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Hridai Narain v. State Of U.P. And Others - WRIT - A No. 50807 of 2006  RD-AH 16875 (26 September 2006)
Civil Misc. Writ petition No. 50807 of 2006
State of U.P. and others
Hon'ble V.K. Shukla, J.
Petitioner is questioning the validity of order dated 07.09.2006 passed by Director, Bal Vikash Sewa Evam Pushtahar, U.P. Lucknow, placing the petitioner under suspension.
Brief background of the case is that scheme of Integrated Child Development Services (in short ICDS) was introduced in the year 1975 on the recommendation of the Planning Commission of India and the same is essentially a food supplementation programme. The said scheme was made applicable in State U.P. also and Government Order dated 16.12.2003 issued. The said scheme was not being implemented in its true letter and spirit, as a result whereof complaint was made in the shape of Public Interest Litigation before the Hon'ble Apex Court being writ petition No. 196 of 2001 under Article 32 of the Constitution of India by a Social Organization, known as People's Union for Civil Liberties. Hon'ble Apex Court taking cognizance of the complaint, which was made, proceeded to put every State throughout India as well as Union of India under notice and the said scheme is being monitored. On 07.10.2004 Hon'ble Apex Court took serious note of the matter and expressed its shock and surprise at the attitude of Central Government and also took notice of the progress of the scheme in various States throughout the country and issued consequential direction. Hon'ble Apex Court gave a clear cut directive that vacancies for operational ICDS shall be fulfilled. The State Government i.e. State of U.P. keeping in view the directives issued by Hon'ble Apex Court proceeded with pace for effective implementation of the aforesaid scheme.
Petitioner had been performing and discharging duties on post of Bal Vikas Pariyojna Adhikari at Ratanpur Developmet Block of District Mau and by virtue of being senior most Bal Vikas Pariyojna Adhikari, was given officiating charge of District Programme Officer on 22.04.2006. Notification was issued on 03.06.2006 published in daily News paper 'Dainik Jagaran' dated 05.06.2006 by the petitioner in the capacity as Officiating District Programme Officer. On 23.06.2006 District Magistrate, Mau passed an order and by means of the same Sub-Divisional Magistrates were appointed as Chairman of the respective selection committees in District Mau and respective dates were also fixed. Petitioner has contended that meeting of selection committee was held on 01/03/.07.2006 for finalizing the select list for Development Block Ratanpura, and the said selection committee was chaired by Deputy District Magistrate Sadar with other six members. Petitioner has contended that thereafter select list was finalized in terms of Government Orders dated 16.12.2003, 12.01.2006 and 17.05.2006 issued by State Government. Thereafter, petitioner has contended that by virtue of holding the post of Bal Vikas Pariyojna Adhikari of Ratanpura block, he was authorised to issue appointment letters to the selected candidates. Petitioner has contended that appointment letters were issued and the selected candidates joined pursuant thereto. On 01.08.2006 an order was issued by the Secretary, Mahila Kalyan Evam Bal Vikas Vibhag referring to oral instruction received on telephone from the Minister of Bal Vikas that large scale complaints qua selections are being received, enquiry is must; selection proceedings to be freezed, and further no appointment orders be issued. It was also mentioned that some senior officer be sent to get the matter investigated qua complaints received and of enquiry be submitted. On 03.08.2006, petitioner issued consequential order. On 05.08.2006, further order was passed mentioning therein that even where appointment orders have been issued, persons have joined, such persons be not permitted to discharge their duties. On 29.08.2006 another letter was issued by the Secretary to State Government referring to the letter of Minister concerned dated 01.08.2006, directing therein cancellation of entire selection proceeding and for holding selection proceedings afresh after re-advertising the vacancies and for suspending Officiating District Programme Officer and other Bal Vikas Pariyojna Adhikari, and for making new arrangement. In the letter dated 29.08.2006, it was mentioned that qua complaints which had been received pertaining to selection, committee be constituted and two member committee with Shiva Nand Ojha, Special Secretary, Mahila Kalyan Evam Bal Vikas and Daya Shankar Srivastava, Additional Director, Bal Vikas Seqwa Evam Pushtahar, was constituted, and they were to submit report within 15 days. On 31.08.2006, Director, Bal Vikas Seqa Evam Pushtahar, pursuant to order dated 29.08.2006, cancelled the entire selection. On 31.08.2006, District Magistrate, Mau submitted report to the State Government after conducting inquiry with regard to complaints referred to in various communications an sought further directions. On 31.08.2006 Special Secretary, Mahila Kalyan Evam Bal Vikas, Sri Shivanand Ojha sent communication through fax to the District Magistrate, Mau for making available the documents referred to therein for the purpose of inquiry being conducted by two member committee. On 31.08.2006 , District Magistrate wrote letter to petitioner qua availability of documents and for extending co-operation in enquiry It has been contended that two member committee at no point of time visited Mau, and till date has neither conducted any inquiry nor submitted any report. On 07.09.2006, petitioner has been sought to be placed under suspension in contemplation of departmental proceeding in regard to irregularities alleged to have been committed by the petitioner in the matter of selection and appointment of Angabadi workers and helpers. At this juncture present writ petition has been filed.
