Umesh Kumar Tripathi vs State Of U.P. Thru. Secretary ...
2013 Latest Caselaw 6731 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 1	     (Reserved)
 

 
Case :- SERVICE BENCH No. - 1442 of 2013
 
Petitioner :- Umesh Kumar Tripathi
 
Respondent :- State Of U.P. Thru. Secretary (Madhyamik) Govt.Of U.P. & Ors
 
Counsel for Petitioner :- A.M.Tripathi
 
Counsel for Respondent :- C.S.C.,Mukund Madhav Asthana
 

 
Hon'ble Uma Nath Singh,J.

Hon'ble Mahendra Dayal,J.

(Per Uma Nath Singh, J.)

We have heard learned counsel for parties and perused the pleadings of writ petition.

This writ petition has been filed with prayers for (i) issuance of a writ, order or direction in the nature of Certiorari for quashment of the impugned orders no. 1213/15-13-2013-27(16)/2012 dated 05.09.2013, order no. 1342/15-13-2013-27(16)/2012, dated 05.09.2013 and no. 1248/15-13-2013-27(16)/2012 dated 05.09.2013 passed by Respondents vide Annexures 1, 2 and 3; (ii) issuance of a writ, order or direction in the nature of Mandamus commanding/directing the Respondents to allow the Petitioner to continue on the post of District Inspector of Schools, Lucknow, as he was working before passing of the impugned orders with the usual powers and responsibilities connected with his office and pay him salary and other allowances, admissible to incumbent of the post, and (iii) issuance of any other appropriate, writ, order or direction as deemed fit and proper in the facts and circumstances of the case.

It appears from the pleadings that the impugned Office Order no. 1213/15-13-2013-27(16)/2012 dated 05.09.2013 was passed by the Secretary (Madhyamik), Government of U.P.-Respondent no. 1, whereby the Petitioner has been placed under suspension. The Petitioner alleges illegality, arbitrariness and mala fide in passing the said order. According to him, it is designed to harass him. The Petitioner has also challenged another Government Order of the even date whereby he has been attached in the office of Additional Director, Intermediate Education Directorate, Allahabad. The Petitioner has also challenged the order dated 05.09.2013 whereby Respondent no. 4 has been transferred in his place.

The charges against the Petitioner in the impugned orders, as per pleadings, are general in nature. The Petitioner has been charged to be absent at the time of distribution of laptops whereas he claims to have been present in the office and also to have participated in the distribution of laptops. It is asserted that the Petitioner prepared the schedule including the details of programmes and also signed these documents. The laptops were distributed for the first time in Lucknow on 11.03.2013, and thereafter, on 27.07.2013. The Petitioner claims to have been present on both the dates.

Insofar as charges no. 3 and 4 are concerned, it is submitted that the same are not sustainable in the eyes of law. The Petitioner was ill and he was admitted in hospital in the night of 26.07.2013. Even then he was present on 27.07.2013 at the time of distribution of laptops. After receiving the letter dated 18.08.2013, he went to the office of District Magistrate, Lucknow and briefed him on all the relevant points. It is further submitted that the Petitioner sent letters to all the concerned offices regarding the program of laptop distribution. Being District Inspector of Schools, Lucknow, the Petitioner was authorized by the department/authorities concerned including the District Magistrate, Lucknow, to pursue the case of State Government in Contempt Petition No.409 of 2012 (Arun Chandra vs. Mayankeshwar Sharan Singh and another), relating to payment of salaries of teachers working in Colvin Talukedar College, pending before Hon'ble the Apex Court. It appears that Hon'ble the Apex Court vide order dated 15.7.2013 had directed the Petitioner to remain present in Court during the proceedings. The order of Hon'ble Court reads as:

"In Con.P.(C) Nos. 409/2012 and 222/2013

The concerned officers of the State Government are present. On the next date of hearing the presence of all the officers other than District Inspector of school is dispensed with. He will remain in Court with full information.

