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RAVINDRA RAI versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Ravindra Rai v. State Of U.P. And Others - WRIT - A No. 30475 of 2003 [2003] RD-AH 293 (23 August 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

COURT NO.34

"RESERVED'

Civil Misc. Writ Petition No.30475 of 2003

Ravindra Rai ......... Petitioner

Versus

State of U.P. & Ors ......... Respondents

Hon. Dr. B.S. Chauhan, J.

Hon. D.P. Gupta, J.

(By Hon' Dr. B.S. Chauhan, J.)

This writ petition has been filed for quashing the impugned suspension order dated 9th July, 2003 (Annex. 5).

Facts and circumstances giving rise to this case are that the petitioner had been working as a District Panchayat Raj Officer, Kushinagar. The Hon'ble Chief Minister of Uttar Pradesh visited the area and had an inspection of different villages known as Ambedkar Villages on 3rd July, 2003. Not being satisfied from the work under the supervision of the petitioner, she made an announcement on the spot in public that the petitioner would be put under suspension. On 5th July, 2003, the District Magistrate, respondent no.3 passed an order to the effect that as petitioner had been found guilty of irregularities at the time of local inspection of the Hon'ble Chief Minister on 3rd July, 2003 and she had made a public statement to put him under suspension, he was restrained to work further on the post. The Competent Authority subsequently passed the order of suspension on 9th July, 2003. Hence this petition.

Shri Ashok Khare, learned Senior Advocate, appearing for the petitioner, has submitted that the order impugned had been passed by the authority without any application of mind, under the dictate of the Hon'ble Chief Minister and, thus, suffers from the illegality and is liable to be quashed on this sole ground. The nature of allegations were not of such grave that petitioner could be put under suspension, as the provisions of Rule 4 of the U.P. Government Servants (Discipline and Appeal) Rules, 1999 ( hereinafter referred to as Rules 1999), provide for suspension only in a case where the employee is found to be in the moral turpitude or involved in the criminal case, which is connected with his position as a Government Servant or which is likely to embarrass him in the discharge of his duties or where the allegations against the delinquent officer  are so serious that in the event of their being established, may ordinarily warrant major penalty. As in the instant case, none of the pre-requisite conditions exist, the order impugned is liable to be quashed.

On the contrary, Shri C.K. Rai, learned Standing Counsel has submitted that this is not the stage for the Court to interfere with the impugned suspension order. The enquiry has to be held and reliance had been placed upon large number of judgments by him that the Court should not generally interfere with the suspension order and in view thereof, it has been submitted that the petition be rejected.

We have considered the rival submissions made by the learned counsel for the parties and perused the record.  

It is settled legal proposition that during suspension, relationship of master and servant continues between the employer and the employee.   However, the employee is forbidden to perform his official duties.  In certain  cases, suspension   may   cause    stigma   even   after exoneration  in  the departmental proceedings  or acquittal by the criminal court, but it cannot be treated as  a  punishment  even   by  stretch  of imagination in strict legal sense.

A Constitution Bench of the Hon'ble Supreme Court in R.P. Kapur  Vs. Union of India & ors.,  AIR 1964 SC 787,   observed   that    the   Authority competent  to  appoint a public servant would  be entitled  to  suspend him during pendency of  the departmental  enquiry into his conduct or pending a criminal case.

While reiterating a similar view in Balvantray Ratilal Patel Vs. State   of Maharashtra, AIR 1968 SC 800, the Apex Court held as under:-

"It is now well settled that the power to suspend,  in  the  sense of  a  right  to forbid to work, is not an implied term in an  ordinary contract between master  and servant,  and that such a power can  only be  the  creature either by  the  Statute governing the contract, or of an express term in the contract itself.  Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules   framed under some statute, would mean that the master would have no power to suspend a workman..... Where, however, there is a power to suspend   either in the  contract of employment or in the Statute or the rules framed   thereunder,    the    order   of suspension  has  the effect of  temporary suspending the relationship of master and servant with the consequence that servant is  not bound to render services and  the master is not bound to pay."

In  Management  of  Hotel  Imperial,  New Delhi Vs. Hotel Workers' Union, AIR 1959 SC 1342; T.  Cajee  Vs. U. Jormanik Siem & Anr., AIR 1961  SC  276; and V.P.  Gindroniya Vs.  State of M.P. & Anr., AIR 1970 SC 1494, the Hon'ble Apex Court held that putting a Government  servant under suspension during the pendency  of Departmental Proceedings or Criminal trial, means  that the Government merely issued a direction  that  he  must  not do  any  thing  in discharge  of  the duties of his office  and  the employee is bound by the said order.