On the matter being taken up, Sri C.B. Yadav, learned Chief Standing Counsel, representing State-respondents produced record to show that there were serious complaints against the petitioner qua selections which had been carried out and tried to justify the action which has been taken for placing the petitioner under suspension, and urged that no interference be made. The documents which have been produced by Sri C.B. Yadav, learned Chief Standing counsel, qua the petitioner starts with letter dated 10.08.2006 written by Minister concerned addressed to the Secretary, mentioning therein that in District Mau qua selection and appointment of Anganbadi workers and helpers various complaints have been received and the same are being appended. It has also been mentioned that through fax directives have been issued for cancelling the selections. It has also been mentioned that during stay of the Minister at Ballia, a large number of citizens of District Mau met him and made complaint of corruption in selection so held. Concerned Minister has mentioned that at once selection process be got cancelled, fresh advertisement be made, the concerned officials be suspended, new incumbent be appointed and transparency be maintained in selection. Along with the said letter of Minister, letter dated 04.08.2006 is annexed and therein it has been mentioned that petitioner has indulged in arbitrariness, and has ignored merit and candidate with less merit have been selected, on extraneous consideration, as such selection be cancelled. Complaint of Raj Kumari is there, wherein she has made complaint that her merit was higher, but on account of higher income certificate, she has not been selected, and the candidate who has been selected, her income certificate is fictitious, as her husband is working as security guard and his income is more than Rs.5,000/- per month. Thereafter complaint has been made by one Tetardevi, and therein she has complained that Neelam Kushwaha succeeded in procuring appointment on the basis of fictitious income certificate and she has got her age changed, and further that her husband is financially sound as he runs P.C.O. and general store shop. Thereafter complaint has been made qua appointment of one Barawati Devi on the ground that she has been offered appointment as widow, whereas she has married younger brother of her husband Nand Lal, as such her appointment is bad. Thereafter complaint has been made by Kushum Lata Devi complaining that Neeraj has been illegally selected, whereas her merit was much higher. Thereafter, complaint has been made by one Pushpa Devi contending therein that merit of Tara Devi is less qua her merit. Next complaint is of Premshila Devi contending therein that Smt. Kaushalya Devi has been illegally selected, as her husband is Railway employee. Another complaint has been made by Bajrang Singh Bajju. Said complaint mentions that petitioner has misled many incumbents and has taken illegal gratification for making selection and appointment. Thereafter on non-judicial stamp paper Mauju Yadav and Mithilesh have made complaint mentioning that demand of Rs.40,000/- was made from them. Mauju Yadav and Mithilesh had paid Rs.35,000/-. Complaint has been made by Mahendra Yadav, Sunita Devi and Urmila Devi addressed to the Minister, and therein this much is apparent that it is written by one and the same person and the only complainants are different, mentioning therein that demand of money was made. Thereafter complaint has been made by Amarnath Yadav making allegations against petitioner. On 05.08.2006 complaint had been made by Raghvendra Singh Ghura qua the conduct of the petitioner. On the basis of these materials, which have come forward, it has been sought to be contended that power of suspension has been bona fidely exercised, as there were allegations of corruption and malpractice against petitioner.