All the parties may file their affidavits within two weeks. Rejoinder, if any, may be filed within one week thereafter.

List on 5.8.2013."

Thus, the Petitioner was required to remain present during the proceedings of Hon'ble the Apex Court. Moreover, it also appears that Respondent No. 2, who is holding the additional charge of Director, Basic and Intermediate Education, wrote letter dated 20.8.2013 to the Secretary of the department not in the capacity of Director, Madhyamik, but Director, Basic and Intermediate Education to suspend the Petitioner when he was present at Delhi for filing the affidavit before Hon'ble the Apex Court, without looking into full facts and circumstances of the case. This fact is reflected from the date of verification of Rejoinder Affidavit. The relevant part of the affidavit is reproduced as:

"REJOINDER AFFIDAVIT OF CONTEMNOR NO.4, DISTRICT INSPECTOR OF SCHOOLS, TO THE COUNTER AFFIDAVIT OF RESPONDENT NO.5.

I, Umesh Kumar Tripathi, aged about 45 years, S/o Sri Pradumna Tripathi, posted as District Inspector of Schools, Lucknow, presently at New Delhi do hereby solemnly affirm and state as hereunder:

----------

VERIFICATION

Verified at Lucknow on this 20th day of August 2013 that the contents of the above affidavit are true and correct. No part of it is false and nothing material has been concealed.

Sd/-

Deponent

Filed By

(M.R.Shamshad)

Advocate for the State of U.P.

B-4 (LGF) Jangpura Extension

New Delhi. 110014

011-24375842 "

It also appears that the Petitioner got the affidavit of the District Magistrate, Lucknow prepared on that date, which was sworn later, on 25.08.2013 at Lucknow. The relevant portion of the said affidavit is also reproduced as:

"AFFIDAVIT ON BEHALF OF ALLEGED CONTEMNOR NO.4, Mr ANURAG YADAV

I, Anurag Yadav, S/o Sh.Lakshmi Narayan Yadav, aged about 37 years, presently posted as District Magistrate, Lucknow, do

hereby solemnly affirm and state as hereunder :-

---

VERIFICATION

Verified at Lucknow on this 25th day of August 2013 that the contents of the above affidavit are true and correct. No part of it is false and nothing material has been concealed.

Sd/-

Deponent

It has been reiterated that though the Petitioner is not connected with the department of Basic Education, yet he has been suspended on the recommendation on the letter head of Director, Basic Education.

The letter dated 20.08.2013, being in Hindi, is reproduced as:

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,slh fLFkfr esa rRdky izHkko ls Jh mes'k dqekj f=ikBh] ftyk fo|ky; fujh{kd y[kuÅ dks tufgr o 'kkldh; fgr esa fuyfEcr djds buds fo:} vuq'kklukRed dk;Zokgh dh tk;A bl laca/k es lwP; gS fd buds fo:} iwoZ ls gh dbZ vuq'kklukRed dk;Zokgh xfreku gS rFkk lrdZrk tkWp Hkh xfreku gSA vr% Jh f=ikBh dk y[kuÅ esa cus jguk dnkfi mfpr ugh gSA

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The letter of District Magistrate, Lucknow which formed the basis of recommendations by the Director, Basic Education, is dated 18.08.2013. On the said date the Petitioner was a way to Delhi to pursue the matter of State Government in Hon'ble the Apex Court as Officer-incharge of the case, referred to hereinabove. The letter of District Magistrate reads as:

i=kad&[email protected],[email protected]

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It is also stated that the Petitioner was granted protection in a Public Interest Litigation [W.P.No.5655 (MB) of 2012] vide the order dated 25.07.2013 passed by this Court for taking up the cudgels against education mafia. The relevant part of the order of Court is reproduced below:

Learned counsel Shri Upendra Misra appearing on behalf of the Petitioner informs that Shri Tripathi, District Inspector of Schools, has also filed complaints against the education Mafias in Lucknow and if he is transferred, in the present scenario, no officer would take the cudgel against them. Mr. Tripathi shall, thus, file his personal affidavit setting out complete facts including the details of selection made by him before the next date of hearing, and as it may not be expedient in the public interest to disturb his present posting, he shall continue to hold the present charge till the next date of hearing.

