Rakesh Bhusan Mishra vs State Of U.P. And Others
2011 Latest Caselaw 4864 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 2
 
Case :- WRIT - A No. - 55931 of 2009
 
Petitioner :- Rakesh Bhusan Mishra
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- J.K. Sharma
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Sudhir Agarwal, J.

1.This is a case which demonstrates how the power of suspension conferred under the rules can be misused by the nefarious and notorious Officers or those who do not understand their responsibility and statutory obligations.

2.Petitioner was appointed as Gram Vikas Adhikari on 1.4.1989. It is not in dispute that the appointing authority of Gram Vikas Adhikari is District Panchayat Raj Officer (hereinafter referred to as "DPRO"). Initially on the allegation that petitioner had not completed certain construction work, he was placed under suspension on 12.1.2009. The said order of suspension was revoked and the petitioner was reinstated by order dated 23.1.2009. The reinstatement order said that departmental enquiry shall continue. The said enquiry ultimately culminated in an order of exoneration as is evident from the order of January 2010 (Annexure 10 to the counter affidavit). In the meantime petitioner was again placed under suspension by order dated 9.2.2009 which was revoked on 3.3.2009 holding that petitioner has completed all the construction work and nothing wrong was found on his part. He was allowed the entire arrears of salary. Then a third order of suspension was passed on 27.8.2009 referring to the show cause notice dated 13.7.2009 observing, besides others, as under:

^^Jh jkds'k Hkw"k.k feJk] xzke iapk;r vf/kdkjh] xzke iapk;r&flgkSyh] HkklkSu] fodkl [k.M&vkSjS;k dks jk"V~h; jkstxkj xkjUVh ;kstuk ds dk;ksZ esa :fp u ysus] Jfedksa ds tkc dkMZ cuokus o cus tkWcdkMksZa dks vius ikl j[k /ku olwyus] xzke iapk;r&HkklkSu dh [kqyh cSBd gsrq fu/kkZfjr frfFk fnukad 09-06-2009 dks [kqyh cSBd u djkus] xzke iapk;r HkkSrkiqj ds 45 etnwjksa dks Hkqxrku u djus] 'kkSpky; fuekZ.k dh xyr lwpuk izLrqr djus] fujh{k.k esa vkoafVr 200 'kkSpky;ksa ds lkis{k ek= 123 'kkSpky; cus ik;s tkus vkfn ds fy, dk;kZy; i= la[;k 432 fnukad 13-07-2009 }kjk fuxZr vfUre dkj.k crkvksa uksfVl dk Li"Vhdj.k 3 fnu ds vUnj izLrqr djus ds funsZ'kksa ds foijhr fnukad 28-08-2009 rd Li"Vhdj.k izLrqr u djus vkfn vkjksiksa esa rRdky izHkko ls fuyfEcr fd;k tkrk gSA**

3.Respondents have filed their counter affidavit wherein the copy of show cause notice dated 13.7.2009 referred to in the impugned order of suspension, has been filed as CA-9, and it reads as under:

^^vij eq[; vf/kdkjh] ftyk iapk;r us vius i= la[;k [email protected] 12-06-2009 }kjk voxr djk;k gS fd vki }kjk xzk0 ia0 flgkSyh esa fofHkUu ;kstukvksa ds rgr fu/kkZfjr y{; dh tkudkjh miyC/k ugha djkbZ xbZ rFkk ujsxk ds vUrZxr djk;s x;s dk;Z esa tkc dkMZ /kkjdksa dks etnwjh u nsdj tkc dkMZ vius ikl j[kus dh f'kdk;r dh xbZ gS Bhd blh izdkj [k.M fodkl vf/kdkjh] vkSjS;k us vius i= la[;k 441 fnukad 11-06-2009 }kjk voxr djk;k gS fd vki }kjk xzke iapk;r&HkklkSu dh [kqyh cSBdksa gsrq fu/kkZfjr frfFk fnukad 09-06-2009 dks [kqyh cSBd ugha djkbZ xbZ vkSj u gh mDr fnukad dh vuqifLFkfr ds lEcU/k esa dksbZ Li"Vhdj.k fn;k x;k] blh izdkj xzke iapk;r HkkSrkiqj ds 40&50 etnwj eq[; fodkl vf/kdkjh] egksn; ls feys vkSj vki }kjk Hkqxrku vkfn u djus dh f'kdk;r dh xbZA

vr% vkidksa bl vfUre dkj.k crkvksa uksfVl ds ek/;e ls funsZf'kr fd;k tkrk gS fd vki mijksDr ds lEcU/k viuk Li"Vhdj.k fnukad 18-07-2009 rd izR;sd n'kk esa miyC/k djk;sa] lkFk gh vki }kjk viuh rSukrh dh iapk;rksa esa tks 'kkSpk;y vc rd iw.kZ ugha djk;s x;s gSa vksj mUgsa vkius vius xyr Li"Vhdj.k esa iw.kZ n'kkZ;k gS tcfd ftyk fodkl vf/kdkjh egksn;] us vius fujh{k.k esa vkoafVr 200 'kkSpk;yksa ds lkis{k ek= 123 'kkSpky; cus ik;s gSa ds lEcU/k esa Hkh 'kkSpky; 3 fnu ds vUnj iw.kZ djkrs gq, Li"Vhdj.k miyC/k djk;sA vkidk Li"Vhdj.k fu/kkZfjr vof/k esa izkIr u gksus dh fLFkfr esa vkidks fuyfEcr dj vfuok;Z lsokfuo`fRr dh dk;Zokgh izkjEHk dj nh tk;sxhA ftlds fy, vki Lo;a O;fDrxr :i ls iw.kZ mRrjnkbZ gksaxsA**

4.Learned Standing Counsel submitted that petitioner has not been placed under suspension without any reason. There are certain acts and omissions constituting misconduct on account whereof he has been placed under suspension.

