Jitendra Pal Singh vs State Of U.P. Through Prin. Secy. ...
2013 Latest Caselaw 6598 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 

 
Case :- SERVICE SINGLE No. - 6044 of 2013
 

 
Petitioner :- Jitendra Pal Singh
 
Respondent :- State Of U.P. Through Prin. Secy. Agriculture Lko. & Ors.
 
Counsel for Petitioner :- Anurag Shukla,Rakesh Kumar Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Anil Kumar,J.

Heard Sri Anurag Shukla, learned counsel for the petitioner, Sri Amitabh Rai, learned Standing Counsel and perused the record.

By means of present writ petition, petitioner has challenged the impugned order of suspension dated 27.9.2013( Annexure no.1) passed by opposite party no. 3/ Deputy Director , Agriculture, Behraich.

Factual matrix involved in the present writ petition, as submitted by learned counsel for the petitioner, is that the petitioner while posted as incharge Government Agriculture Seeds Store/ Krishi Raksha Ikai Kaiserganj Evam Jarwal Road , Behraich

On 27.09.2013, an investigation team comprising of Cane Commissioner , District Magistrate and other officers made an inspection of the seed store which was under the control of the petitioner in order to verify the proper distribution of seeds under Lohia Samagra Gram in view of the complaint made by Sri Babu Lal that he has not been given the seeds from the store.

It is further submitted on behalf of the petitioner that at the time of inspection he showed the relevant register on the basis of which he has established/ proved that the allegations made by Babu Lal is not correct as the seed has already been received by his son, Sri Mangale. However, without considering the said facts in most illegal and arbitrary manner by order dated 27.9.2013 passed by opposite party no.3, petitioner has been placed under suspension.

Thereafter on the same day orders as contained in anneuxre nos. 2 and 3 have been passed by opposite party no.3 by which the charge of godown has been taken from the petitioner and the inquiry officer has been appointed to conduct the disciplinary inquiry as per Rules known as U.P. Government Servant (Discipline and Appeal) Rules , 1999 ( herein after referred to as 'Rules, 1999).

Aggrieved by the impugned orders dated 27.8.2013 as contained in annexure nos. 1 to 3 passed by opposite party no.3/ Deputy Director , Agriculture, Behraich, present writ petition has been filed by the petitioner for redresal of his grievance.

Sri Anurag Sukla, learned counsel for the petitioner while challenging the impugned orders submits that the allegation on which petitioner has been placed under suspension is not correct as there is no case of misappropriation of fund or any other irregularities committed by the petitioner while discharging his duties in respect to the distributing the seeds, so in view of the provisions as provided under Rule 4 of Rules 1999, once there is no negligence on the part of the petitioner while performing the duties the impugned action on the part of opposite party No.3 placing the petitioner under suspension is an action arbitrary in nature and contrary to rules as a person can be placed under suspension in the discretion of appointing authority, if the allegation against the government servant/petitioner are so serious that in the event of there being established may ordinarily warrant major punishment under Rule 1999. The said position does not exists in the present case , so there is no justification or reason to place the petitioner under suspension, hence liable to be set aside.

Sri Anurag Shukla, learned counsel for the petitioner also submits that the impugned order of suspension has been passed by opposite party no.3 without conducting preliminary inquiry in a routine manner as such the same is contrary to Rule 4 of Rules 1999 , so contrary to law as laid down by Hon'ble the Apex court in the case of State of Orissa Vs. Bimal Kumar Mohanty, 1994 (68) FLR 970 in which it has been held as under :-

" It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious act of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee . It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee . The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf.

In support of his arguments, he has also placed reliance on a Division Bench of this Court in the case of Dhirendra Kumar Rai Vs. State of U.P. , 2010(28) LCD 1248.

He further submits that in the present case only on the ground of irregularities committed by the petitioner , he has been placed under suspension, so the action on the part of opposite party no.3 thereby placing under suspension is contrary to law , violative of principles of natural justice as well as the law laid down by Hon'ble the Apex Court in the case of Sardar Amarjit Singh Kalra (dead) by Lrs and others Vs. Pramod Gupta( Smt) Dead) by Lrs and others,(2003) 3 Supreme Court Cases, 272, the relevant portion( para-26) of the judgment is quoted as under:-

"Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice"

Accordingly, learned counsel for the petitioner submits that the impugned order of suspension being contrary to law , liable to be set aside.

Sri Amitabh Rai, learned Standing Counsel while supporting the impugned order submits that on the basis of investigation done by the investigating team it was found that the irregularities have been committed by the petitioner in distribution of seeds to the persons under Lohia Samagra Gram , so the impugned order of suspension dated 27.9.2013 has been passed by opposite party no.3 and in consequence of the same the order dated 27.9.2013 ( Annexure no.2) and order dated 27.9.2013 ( Annexure no.2) has been passed by opposite party no.3 taking the charge from the petitioner, appointed inquiry officer to conduct the inquiry proceedings as per rules .