Parties have agreed that on the basis of averments mentioned in writ petition and the documents which have been produced by Sri C.B. Yadav, learned Chief Standing Counsel, present writ petition be heard and decided without pleadings being exchanged.
Sri Ashok Khare, learned Senior Advocate, contended with vehemence that in the present case power of suspension has been exercised on the dictates and directives issued by the Minister concerned, and the competent authority has not at all applied its own independent mind and exercised its own independent discretion while placing the petitioner under suspension, as such impugned order of suspension is liable to be quashed. Apart from this, it has been sought to be contended that, there was no material warranting suspension of petitioner specially when no enquiry, whatsoever, had been conducted and merely on vague and evasive allegations power of suspension has been exercised in mechanical manner, as such suspension order is liable to be quashed.
Sri C.B. Yadav, learned Chief Standing Counsel, on the other hand, contended that power of suspension has been exercised by competent authority in contemplation of inquiry, and prima facie there was enough material warranting passing order of suspension against the petitioner, as such impugned order is not at all liable to be interfered with.
Before dealing with rival submissions of learned counsel for the parties, the provisions which holds the field, namely, U.P. Government Servant (Discipline and Appeal) Rules, 1999 dealing with the matter of discipline, including suspension is being looked into. Rule 4 of the aforesaid Rules deals with suspension 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 servants belonging to Group ''C' and ''D' posts, the appointing authority may delegate its power under this rule to the next lower authority.
(2) A Government servant in respect of, or against whom an investigation, inquiry or trial relating to a criminal charge, which is connected with his position as a Government servant or which is likely to embarrass him in the discharge of his duties or which involves moral turpitude, is pending, may, at the discretion of the appointing authority or the authority to whom the power of suspension has been delegated under these rules, be placed under suspension until the termination of all proceedings relating to that charge.
(3) (a) A Government servant shall be deemed to have been placed or, as the case may be, continued to be placed under suspension by an order of the Authority competent to suspend, with effect from the date of his detention, if he is detained in custody, whether the detention is on criminal charge or otherwise, for a period exceeding forty eight hours.
(b) The aforesaid Government servant shall, after the release from the custody, inform in writing to the Competent Authority about his detention and may also make representation against the deemed suspension. The Competent Authority shall, after considering the representation in the light of the facts and circumstances of the case as well as the provisions contained in this rule, pass appropriate order continuing the deemed suspension from the date of release from custody or revoking or modifying it.
(4) Government servant shall be deemed to have been placed, as the case may be, continued to be placed under suspension by an order of the Authority competent to suspend under these rules, with effect from the date of his conviction if in the event of a conviction for an offence he is sentenced to a term of imprisonment exceeding forty eight hours and is not forthwith dismissed or removed consequent to such conviction.
Explanation - The period of forty-eight hours referred to in sub-rule will be computed from the commencement of the imprisonment after the conviction and for this purpose, interment periods of imprisonment, if any shall be taken into account.
(5) Where a penalty of dismissal or removal from service imposed upon a Government servant is set aside in appeal or on review under these rules or under rules rescinded by these rules and the case is remitted for further inquiry or action or with any other directions:
(a) if he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any such directions as aforesaid, be deemed to have continued in force on and from the date of the original order of dismissal or removal;
(b) if he was not under suspension, he shall, if so directed by the appellate or reviewing authority, be deemed to have been placed under suspension by an order of the appointing authority on and from the date of the original order of dismissal or removal:
Provided that nothing in this sub-rule shall be construed as affecting the power of the disciplinary authority in a case where a penalty of dismissal or removal in service imposed upon a Government servant is set aside in appeal or on review under these rules on grounds other than the merits of the allegations which, the said penalty was imposed but the case is remitted for further inquiry or action or with any other directions to pass an order of suspension pending further inquiry against him on those allegations, so however, that any such suspension shall not have retrospective effect.
