Rakesh Chandra Agnihotri vs State Of U.P. And 3 Others
2018 Latest Caselaw 1817 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									 A.F.R.
 

 
								      Reserved
 
Court No. - 28 
 

 
Case :- WRIT - A No. - 14755 of 2018
 
Petitioner :- Rakesh Chandra Agnihotri
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Mahesh Narayan Mishra
 
Counsel for Respondent :- C.S.C.,Nagendra Nath Mishra
 

 
Hon'ble Ajay Bhanot,J.

1. The petitioner is working on the post of Inspector in Nagar Nigam, Ghaziabad. The petitioner was suspended by order dated 20.6.2018 passed by the Municipal Commissioner, Nagar Nigam, Ghaziabad.

2. Thus aggrieved, the petitioner has assailed the order dated 20.6.2018 passed by the Municipal Commissioner, Nagar Nigam, Ghaziabad in the instant writ petition.

3. Sri Satish Chaturvedi, learned Counsel, assisted by Sri Manoj Kumar Dubey, learned counsel for the petitioner contends that the charges against the petitioner are false and actuated by malafides. He further submits that the impugned order has been passed at the dictate of the Commissioner, Meerut Division, Meerut. The order does not reflect independent application of mind on part of the Municipal Commissioner. The learned counsel called attention to the service rules, to contend that power to suspend was vested in the disciplinary authority. The disciplinary authority has to exercise the power independently. In case the statutory authority, which is the disciplinary authority, acts at the command of an administrative superior, the decision will be vitiated.

4. Learned counsel has relied on a judgement of this court rendered in the case of Haridaya Nand Sharma Vs. State of U.P. and others registered as S.S. No.2867 of 2010. He also relied on the judgement entered by this court in case of Ram Saharey Verma Vs. State of U.P. and others in Writ  Petition No.8410 (SS) of 2009. Reliance has also been placed to the judgement of this court in Special Appeal No.8 (SB) of 1994 Dinesh Kumar Srivastava Vs. State of U.P. and others.

5. Sri Arvind Singh, learned counsel for the respondent no.2 contends that the charges against the petitioner are serious and require investigation. The disciplinary authority lawfully exercised its statutory power without compromising its independence.

6. Heard Sri Satish Chaturvedi, learned Counsel, assisted by Sri Manoj Kumar Dubey, learned counsel for the petitioner, Sri Arvind Singh, learned counsel for the respondent no.2 and learned Standing Counsel for the State.

7. From the records, certain facts which are relevant for the judgment are beyond the pale of dispute.

8. The Municipal Commissioner, Nagar Nigam, Ghaziabad was alerted to the misdeeds of the partnership firm of Rishabh Agnohotri, son of the petitioner and acts of misconduct committed by the petitioner. The Municipal Commissioner, Nagar Nigam, Ghaziabad, probed the matter. He created a report and forwarded the same to the Commissioner, Meerut Division, Meerut by letter dated 11.6.2018. Based on the findings in the said report submitted by the Municipal Commissioner, Nagar Nigam, Ghaziabad, the Commissioner, Meerut Division, Meerut, passed an order on 20.6.2018. The Commissioner, Meerut Division, Meerut, by order dated 20.6.2018 issued certain directions to the Municipal Commissioner, Nagar Nigam, Ghaziabad. The aforesaid directions included lodging of the FIR against the defaulting firms, suspension of the petitioner and initiation of a departmental enquiry against the petitioner. Municipal Commissioner, Nagar Nigam, Ghaziabad by order dated 20.6.2018 suspended the petitioner in contemplation of an enquiry. An enquiry officer was appointed to conduct the departmental enquiry by the said order dated 20.6.2018. The broad charges which are to be investigated in the departmental enquiry proceedings, are disclosed in the suspension order dated 20.6.2018. A formal charge-sheet has to be drawn up by the competent authority. The charges set out in the suspension order dated 20.6.2018, are the cause of suspension as well as departmental enquiry are set out hereinafter.