Learned Standing Counsel further submits that it is not necessary on the part of opposite party no.3 to mention a detailed charge in the suspension order, in respect to the said facts he has placed reliance on the judgments given by Apex Court in the case of Punjab National Bank Vs. D. M. Amarnath (2000) 10 Supreme Court Cases , 162. Accordingly , learned Standing Counsel submits that there is no illegality or infirmity in the impugned order of suspension by which petitioner has been placed under suspension.

I have heard learned counsel for the parties and gone through the record.

In order to decide the controversy , it is appropriate to go through the relevant provisions/ Rule-3 and Rule -4 of the Rules, 1999 prescribe procedure for taking disciplinary action against the government servant. Under Rule 3, minor and major penalties have been provided. Rule 4 deals with suspension. For convenience, Rule 3 and and relevant portion of rule 4 are reproduced as under :

"3. Penalties.- The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon the Government Servants:-

Minor Penalties-

(I)Censure;

(II)Withholding of increment for a specified period;

(III)Stoppage at an efficiency bar;

(IV)Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders;

(V)Fine in case of persons holding Group 'D' posts;

Provided that the amount of such fine shall in no case exceed twenty-five per cent of the month's pay in which the fine is imposed.

Major Penalties-

(I) Withholding of increments with cumulative effect;

(ii) Reduction to a lower post or grade or time scale or to a lower stage in a time scale;

(iii) Removal from the service which does not disqualify from future employment

(iv) Dismissal from the service which disqualifies from future employment.

Explanation.- The following shall not amount to penalty within the meaning of this rule, namely

(I)Withholding of increment of a Government Servant for failure to pass a departmental examination or for failure to fulfil any other condition in accordance with the rules or orders governing the service;

(II)Stoppage at the efficiency bar in the time scale of pay on account of ones not being found fit to cross the efficiency bar;

(III)Reversion of a person appointed on probation to the service during or at the end of the period of probation in accordance with the terms of appointment or the rules and orders governing such probation;

(IV)Termination of the service of a person appointed on probation during or at the end of the period of probation in accordance with the terms of the service or the rules and orders governing such probation."

"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.

Object to place a person under suspension is to facilitate easy assemblage of evidence in the investigation or enquiry into the charge levelled against a delinquent employee as It would be prejudicial to the public interest to allow the delinquent employee to work in the office when the authority is satisfied that the witness may hesitate to depose against the delinquent employee so long as he continues to be in the office or that the delinquent employee should be prevented from tampering with the evidence.

Further the Courts can interfere with the order of suspension, if the action is actuated by mala fide, arbitrariness or for ulterior purpose and is contrary to law or passed by the authority, who is not competent to do so because the Court cannot interfere with the order of suspension, unless materials are available to substantiate the allegation of mala fide on the part of the suspending authority ( Sangna Ram Vs. State of Rajasthan 2006 (1) SLR 260). Further , each case of suspension is to be considered on its own merit and the nature of the allegation,gravity of the situation while placing the employee under suspension as the indelible impact it creates on the service for the continuance of the delinquent employee in service pending enquiry or contemplated enquiry or investigation ( State of Orrisa Vs. Bimal Kr. Mohanty , AIR 1994 SC 2296)

In the case of Dhirendra Kumar Rai ( Supra) and after placing reliance on the decision given by Hon'ble Supreme Court in the case of State of Orrisa Vs. Bimal Kr. Mohanty , AIR 1994 SC 2296 has held as under:-

"A Division Bench of Allahabad High Court in a case reported in 1997 (31) ALR 605, Ram Dular Tripathi vs. State of U.P. And others while interpreting Rule 49-A (1) of the Civil Services (CCA Rules) deprecated the suspension of government servant on flimsy ground observing that such suspension will have adverse affect on the service which may ultimately affect the working of the government. The principle opined by Hon'ble Five Judges of this Court in the case of Jai Singh Dixit (supra) has been reiterated and followed.

Their Lordship of Allahabad High Court in the case of Ram Dular Tripathi (supra) further held that mere lack of efficiency or skill does not ipso facto constitute misconduct and call for suspension for a government servant. To reproduce relevant portion from the judgement of Ram Dular Tripathi (supra) which is as under:-

"A Government servant can be suspended only if his conduct is such so as to warrant the inquiry under Rule 55 where one of the three major punishments can be imposed. Mere lack of efficiency/skill or failure to attain the highest standards in discharge of duty would not ipso facto constitute misconduct. The suspension of the Government servant on such a ground cannot be sustained."

Hon'ble the Supreme Court in the case of State of Orissa versus Bimal Kumar Mohanty reported in 1994(4) SCC 126, has ruled that order of suspension should not be passed as an administrative routine in the mechanical manner. It should be on consideration of gravity of alleged misconduct or the nature of allegations imputed to a delinquent employee. In the case of A. Radha Krishna Moorthy (supra), their lordships of Hon'ble Supreme Court has ruled that disciplinary proceedings should not be initiated on vague charges. The charge should be clear and specific according to service rules and not of general nature. In the case of K. Sunkhendar Reddy (supra), the Hon'ble Supreme Court deprecated the practice of passing selective orders of suspension."