(6) Where penalty of dismissal or removal from service imposed upon a Government servant is set aside or declared or rendered void in respect of or by a decision of a Court of law and the appointing authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal or removal was originally imposed, whether the allegations remain in their original form or are claimed or their particulars better specified or any part there of a minor nature omitted-
(a) if he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any direction of the appointing authority, be deemed to have continued in force on and from the date of the original order of dismissal or removal;
(b) if he was not under such suspension, he shall, if so directed by the appointing authority, be deemed to have been placed under suspension by an order of the competent authority on and from the date of the original order of dismissal or removal.
(7) Where a Government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise) and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Government servant shall continue to be under suspension till the termination of all or any of such proceedings.
(8) Any suspension ordered or deemed to have been ordered or to have continued in force under this rule shall continue to remain in force until it is modified or revoked by the competent authority.
(9) A Government servant placed under suspension or deemed to have been placed under suspension under this rule shall be entitled to Subsistence allowance in accordance with the provisions of Fundamental Rule 53 of the Financial Hand Book, Volume-II, Parts II to IV."
(9) From a bare reading of various provisions contained in the different sub-rules of the aforesaid rule, it is clear that although there are different situations envisaged in the aforesaid provisions of rule under which a government servant can be placed under suspension or shall continue to be under suspension, but we need not to embark on the inquiry of all the provisions contained under Rule-4 of the aforesaid rules rather we have to confine our scrutiny only with regard to the Rule 4(1) along with first proviso appended to it, which alone have material bearing with the question in issue involved in the case.
(10) From the perusal of aforesaid rule 4 (1) of Rules 1999 it is clear that a government servant can be placed under suspension against whose conduct inquiry is either contemplated or is proceeding, pending conclusion of such inquiry in the discretion of appointing authority, meaning thereby the appointing authority in his discretion can place a government servant under suspension in aforesaid two situations i.e. an inquiry is either contemplated or is proceeding pending conclusion of such inquiry. The first proviso appended to the aforesaid rule further provides that the 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. Thus it is necessary to examine true import and scope of the rule 4 (1) of aforesaid rules quoted herein before along with the first proviso appended thereto. For that purpose it would be useful to go into the history of rules regarding suspension prior to the commencement of the aforesaid rules.
Discretionary power has been vested with appointing authority to place Government Servant under suspension, against whose conduct enquiry is either "contemplated" or is "pending" The first proviso is, in fact, in the shape of caution to the appointing authority or the authority empowered to exercise power of suspension, not to pass suspension order, merely on the ground that there is misconduct, until and unless prima facie opinion is formed, that allegations levelled are so serious that in the event of same being established, same may warrant major penalty. Division Bench of this Court in the case of Subhash Chandra vs. State of U.P. 2005 (4) E.S.C. 2823 has considered at length, the true scope of Rule 4 (1) of the Rules. Paragraphs 31 to 41 of the said judgment being relevant are quoted below:
"(31) Now from a bare reading of the enacting of part of the Rule 4(1) of Rules, 1999 it is clear that a discretionary power to place a Government servant under suspension has been vested in the appointing authority pending conclusion of enquiry against whose conduct an inquiry is either "contemplated" or "is proceeding", but nothing further has been mentioned in the enacting part of the substantive provisions of the aforesaid rule to indicate how the exercise of the aforesaid discretionary power can be regulated and controlled. Although from the close scrutiny of entire scheme underlying in the new rules make the situation clear independently of the "proviso" appended to the rule but apparently it gives a look of unguided discretionary powers vested in appointing authority, though it is not real legal position.