9. The first charge laid out in the suspension order, charges the petitioner with acts of corruption in exercise of his official duties, to benefit the firm of his son, Rishabh Agnihotri. The firm is running under the name and style of M/s Ambey Enterprises. The second charge asserts that the petitioner failed to inform the Nagar Nigam about the existence of the interest of petitioner's son in the aforesaid firm. The third charge alleges that the petitioner made attempts to provide contracts to M/s Ambey Enterprises at high rates. The fourth charge laid out against the petitioner is that two of his foreign trips were funded by private companies. He illegally obtained permission for the foreign trips from the Additional Commissioner in violation of service regulations. The fifth charge on which the petitioner is sought to be arraigned is that the documents relating to M/s Ambey Enterprises are not available in the office of the Nagar Nigam. The upkeep and custody of such records fall within the charter of duties of the petitioner. The said order of suspension bears a recital that a copy of the order is marked and forwarded to the Commissioner, Meerut Division, Meerut.

10. The service conditions of the employees of the Nagar Nigam are governed and regulated by Uttar Pradesh Nagar Mahapalika Sewa Niyamavali, 1962 Rules (hereinafter referred to as "The Rules"). The purpose and the power of suspension is provided for in Rule 27 and Rule 28 of the Rules. The relevant provisions are extracted hereunder for ease of reference.

27. Punishment. -- Subject to the provisions of section 110 of the Act, the following penalties may, for good and sufficient reasons and as thereinafter, provided, be imposed upon the servants of the Mahapalika by the authority which is competent to make such appointments under section 107 of the Act, notwithstanding that such an appointment in any particular case may have been made under section 577 (f) (2) of the Act, namely :--

(i) fine in case of servants belonging to the inferior service only:

Provided that the total amount of the fine shall not ordinarily exceed half month's pay of the servant concerned and it shall be deducted from his pay in instalments not exceedings one-quarter of his monthly salary ;

(ii) censure ;

(iii) withholding of increments including its stoppage at an efficiency bar;

(iv) recovery from pay of the whole or part of any pecuniary loss caused to the Mahapalika by negligence or breach of orders;

(v) suspension;

(vi) reduction to a lower post or time-scale, or to lower stage in a time-scale;

(vii) removal from the service of the Mahapalika which does not disqualify from future employment;

(viii) dismissal from the service of the Mahapalika which ordinarily disqualifies from future employment;

Explanation--The discharge--

(a) of a person appointed on probation during or at the end of the period of probation ; or

(b) of a person appointed otherwise than under contract to hold a temporary appointment on the expiration of the period of the appointment or at any time in accordance with the terms of appointment ; or

(c) of a person engaged under contract in accordance with the terms of his contract ;

does not amount to removal or dismissal within the meaning of this rule.

28. Suspension-- A servant of a Mahapalika against whose conduct an inquiry is contemplated or is proceeding, may be placed under suspension pending the conclusion of the inquiry at the discretion of the appointing authority. Enquiry in this rule includes the arriving at some decision on the basis of the enquiry.

Note-- As a rule, suspension should not be resorted to unless the allegations against the servant are so serious that, in the event of their being established, they may ordinarily be expected to warrant his dismissal, removal, or reduction in rank or unless the continuance in office of the of the servant concerned is likely to hamper or prejudice the course of enquiry. Suspension, where deemed necessary should, as far as possible, immediately precede the framing of charges and their communication to the servant charged."

11. The purpose of suspension of an employee in service jurisprudence is two fold. The traditional and dominant purpose of suspension is to aid and assist a disciplinary enquiry against an employee. Suspension in such cases is not a punishment. The second known purpose of suspension is to impose it as a punishment. The Rules clearly vest the disciplinary authority with the power to employ suspension for both purposes.

12. Law on suspension has been settled by high judicial authority. In the light of consistent judicial pronouncements, principles of the law on suspension can be stated.

13. When suspension is made in contemplation of a disciplinary enquiry, certain prerequisites have to be satisfied.

14. An enquiry should be contemplated or underway into charges of misconduct. The charges of misconduct, if proved, should be serious enough to warrant a major penalty.

