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CHANDRA BHAN SINGH versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Chandra Bhan Singh v. State Of U.P. And Others - WRIT - A No. 39686 of 2006 [2006] RD-AH 13384 (11 August 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved on 03.08.2006

Delivered on 11.08.2006

Civil Misc. Writ Petition No. 39686 of 2006

Chandra Bhan Singh

Versus

State of U.P. and others

Hon'ble V.K. Shukla,J.

Chandra Bhan Singh, Sub-Inspector of Police , Police Station Singramau, District Jaunpur has approached this Court questioning the validity of the suspension order dated 27.06.2006 passed by Superintendent of Police, Jaunpur and further for issuing a writ in the nature of mandamus commanding the respondents not to give effect to the order of suspension and for permitting the petitioner to perform and discharge duties as  Sub-Inspector of Police , Police Station Singramau, District Jaunpur.

Brief background of the case as mentioned in the writ petition is that Revolver bearing No. 789140 and six cartridges of .38 bore has been misplaced from Police Station qua the same First Information Report has been lodged being case Crime No. 214 of 2006 under Section 409 IPC at Police Station Signramau, district Jaunpur.  Copy of the First Information Report has also been appended and as per the same said Revolver alongwith six cartridges was taken by the petitioner on 17.06.2006 and same has not been returned back. Based on the said incidence and lodging of First Information Report, the Superintendent of Police, Jaunpur has proceeded to pass order of suspension of the petitioner.  At this juncture present writ petition has been filed.

From the side of State-respondents requisite instructions have been obtained alongwith the relevant record and on the basis of the same it has been agreed that the matter be heard and finally decided.

Sri H.R. Misra, Advocate, appearing on behalf of petitioner contended with vehemence that in the present case order of suspension dated 27.06.2006 is without jurisdiction, inasmuch as, said order of suspension has been passed on account of lodging of Criminal Case as such it is clearly referable to exercise  of authority under Rule 17(i)(b) of Uttar Pradesh Police Officers of the Subordinate Rank (Punishment and Appeal) Rules 1991 (hereinafter called 1991 Rules) wherein power of suspension has been vested with the Appointing Authority only as such order passed is totally without jurisdiction.

Sri Shashank Shekher Singh, learned Standing Counsel on the on the other hand on the basis of instructions received and on the basis of record contended that in the present case power of suspension has been exercised in contemplation of inquiry and it is clearly referable under Rule 17 [1](a) of 1991 Rules and seeing the nature of charges leveled against the petitioner no interference be made by this Court with the impugned order of suspension of the petitioner.  

After respective arguments have been advanced, in order to appreciate the respective arguments, relevant provision which covers the field i.e. Uttar Pradesh Police Officers of the Subordinate Rank (Punishment and Appeal) Rules 1991 is being quoted below:

Rule 4: Punishment: [1] The following punishments may, for good and sufficient reasons and as hereinafter provide, be imposed upon a Police Officer, namely-

(a) Major Penalties

(i) Dismissal from service

(ii) Removal from Service

(iii) Reduction in rank including reduction to a lower-scale or to a lower stage in a time scale.

(b) Minor Penalties-

(i) Withholding of promotion

(ii) Fine not exceeding one months pay.

(iii) Withholding of increment, including stoppage at an efficiency bar

(iv) Censure

[2] In addition to the punishments mentioned in sub-rule [1] Head Constables and Constables may also be inflicted with the following punishments-

(i) Confinement to quarters (this term includes confinement to Quarter Guard for a term not exceeding fifteen days extra guard or other duty)

(ii) Punishment Drill not exceeding fifteen days.

(iii) Extra guard duty no exceeding seven days

(iv) Deprivation of good conduct pay.

[3] In addition to the punishments mentioned in sub-rules (1) and (2) Constables may also be punished with Fatigue duty, which shall be  restricted to the following tasks:

(i) Tent pitching

(ii) Drain digging

(iii) Cutting grass, cleaning jungle and picking stones   from parade ground.

(iv) Repairing huts and butts and similar work in the lines:

(v) Cleaning Arms

Rule 5: Procedure for award of punishment:- [1] The case in which major punishments enumerated in Clause (a) of Sub-rule [1] of Rule 4 may be awarded shall be dealt with in accordance with procedure laid down in sub-rule [1] of Rule 14

[2] The cases in which minor punishment enumerated in Clause (b) of sub-rule [1] of Rule 4 may be awarded shall be dealt with in accordance with procedure laid down in sub-rule [2] of Rule 14.