List the matter on 03.09.2012"

This Court on 03.08.2013, in C.M.A. No.65094 of 2012 filed in the aforesaid Public Interest Litigation, also stayed the transfer order of the Petitioner by passing the following order :

"List the application with record of writ petition and Special Appeal No.173 of 2012 on 16.08.2012. Till then, the transfer order, if any, of present incumbent, Shri Umesh Kumar Tripathi, of the office of District Inspector of Schools, Lucknow, shall remain in abeyance."

It is also pleaded by the Petitioner that he was served with the suspension order on Teacher's Day, namely, September 5, 2013, and the charge sheet after filing of this writ petition on October 2, 2013, the Birth centenary of Mahatma Gandhi, when all the Government establishments, including the offices of newspapers, were closed.

It is further pleaded that a Government Servant in U.P. can be suspended only under the provisions of Uttar Pradesh Government Servant (Discipline & Appeal) Rules, 1999, (in short, 'the Discipline and Appeal Rules, 1999'). The provision is extracted and reproduced as given below:

"Suspension- 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"

In the short counter affidavit filed by opposite party no. 1, it is submitted that the Petitioner was found to be lax and negligent in the performance of his duties on several occasions and there are nine pending disciplinary proceedings relating his earlier tenure as District Inspector of Schools, Ballia and District Inspector of School, Kushinagar. There are eight cases pending against the Petitioner which show that there are serious charges of manipulation, misappropriation of funds and indiscipline. Many of the disciplinary proceedings are pending with the enquiry officers because even after repeated correspondence by the enquiry officers, the Petitioner has not submitted his reply to the charges.

The District Magistrate, Lucknow also addressed letters dated 27.07.2013 and 18.08.2013 to the State Government wherein he has informed that the Petitioner has not responded to the phone calls made from his office. The Petitioner is also not performing his regular duties as District Inspector of Schools, Lucknow. On repeated efforts being made, the office of the District Magistrate was not able to contact him.

It is pleaded by the State that the Commissioner, Lucknow Division, Lucknow, informed the Directorate of Education that the Petitioner is not attending the meetings relating to correction of audit objections pending against various privately managed schools and colleges of District Lucknow. In fact, there are 16369 such audit objections, which need the cooperation of District Inspector of Schools, Lucknow for their removal, but the Petitioner is not attending any of the meetings of the Monitoring Committee. The Director, Secondary Education, and the Joint Director have also sent letters to the Government dated 30.07.2013, 20.08.2013 and 13.08.2013 in this regard. It is submitted that the Petitioner himself vide his letter dated 18.07.2013 has requested the Government to transfer him from District Lucknow to any other place.

It is also submitted by the State that the Petitioner has made a statement in Writ Petition No. 5655 (MB) 2012 (PIL) that he will complete the selection of teachers of primary and secondary schools within four months.

As per the statute, the District Inspector of Schools has very limited role in the selection of teachers of secondary schools. The U.P. Secondary Education Service Selection Board is only empowered to select the teachers, required for secondary schools. With regard to primary schools, it is the Directorate of Basic Education and the Basic Shiksha Parishad which make the appointments.

It is further submitted that taking into account several complaints made against the Petitioner about his functioning/non-functioning as District Inspector of Schools, Lucknow, the Government has instituted disciplinary proceedings against him under Rule 7 of the Discipline and Appeal Rules, 1999, vide Annexure-1 under challenge. The legality and bonafide of the orders relating to his attachment in the office of the Additional Director, Secondary Education, Allahabad, and posting of another officer in his place, as District Inspector of Schools, Lucknow, have also been called in question.

It is also submitted that the charge sheet has been issued in the present disciplinary proceedings against the Petitioner vide Government Order dated 24.09.2013.