The scope of interference by the Court with the order of suspension has been examined  by the Hon'ble Supreme Court in large number of cases, particularly  in State of M.P.  Vs.  Sardul Singh, (1970) 1 SCC 108; P.V. Srinivasa  Sastry Vs. Comptroller  & Auditor General of India, (1993) 1 SCC 419; Director General, ESI & Anr.  Vs.  E.  Abdul Razak, JT 1996 (6) SC 502;  Kusheshwar  Dubey  Vs. M/s  Bharat  Cooking Coal Ltd.  & ors., AIR 1988 SC 2118; Delhi Cloth General Mills  Vs.  Kushan Bhan, AIR 1960 SC 806; U.P. Rajya Krishi  Utpadan Mandi Parishad Vs. Sanjeev Rajan, (1993) Supp. (3) SCC 483; State of Rajasthan Vs. B.K. Meena  & ors., (1996) 6 SCC 417; and Secretary   to  Govt.,   Prohibition  and  Excise Department  Vs. L. Srinivasan, (1996) 3 SCC 157, and observed   that  even  if  a criminal   trial or enquiry takes  a   long  time,  it   is ordinarily  not open to the Court to interfere in case of suspension  as it is in the exclusive domain of the competent  authority who can always review its order  of  suspension  being an  inherent power conferred  upon  him by the  provisions  of Article 21  of the General Clauses Act, 1897  and while exercising  such a power, the authority can consider the case of an employee for revoking the suspension  order, if satisfied that the criminal case pending would  be  concluded after an unusual  delay for no fault of the employee concerned.

In State of Orissa  Vs. Bimal  Kumar Mohanty,  AIR  1994 SC 2296, the Hon'ble  Supreme Court observed as under:-

"......when  an  appointing authority  or the  disciplinary  authority   seeks   to suspend  the  employee...  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 the above aspects  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.  But as Authority earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service   for the continuation of the delinquent employee in service pending    inquiry or contemplated  inquiry  or  investigation. It would be another thing if the action is actuated by mala fide, arbitrarily or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The Authority also should keep in mind public interest of the impact of the delinquent's continuation in office while facing departmental inquiry or a trial of a criminal charge."

In Allahabad Bank & Anr. Vs. Deepak Kumar Bhola,(1997) 4 SCC 1, the Hon'ble Supreme Court held that in case involving serious charges, suspension order should not generally be interfered. However, the decision of the competent authority should be based on material collected during investigation/ inquiry.

The power of suspension should not be exercised in an arbitrary manner and without any reasonable ground.  Suspension should be made only in a case where there is a strong prima facie case against the employee and the allegations involving moral turpitude, grave misconduct or indiscipline or refusal to  carry  out  the  orders  of  superior authority are there, where the contents of strong prima facie  case  against him, if proved,  would ordinarily  result  in his dismissal  or  removal from service. The Authority should also consider taking into account all the available material as to whether in a given case, it is  advisable to permit  him  to  continue not to  perform  his duties in  the office or his retention in  office is likely to hamper or frustrate the inquiry.

If the Court, after considering the evidence on record, comes to the conclusion that it is not such a case, which may justify the Authority to keep the   employee   under suspension for   a prolonged period, the Court may interfere. However, suspension may not be revoked in a case where there is an apprehension of tampering with the evidence in a domestic enquiry/criminal prosecution or retention of the employee in the office is considered to be injurious to public interest.

The suspension order appears to have been passed on certain irregularities committed by the petitioner while laying down the Kharanja  in the villages. The provisions of Rule 4 of the aforesaid Rules 1999 reads 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:  

..... ......... ....... ........"

In this regard,  there is nothing on the record nor the counter affidavit has been filed in spite of opportunity being given to the respondents, to show as to whether the irregularities committed by the petitioner were of such a nature that suspension was considered necessary.  Nor the charge sheet has yet been served upon the petitioner.

More so, petitioner himself can not be held responsible for the irregularities as the work is to be conducted in view of the provisions of Section 29 of the U.P. Panchayat Raj Act, 1947, which reads as under:-

"29. Committees - (1) Notwithstanding anything to the contrary contained in any other provisions of this Act or the Rules made there under, every Gram Panchayat shall constitute such committee or committees as may be notified by the State Government from time to time, to assist the Gram Panchayat in the performance of all or any of its functions and may delegate to such committee or committees such of its powers or functions as it may deem fit.

(2) Every committee constituted under sub-section (1) shall consist of a Chairman and six other members who shall be elected by the members of the Gram Panchayat from amongst themselves in the prescribed manner.

Provided that in each such committee, there shall be at least one woman member, one member belonging to the Scheduled Castes or the Scheduled Tribes and one member belonging to Backward Classes.

Provided further that the State Government may, by notification, direct that the Pradhan or Up-pradhan or any other member of Gram Panchayat shall be the Chairman of any such committee."