(32) At this juncture it is necessary to point out that the provisions contained in Rule 4(1) of 1999 Rules are exactly same and similar to that of Rule 49-A (1) of C.C.A. Rules, as such both the rules are pari-materia to each other. Therefore, there would be no difficulty in adopting the interpretation given by Five Judges Full Bench of this Court while considering the content and scope of Rule 4(1) of new Rules, 1999. In New Rule 4(1) also the expression "inquiry" has been used as used under old Rule 49-A(1) of C.C.A. Rules and the same expression "inquiry" has also been used in Rules 7, 8 and 9 of the new Rules, 1999. Major and Minor penalties have been described under Rule-3 of the Rules. Rule 7,8 and 9 of Rules 1999 cumulatively deals with the procedure for holding formal disciplinary inquiry for imposing major penalties against government servants. Rule-10 of 1999 Rules deals with the procedure for imposing minor penalties which does not use the expression "inquiry" any where in the rules instead there of in clause (2) of the aforesaid rule only this much is provided that the government servant shall be informed of the substance of imputations against him and called upon to submit his explanation within reasonable time. The Disciplinary Authority, shall after considering the said explanation, if any and relevant records, pass such orders as he considers proper and where a penalty is imposed, reason thereof shall be given.
(33) These intrinsic materials underlying in the scheme of aforesaid provisions of Rule 1999 itself clearly demarcates line between procedure for holding inquiry for imposing major penalties and minor penalties, and also leads towards irresistible conclusion that the expression "inquiry" used under Rule 7,8 and 9 of Rules, 1999 with a view to hold formal disciplinary inquiry for imposing major penalties only. Since the same expression "inquiry" has been used under Rules 4(1) with a view to place government servant under suspension against whose conduct an inquiry is either "contemplated" or "is proceeding". Therefore, it leaves no room for doubt to hold that a government servant can be suspended only when an inquiry is either under contemplation or is proceeding for imposition of major penalties. It is also because of another valid and justified reason that the expression "inquiry", has been deliberately omitted by same rule making authority where some sort of inquiry has to be held under Rule 10 of the new Rules of 1999 for imposing minor penalties.
(34) Thus, in our opinion this inquiry under Rule 4(1) of rules can be no other inquiry except the inquiry envisaged under rule 7,8 and 9 of the new Rules, 1999 which contemplates nothing but for holding formal disciplinary inquiry for imposing major penalties against Government servant. The aforesaid view taken by us have also been taken by both the Full Benches of this Court, while interpreting the pari-materia clauses of Rule 49-A(1) vis-�? -vis Rule-55 and 55-B of C.C.A. Rules, both the Full Benches have arrived at the same conclusion. Therefore, from the aforesaid discussions the necessary corollary which follow is that where the allegations are not so serious so as to warrant major penalties on their being established in ordinary course rather attracts only minor penalties as described under Rule 3, it is not open for the appointing authority to place a Government servant under suspension, as the suspension can only be resorted to under Rule 4 (1) of Rules 1999, where a formal disciplinary proceeding has to be held within the meaning of rule 7, 8 and 9 of the aforesaid rules for imposing major penalties.
(35) At this juncture it would also be necessary to point out that the inquiry contemplated under rule 4(1) cannot have any reference to an informal preliminary inquiry or fact finding inquiry preceding the actual or formal disciplinary inquiry, otherwise it shall be permissible to suspension of a government servant pending such informal inquiry but not after charges have been framed and regular formal departmental proceeding is pending. This would lead to an anomalous situation whereas plain reading of Rule 4(1) of the new rules clearly indicates that suspension contemplated thereunder can continue till conclusion of pending inquiry. However, this power of Appointing Authority to continue suspension should not be confused with its exercise in situation not warranted under law in given facts and circumstances of a particular case. We are, therefore, of the opinion that inquiry contemplated by rule 4(1) of Rules 1999 has reference only to the formal departmental inquiry and not to any informal preliminary inquiry or fact-finding inquiry preceding the initiation of formal disciplinary inquiry for imposition of major penalty against the government servant. The view taken by us also finds support from the law laid down in subsequent Full Bench of this Court referred earlier, wherein a pari-materia clause contained in Rule 49-A(1) of C.C.A. Rules has been dealt with.
