Pragi Lal vs State Of U.P. & Others
2012 Latest Caselaw 5550 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 7
 
				
 
Case :- WRIT - A No. - 34824 of 2012
 

 
Petitioner :- Pragi Lal
 
Respondent :- State Of U.P. & Others
 
Petitioner Counsel :- D.S. Srivastava
 
Respondent Counsel :- C.S.C.,J.N. Maurya,Yashwant Verma
 
						
 
						AND
 
Case :- WRIT - A No. - 35018 of 2012
 

 
Petitioner :- Krishna Kumar
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- D.S. Srivastava
 
Respondent Counsel :- C.S.C.,J.N. Maurya,Yashwant Verma
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri D.S. Srivastava, learned counsel for the petitioner and learned Standing Counsel for the respondents. Sri Alok Kumar Srivastava, Conservator of Forest, Jhansi is present alongwith record. I have also perused the record.

2. In both these writ petitions the questions of law and facts are common, therefore, have been heard together and are being decided by this common judgment. However, since the facts are common, this Court is taking up the facts of leading writ petition, i.e., Writ Petition No. 34824 of 2012 for the purpose of brevity.

3. The petitioner was initially appointed as Forester on 15.12.1990 and at the relevant time giving cause of action for present writ petition, he was posted as Deputy Forest Ranger in Forest Range, Lalitpur Social Forestry Division, Lalitpur. He was placed under suspension vide order dated 16.02.2012 on the allegations that a Joint Forest Management Committee held a preliminary inquiry and found him prima facie guilty of non observing its duties and functions in respect to plantation, social forestry improvement etc. and also permitting mining within 100 meters of forest area which is in violation of orders of Apex Court. It was also stated that a departmental inquiry is in contemplation. The aforesaid order of suspension, however, was revoked and petitioner was reinstated with full benefit of salary by disciplinary authority, i.e., Sri B.C. Tiwari vide order dated 29.02.2012, who had also passed the order of suspension. It, however, stated that departmental inquiry against him shall continue. A charge sheet dated 24.05.2012 was served upon petitioner containing a single charge.

4. The petitioner submitted reply dated 15.06.2012. Thereafter again vide order dated 23.06.2012 the petitioner was placed under suspension. This order has been assailed alleging that there is a complete non application of mind inasmuch as earlier Sri B.C. Tiwari, the then Conservator of Forest, suspended petitioner on 16.02.2012 but thereafter reinstated vide order dated 29.02.2012. After almost three months, a charge sheet was served upon petitioner which was replied by him and no further action has been taken thereafter except that a fresh order of suspension has been passed on 23.06.2012 which is almost identical to the earlier order of suspension which has already been revoked, except the change of order number and date, as also the name of authority concerned. Since Conservator of Forest appears to have been changed in the meantime and one Sri Alok Kumar Srivastava had joined, he passed the impugned order of suspension.

5. The argument was appreciated by this Court and the order of suspension was stayed on 07.08.2012 giving time to respondents to file their counter affidavit.

6. Para 2 and 3 of interim order dated 07.08.2012 reads as under:

"2. From bare perusal of two orders of suspension this Court find that except the order number and date, in all other respect, the two orders are identical. Nothing has been said that when petitioner was already reinstated then what was the occasion to pass a fresh order of suspension which is identically worded to earlier order of suspension, which has already been revoked by reinstating the petitioner on 29.02.2012.

3. Learned Standing Counsel prays for and is allowed two weeks time to file counter affidavit. Petitioner may file rejoinder affidavit, if any, within one week thereafter."

7. A counter affidavit has been filed by respondents, which is sworn by Sri Ashok Kumar Rai, Forest Range Officer, Lalitpur. It is stated therein that the earlier order of suspension dated 16.02.2012 was revoked by Conservator of Forest under the directions of Chief Conservator of Forest, Buldelkhand Zone, Jhansi reinstating petitioner with full salary. Subsequently a complaint was received on 15.06.2012 from Secretary, Japan International Corporation and the said complaint was inquired by a two member committee headed by Sri Iqbal Singh, Additional Principal Chief Forest Conservator under Government's direction contained in its letter dated 24.02.2012. Pursuant to report submitted by the said committee, the State Government issued order dated 22.06.2012 directing to hold departmental inquiry against the Forest Officer and Range Officer of Field Management Unit and pursuant thereto the petitioner was suspended on 23.06.2012.

8. When it was pointed out to learned Standing Counsel that there is a discrepancy in the facts stated in para 6 of counter affidavit, inasmuch when the complaint was received on 15.06.2012, where was the occasion to direct for an inquiry almost four months ahead, i.e., on 24.02.2012, he realized some mistake and referred to the supplementary counter affidavit where a clarification is given in para 8 that the complaint was received on 15.02.2012 and not on 15.06.2012.