[3] The cases in which minor penalties mentioned in sub-rule [2] and [3] of Rule 4 may be awarded shall be dealt with in accordance with the procedure laid down in Rule 15.

Rule 14: Procedure for conducting departmental proceedings: [1] Subject to the provisions contained in these Rules, the departmental proceedings in the cases referred to in sub-rule [1] of Rule [5] against the Police Officers may be conducted in accordance with procedure laid down in Appendix-I

[2]  Notwithstanding anything contained in sub-rule [1] punishments in cases referred to in sub-rule [2] of Rule 5 may be imposed after informing the police officer in writing of the action proposed to be taken against him and of the imputations of act or omission on which it is proposed to be taken and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal.

[3] The charged police officer shall not be represented by Counsel in any proceedings instituted under these rules.

Rule 17: Suspension: [1] (a) A Police Officer against whose conduct an enquiry is contemplated, or is proceeding, may be placed under suspension pending the conclusion of the enquiry in the discretion of the appointing authority or by any other authority not below the rank of Superintendent of Police, authorized by him in this behalf.

(b) A Police Officer in respect of or against whom an investigation enquiry or trial relating to a criminal charge is pending may at the discretion of the appointing authority under whom he is serving be placed under suspension, until the termination of all proceedings relating to that charge, if the charge is connected with his position as a Police Officer or is likely to embarrass him in the discharge of his duties or involves moral turpitude. If the prosecution is instituted by a private person on complaint, the appointing authority may decide whether the circumstances of the case justify the suspension of the accused. "

Bare perusal of these Rules quoted above would go to show that the Rules has been framed in exercise of powers vested under sub-Section [2] and [3] of Section 46 read with Section 2 and 7 of the Police Act. 1861 and all other power enabling in this behalf. The Governor has been pleased to make the aforementioned rules with a view to regulate the departmental proceedings punishment and appeals of the Police Officers of the subordinate ranks of the Uttar Pradesh Forces. Rule 4 deals with variety of punishment which falls in two categories (A) Major category (B) Minor category. Apart from this it also deals with additional punishment to be inflicted to Head Constables/Constable. Rule 5 deals with  procedure of award of punishment and provides that cases in which major punishments enumerated in Clause (a) of Sub-rule [1] of Rule 4 may be awarded shall be dealt with in accordance with procedure laid down in sub-rule [1] of Rule 14 and the cases in which minor punishment enumerated in Clause (b) of sub-rule [1] of Rule 4 may be awarded shall be dealt with in accordance with procedure laid down in sub-rule [2] of Rule 14 and further the cases in which minor penalties mentioned in sub-rule [2] and [3] of Rule 4 may be awarded shall be dealt with in accordance with the procedure laid down in Rule 15. Rule 14 deals with the  Procedure for conducting departmental proceedings. Sub rule [1] of Rule 14 provides that subject to the provisions contained in these Rules, the departmental proceedings in the cases referred to in sub-rule [1] of Rule [5] against the Police Officers may be conducted in accordance with procedure laid down in Appendix-I and further sub-rule [2] of Rule 14 provides that  notwithstanding anything contained in sub-rule [1] punishments in cases referred to in sub-rule [2] of Rule 5 may be imposed after informing the Police Officer in writing of the action proposed to be taken against him and of the imputations of act or omission on which it is proposed to be taken and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal. Rule 17 deals with suspension. Rule 17 [1] (a) empowers appointing authority or any other authority not below the rank of Superintendent of Police, authorized by him in this behalf to place a Police Officer under suspension against whose conduct an enquiry is contemplated, or is proceeding pending the conclusion of the enquiry. Rule 17[1] (b) on the other hand provides that a Police Officer in respect of or against whom an investigation enquiry or trial relating to a criminal charge is pending may at the discretion of the appointing authority under whom he is serving be placed under suspension, until the termination of all proceedings relating to that charge, if the charge is connected with his position as a Police Officer or is likely to embarrass him in the discharge of his duties or involves moral turpitude and further mention has been made that if the prosecution has been made by a person, on the complaint the appointing authority may decide whether the circumstances of the case justify the suspension of the accused.

On the touch stone of the provisions quoted above impugned order in question is being looked into.