In the rejoinder affidavit filed on behalf of the Petitioner, it is submitted that the Petitioner has been suspended on the basis of alleged charges, which are general in nature. No major penalty can be awarded on the basis of said charges, therefore, the impugned suspension order is against the Rules and settled proposition of law. It has also been stated that the impugned order has been passed on the basis of letter dated 27.07.2013 and 18.08.2013 written by District Magistrate, Lucknow, as well as D.O. Letter dated 20.08.2013 of the Director in his capacity as Director (Basic) for suspending the Petitioner, and also initiating disciplinary proceedings against him. Acting only on the basis of said recommendation, the impugned order of suspension has been passed, therefore, the same is not sustainable in the eyes of law. It is submitted that the letters dated 27.07.2013 and 18.08.2013, written by the District Magistrate, Lucknow, indicate that he had directed the Petitioner vide letter dated 18.08.2013 to appear before him. Pursuant thereto, the Petitioner attended the office of District Magistrate, Lucknow, on the same day and informed all the relevant facts and circumstances as were required of him. It is only thereafter that the Petitioner went to Delhi for preparation and filing of his counter affidavit as well as that of the District Magistrate, Lucknow. It is further submitted that the Petitioner was always available in his office for discharging his official duties, and attending telephones. Thus, the allegations of his non-availability over telephone are totally baseless and unsustainable in the eyes of law.

During the course of hearing of the matter, learned counsel for the Petitioner, inter alia, submitted that from letter dated 20.08.2013, addressed by the Director to the Secretary concerned as aforesaid, it is evident that the same has been written in the capacity of Director (Basic) although the Petitioner has no concern with Basic Education Department. It is vehemently contended that the said letter is manipulated and fabricated. So far as the remaining two letters dated 30.07.2013 and 13.08.2013 are concerned, it is the argument of learned counsel for the Petitioner that they have not been looked into for passing the impugned orders of suspension, his attachment with headquarters and posting of some other officer in his place at Lucknow.

It is a further submission of learned counsel for the Petitioner that the letter dated 18.07.2013 saying that the Petitioner is interested in his transfer from Lucknow to some other place has been obtained from him by putting pressures. He was even forced to put his signature on the said letter at the instance of Respondents. Thus, it is not sustainable in the eyes of law. It is reiterated that the Petitioner was ill in the night preceding the distribution of laptops, but he made all the necessary arrangements with respect to the same at appropriate time which would be evident from the perusal of proceedings dated 12.05.2013. It is also a submission that the laptops were distributed in the District of Lucknow for the first time on 11.03.2013, and thereafter, on 27.07.2013 and other two occasions, the Petitioner was present even though he was suffering from dehydration and was admitted in the hospital on 26.07.2013. It is submitted that after receiving letter dated 18.08.2013, he immediately contacted the District Magistrate, Lucknow and informed him all the relevant facts and circumstances and also issued letter dated 19.07.2013 to all concerned relating to distribution of laptops. It is submitted that the Petitioner being District Inspector of Schools, Lucknow was authorized by the department/concerned authorities, including the District Magistrate, for doing Parivi in the Contempt Case No. 409 of 2012 in Civil Appeal No. 5248 of 2008 pending in Hon'ble the Apex Court. Hon'ble the Apex Court vide order dated 01.07.2013 had directed all the concerned authorities to remain present on 15.07.2013, on which date all the authorities, including the Petitioner, were present. It is further submitted that vide the order dated 15.07.2013, Hon'ble the Apex Court dispensed with the appearance of all other officers except the Petitioner, and posted the matter for 05.08.2013. The Petitioner who was authorized to do Pairvi of the above case, collected all the relevant materials, and contacted the advocate on record for preparation of counter affidavit, which was filed by him on 20.08.2013. The Petitioner went to Delhi for filing of the counter affidavit of District Magistrate, Lucknow on 25.08.2013. It is vehemently submitted that the Petitioner performed all the duties and responsibilities of District Inspector of Schools and all such other duties as were assigned to him by the District Magistrate, Lucknow.