Accordingly, an Officer/Government servant be placed under suspension in respect of any charge for which the Appointing Authority decides to hold a formal disciplinary proceeding but the basic requirement for passing the order of suspension is that there has to be some material, on objective consideration of which, the Appointing Authority forms his subjective opinion to hold a formal disciplinary proceeding and that too in a case where the charges are such which, if proved in the enquiry, may entail a major punishment to the delinquent. For every trivial matter and for every lapse in discharge of public functions, suspension is not a must, rather suspension should be resorted to as in terms of Rule 4 of U.P. Government Servant (Discipline and Appeal) Rules, 1999 only in cases where the charges are so grave that in case of they being proved after enquiry, may entail into a major penalty.

Keeping in view the above said facts in the instant case , on a complaint made in respect to the irregularities committed in distribution of seeds by the petitioner from the seed store in Lohia Samagra Gram, an inspection team comprising of higher officers had visited in Lohia Samagra Gram and inspected the matter coupled with the said facts as well as it is not disputed by learned counsel for the petitioner that it is the duty of the petitioner to distribute the seeds property from the store so once an inspection team has found irregularities in distributing the seeds, a report has been submitted in this regard and taking into consideration the same, the competent authority/ opposite party no.3 has passed the impugned order 27.9.2013 , placing the petitioner under suspension pending disciplinary proceedings, so the arguments advanced by learned counsel for the petitioner is contrary to rule -4 of Rules 1999 as the charges on which petitioner has been placed under suspension does not warrant for major penalty , has got no force because after placing the petitioner under suspension pending inquiry , the charges will be investigated in the disciplinary proceedings in which the petitioner will have an opportunity to prove that he is not guilty and thereafter on the basis of inquiry conducted by inquiry officer as per procedure provided for the said purpose under Rules 1999, the decision will be taken by opposite party no.3 to award punishment or not, hence the arguments in question is rejected.

So far as the arguments advanced by learned counsel for the petitioner that before placing the petitioner under suspension , no preliminary inquiry has been conducted by opposite party no.3 , is also not sustainable under law , is not mandatory on the part of the competent authority to conduct the preliminary inquiry before placing an employee under suspension. Only the requirement under Rule 4(1) of Rules 1999 provides a Government Servant against whose conduct an inquiry is contemplated, or is proceeding may be place under suspension pending the conclusion of the inquiry in the discretion of the appointing authority. In the present case said discretion has been exercised by opposite party no.3 while placing the petitioner under suspension in view of the report submitted by the inspection team on the basis of which opposite party no.3 reached to the conclusion that it is a fit case for suspension as well as holding formal disciplinary inquiry .

In view of the said facts , once as per rule-4(1) of Rule 1999 , the opposite party no.3 on the basis of his own assessment came to the conclusion and after being satisfied to hold disciplinary proceedings against the petitioner in respect to the alleged charges after placing under suspension by means of order dated 27.9.2013 no irregularities or infirmities have been committed by opposite party no.3 while doing the said act, so the last arguments which advanced by learned counsel for the petitioner that while placing the petitioner under suspension by means of order dated 27.9.2013, detailed charges has not been mentioned , is incorrect and wrong argument as there is no need to state the charges in detail in the suspension order itself, because placing an employee under suspension is the discretion of the authority and where the discretion is properly exercised for good and sufficient grounds the order cannot be held bad in law merely because the reasons were not communicated as held by Hon'ble the supreme Court in Punjab National Bank ( Supra) . In that case , the respondent was placed under suspension which he challenged before the High Court on the ground that the suspension order did not disclose any reason. The High Court relying upon an earlier decision [ Channamallappa Kallappa Roogi Vs. S.M. Megur(1969) 2 Mys LJ 540] quashed the order on the ground of non-disclosure of reasons. In that case the Supreme Court did not approve of the High Court's view in support of the proposition that " an order of suspension which does not state that it was a prelude to the institution of any disciplinary proceedings amounts to perpetual suspension and a punishment and is illegal. Only in the event of the authority proposing to commence disciplinary proceedings, there could be an order of suspension." On Bank's appeal the Supreme Court observed that the High court was not correct and quashed its order holding:

"4. In our opinion the law does not require that the suspension order must on its face disclose that any disciplinary proceedings were contemplated or were pending or that any criminal offence was under investigation, inquiry or trial. It would be sufficient if the competent authority recorded in its proceedings that the conditions mentioned in Regulation 12.1 were in existence."

The Hon'ble Apex court held in para 7 as under:-

"7. If it was intended to lay down that the order of suspension must state that disciplinary proceedings are proposed or are pending and otherwise , the order would be bad, we are unable to agree with such a view."

For the foregoing reasons, I do not find any illegality or infirmity in the impugned orders dated 27.09.2013 (Annexure nos.1 to 3 ) passed by opposite party No.3/Deputy Director, Agriculture, Behraich placing the petitioner under suspension challenged in the present writ petition. Thus the writ petition lacks merit and is accordingly dismissed.

No order as to costs.

Order Date :- 25.10.2013

dk/