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Rudra Narain Pandey v. State Of U.P. And Others - WRIT - A No. 54867 of 2005  RD-AH 2569 (8 September 2005)
Civil Misc.Writ Petition No.54867 of 2005
Rudra Narain Pandey .... Petitioner
State of U.P. through Secretary,Energy,
U.P.Government, Lucknow and others. .... Respondents
(Hon'ble Mr.Justice Amitava Lala & Hon'ble Mr.Justice Prakash Krishna)
For the petitioner - Sri U.N.Sharma,
Learned Senior Advocate
& Sri Shesh Kumar,
For the Respondents - Sri V.B.Singh,
Learned Senior Advocate
Learned Counsel &
Amitava Lala,J.- Three different points arose in this writ petition which are as follows:-
a) Whether the petitioner is victim of selective suspension ?
b) Whether any alternative forum for remedy is available for
c) Whether subject matter of the charge sheet can be taken into account when the writ petition is restricted to order of suspension ?
The writ petitioner contended before this Court that he is a Superintending Engineer/Deputy General Manager (Distribution), Allahabad Town, Allahabad under U.P.Power Corporation Limited, Allahabad. According to him, only for the purpose of minor shortfall of recovery amounting to (-) 1.46% for the month of June 2005 he was issued with an order of suspension. A Superintending Engineer can not be directly involved for the recovery. He has to rely upon the subordinates. No action has been taken against any of them. In fact due to summer vacation of the Allahabad High Court and Allahabad University bill amount could not have been realised. State Headquarters of the Police department also did not clear due to their involvement in conducting election duties. A total amount of recovery is more than one crore and if the entire amount of recovery is added no shortfall would be there. His promotion is due within a period of one month from now and he is going to retire within three months from now. As against the question of the Court why he should not avail the opportunity of appeal under Clause 4 of Uttar Pradesh State Electricity Board (Officers & Servants) (Conditions of Service) Regulations, 1975 he answered that as the order of suspension issued by the Chairman and the Chairman himself is hearing appeals there is likelihood of biasness as such he made writ petition directly instead of availing the opportunity of appeal. He also contended that as per Government Order dated 15th October 1985 in Uttar Pradesh whenever an authority found a prima facie case of removal/dismissal/reduction in rank in case of an employee then only impose order of suspension.
Mr.Umesh Narain Sharma,learned Senior Counsel appearing for the petitioner with the able assistance of his junior Mr.Shesh Kumar cited few judgments in support of their contentions. In 1999 JT (10) SC 237 (K.Sukhendar Reddy v. State of A.P. and another) Supreme Court observed that the Government can not be permitted to resort to selective suspension. In 1998 (1)A.W.C.282 ( Ram Dular Tripathi v. State of U.P. and others) our High Court said that as per Civil Services (C.C.A.)Rules, 1930 as applicable in Uttar Pradesh, suspension is warranted only on three major punishment namely,dismissal,removal or reduction in rank. In further citation of our High Court (2000)1 UPLBEC 515 Lal Bahadur Singh v Engineer-in-Chief ( Mechanical), Irrigation Department, Uttar Pradesh, Lucknow and others) relevant observation of the Supreme Court in State of Orissa v. Bimal Kumar Mohanty reported in (1994)4 SCC 126 was taken into account. There the Court held it is well settled that when one is directed to be suspended pending enquiry or contemplated enquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission the order of suspension would be passed after taking into consideration the gravity of the misconduct.
Mr.Vijay Bahadur Singh,learned Senior Counsel contended that case of selective suspension is factually incorrect. The subordinate officer of the petitioner i.e. the Executive Engineer directly engaged under him, is also under suspension. About 14 different officers in the zone of Purvanchal Vidyut Vitgran Nigam Ltd.,are under suspension. If today, order of the suspension is stayed by the Court then not only a wrong massage will go to the society but also the other suspended officers will get an avenue to take shelter of the order of the court and thereby administration will suffer seriously. As per the calculation shortfall of recovery (-) 1.6% is incorrect. The actual shortfall of recovery is (-) 3.9% wherein the recovery of other similar officers within the Urban Zone of Allahabad are(+)4.1 and (+)17.6% respectively. It is further to be noted that in the month of June 2005 additional energy to the tune of 55400 units has been drawn by the concerned officer of Allahabad, but recovery of revenue is decreased. Even if the collections from the Hon'ble High Court, University of Allahabad and Police Headquarters are added and recovered yet shortfall of recovery will remain (-) 2.3%. Therefore, the defence of the petitioner is unsustainable.
He contended that charge sheet has already been issued within seven days from the issuance of the order of suspension but no reply has been given as yet. Nothing has been disclosed in the writ petition about charge sheet. The enquiry proceeding will be completed within the time so fixed by the Court. If the order of suspension is stayed proceeding will be unnecessarily interfered with. Unless the illegality is apparent from the face of the order of suspension or the same is passed without jurisdiction, it should not be interfered with. After filing of charge sheet the order of suspension is merged with it.