Impugned order of suspension does not reflect as to whether any inquiry is contemplated or pending. The ground of suspension which has been mentioned is missing of Revolver bearing No. 789140 and six cartridges of .38 bore and lodging of  Case Crime No. 214 of 2006 under Section 409 IPC. The charge in question reflects that there are two portion of the same; (1) missing of Revolver bearing no. 789140 alongwith with six cartridges (2) lodging of Case Crime No. 214 of 2006 under Section 409 IPC. For all practical purpose, it is one transaction, for which F.I.R. has been lodged. Against petitioner criminal investigation has been initiated and said criminal case which has been initiated is in relation to removal of Revolver bearing no. 789140 alongwith with six cartridges. The allegation which has been leveled are clearly referable to the ground which are contained under Rule 17(1)(b) which is clear and specific that a Police Officer in respect of or against whom an investigation enquiry or trial relating to a criminal charge is pending may at the discretion of appointing authority under whom he is serving be placed under suspension.  Here from the own showing of the respondents against petitioner investigation in respect of criminal charge is pending and said charge would clearly effect his position as police officer, inasmuch as allegation are that petitioner has deliberately  misplaced the Revolver bearing no. 789140 alongwith with six cartridges. The provision under which impugned order of suspension has been passed does not find mention but the facts stated therein leave no manner of doubt that it is referable to clause (b) of sub-rule [1] of Rule 17 of the Rules, 1991, inasmuch as it has not at all been passed on the grounds comprehended by clause (a) but on comprehended by clause (b) of sub-rule [1] of Rule 17 of the Rules.

Sri Shashank Shekhar Singh, learned Standing Counsel placing reliance on Full Bench judgment of this Court in the case of State U.P. v. Jai Singh Dixit, reported in 1974 A.L.J. 862 for the proposition that contemplation of enquiry is in the direction of formal enquiry and before that for further satisfaction preliminary enquiry has been asked for and as such there is no infirmity in the impugned order of suspension.  In order to appreciate the argument which has been advanced by the petitioner in the light of the objections which has been raised by the learned Standing Counsel, Full Bench judgment in the case of State of U.P. v. Jai Singh Dixit and others, reported in 1974 A.L.J. 862, has to be seen, wherein  in extenso the import of the words 'inquiry' and 'contemplated' have been considered in context to Rule 49-A, which contains para materia provision qua Rule 17 (1) (a) of the 1991 Rules. Relevant paragraphs 28,  30, 31, 32, 33, 34, 35, 36, 37, 38, 39 and 43 of the Full Bench judgment are being quoted below:  

"28. The question for consideration now is: what is meant by the words "inquiry" and "contemplated" used in Rule 49-A and Rule 1-A?  

               

"30. The word ''inquiry' has also been used in Rules 55 and 55-A of the C.C.A. Rules. Rules 55 and 55-A relate to formal departmental inquiry where major punishment of dismissal, removal or reduction can be imposed. Such an inquiry is invariably preceded by framing of charges. It is of significance that in the other rules governing cases in which minor punishment can be awarded the word ''inquiry' has been omitted and the rules merely provide for the award of punishment. It is true that most of the minor punishments shall be awarded after some inquiry, but when the rule making authority intentionally avoided making a reference to this term in the other rules and used the word ''inquiry' in rule 49-A and also Rule 55 and 55-A the underlying intention was that the inquiry contemplated by Rule 49-A is the one held under Rules 55 and 55-A. It must, therefore, be held that the power under Rule 49-A can be exercised only in those cases where one of the major punishment-dismissal, removal or reduction shall ordinarily be imposed.

31. The inquiry contemplated by Rule 49-A cannot have reference to an informal preliminary inquiry or a fact-finding inquiry preceding the actual disciplinary proceeding, otherwise it shall be permissible to suspend a Government servant pending such informal inquiry, but not after charges have been framed and regular departmental proceeding is pending. This shall lead to an anomalous situation. We are, therefore, of opinion that the "inquiry" contemplated by Rules 49-A and 1-A has reference to the formal departmental inquiry, and not to any informal preliminary or fact-finding inquiry preceding the initiation of the formal disciplinary proceeding.