Learned counsel for Petitioner further submitted that earlier a Public Interest Litigation No. 5655 (MB) of 2012 was filed and the order dated 25.07.2012 was passed, which, on reproduction, reads as:

"Pursuant to our order dated 09.07.2012, District Inspector of Schools Lucknow Sri Umesh Kumar Tripathi is present in Court and states that the ban on appointment of teachers has now been lifted by the State Government and the vacant posts have been advertised on the basis of requisitions sent by educational institutions. Sri Umesh Kumar Tripathi also states that though the entire process in respect of all the educational institutions within his jurisdiction may take two months time, but qua requisitions already received in his office, the interviews are fixed for 16.08.2012. Learned counsel Shri Upendra Misra appearing on behalf of the Petitioner informs that Shri Tripathi, District Inspector of Schools, has also filed complaints against the education Mafias in Lucknow and if he is transferred, in the present scenario, no officer would take the cudgel against them. Mr. Tripathi shall, thus, file his personal affidavit setting out complete facts including the details of selection made by him before the next date of hearing, and as it may not be expedient in the public interest to disturb his present posting, he shall continue to hold the present charge till the next date of hearing. List the matter on 03.09.2012."

It is submitted that vide order dated 25.07.2012 the Petitioner was continued to hold the charge, but the Respondents passed order dated 01.08.2012 transferring him from Lucknow to Sant Ravidas Nagar whereupon appropriate application was moved by the Petitioner in the above Public Interest Litigation and order of transfer dated 01.08.2012 was kept in abeyance vide order dated 03.08.2013 passed by this Court.

It is further submission of learned counsel for Petitioner that the Respondents in the most illegal and arbitrary manner, in utter disregard to the orders of this Court, curtailed the powers of the Petitioner and another incumbent was posted as District Inspector of Schools-II, Lucknow. It is submitted that the impugned order of suspension dated 05.09.2013 has been passed on Teachers' Day. Learned counsel submitted that it is well settled proposition of law that no one can be suspended automatically in a routine manner without enquiring into the gravity of charge and the nature of evidence placed before the appointing authority. It is submitted that in the case of Petitioner, the appointing authority has not considered the matter on the premise that it would not be expedient to suspend a government servant unless the charges levelled against him appear to be major in nature upon prima facie taken to be proved. It is submitted that charge sheet has been served upon the Petitioner in extraordinary haste and improper manner.

Learned State counsel, on the other hand, reiterated his arguments as contained in the counter affidavit and stated that looking to the seriousness of the charges levelled against the Petitioner, he was placed under suspension pending enquiry and imputation of charges as reflected in the order of suspension are serious, and if proved, would entail imposition of major punishment. Therefore, the order of suspension is perfectly legal. It is also submitted that the challenge to the order of suspension is not based on the ground that the order has been passed by an incompetent authority, or on the ground of malice, and if so, the officer who has passed order of suspension should have been impleaded to meet the allegations of malice; and it has not been challenged being in violation of any statutory provisions of law or the rules.

In the written submissions, learned counsel for parties have reiterated the averments made in the writ petition; counter and rejoinder affidavits, and oral submissions. From the rival submissions as well as documents placed on records, it is necessary to resolve the issues :

(i)as to whether during the subsistence of interim order passed by this Court in the pending Public Interest Litigation, the Petitioner should and could have been suspended, and transferred without the leave of the Court, and again, during the pendency of instant proceedings, served with charge sheet ;

(ii)as to whether the impugned orders deserve to be quashed inasmuch as they appear to have been passed by the Secretary Education (Madhyamik) on the recommendations of Director, Madhyamik Shiksha, on the letter-head of the Director, Basic Shiksha (while holding dual charges) on the basis of letters of District Magistrate, Lucknow;

Vide Rule 4 of ''the Discipline and Appeal Rules 1999' inter alia also contains the proviso as to when the suspension order can be passed.