In the midst of the argument we found from the charge sheet that several other charges are added along with the charges indicated in the order of suspension. We have called upon Mr.Singh to satisfy the court at first as to whether the court can go to the extent of charge sheet in this writ petition when the order of suspension alone is the foundation of the writ petition. In answer to that, he said that gravity of the situation can be apprised by the Court. In further he said that it is not necessary that all the grounds will have to be mentioned in the order of suspension. There may supplemental grounds but for the same entire proceeding can not be vitiated. In any event we can not extend our scope other than the order of suspension which is impugned here under. In the course of discussion applicability of ratio of Mohinder Singh Gill's case reported in AIR 1978 S.C.851 arose. It is well known that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and can not 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 court on account of a challenge, get validated by additional grounds later brought out. In the instant case charge sheet was issued within 7 days from the order of suspension and on 8th day the writ petition was filed without making any whisper about such charge sheet. Therefore it is not such a case of afterthought which has been discussed in the Mohinder Singh Gill's case (Supra). Lifting of veil is always permissible. Additional grounds can be taken. There is no bar in supplementing any ground. In 1994 (2) S.C.C. 617 ( State of Haryana v Hari Ram Yadav and others ) Supreme Court held that when the impugned order of suspension does not contain a recital does not render the said order invalid. It is too technical a subject in this regard. Moreover in this case the court is not interested to enter with the question of charge sheet and disciplinary proceeding but to keep it open for the authority. It is well settled principle of law that investigation process should not be interfered with the court unless and until patent illegality is such that the court can not shut it eyes without looking into it. This is not such a case. Therefore, the court is only concerned about the expeditious disciplinary proceeding.
Now let us come back to the question of suspension and alternative remedy. Factually the question of selective suspension is not available here. Moreover suspension is not a punishment. It is a matter of keeping the delinquent out of the zone for the sake of independent enquiry. The ratio of the judgment of 1999 JT(10) SC 237 is factually distinguishable. There the investigation was prolonged for 2 &1/2 years and there was no likelihood of immediate completion of investigation. Court held delinquent having a vary high position could not be kept under suspension indefinitely when other senior officers, found involved,were not kept under suspension leaving aside such officer. In the instant case within seven days charge sheet has been filed and an open assurance has been given by the learned Senior Counsel that the enquiry proceeding will be completed within the time which will be fixed by the court.Hence we do not find any justiciable cause to interfere with the order of suspension at this juncture.
In further the factual submission of the petitioner that since the order of suspension is passed by the Chairman hearing of appeal by him may influence the appeal is an incorrect submission. Any from the order of suspension to be passed by the Chairman as per the regulations 4 of the Uttar Pradesh State Electricity Board (Officers & Servants) (Conditions of Service) Regulations,1975 to be heard by a Board but not by the Chairman alone. It is very difficult to construe that the Board being body of collective persons will be influenced in testing the cause of the petitioner. We can not appreciate any reckless statement of the petitioner against any of the authorities. We have to follow the procedure. Therefore, if the petitioner thinks that he is aggrieved by the order of suspension, the alternative forum for remedy is open for him. The petitioner can not be said to be remediless even after the order of appeal or from any order of punishment to be imposed upon him on the basis of enquiry. Therefore, the administrative action, as a whole should not be interfered by this court. Neither any illegality found from the order of suspension of the Chairman nor he has acted without jurisdiction. Hence issuance of order of suspension is perfectly justified.
So far as the question of major penalty or minor penalty is concerned we are of the view an inadequate recovery of huge amount of revenue can not give a prima facie test of minor punishment even if the same is restricted for a month. Enquiry is to be made on the gravity of the situation. After all it is a matter of collection of revenue of the State.
Against this back ground now we have to consider whether legally order of suspension is related to major penalty like removal/dismissal/reduction in rank or not. Civil Services under Civil Service (C.C.A.) Rules 1930 as applicable in Uttar Pradesh suspension can be made applicable to a delinquent in case of major punishment namely dismissal, removal, or reduction in rank. Petitioner has relied upon a governmental order to that extent dated 15th October 1985. But such governmental order can not have over riding effect over the statutory regulations applicable to the employees under the Board. Special always prevail over general. The Regulation 4 under the Uttar Pradesh State Electricity Board (Officers & Servants) (Conditions of Service) Regulations, 1975 never spoke about the major or minor punishment but order of suspension alone. Definitely there is a reason behind it. The reason is supply of electricity is an essential service. In case of essential service certain amount of essentiality is attached in discharging functions of the employees which can not be equated with the ordinary service. That apart a little expression of mind of the court at an earlier stage regarding nature of punishment likely to be imposed in future even prima facie may influence the enquiry proceedings. Therefore why should we?
Hence in totality we are not in a position to accept any contention of the petitioner. But in spite of dismissing the writ petition disposing the same by making a time bound programme for completion enquiry proceeding within a period of two months from this date. In case the enquiry is not completed within such period or in case other delinquent/s is/are relieved from the similar charge/s leaving aside the petitioner, then and then alone the petitioner may be permitted to raise his voice following of the ratio of 1999 JT (10)SC 237 (supra). No order is passed as to costs.
( Justice Amitava Lala )
(Justice Prakash Krishna )
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