                           

"32. The scope of Rule 49-A or 1-A does not appear to have come up for consideration before the Supreme Court, but the difference between ''contemplated' and "initiated" was noticed in P.N. Nayak Vs. Union of India.A.I.R. 1972 SC 554. This is a case governed by the All India Services (Discipline and Appeal) Rules, 1969 where suspension during disciplinary proceeding could be ordered if such proceeding had been initiated, and not, as in the present cases, where such proceeding was under contemplation. It was observed in para 15 of the Report:                          

"It does not suggest that suspension can be ordered merely when disciplinary proceedings are contemplated. . . . . . .            The legislative scheme. . . . .is thus clearly indicative of the intention of the rule making authority to restrict its operation only to those cases in which the Government concerned is possessed of sufficient material whether after preliminary investigation or otherwise and the disciplinary proceedings have in fact commenced and not merely when they are contemplated. . . . . . . . Again the fact that in other rules of service an order of suspension may be made when ''disciplinary proceedings were contemplated' should not lead us to take the view that a member of an All India Service should be dealt with differently."

It was further observed in para 19:                      

"But independently of this consideration we think that the plain language of Rule 3(1) (a) and (b) which concerns us does not authorize suspension when disciplinary proceedings have not been initiated but are only contemplated."

The meaning of the word "contemplate" has been given in Shorter Oxford English Dictionary, Volume I, as :

"1. To look at the continue attention, gaze upon, observe. BEHOLD. 2. To view mentally; to meditate upon, ponder, study. 3. To consider in a certain aspect, regard. 4. To have in view; to expect, take into account as a contingency; to purpose"                                

and in the New International Dictionary, Volume I, as :                    "1. To view with sustained attention: gaze at thoughtfully for a noticeable time : observe with ostensibly steady reflection.                        

2.  to view mentally with continue thoughtfulness, attention, or reflection : muse or ponder about, 3. to view mentally in a stated or implied way with though ''fulness and reflection : A. to think about or regard from a certain view point or in a certain light or respect, B. to have in view as a purpose: anticipate doing or performing : plan on : INTEND , PLAN c. to dream of as a cherished aim: ENVISION -D: to presume or imply as a con-comitant or result: POSTULATE, PRESUPPOSE 4: to view or regard ( as an object or an objective fact) with detachment."                                  

33. The proper meaning which can be assigned to the word "contemplate" used in Rule 49-A or in Rule 1-A, therefore, is to have in view', ''to expect', ''take into account as a contingency'. Therefore, whenever it is in the mind of the appointing authority that in due course a formal departmental inquiry shall be held or there exists a contingency for such an inquiry, one can say that a formal departmental inquiry is contemplated. It is, however, necessary that there should be application of mind, in the eye of law, in good faith, and not arbitrarily.                                

34. A formal departmental inquiry is invariably preceded by an informal preliminary inquiry which itself can be in two phases. There can be a summary investigation to find out if the allegation made against the Government servant have any substance. Such investigation or inquiry is followed by a detailed preliminary or fact finding inquiry, where after final decision is taken whether to initiate disciplinary proceeding. The first preliminary inquiry may be in the shape of secret inquiry and the other, of an open inquiry. In the alternative, when complaints containing serious allegations against a government servant are received, the authority may peruse the records to satisfy itself if a more detailed preliminary inquiry be made.

             

35. In many instances the appointing authority will be in a position to form an opinion after the summary investigation, secret inquiry or inspection of records that the allegations made against the Government servant have substance and in due course formal departmental action shall be taken against him. These all would be cases covered by Rule 49-A, i.e. cases where formal departmental inquiry is contemplated.                    

36. In a few cases it may be possible for the appointing authority to form such an opinion at an earlier stage also, i.e., at the stage of receiving or entertaining a complaint. These also shall be cases where it can be said, in good faith, that formal departmental inquiry is contemplated.              

37. To put it in brief, a departmental inquiry is contemplated when on objective consideration of the material the appointing authority considers the case as one which would lead to a departmental inquiry, irrespective of whether any preliminary inquiry, summary or detailed, has or has not been made or it (if) made, is not complete. There can, therefore, be suspension pending inquiry even before a final decision is taken to initiate the disciplinary proceeding, i.e., even before the framing of the charge and the communication thereof to the Government servant.                        