15. The order of suspension should be passed after due and independent application of mind. The suspension should not be made as a matter of routine resulting from a suspension syndrome. At the stage of suspension the veracity of the charges cannot be ascertained and the merits of the defence cannot be examined. However, the order of suspension should disclose a prima facie act of misconduct.

16. Suspension in contemplation of an enquiry, is made to aid the process of enquiry. Suspension takes out the delinquent employee from his domain of influence. This ensures that the enquiry is independent and fair.

17. The suspension takes off the charged employee from his regular duties. This enables the employee to join the enquiry proceedings and give fulsome cooperation to the enquiry officer. It also gives him adequate time to prepare his defence. Continuing the employee on regular duties, with an enquiry on foot, would not be in institutional interests either. The official work would suffer and the enquiry proceedings would be impeded. The suspension in such cases not a punishment.

18. It would now be apposite to reinforce the narrative, with some cases in point.

19. The Bombay High Court in the case of Machhindra Pandurang Chavan Vs. State of Maharashtra and ors reported in 1989 (2) LLJ 353 held thus :-

"4. It is by now well settled that suspension is of two kinds i.e. as a punishment or as in interim measure pending disposal of the enquiry or pending criminal proceedings. On general principles Government like any other employer has right to suspend a public servant in one of two ways. It may be suspension of public servant pending departmental enquiry or pending criminal proceedings which is called as interim suspension or the Government may proceed to hold departmental enquiry and after his being guilty order suspension as a punishment if the rules so permit. This will be suspension as a penalty. (See R.P. Kapur V. Union of India and another). (1964- II-LLJ-164) and B.R. Patel V. State of Maharashtra, (1968-II-LLJ-700) as also P.L. Shah V. Union of India and ords. (1989-I-LLJ-302).

20. The law laid down by the Hon'ble Supreme Court in the case of State of Orissa Vs. Bimal Kumar Mohanty reported at 1994(4) SCC 126, offers reliable guidance and is applicable to the facts of this case. The relevant extracts of the judgment are reproduced below :-

"13. 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 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. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental inquiry or trial of a criminal charge."

21. The facts may be understood in the light of the law discussed above. The charges of misconduct against the petitioner, as disclosed in the suspension order are grave. If proven they will warrant a major penalty. The disciplinary authority had duly applied its mind to the gravity of charges and the necessity of an enquiry. Even prior to passing the order of suspension, the disciplinary authority had given deliberate thought to the issue. This is attested by the communication 11.06.2018 sent by the disciplinary authority to the Commissioner, Meerut Division, Meerut.

22. Admittedly a disciplinary enquiry has been instituted against the petitioner and an enquiry officer has been appointed. The Enquiry Officer has been directed to draw up the charge-sheet and proceed with the investigation of the charges.

23. The impugned order of suspension has been passed to assist the enquiry and ensure its speedy conclusion. The order of suspension does not have the attributes of a penal order.

24. The said order of suspension is not a punishment. The prerequisites of a valid order of suspension as provided in the service rules and as required by law laid down by the courts are satisfied.

25. Yet one issue remains. This goes to the root. The question is whether the Municipal Commissioner in whom the power of suspension is vested, exercised the power independently or the suspension order was passed at the behest of the Commissioner, Meerut Division, Meerut.

26. The exercise of discretion vested in an authority by statute has engaged attention of the constitutional courts and commentators on administrative law. Statutory power vested in an authority has to be exercised independently. The authority should advance the purpose of statute while exercising such power. There is unanimity of legal opinion on the issue. It would be fruitful at this stage to refer to some authorities in point. It will provide the broad setting of the law in which the facts of the case have to be adjudicated.