"1) a government servant against whose conduct an enquiry is contemplated, or is proceeding may be placed under suspension pending the conclusion of the enquiry 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 they 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 post 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, enquiry or trial relating to a criminal charge, which is connected with his position as a government servant of 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.

.....

...."

In the case of Balwantray Patel v. State of Madhya Pradesh, reported in AIR 1968 SC 800, it has been held that it is now well settled that the power to suspend, in the sense of a right to forbid a servant to work, is not an implied term in an ordinary contract between master & servant and that such a power can only be the creature of either of a statute governing the contract, or of an express term in the contract itself.

In the case of C.E.Eranimose v. State, reported in 1970 SLR 520, it has been held that and order of suspension must be based on objective assessment of the situation by the competent authority himself and not as a result of dictation or direction by an extraneous authority.

In the case of State of U.P. v. Jai Singh Dixit, reported in (1976) 2 LLJ (All.) 246, the Court observed that a departmental inquiry is contemplated when on objective consideration of the material, the appointing authority considers the case, as one, which would lead to a departmental inquiry, irrespective of whether any preliminary inquiry, summary or detailed, has or has not been made, or if made, is not complete.

Madras High Court in the case of State of Tamil Nadu vs. P.M. Belliappa reported in 1985 Lab I.C. 51 held that suspension is to be resorted in rare cases and should not give the feeling of being victimized. The facts and materials must exist, the authority must have taken them into account, or in other words, the authority must direct himself to the facts and materials before him. The decision must have been made on a proper direction as to those facts or materials, or in other words, the authority must call his own attention to the facts and materials. The authority must exclude from consideration irrelevant and extraneous matters. The decision must be a reasonable one. It must be a decision which a reasonable person might reasonably reach. In other words, the decision should not be tainted with patent unreasonableness or arbitrariness. The task of the courts is only to decide as to whether there is any foundation of relevant facts, even though, it may take a different view from that of the authority on the same facts.

A Division Bench of this High Court in the matter of Ram Dular Tripathi v. State of U.P. & Others reported in [1998 (16) LCD 137, relying upon a full bench judgment of this Court in the matter of Jai Singh Dixit (supra), while dealing with suspension order passed under Rule 49A (1) and 55 of the U.P. Civil Services (Classification), Control and Appeal) Rules, 1930, has held that a government servant can be suspended only if his conduct is such as to warrant inquiry under Rule 55, where one of the three major punishments can be imposed.

In the same judgment, reliance has been placed on Hon'ble the Apex Court's judgment in the matter of State of Orissa vs. Bimal Kumar Mohanti reported in AIR 1994 SC 2296. The relevant portion of this judgment as extracted in the judgment of Division Bench, is reproduced as:

"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 on defalcation of funds or serious acts 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. Each case must be considered depending on the nature of the irrigations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending enquiry or contemplated enquiry or investigation. It would be another thing if the action is actuated by malafides, arbitrary or for ulterior purpose. The suspension must be a step in and to the ultimate results of the investigation or enquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental enquiry or trial of a criminal charge."

This High Court in its another judgment also, in the case of Lal Bahadur Singh v. Engineer-In-Chief (Mechanical), Irrigation Department and others, reported in [2000 (18) LCD 382] has placed reliance on the judgment of Hon'ble the Apex Court in Bimal Kumar Mohanty's case (supra).