(36) Now coming to the true import and purpose of the proviso appended to Rule 4(1) of new Rule 1999, it is necessary to point out as indicated earlier that the provisions contained in the proviso of Rule 4(1) of the aforesaid Rules are pari-materia clause to the provisions contained in first part of the note appended to Rule 49-A(1) of the erstwhile C.C.A. Rules prior to its deletion. Both the Full Benches referred earlier had dealt with the aforesaid provisions and held that the first part of the note which says, as a rule suspension should not be resorted to unless the allegations against the government servant are so serious that in the event of their being established, they may ordinarily be expected to warrant his dismissal, removal or reduction, shows that only in those cases where major punishment i.e. dismissal, removal or reduction can be imposed on the basis of nature of allegations against government servant that he may be suspended. Whether the seriousness of allegations warrant in the ordinarily course of his dismissal, removal or reduction will certainly depend on the contents of those allegations. The expression "as a rule" occurring in the beginning of first part of the note implies that it is always the rule to be observed. So far as with regard to the expression "allegations" contained in the first part of the note in para 46 of the decision referred earlier, the subsequent Full Bench has held that the earlier Full Bench interpreted the word "allegations" used in the first part of the note as allegations having substance revealed by an investigation of informal nature and not allegations contained in the complaint received against the government servant but while disagreeing with earlier Full Bench further observed that when "allegations" are substantiated and charges are framed, the "allegations" take a shape of charges and they are invariably called "charges" and not mere "allegations". There is, therefore, no reason why a restricted meaning be given to the word "allegations" used in the note. To suspend the government servant on receipt of complaint containing allegations of dis-honesty, negligence or mis-conduct without the appointing authority being satisfied that the allegations made have substance which would later justify taking of disciplinary proceeding if shall be on subjective consideration, the same can be dis-approved by Court of law, but where there exists circumstances to satisfy the appointing authority that the allegations made have substance, suspension pending inquiry shall be on objective consideration and not subjective. It is different thing that appointing authority may later to have the matter investigated or further investigated so that total material may come on record and a proper departmental inquiry can be held.
(37) Thus, we are of considered opinion that there can be no scope for doubt to hold that on receipt of such complaint containing allegations against government servant, the appointing authority has to be satisfied about the allegations contained therein and further such allegations have any substance enabling to hold formal disciplinary inquiry against the government servant for imposition of major penalty against him. Before such satisfaction is arrived at with regard to such allegations, it is not open for the appointing authority to place a government servant under suspension. In this connection it is necessary to make it clear that such satisfaction need not be in shape of a final and firm decision, otherwise the "inquiry" instead of being "expected" or "as contingency", it would be sure and certain, which could not be said to be intention of rule making authority while employing the phrase "an inquiry is contemplated."
(38) Now putting it differently and viewing from different and another angle it is again necessary to point out that proviso appended to Rule 4(1) contained pari-materia clause as contained in first part of note appended to erstwhile Rule 49-A(1) of CCA Rules which was regarded as mandatory in nature, therefore the provisions contained in the first proviso to rule 4(1) of the rule must also be treated to be mandatory in nature and no exception can be drawn in this regard. The phrase " unless allegations against the Government servant are so serious that in the event of their being established may ordinarily warrant major penalty" also assumes significance. As indicated earlier that seriousness of allegations depends on the content of those allegations upon which the appointing authority has to be satisfied about the actions to be taken thereon. Such satisfaction is to be arrived at on the basis of materials before it on objective considerations, which implies weighing of materials in the mind of appointing authority as a consequence of which it would arrive at a conclusion, which should also satisfy the test of proportionality of punishment to delinquency or gravity of allegation constituting misconduct against such employee. In our considered opinion, such duty has been cast upon the appointing authority by employing mandatory provisions under the proviso to Rule 4(1) of Rules 1999 which in clearest term stipulates that unless allegations are so serious, which on being established may ordinarily warrant major penalty suspension cannot be resorted to. The provisions contained in the aforesaid proviso thus imposes restriction upon the appointing authority to exercise its powers vested under enacting part of the rule as condition precedent for exercise of such power therefore unless condition precedent for exercise of power exist, or satisfied, the exercise of power would be without jurisdiction and action would not be bonafide rather it would be termed as malafide. However, it is made clear that satisfaction so arrived need not be final concluded opinion in the shape of firm and final decision of the appointing authority instead thereof it may be only a prima facie satisfaction based on objective considerations of materials, but where such satisfaction is challenged before the court of law the Appointing Authority is bound to satisfy the court regarding his satisfaction based on materials by producing the materials before the court because of the simple reason that language used in the proviso to the rule in question appears to be objective in nature, which can be examined by the court or tribunal not as appellate authority but within the purview of well settled parameters of judicial review.