27. The Hon'ble Supreme Court while dealing with the meaning of the word discretion and the scope of the exercising of discretion vested in an authority in the case of Union of India Vs. Kuldeep Singh reported at (2004) 2 SCC 590 held thus:-

"19. Discretion is to know through law what is just. Where a Judge has and exercises a judicial discretion his order is unappealable unless he did so under a mistake of law or fact or in disregard of principle, or after taking into account irrelevant matters. It will help to show this if it can be shown that there were no materials on which he could exercise his discretion in the way he did. Not any one of the reasons attempted to be enumerated by the High Court in this case could in law be viewed as either relevant or reasonable reasons carrying even any resemblance of nexus in adjudging the quantum of punishment in respect of an offence punishable under the Act.

20. When any thing is left to any person, Judge or magistrate to be done according to his discretion, the law intends it must be done with sound discretion, and according to law. (See Tomlin's Law Dictionary) In its ordinary meaning, the word "discretion" signifies unrestrained exercise of choice or will; freedom to act according to one's own judgment; unrestrained exercise of will; the liberty of power of acting without other control than one's own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. Discretion is to discern between right and wrong; and therefore whoever hath power to act at discretion, is bound by the rule of reason and law. (See Tomlin's Law Dictionary).

21. Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colorable glosses and pretences, and not to do according to the will and private affections of persons. When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to confine himself (Per Lord Halsbury, L.C., in Sharp v. Wakefield, (1891) Appeal Cases 173). Also (See S.G. Jaisinghani v. Union of India and Ors. (AIR 1967 SC 1427).

22. The word "discretion" standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care; therefore where the legislature concedes discretion it also imposes a heavy responsibility. The discretion of a Judge is the law of tyrants; it is always unknown. It is different in different men. It is casual, and depends upon constitution, temper, passion. In the best it is often times caprice; in the worst it is every vice, folly, and passion to which human nature is liable," said (Lord Camden, L.C.J., in Hindson and Kersey (1680) 8 How, St. Tr.57.)."

28. The case of State of NCT of Delhi Vs. Sanjeev reported at 2005 (5) SCC 181 too dealt with the exercise of discretion. Hon'ble Supreme Court laid down the law in the following terms :-

"15. One of the points that falls for determination is the scope for judicial interference in matters of administrative decisions. Administrative action is stated to be referable to broad area of Governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary (See State of U.P. and Ors. v. Renusagar Power Co. and Ors. , AIR (1988) SC 1737. At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the exercise of prerogative power. Professor De Smith in his classical work "Judicial Review of Administrative Action" 4th Edition at pages 285-287 states the legal position in his own terse language that the relevant principles formulated by the Courts may be broadly summarized as follows. The authority in which discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories: (i) failure to exercise a discretion, and

(ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires.

19. Before summarizing the substance of the principles laid down therein we shall refer to the passage from the judgment of Lord Greene in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (KB at p. 229: All ER p. 682). It reads as follows:

"......It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word `unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting `unreasonably'. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers the authority....In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another."

Lord Greene also observed (KB p.230: All ER p.683) "....it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body can come to. It is not what the court considers unreasonable. .... The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another.'' (emphasis supplied) Therefore, to arrive at a decision on "reasonableness" the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the Court to substitute its view.

20. The principles of judicial review of administrative action were further summarized in 1985 by Lord Diplock in CCSU case as illegality, procedural impropriety and irrationality. He said more grounds could in future become available, including the doctrine of proportionality which was a principle followed by certain other members of the European Economic Community. Lord Diplock observed in that case as follows:

"....Judicial review has I think, developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call `illegality', the second `irrationality' and the third `procedural impropriety'. That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of `proportionality' which is recognized in the administrative law of several of our fellow members of the European Economic Community.''

Lord Diplock explained ``irrationality'' as follows:

"By `irrationality' I mean what can by now be succinctly referred to as Wednesbury unreasonableness'. It applies to a decision which is to outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."

29. The discretion or power of a statutory authority cannot be curbed by any official howsoever high or any person howsoever eminent. High station of the official or high eminence of the person does not clothe them with the lawful authority to fetter the power vested by statute in an authority. The statutory authority has an obligation to law to resist such pressures and to exercise its power independently. In case an order of a superior administrative official precludes the statutory authority from exercising its discretion independently or forecloses the option of the statutory authority to exercise its power in a particular manner, the independent decision making power vested in an authority stands compromised. In such a situation the action of the statutory authority would be vitiated.