5.This is also a fact that the counter affidavit though was sworn on 13.5.2011, but there is nothing on record to show that any charge sheet was issued to the petitioner or any departmental inquiry commenced except of issuance of suspension order 27.8.2009 though this Court while staying the order of suspension permitted the respondents to continue with the departmental enquiry.

6.In the rejoinder affidavit, in para 9, petitioner has said that there is no progress in enquiry.

7.The order of suspension can be passed only when prima facie an employee is found to have committed some act or omission constituting misconduct which may result in imposition of major penalty as provided under Rule 4 of U.P. Government Servants Discipline and Appeal) Rules, 1999 (hereinafter referred to as "1999 Rules"), relevant part whereof is as under:

"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."

8.In the present case, notice dated 13.7.2009 issued to petitioner mentioned that in case petitioner does not get the construction work completed and submit his reply, he shall be placed under suspension and proceeding for his compulsory retirement would be initiated. Meaning thereby that the competent authority was clear in his mind that no major penalty can be imposed upon the petitioner and at the best he can be considered for compulsory retirement under Fundamental Rule 56. It is well settled that compulsory retirement under Fundamental Rule 56 is not a punishment and the Rule does not contemplate any punishment like compulsory retirement.

9.Moreover, non issuance of any charge sheet to petitioner so far fortify and justify an inference to be drawn by this Court that the order of suspension passed in this case is stigmatic, arbitrary and even otherwise illegal and also gross abuse of the power conferred upon the appointing authority regarding suspension.

10.Moreover, such a prolonged suspension can not be held valid and justified and the respondents can not be allowed to keep an employee under suspension for an indefinite period as held by this Court in Smt. Anshu Bharti Vs. State of U.P. and others, 2009(1) AWC 691 where in paras 9, 10, 11, 12 and 13 this Court has observed as under:

"9. . . . . . The prolonged suspension of the petitioner is clearly unjust and unwarranted. The question deals with the prolonged agony and mental torture of a suspended employee where inquiry either has not commenced or proceed with snail pace. Though suspension in a contemplated or pending inquiry is not a punishment but this is a different angle of the matter, which is equally important and needs careful consideration. A suspension during contemplation of departmental inquiry or pendency thereof by itself is not a punishment if resorted to by the competent authority to enquire into the allegations levelled against the employee giving him an opportunity of participation to find out whether the allegations are correct or not with due diligence and within a reasonable time. In case, allegations are not found correct, the employee is reinstated without any loss towards salary, etc., and in case the charges are proved, the disciplinary authority passes such order as provided under law. However, keeping an employee under suspension, either without holding any enquiry, or in a prolonged enquiry is unreasonable. It is neither just nor in larger public interest. A prolonged suspension by itself is penal. Similarly an order of suspension at the initial stage may be valid fulfilling all the requirements of law but may become penal or unlawful with the passage of time, if the disciplinary inquiry is unreasonably prolonged or no inquiry is initiated at all without there being any fault or obstruction on the part of the delinquent employee. No person can be kept under suspension for indefinite period since during the period of suspension he is not paid full salary. He is also denied the enjoyment of status and therefore admittedly it has some adverse effect in respect of his status, life style and reputation in society. A person under suspension is looked with suspicion in the society by the persons with whom he meets in his normal discharge of function.

10. A Division Bench of this Court in Gajendra Singh Vs. High Court of Judicature at Allahabad 2004 (3) UPLBEC 2934 observed as under :

"We need not forget that when a Government officer is placed under suspension, he is looked with suspicious eyes not only by his collogues and friends but by public at large too."

11. Disapproving unreasonable prolonged suspension, the Apex Court in Public Service Tribunal Bar Association Vs. State of U.P. & others 2003 (1) UPLBEC 780 (SC) observed as under :

"If a suspension continues for indefinite period or the order of suspension passed is malafide, then it would be open to the employee to challenge the same by approaching the High Court under Article 226 of the Constitution........................(Para 26)

12. The statutory power conferred upon the disciplinary authority to keep an employee under suspension during contemplated or pending disciplinary enquiry cannot thus be interpreted in a manner so as to confer an arbitrary, unguided an absolute power to keep an employee under suspension without enquiry for unlimited period or by prolonging enquiry unreasonably, particularly when the delinquent employee is not responsible for such delay. Therefore, I am clearly of the opinion that a suspension, if prolonged unreasonably without holding any enquiry or by prolonging the enquiry itself, is penal in nature and cannot be sustained.

13. The view I have taken is supported from another Judgment of this Court in Ayodhya Rai & others Vs. State of U.P. & others 2006 (3) ESC 1755."

11.In view of above discussion, writ petition is allowed. Impugned order dated 27.8.2008 (Annexure 5 to the writ petition) passed by respondent no. 3 is hereby quashed.

12.It is, however, made clear that this order shall not preclude the respondents from completing departmental enquiry, if any, against the petitioner.

13.Petitioner shall also be entitled to cost which I quantify to Rs. 20,000/- against respondent no. 3 which, at the first instance, shall be paid by the respondent no. 1 but it would have liberty to recover the said amount from the official concerned who is/was responsible for passing order impugned in this writ petition at the relevant time; after making such enquiry as permissible in law.

Dt. 27.9.2011

PS