(39) Thus from the aforesaid discussion, the necessary corollary which follows that where the allegations are not serious enough to warrant either of the major penalties described under rule 3 of the new Rules, 1999, it goes without saying that suspension should not be resorted to serve other ulterior purpose as measure of administrative routine or as personal or political vendetta against Government servant as it would be prejudicial to the public interest causing loss to the public administration.
(40) Thus from the aforesaid discussion, we are of the considered opinion that the first proviso appended to Rule 4(1) is first to be treated as employed under the rule as abundant caution to give correct and accurate meaning to the expression "inquiry" used in the enacting part of the rule which was implicit in the enacting part has been made explicit by the proviso, second as substantive provision of the statute like enacting part contained in clause (1) of Rule 4 to be interpreted like supplementary provisions of enacting part of the rule as complementary provision to remove deficiency in enacting part of the rule and to ascertain full intention of rule making authority thus it would serve as integral part of the enacting provision. Third the proviso appended to the rule appears to have controlling effect upon the provisions of enacting part of the rule because of the simple reason that the discretionary power vested in appointing authority has to be exercised only in contingency provided under the proviso contained in the rule, as a condition precedent for exercise of such power. Lastly the provisions contained in proviso elucidated the provisions of enacting part of the rules by illuminating it. Thus in our considered opinion the proviso appended to the Rule 4(1) of the Rules has very significant and pivotal role to play under the rule in question as indicated herein above.
(41) Thus in view of foregoing discussions we are of considered opinion that law laid down by five judges Full Bench of this Court in case of Jai Singh Dixit (supra) is still good law and holds the field. The changes brought about in the rules regarding the suspension of Government servant by new rules of 1999 do not affect the legal position settled in the aforesaid decision, so far as interpretation of provisions of Rule -4(1) along with its first proviso is concerned. Thus, so far as the content and import of expression "inquiry", "contemplated" and "allegations" used in the new rule of 1999 is concerned the same may be understood with necessary modifications in context of interpretation given to the erstwhile rule 49-A (1) of the CCA Rules. Accordingly the legal position as it stands now is that suspension pending inquiry under Rule 4 (1) of Rules 1999 can be resorted to at any stage prior and after framing of charge when on objective consideration the authority concerned is of the view that a formal departmental inquiry, under Rule 7 of the said rule is expected or such an inquiry is proceeding. It immaterial that prior to it any other inquiry of informal nature has been held or not or such informal inquiry if initiated, is concluded or not? Suspension can be resorted to even before a final decision is taken to initiate the disciplinary proceeding. At what stage the power under rule can be exercised, shall always depend upon the facts and circumstances of each individual case and no strait-jacked formula having universal application in all the cases can be evolved in this regard.'