30. But it is equally true that a mere direction or a suggestion from a high official to the officer vested with the power by law would not ipso facto vitiate the action of the latter. There is no presumption of invalidity of an order of statutory authority simply because the same has been preceded by an order or direction in like terms issued by an administrative superior.

31. Such presumption would produce an absurd result which will subvert the intent of the statute. The order of a statutory authority would be invalidated only because of its likeness to a prior order of an administrative superior. The statutory authority, in such case, would be precluded from independently passing an order which coincides with the expressed view of the superior administrative authority. The option to exercise its discretion in a particular manner cannot be foreclosed and the power of the statutory authority cannot be denuded simply by an order of the superior administrative authority. Statutory powers vested in an authority cannot be pre-empted by orders of an administrative superior.

32. The presumption of invalidation, may be tested in the facts of this case. The material in the record mandates the disciplinary authority to suspend the delinquent official and cause an enquiry to be conducted. The requirement of probity in conduct and transparency in administration would demand the suspension of such official and investigation of the charges. The lawful authority to so act is provided in the service rules. But the order of Commissioner, Meerut Division, Meerut, would prevent the suspension and block the enquiry. The order of the Commissioner, Meerut Division, Meerut, would divest the Municipal Commissioner, Nagar Nigam, of its statutory powers to suspend the petitioner in the case at hand. The order of Commissioner, Meerut Division, Meerut, cannot veto the statutory power of the Municipal Commissioner, Nagar Nigam. This would create anomalous situation where, the material to act exists in the record the power to act is vested by the statute, but the legitimacy of the act would be denied by the court. The facts of this case best illustrate the fallacy of the presumption of invalidation of an order of a statutory authority.

33. The sequitor of this discussion is that the validity of every order will have to be examined in the specific facts of the case and the settled principles of law. A bare perusal of the two orders will not be sufficient.

34. The line of enquiry will have to go further. The enquiry shall find whether the statutory authority entered its order at the behest of the administrative superior or it was made only on the information of administrative superior or the opinions of the statutory authority and the administrative superior were congruent but independent.

35. A statutory authority can preserve the independence of decision making, even in the face of an order by a superior official. In some cases the order of the statutory authority would be passed on the information by a higher official, but not at the behest of the latter. It could be that the statutory authority acted independently and the order of an administrative superior was a redundancy.

36. The test of validity is not the fact of the order issued by the superior administrative authority, but the act of abdication of its independent discretion by the statutory authority. Regard will also be paid to the aim sought to be achieved by the legislature.

37. Coming back to the facts of the case again. The communication dated 20.6.2018 issued by the Commissioner Meerut Division, Meerut, to the Municipal Commissioner, directed the latter to suspend the petitioner and initiate a disciplinary enquiry against him. The order is cast in imperative terms. It is inappropriate and cannot be justified. The zeal for action cannot overtake the requirements of law.

38. The second part of the enquiry is more critical and in fact decisive to the controversy. It has to be seen whether the Municipal Commissioner, Nagar Nigam, Ghaziabad passed the order of suspension at the behest of the Commissioner, Meerut Division, Meerut and abdicated his independent discretion vested by law. As a corollary, whether the Municipal Commissioner was prevented from exercising his discretion and adopting an option which lay within his power due to the order passed by the Commissioner, Meerut Division, Meerut. A closer look at some of the earlier findings would be required take the second line of enquiry forward.

39. The material in the record, on the foot of which the impugned order of suspension, shows acts of misconduct allegedly committed by the petitioner.

40. It has been held earlier that, the said charges prima facie disclose acts of major misconduct, which if proved will invite a major penalty.

41. The charges of misconduct against the petitioner, reflect a larger malaise in public administration, of the conflict of public duty with private interest, of private enrichment from public assets. This menace to public interest can be purged only if such charges are investigated with dispatch and independence. In the light of these facts, an enquiry into the veracity of the charges cannot be delayed or declined by the disciplinary authority.

