Chandra Boss vs State Of U.P.& 2 Ors.
2013 Latest Caselaw 7491 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- WRIT - A No. - 66759 of 2013
 

 
Petitioner :- Chandra Boss
 
Respondent :- State Of U.P.& 2 Ors.
 
Counsel for Petitioner :- Yogendra Sahai Saxena
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. With the consent of learned counsel for the parties, I have proceeded to decide the writ petition finally under the Rules of the Court on the basis of record available with this Court i.e. writ petition and affidavit of respondent no.1.

2. This writ petition is directed against order of suspension dated 27.8.2013 passed by Director General, Vikas Dal Evam Yuva Kalyan, U.P. at Lucknow, respondent no.1.

3. Sri Y.S.Saxena, learned counsel for the petitioner contended that the impugned order has been passed without any application of mind in a most arbitrary and illegal manner, inasmuch as, the immediate superior officers of petitioner did not relieve him to participate in the meeting convened by respondent at Lucknow on the ground that there was an official function at Badaun, which was to be presided by Chief Minister himself and petitioner was assigned duty in the said official programme at Badaun and this fact was also reported by immediate superior officers to the respondent no.1 yet respondent no.1 has taken absence of petitioner at Lucknow to be a deliberate, intentional defiance and act of indiscipline, as a result whereof, impugned order of suspension has been passed though petitioner was not at all responsible for such absence as he was already assigned official duty at Badaun by superior officer, who did not relieve him and, therefore, impugned order is patently illegal, showing non application of mind on the part of respondent no.1.

4. Looking to the record, which, prima facie, substantiated the contention advanced on behalf of petitioner, this Court required respondent no.1 vide order dated 6.12.2013 to file an affidavit of his own to show as to how he found petitioner guilty of any act or omission constituting misconduct when petitioner was not relieved by superior officer.

5. Pursuant to the said order of this Court dated 6.12.2013 Sri Ram Singh, holding the office of Director General, Vikas Dal Evam Yuva Kalyan, U.P. Lucknow has filed affidavit sworn on 17.12.2013. In para 6 thereof, he has categorically stated that order of suspension was passed by him at the dictates of concerned Minister, who took petitioner's absence as a serious act of misconduct showing dereliction of duty, indiscipline, defiance and disobedience of orders of higher authorities and negligence and lack of devotion in discharge of official duties. Since Minister concerned has directed respondent no.1 to suspend petitioner, therefore, he (petitioner) was placed under suspension. In para 8, respondent no.1 has again categorically said that he has simply complied with orders of Hon'ble Minister. Since power of suspension is vested in him, and, therefore, he has passed the order but it is nothing but mere compliance orders of Hon'ble Minister, who presided the meeting held on 26.8.2013 at Lucknow. He has further stated that reason for absence of petitioner was not available in the office of respondent no.1 till the date of meeting when substitute of petitioner, who attended the meeting, informed him. He has placed on record, Chief Development Officer, Badaun's letter dated 24.8.2013 giving information that it is not possible to relieve petitioner so as to attend meeting on 26.8.2013 at Lucknow since petitioner has been assigned duty in Laptop distribution programme to be conducted from 20.8.2013 to 27.8.2013 and this letter was received in the office of Director on 3.9.2013.

6. Sri Ram Singh, the officer concerned, when enquired that he being the competent authority to place petitioner under suspension, when received information about reason of petitioner for his absence to participate in the meeting at Lucknow disclosed by his substitute, who came to attend the meeting at Lucknow then what was the occasion to hold petitioner guilty of deliberate defiance in not attending the meeting when he was not relieved by his superior officer, he said that since a direction was issued by the Minister, he was not in a position to take any other view except of mere compliance of the said direction and that is how order of suspension was passed by him and this fact he has stated in his affidavit also.

7. Interestingly, stand taken by respondent no.1 shows two things very clear:

a. The impugned order of suspension has been passed by competent appointing authority but without independent application of mind on his part but it is simply at the dictates of concerned Minister and without looking into the fact whether suspension of petitioner was justified in the facts and circumstances of the case or not.

b. It is also evident that reason of petitioner's absence and his incapability of attending meeting at Lucknow became known to respondent no.1 on 26.8.2013 when meeting took place at Lucknow since petitioner's substitute, who attended the meeting, disclosed reason for petitioner's absence yet Minister concerned took an arrogant stand and respondent showing meek surrender, forgot statutory requirement of application of his own mind before passing the impugned order of suspension, and acting on the dictates, issued the impugned order of suspension.

8. Apparently, in the above facts, it cannot be doubted that impugned order of suspension cannot sustain. Learned Standing Counsel also find it very difficult to sustain the same by submitting any substantial argument particularly in view of requirement of statute which provides the conditions which are to be considered before an order of suspension is passed by a competent authority.

9. Rule 4(1) of U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as "Rules, 1999"), which confers power of suspension upon authority, relevant in this case, reads as under:

"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."

10. An order of suspension is not to be passed in a routine manner as a regular course of business and without any application of mind.

11. Though an order of suspension in a contemplated or pending enquiry per se is not a punishment but it cannot be disputed that it visits certain civil consequences upon concerned Government servant. During the period of suspension, he is not paid full salary and allowances. It also cannot be doubted that it attaches civil stigma upon him vis a vis a society in which he lives and persons with whom he interacts. This Court has considered this aspect in Ayodhya Rai and others Vs. State of U.P. and others 2006(3) ESC 1755 wherein the Court held:

"The questions deal with the prolonged agony and mental torture of an employee under suspension where inquiry either has not commended or proceed with snail pace. 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 but is 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. 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 by prolonging the enquiry is unreasonable and 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."

12. A Division Bench of this Court in Gajendra Singh Vs. High Court of Judicature at Allahabad- 2004 (3) UPLBEC 2934 also 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."