On the touch stone of the provisions quoted above, and the dictum of Division Bench of this Court, the fact of the present case is being looked into. Here sequence of events clearly reflect that selection proceedings for the post of Angabadi workers and helpers were to be undertaken and the District Magistrate in his turn constituted selection committees with Sub-Divisional Magistrate as its Head. Selections were held and results were declared. The Minister concerned was apprised of the illegalities, which had been sought to be committed in holding of the selection by means of various complaints. Complaints made to Minister concerned were limited in number, confined to individual selections, and some complaints were qua corruption. In all 880 vacancies were filled up. Allegations which were coming up were localized and confined to individual selections, and have been made qua which, enquiry could have been conducted. The Minister after receiving complaints has passed order for cancellation of selection and for conducting selection afresh and for placing the incumbents under suspension. In the present case seeing the nature of allegations which have come forward and the documents which have been produced, no inquiry whatsoever had been conducted. It is apparent that directives were issued for holding enquiry and thereafter till date no inquiry, whatsoever, has been conducted, and the District Magistrate in his turn had conducted inquiry, categorically mentioning therein that out of 880 selections only against 117 selections complaints have been made out of which 3 complaints were found to be correct and selections were cancelled. Forty five complaints were found incorrect. Qua remaining complaints, inquiry was being conducted, as same was related to incorrect income, caste and domicile certificate and educational qualifications. In the present case undisputed position is that the appointing authority with whom discretion vested for placing the incumbent under suspension, has never applied his own independent discretion objectively. On 01.08.2006 itself Secretary, Mahila Evam Bal Vikas had himself mentioned that large scale complaints were being received and same should be thoroughly investigated and Director, Bal Vikas Sewa Evam Pushtahar, who has passed the order of suspension, himself was asked to send some senior official to Mau, to get the matter investigated an inquired. On 29.08.2006, two member enquiry committee had been constituted comprising Sri Shivanand Ojha, Special Secretary, Mahila and Bal Vikas Vibhag and Sri Daya shankar Srivastava, Additional Director, Bal Vikas Sewa, for submitting its report, and till date said committee has not submitted any report. Director has not got conducted any inquiry pursuant to letter dated 01.08.2006, neither any report has been submitted by two member committee constituted pursuant to letter dated 29.08.2006, and on 07.09.2006 order of suspension has been passed in contemplation of enquiry. Record reveals that no objective consideration, whatsoever, has been done in the present case, by the Director and at no point of time he has exercised his independent prerogative of placing an employee under suspension, rather to the contrary on the mandatory directives of Minister concerned, order of suspension has been passed, and this fact is not only fortified from the letter of Minister, but also from the fact that copy of suspension order has been marked to Secretary, Mahila and Bal Vijkas Anubhag. Here, on the dictates and directives of the Minister concerned the appointing authority has proceeded to pass order of suspension. Disciplinary authority has not applied his independent mind, and record reveals that he has been totally swayed with the directives issued by the Minister.
At this juncture, it would be relevant to point out that Minister of the concerned Department are entitled to make recommendation for suspension, in case material comes before them qua the conduct of a government servant. In the system of Indian Democracy governance, as contemplated by Constitution qua States, the Executive Head of the State is the Governor, and the Governor functions with the aid and advice of council of Ministers, and Minister, who has been assigned and looks after the concerned Department, has to see that affairs of said Department are carried out smoothly with the aid of senior officers. The accountability of Minister qua the department is there, as such in the interest of Department he can make recommendation. After receiving the said complaint along with his recommendation, Minister of the concerned Department is entitled to forward the same to the competent authority/disciplinary authority for necessary action. Where the service conditions are governed in terms of Rules framed in exercise of power vested under the proviso to Article 309 of the Constitution of India, then the aforesaid power has to be exercised by the aforementioned authority, as per rules, and the Minister concerned will have no authority to usurp the said discretion and give direction for placing any incumbent under suspension, and to the contrary, as already mentioned above, after receiving requisite material along with the recommendation same has to be forwarded to the competent authority, who has to exercise his own independent discretion. Division Bench of this Court in the case of Ravindra Rai vs. State of U.P. reported in 2003 (4) ESC 2193 has taken the view that order passed at the behest of the Chief Minister by the competent authority without application of mind is unsustainable. Relevant extract of said judgment (paragraphs 22 to 26) is being quoted below:
"22. 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.
23. 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).
24. 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."
25. 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."
26. 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.
Here, in the present case, record in question reveals that the Minister concerned had given mandatory direction for placing the petitioner under suspension, and thereafter no independent mind, whatsoever, has been applied, and bound by the said directives order of suspension has been passed in most arbitrary and mechanical manner, even without undertaking the minimum exercise, as to whether complaints which had been forwarded, same had any semblance of truthfulness or not.
In view of what has been discussed above, writ petition succeeds and is allowed. The impugned order of suspension dated 07.09.2006 is hereby quashed. However, passing of this order will not prevent the Director from undertaking disciplinary action and bringing the same to its logical end.
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