In the instant case, no action has been taken against the Pradhan. The petitioner alone can not be held responsible for the irregularities. Thus, he had met a hostile discrimination, as no action has been taken against the Pradhan or any other member of the Management Committee. Law does not permit any kind of discrimination in initiating disciplinary proceedings or passing the suspension order if more than one person is involved in the delinquency.

In Director General of Police & Ors. Vs. G. Dasayan, (1998) 2 SCC 407, the Hon'ble Supreme Court has pointed out that where the charges are identical, the punishment should not be discriminatory and if it is so, the discriminatory punishment can not be sustained and the co-delinquents facing identical charges, if proved, must be given the same punishment.

In E.S. Reddi Vs. Chief Secretary, Government of Andhra Pradesh & Anr.,  (1987) 3 SCC 258; M. Raghavelu Vs. Government of Andhra Pradesh & Anr., (1997) 10 SCC 779; and K. Sukhendar Reddy Vs. State of Andhra Pradesh & Anr., (1999) 6 SCC 257, the Hon'ble Supreme Court has held that the persons involved with an assignment, directly or indirectly, should be held responsible equally if some sort of discrepancy is found therein and it is not permissible to find some person directly involved with the case as guilty and not even initiating the proceedings against the persons who are indirectly involved. In a given case, the authority concerned may not put an employee under suspension for the reasons recorded by him that though he had been involved in the misconduct but role assigned to him, if stands proved, may not warrant major punishment etc.

Similarly, there can be no discrimination while initiating the disciplinary proceedings or passing the order of suspension.

There is another aspect of the matter. Undisputedly, the Hon'ble Chief Minister had an inspection of the villages on 3rd July, 2003 and made a public announcement for suspension of the petitioner and this allegation stands fortified by the order passed by the District Collector on 5th July, 2003. The order of suspension has been passed by the Competent Authority on 9th July, 2003. Thus, we are bound to accept the contention raised by Shri Khare that the suspension order has been passed at the behest of the Hon'ble Chief Minister by the Competent Authority without any application of mind.

It is settled proposition of law that when Statute confers power on a particular Authority or person to perform certain functions, it cannot be exercised by any other person. (Vide Karan Singhji Jadeja & Anr. Vs. State of Gujarat &ors., JT 1995 (6) SC 146; State of U.P. & ors. Vs. Ram Naresh Lal, AIR 1970 SC 1263; Central Inland Water Transport corporation Ltd. Vs. Brojo Nath Ganguly & Anr., AIR 1986 SC 1571; Board of High School and Intermediate Education, U.P., Allahbad Vs. Ghanshyam Das Gupta, AIR 1962 SC 1110; Smt. Maneka Gandhi Vs. Union of India & Anr., AIR 1978 SC 597 and Chandrika Jha Vs. State of Bihar & ors., AIR 1984 SC 322).

In the Purtabpur company Ltd. Vs. Cane commissioner of Bihar & ors., AIR 1970 SC 1896, the Hon'ble Supreme Court has observed as under:-

"The powers exercisable by the Cane commissioner Under clause 6(1) is statutory power. He alone could have exercised that power, while exercising that power, he cannot obligate his responsibilities in favour of any one; not even in favour of the State Government or the Chief Minister. It was not proper for the chief Minister to have interfered with the functions of the Cane commissioner..... the Executive Officers, entrusted with statutory discretion, may, in some cases, be obliged to take into account consideration of public policy and in some context the policy of the Minister or the Government as the whole when it is relevant factor in weighing the policy but this will not absolve them from the duty to exercise the personal judgment in individual case unless explicit statutory provisions have been made for them to be given binding instructions by a superior."

Similarly, in Tarlochan Dev Sharma Vs. State of Punjab & ors., (2001) 6 SCC 260, the Hon'ble Supreme Court , after placing reliance upon a large number of its earlier judgment, observed as under:-

"In the system of Indian democratic governance, as contemplated by the "constitution, senior officers occupying good position as Secretaries, are not supposed to mortgage their own discretion, volition and decision-making authority and be prepared to give way or being pushed back or pressed ahead at the behest of the politicians for carrying out command having no sanctity in law....No Government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior."  

Thus, in view of the above, as prima facie we are of the view that suspension order has not been passed by the Disciplinary/Competent Authority by application of his mind independently, and appears to have been passed at the behest of the Hon'ble Chief Minister, the impugned suspension order dated 9th July, 2003 (Annex.5) is hereby quashed.

However, respondents are directed to conclude the enquiry expeditiously in accordance with law. The petitioner undertakes to cooperate with the enquiry. In case, he does not cooperate or adopt dilatory tactics, the Inquiry Officer shall be at liberty to proceed ex parte in accordance with law.

No order as to costs.

August 23, 2003

AHA


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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