withdrawal of suspension immediately upon receiving the certified copy of the order and in such case the authority concerned will consider the same upon giving fullest opportunity of hearing and by passing a reasoned order on the available materials and in accordance with law within a period of ten days from the date of filing such application particularly when the petitioner is going to retire by 31st January, 2007. It is expected that the appropriate authority of the State will show independently and utmost sympathy in considering the cause of withdrawing the suspension on the basis of the charges and available materials in connection thereto.
Thus, we dispose of the writ petition accordingly.
However, no order is passed as to costs.
( Justice Amitava Lala )
(Justice Sanjay Misra )
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