13. Disapproving unreasonable prolonged suspension, the Apex Court has also observed in Public Service Tribunal Bar Association Vs. State of U.P. & others- 2003 (1) UPLBEC 780 (S.C.) as under-

"if a suspension continues for indefinite period or the order of suspension passed is mala fide, 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).

14. The rule framing authority is also aware of all these facts and that is why it has not given an unbridled power of suspension to the Appointing Authority but in the rules, which have now been framed afresh in 1999, it has been specifically provided that appointing authority shall apply its mind to the fact that act or omission constituting misconduct, in respect whereto a departmental enquiry should be held, is of such grave nature that in case charge(s) is/are proved, major penalty upon concerned Government servant can be imposed. Therefore, it is not every act or omission constituting misconduct, which would justify suspension but when charge(s) are so serious so as to result, if prove, in major penalty only then he can be placed under suspension and not otherwise.

15. In the present case, respondent no.1 has admitted this fact that he did not apply his mind to any one or the other aspect and simply towed the line as drawn by Minister concerned i.e. he surrendered to the command of Minister and simply complied the same without any application of mind on his part. The mandatory requirement of Rule 4 of Rules, 1999 has completely been given a go bye by respondent no.1, before passing impugned order of suspension. In the present case, Minister obviously was not competent to place petitioner under suspension. His direction could have been taken into consideration but the law nowhere give it status of a statutory command with which respondent no.1 was under an obligation to follow. On the contrary respondent no.1 himself was under an obligation to apply his own mind looking into the entire facts and circumstances, to find out whether requisites of statute justify an order of suspension. Unfortunately, that has not been done, as admitted by respondent no.1 himself that he has not looked into all these aspects while passing impugned order of suspension.

16. Then comes the very circumstances in which it is alleged that petitioner has defied orders of Director to attend meeting at Lucknow. Admittedly, District Magistrate and Chief Development Officer at Badaun have assigned certain official duties which were to be performed by petitioner during the period of 20th August, 2013 to 27th August, 2013. The said duties related to official programme of distribution of Laptops and the same programme was to be presided by Chief Minister also. Taking this responsibility upon himself, Chief Development Officer wrote a letter to Director stating that petitioner has not been relieved by him. This reason of petitioner's absence in the meeting held on 26.8.2013 at Lucknow also came to the notice of respondent no.1, as told by petitioner's substitute, who attended the said meeting at Lucknow. This fact is also admitted by respondent no.1 in his affidavit in para 7 where he has said that till petitioner's substitute gave reason for his absence in the meeting, no information was available in his office.

17. If information earlier was not available, admittedly, it came to his notice on 26.8.2013 itself when petitioner's substitute informed him in the course of meeting. If that be so, it was incumbent upon respondent no.1, if he has any doubt, to get it verified from District Level Officers at Badaun but respondent no.1 did not find it necessary for the reason that compliance of Minister's direction, he sought, was his foremost duty, instead of observing rule of law. It is really unfortunate that a senior bureaucrat, part of executive wing in the State Government, instead of taking rule of law as his primary responsibility, thought otherwise and proceeded to worship political boss's command instead of statutory obligation, provided in law. The constitutional scheme read with statutory rules contemplate a serious onerous duty upon respondent no.1 while passing orders which have civil consequences. Law require that authority, when exercising statutory power, shall observe requirement of law stringently, strictly and in the letter of words and spirit, but respondent no.1, instead, prefer to follow the command of political executive, who himself has no role to play in the case in hand. The respondent no.1 forget his own statutory duty and thought it proper to follow political executive's command blindly, unintelligently, mechanically and by surrendering to his own independent statutory obligation.

18. I find it appropriate to notice at this stage that statement of Ram Singh, Director, present in the Court pursuant to this Court's order dated 6.12.2013 that in the meeting held on 26.8.2013, Gopal Ram, Vyayam Prashikshak, who attended the meeting in place of petitioner, was not fully prepared with the facts and figures so as to give correct information regarding progress in District Badaun and thereupon Minister concerned felt annoyed and decided that officer concerned i.e. petitioner, who has sent Gopal Ram, without proper briefing must be placed under suspension and it is in furtherance thereof and complying the said decision of Minister concerned, impugned order of suspension was passed by him (Sri Ram Singh, Director). This statement fortify what I have already discussed above.

19. When enquired Sri Ram Singh, respondent no.1 said that he has nothing further to say in the matter since what actually has been done by him he has said in his affidavit.

20. In my view, the way and the manner in which Sri Ram Singh, Director has functioned in discharge of his statutory duties, has shown very candidly that at least he is not a person fit to hold such responsible office since he is amenable to surrender his statutory functions to the command of third parties, who have no role in law and also unaware of his own duties and responsibilities as also the manner in which he is supposed to proceed. Such a person therefore, should not be assigned such important office and deserve to be posted in an office where such independent exercise of power is not required to be performed by him. The State Government, therefore, shall look into the matter forthwith and take appropriate action without any further delay and in any case within 15 days from the date of communication of this judgment.

21. Subject to the above directions and also in the context of discussion made above, it cannot be doubted that impugned order of suspension deserve to be quashed.

22. The writ petition is accordingly allowed. The impugned order of suspension dated 27.8.2013 (Annexure 4 to the writ petition) is hereby set aside. The petitioner shall be entitled to all consequential benefits and also a cost, which I quantify to Rs.25,000/-. At the first instance the cost shall be paid to the petitioner by State of U.P. but it shall have liberty to recover the same from the concerned appointing authority who forgot its statutory duty while passing the order impugned in the writ petition, which has been set aside hereat after making such inquiry, as permissible in law.

Order Date :- 17.12.2013

KA