38. This view finds support, not only from the difference in the phraseology noticed in P.N. Nayak Vs. Union of India but also from the provisions contained in Rule 49-A and Rule 1-A. A departmental inquiry proceeds from the stage a final decision is taken to initiate such inquiry, in any case, when charges are framed and communicated to the Government servant. If the rule making authority had intended that the power to suspend under Rule 49-A was to accrue on taking a firm and final decision to hold an inquiry it would not have incorporated therein the expression ''an inquiry is contemplated'; in any case, would have in its place used the expression ''an inquiry has been decided upon'. No part of the rule can be regarded as superfluous. Hence the word ''contemplated' must be given its ordinary meaning, as already indicated above.  

39. Naturally it shall depend upon the facts and circumstances of each case whether prior to the framing of the charge and communication thereof to the government servant, it can be said that a departmental inquiry is expected.

"43. It shall be noticed that in the opinion of the Full Bench also, the expression an "inquiry is contemplated" means an inquiry is expected. However, a restricted view was taken of the expression to mean the decision to hold an inquiry under Rule 55 or the decision to initiate regular departmental proceeding. Once a firm and final decision has been taken to hold a formal departmental inquiry, such an inquiry is certain and not merely expected. Consequently, we are in respectful disagreement with the view expressed by the Full Bench regarding the scope of Rule 49-A or Rule 1-A."

The aforesaid Full Bench judgment still holds the field, and as per said  judgment proper meaning which could be assigned to the word "contemplated" and "inquiry" in the context of Rule 17 (1) (a) is that whenever it is in the mind of the appointing authority that in due course formal departmental enquiry shall be held or where there exists contingency for such inquiry, one can say that formal departmental inquiry is contemplated. Formal Departmental inquiry is invariably proceeded by informal preliminary inquiry which can be in two phases. There can be summary investigation to find out if the allegations made have any substance. Such inquiry can be followed by detailed preliminary inquiry or fact finding inquiry, whereafter final decision is taken to initiate disciplinary proceeding. The First preliminary inquiry can be in the shape of secret inquiry and the other an open inquiry. Departmental inquiry is contemplated when on objective consideration of the material, appointing authority considers the case as one which would lead to the departmental inquiry irrespective of whether any preliminary, summary of detailed, inquiry has or has not been made or if made is not complete. The word 'contemplated' has to be given normal meaning  when it is in the mind of the appointing authority  that in due course formal departmental  inquiry is to take place.

Now on the touchstone of provisions and principles of law quoted above case in hand is being seen. It is not at all reflected from the instructions and record produced that any formal enquiry is in contemplation or pending. Impugned order is also silent on this score. Instructions do reflect that Circle Officer has been asked to make preliminary investigation and submit report. Thus, in the facts of the present case is difficult to comprehend that order in question is one under Clause (a) of sub-rule 1 of Rule 10 of 1991 Rules.

Under Rule 17[1](a) and Rule 17[1](b) of 1991 Rules in the matter of exercise of power of suspension as far as appointing authority is concerned qua the same it is clear and categorical that in both the events appointing authority can pass order of suspension but while proceeding to exercise power of suspension under Rule 17[1](b) of the Rules 1991 said power is vested only to appointing authority and no to any other authority whereas under Rule 17[1](a) of the Rules 1991 power of suspension can be exercised in contemplation of enquiry or during continuance of proceeding and said power of suspension can be exercised not only by appointing authority but by authority on whom power has been delegated by appointing authority and said authority is not to be below the rank of superintendent of police. Here appointing authority of the petitioner is Deputy Inspector General of Police. Here order of suspension has been passed by Superintendent of Police, Jaunpur as such in the present case when Superintendent of Police, Jaunpur has not proceeded to invoke the powers under Rule 17[1](a) of the Rules 1991 and the nature of the order clearly comprehend that power under Rule 17[1](b) of the Rules 1991 has been exercised then it was not at all within the domain of the Superintendent of Police to exercise power of suspension and same ought to have referred the matter before Deputy Inspector General of Police, Varanasi Range Varanasi for passing of appropriate order.

Consequently order of suspension dated 27.06.2006 passed by Superintendent of Police, Jaunpur is hereby quashed and set aside. However passing of this order will not prevent the Deputy Inspector General of Police, from passing of the order of suspension as envisaged under Rule 17[1](b) of the Rules 1991 and in case departmental proceeding are contemplated or pending for misconduct in question then it would be open to the Superintendent of Police, Jaunpur to exercise and invoke power of suspension and the order passed by this Court will not come in the way of Superintendent of Police, Jaunpur.

In terms of above observations/directions present writ petition is allowed.

Dated: 11th August, 2006

Dhruv        

 

 


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