9. Thereupon he was required to place the relevant record before court inasmuch if the complaint was already there, on 15.02.2012, and thereafter petitioner was earlier suspended on 16.02.2012, what was the occasion to reinstate him on 29.02.2012 and again by suspending with an identically worded order. He was also confronted with office order dated 12.10.2012 filed as Annexure-1 to the supplementary counter affidavit wherein the incident relating to earlier suspension order has been mentioned in first paragraph and in second paragraph it is said that another complaint was received subsequently which resulted in second order of suspension but the fact remain that complaint dated 15.02.2012 was received before the earlier order of suspension passed on 16.02.2012 and a committee to hold preliminary inquiry on the complaint was also constituted on 24.02.2012 yet within a week thereafter, i.e., on 29.02.2012 the suspension order dated 16.02.2012 was revoked with full benefit of salary to petitioner and after four months thereafter the Conservator of Forest passed identically worded order on 23.06.2012 in respect whereof no justification has come forth except that the order of suspension was made pursuant to State Government's direction contained in its letter dated 22.06.2012.

10. Consequently the original record has been produced before this Court. It shows that the committee headed by Sri Iqbal Singh, Additional Chief Forest Conservator submitted report on 02.04.2012 with the following conclusions:

"lkekftd okfudh ou izHkkx]yfyriqj ds xzke la;qDr ou izcU/k ds lnL; lfpoksa us eq[; ou laj{kd] cqUnsy[k.M o`Rr] >kWlh Jh mek'kadj flag rFkk ou laj{kd] cqUnsy[k.M o`Rr >kWlh Jh ch0lh0frokjh ds fo:) dh x;h f'kdk;r ij gLrk{kj fd;k tkuk Lohdkj fd;kA izdj.k esa fdlh fu"d"kZ rd igWqpus ds fy, izR;{k lk{;ksa dh vko';drk gSA O;fDrxr :i ls fy[ks x;s i=ksa esa lnL; lfpoksa us mijksDr vf/kdkfj;ksa ds fo:) fdlh izdkj dh f'kdk;r u gksus dk mYys[k fd;k gS fdUrq lkewfgd :i ls fy[ks x;s i=ksa esa mUgksaus iqu% xEHkhj vkjksaiks dh iqujko`fRr dh gSA lkewfgd :i ls fy[ks x;s i= esa tkWp gsrq fof'k"V fooj.k miyC/k ugh djk;k gSA ;|fi izR;{k lk{;ksa ds vHkko esa fdlh fu"d"kZ rd igqWapuk lEHko ugha gS fdUrq ;g Li"V gS fd lkekftd okfudh ou izHkkx] yfyriqj dh ifjfLFkfr;ksa lkekU; ugha gS rFkk mijksDr vf/kdkfj;ksa ,oa lnL; lfpoksa ds e/; ijLij vfo'okl o Hk; dh fLFkfr mRiUu gks x;h gSA ,slh fLFkfr esa ts0vkbZ0lh0,0 ifj;kstuk ds dk;ksZ ds fgr esa mijksDr vf/kdkfj;ksa ds vU;= LFkkukUrj.k djuk mfpr gksxkA"

"Member Secretaries of Village Joint Forest Management of Social Forestry Division, Lalitpur have admitted having signed the complaint made against Sri Uma Shanker Singh, Chief Forest Conservator, Bundelkhand Circle, Jhansi and Sri B.C. Tiwari, Forest Conservator, Bundelkhand Circle, Jhansi. In order to reach any finding in the matter, there is need of direct evidences. In the letters written individually, the members have not mentioned any sort of complaint against the aforesaid officers. But in the letters written collectively, they have reiterated serious allegations. In the letters written collectively, they have not provided specific details for investigation. Though, for lack of direct evidences, it is not possible to come to any conclusion yet it is clear that the situation in Social Forestry Division, Lalitpur is not normal and mutual distrust and sense of fear has cropped up between the aforesaid officers and the Member Secretaries. In such a circumstance, in the interest of work of JICA project, it would be appropriate to transfer the aforesaid officers elsewhere."

(English Translation by the Court)

11. Having gone through the aforesaid record much could have been said but I am refraining myself from making any observations which may prejudice the pending or contemplated inquiry against petitioner since I am not inclined at this stage to interfere with the same but is confining my scope of judicial review only in respect to suspension order dated 23.06.2012.

12. It appears, when earlier order of suspension was passed on 16.02.2012, prior thereto an inspection was made by Chief Conservator of Forest, Jhansi on 14.02.2012. Immediately whereafter a joint complaint was made by Secretaries, Joint Management of Village JICA Project, Social Forestry Division, Lalitpur against the Conservator of Forest as well as Chief Conservator of Forest and the said complaint was signed by 48 persons/Secretaries of different committees including the petitioner. Within forty eight hours thereafter, on 16.02.2012, the petitioner was placed under suspension. In respect to area governed by Joint Forest Committee Kapasi, the Regional Forest Officer, Jakhora headed a team to verify plantation, conditions of plants etc., who submitted report on 29.03.2012. On the same date, the Chief Conservator of Forest issued an order No. 3347/Sangh, dated 29.02.2012 and pursuant thereto, the then Conservator of Forest, Sri B.C. Tiwari revoked the order of suspension. Thereafter Deputy Regional Forest Officer, Mehrauni (Lalitpur) Sri V.K. Mishra was appointed as Inquiry Officer on 17.05.2012 and a charge sheet was issued to petitioner on 24.05.2012. The petitioner submitted his reply on 15.06.2012 and nothing happened thereafter. In the meantime the complaint made against to senior officers by Secretaries of Joint Forest Committee, (almost the entire Social Forestry Division) was enquired into by senior officials, namely, Sri V.K. Thakur, the Chief Conservator of Forest/Project Director, JICA, Lucknow and Sri Iqbal Singh, Principal Chief Conservator of Forest/Project Research and Training Lucknow who submitted their report on 02.04.2012. The State Government issued an order on 22.06.2012 and pursuant thereto an identically worded order of suspension has again been issued on 23.06.2012 which do not explain as to why in the identical circumstances second order of suspension was justified.