Hon'ble the Apex Court in a later judgment in the case of Cap.M.Paul Anthony v. Bharat Gold Mines Ltd. and another, reported in (1999) 3 SCC 679, has discussed the tendency of affliction of mind of superior officers by suspension syndrome. Para-29 of the judgment, being relevant, is reproduced as:

"Exercise of right to suspend an employee may be justified on the facts of a particular case. Instances, however, are not rare where officers have been found to be afflicted by a "suspension syndrome" and the employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employee's trivial lapse which has often resulted in suspension. Suspension notwithstanding, non-payment of subsistence allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilized and the salary is also paid to him at a reduced rate under the nickname of "subsistence allowance", so that the employee may sustain himself. This Court in O.P.Gupta v. Union of India made the following observations with regard to subsistence allowance: (SCC p.340, para 15)

''An order of suspension of a government servant does not put an end to his service under the Government. He continues to be a member of the service in spite of the order of suspension. The real effect of suspension as explained by this Court in Khem Chand v. Union of India is that he continues to be a member of the government service but is not permitted to work and further during the period of suspension he is paid only some allowance--generally called subsistence allowance - which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the departmental enquiry is concluded within a reasonable time, affects a government servant injuriously. The very expression ''subsistence allowance' has an undeniable penal significance. The dictionary meaning of the word ''subsist' as given in Shorter Oxford English Dictionary, Vol.II at p.2171 is ''to remain alive as on food; to continue to exist'. ''Subsistence' means - means of supporting life, especially a minimum livelihood." (emphasis supplied).

Thus, it is obvious from the aforesaid decisions that the competent authorities shall take a conscious decision after examining the incriminating materials against the delinquent public servant/employee before placing him under suspension. A suspension order is not to be passed sheer out of whims and/or under any extraneous influence. Such exercise of power would amount to non-exercise of powers. The competent authority, should reach a dispassionate conclusion that it is more expedient in the public interest to place an employee under suspension because the charges based on materials are grave enough to invite any of the major penalties as prescribed in the Law/Rules governing his/her service conditions.

In the instant case, the petitioner has been suspended on the basis of recommendation of Director, Madhyamik Shiksha, who was also holding the additional charge of Director, Basic Shiksha, on the basis of letter of the District Magistrate, Lucknow. He has stated that he clarified the position to the District Magistrate. He had prepared the schedule including the details of programmes for laptops distribution. He also issued letters and orders under his signatures in order to facilitate and make the laptops distribution a success.

According to the petitioner, laptops were distributed in district Lucknow for the first time on 11.03.2013 and thereafter on 27.07.2013. The petitioner claims to have been present on the said dates. On 27.07.2013, when he was suffering from de-hydration and admitted in the hospital in emergency ward a day earlier on 26.07.2013, he managed the programme and attended the function. The Petitioner having received the letter dated 18.08.2013 immediately contacted the District Magistrate, Lucknow, and informed all relevant facts and circumstances of the case. He also issued letters dated 19.07.2013 to all the concerned for distribution of laptops. Being District Inspector of Schools, Lucknow, the petitioner was authorised by the department/concerned authorities, including the District Magistrate, Lucknow, to pursue and assist the Advocate on record and Senior Counsel on behalf of the State in Contempt Case bearing No.409 of 2012 in Civil Appeal No.5248 of 2008 before Hon'ble the Apex Court. In the said case the Hon'ble Court had summoned all the concerned authorities including the petitioner on 15.07.2013. However, Hon'ble the Apex Court vide order dated 15.07.2013 dispensed with the presence of all other officers except the petitioner with direction to list the matter on 05.08.2013. Thus, apart from official duties, the petitioner was required to collect relevant materials for preparation of affidavit/counter affidavits, and seek appointments with learned State Counsel and Senior Counsel etc. The counter affidavit on behalf of petitioner was filed on 20.08.2013 and that of District Magistrate, Lucknow, on 25.08.2013.

We may also notice that earlier in Public Interest Litigation no.5655 (MB) of 2012, pending before this Court, the authorities concerned were directed to issue necessary order of relaxation of general ban on the recruitment. By means of the aforesaid order, this Court also directed the petitioner to file his personal affidavit and continue to hold the present charge. However, contrary thereto, vide order dated 01.08.2012, the petitioner was transferred from Lucknow to Sant Ravidas Nagar. On an application being moved by the petitioner in the pending Public Interest Litigation, this Court vide order dated 03.08.2012 kept the order of transfer in abeyance. Thereafter, the petitioner on the basis of letters dated 27.07.2013, 18.08.2013 and 20.08.2013, written by the District Magistrate, Lucknow and the Director in the capacity of Director, Basic Education, has been placed under suspension; attached in the office of Additional Director, Madhyamik Shiksha, with immediate effect, and in his place one P.C.Yadav, Assistant Director (Sports) Education Directorate, has been posted.