13. The power of suspension has been conferred upon the competent authority vide Rule 4 of U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as the "Rules, 1999"). It says that disciplinary authority/ appointing authority shall apply its mind before suspending an official, and, if it is satisfied that the charges, if proved, may entail major penalty, it may suspend the officer concerned. In the present case it is evident from record and also admitted by Conservator of Forest, present in the Court, that the order of suspension was passed in mechanical exercise so as to comply the directions issued by State Government. There is nothing either in the counter affidavit or in the original record produced before this Court that anybody applied its/his mind to find out the expediency of suspending the petitioner again when earlier suspension for the same reason has already resulted in his reinstatement with full benefit of salary. Meaning thereby the competent authority was already satisfied that there was no such serious allegation against petitioner which may result in any penalty whatsoever or atleast a major penalty and, therefore, reinstated him with full benefit of salary.

14. It cannot be doubted that a higher authority than appointing authority can also issue appropriate direction to place an officer under suspension, but then there must be an application of mind on its part also. If it is not aware of the complete facts or has not applied its mind as to in what circumstances the official was earlier suspended and reinstated, and, now whether a suspension is required again without which an impartial and fair inquiry may not be possible, then order of suspension passed by it would suffer the vice of non-application of mind.

15. In other words this Court is of the view that in order to place an officer under suspension again, on the same identical allegation, a strong case has to be made out by the respondents that suspension on the second time become inevitable. No mechanical and arbitrary exercise is permissible. An order of suspension is a serious thing for a Government Official. It is not in a routine manner that an employee can be placed under suspension. The statutory Rules framed by rule framing authority also indicate to this fact that suspension in one or the other manner, if not results in suo moto punishment, yet, it causes something adverse to employee concerned and, therefore, it should not be passed in a mechanical manner. The Rules also demonstrate that charges if not enough serious which may not entail in a major penalty, an order of suspension cannot be passed. This mandate contained in rules demonstrate that an order of suspension visits civil consequences to the concerned employee and, therefore, should be passed in a limited sphere enshrined in the rules very specifically. Some of the relevant civil consequences are that during the period of suspension, the Government servant is not entitled for full salary and paid, either only half of salary or 3/4, as the case may be, within which he has to manage his and his family's all affairs. It goes without saying that amongst the colleagues and social circle, the Government servant carries a stigma of "under suspension" which affects not only the individual Government servant but every member of his family. In the future carrier prospects also the factum of suspension of the Government servant plays its own role. Its negative aspects/ colour is not wiped out all together. The shadow of suspension follow a Government servant throughout his carrier. Even his family does not remain untouched. Commenting on the effect of suspension when it is not by way of punishment but in a contemplated and pending inquiry, a Division Bench of this Court in Gajendra Singh Vs. High Court of Judicature at Allahabad, 2004 (3) UPLBEC 2934 has 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." (emphasis added)

16. In the present case, from the discussions made above this Court is fully satisfied that the impugned order of suspension dated 23.06.2012 has been issued by respondent no. 3 wholly illegally and showing a total non-application of mind. It is patently arbitrary and is not inconformity with requirement of Rule 4 of Rules, 1999.

17. I am also constrained to observe that the manner in which the impugned orders of suspension have been passed and the things have taken place subsequently also, show that officer concerned, who passed impugned orders, holding the office of Conservator of Forest, Bundelkhand Circle, Jhansi, at the relevant time, has neither acted legally nor has applied its mind nor otherwise shown due regard to the rule of law so that unmindful illegal orders are not issued abruptly giving a cause of grievance to the departmental employee(s) and also adding a burden on this court in the shape of avoidable litigation.

18. In view of above, both the writ petitions are allowed. The impugned orders of suspension dated 23.06.2012 are hereby quashed. The petitioner is also entitled to cost, which I quantify to Rs. 25,000/- for each set of writ petitions, against the respondents with further direction that after payment of cost to petitioner(s) by respondent no. 1, it shall have liberty to recover the said amount from official concerned who held the office of respondent no. 3 at the relevant time when impugned orders of suspension were passed, after making such inquiry as permissible in law. I am also constrained to direct the Principal Secretary to see whether such official who passed impugned orders of suspension, is a person fit to occupy such a responsible office as that of respondent no. 3, and take appropriate action/decision in the matter.

19. A copy of this judgment shall be remitted to Principal Secretary, Forest forthwith by Registrar General so as to reach him within three weeks from today.

Order Date :- 08.11.2012

AK