The State has given the gist of charges relating to acts of misconduct as under:-

"a. Not hearing to the District Magistrate and not cooperating with him in executing various programmes of the State Government.

b. Extending non cooperation in execution of major State Schemes like laptops distribution, online application for board examination, recognition of schools, appointments etc.

c. Despite having CUG mobile number, as well as personal mobile number, it has become impossible to get in touch with him by the departmental officers as well as the District Officers which has invariably acted as hindrance to government governmental work.

d.    The District Magistrate, Lucknow, reported against the petitioner about the futile attempts made by him to contact him.
 
e.      Petitioner's failure to hear public grievances or their disposal from 10 A.M. to 12 Noon everyday by remaining unauthorisedly absent continuously during these hours of the day."
 

It has been contended that the State has taken a holistic view of the matter in passing the impugned orders. There are serious charges of manipulation, misappropriation of funds and indiscipline against the petitioner. The writ petition is based on disputed questions of facts and, therefore, could not have been entertained. The State has also placed reliance on the case of Bimal Kumar Mohanty (supra) apart from the judgment of Hon'ble the Apex Court in U.P.Rajya Krishi Utpadan Mandi Parishad v. Sanjiv Rajan, reported in 1993 Supp (3) SCC 483.

For the reasons discussed hereinabove, and since even after allegations of misconduct in the past, the petitioner has been given postings at sensitive places, and he is said to have taken cudgels against Education Mafia, we do not find any reason to sustain the impugned orders. The allegations providing basis for passing the impugned orders are not specific, cogent and serious enough to invite any of the major penalties prescribed under the Law/Rules governing the service conditions of the petitioner.

We have already referred to the case of Bimal Kumar Mohanty (supra) hereinabove and as regards the ratio of the judgment in the case of U.P.Rajya Krishi Utpadan Mandi Parishad (supra), it may not be attracted in the facts and circumstances of the case.

Besides, the impugned letters dated 05.09.2013 were delivered to the petitioner, District Inspector of Schools, Lucknow, on Teacher's Day and the charge sheet was served on 2nd October, 2013, when not only the Government offices but even the newspapers establishments remain closed. The letter of Director, Madhyamik Shiksha, recommending the case of petitioner for issuance of order of suspension, to the Secretary, Madhyamik Shiksha, was issued not on proper letter-head but on the letter-head meant to be used for Basic Shiksha. These examples also support the petitioner's contention of non application of mind. It appears that the impugned orders were passed in extra ordinary haste. The competent authority appeared to be swayed by the extraneous influence of letters of Director Madhyamik Shiksha and the District Magistrate, Lucknow, and failed to apply the mind independently to relevant facts. It has resulted in non exercise of powers.

Thus, in the premises discussed hereinabove, we hereby quash the impugned order nos. 1213/15-13-2013-27(16)/2012 dated 05.09.2013, 1342/15-13-2013-27 (16)/2012 dated 05.09.2013 and 1248/15-13-2013-27 (16)/2012 dated 05.09.2013, as contained in Annexure Nos.1,2 and 3 to the Writ Petition. However, it would be open for the State of U.P. to transfer the Petitioner to any of five places which the Petitioner shall indicate in a representation to be submitted by him to respondent no.1 namely the Secretary (Madhyamik), Government of Uttar Pradesh, within a period of fifteen days. In case the Petitioner fails to do so, the said respondent would be at liberty to transfer him to any place in the State.

The writ petition is, thus, allowed while granting the aforesaid liberty to the State.

Dated : 30.10.2013

(Mahendra Dayal, J) (Uma Nath Singh, J)

anb/Irfan