42. The material pertaining to acts of misconduct was noticed by the disciplinary authority prior to the order passed by the Commissioner, Meerut Division, Meerut. The disciplinary authority had earlier taken independent cognizance of the material on the prima facie charges of misconduct against the petitioner. The disciplinary authority, alerted the Commissioner, Meerut Division, Meerut of the said material and his opinion by a communication dated 11.06.2018. This communication and enquiry of the Municipal Commissioner, Nagar Nigam, Meerut, predates the order of the Commissioner, Meerut Division, Meerut. The communication of the disciplinary authority to the Commissioner, Meerut Division, Meerut dated 11.6.2018 is recorded in the order of the Commissioner, Meerut Division, Meerut dated 20.6.2018. The order of the Commissioner, Meerut Division, Meerut, is only an affirmation of the conclusion already arrived at by the disciplinary authority.

43. Clearly action was being contemplated. But before a formal order could be passed by the disciplinary authority, the Commissioner, Meerut Division, Meerut passed the order dated 20.6.2018. The order of the Commissioner, Meerut Division, Meerut was superfluous. The order of the Commissioner cannot disable the disciplinary authority from taking action under the service rules, which the latter was contemplating before hand.

44. In the facts and material in the record, the Municipal Commissioner, Nagar Nigam, Ghaziabad had no lawful option but to suspend the petitioner. There was no other legal manner of exercise of discretion available to the Municipal Commissioner, Nagar Nigam, Ghaziabad apart from suspending the petitioner. In these facts, had the Municipal Commissioner, Nagar Nigam, Ghaziabad, failed to pass the order of suspension, he would have illegally fettered his discretion and would have exposed himself to the charge of abdication of his statutory responsibilities.

45. One of the charges enumerated in the order of suspension is not even mentioned in the order of the Commissioner Meerut, Division Meerut. This fact also confirms the independent approach of the Municipal Commissioner in the exercise of statutory power.

46. The upshot of the above discussion is that the opinions of the two authorities were congruent, but the decision of the Municipal Commissioner, Nagar Nigam, Ghaziabad was independent. The Municipal Commissioner, Meerut, independently arrived at the need to pass the order of suspension. The Municipal Commissioner did not pass the order of suspension at the behest of the Commissioner, Meerut Division, Meerut.

47. The communication of the order by the Municipal Commissioner, Nagar Nigam, Ghaziabad to the Commissioner, Meerut Division, Meerut, is not relatable to the statutory power of suspension vested in the disciplinary authority. The order of communication by the disciplinary authority to the Commissioner, Meerut Division, Meerut, is distinct and severable from the order of suspension.

48. Case law relied upon by the learned counsel for the petitioner is not applicable to the facts of this case. In all those cases orders were passed by the statutory authority at the behest of the administrative superior.

49. There is no infirmity in the impugned order of suspension. The impugned order of suspension is legal and valid. The prayer in the writ petition to quash to order dated 20.6.2018 passed by the Municipal Commissioner, Municipal Corporation, Ghaziabad, is rejected.

50. The petitioner is about to superannuate. The conclusion of the enquiry is not in sight. His terminal benefits may not be released in case the enquiry is not concluded before his retirement. The petitioner stares at penury and prospects of long litigation in the evening of his life.

51. These apprehensions of the petitioner are justified and need to be addressed.

52. In this view of the matter the relief is being recast. Interests of justice would be sub served by issuing the following directions:-

1. A mandamus is issued to the enquiry officer to conclude the enquiry within four months. The enquiry officer, if necessary, shall conduct the enquiry on a day to day basis, after the charge-sheet is served upon the petitioner and he is granted adequate time to prepare his defence.

2. The departmental authorities shall cooperate with the enquiry proceedings and tender evidence without any delay.

3. The petitioner will cooperate with the enquiry officer and shall not delay the enquiry proceedings.

4. The Municipal Commissioner, Ghaziabad, shall serve a copy of this order to the enquiry officer for compliance.

53. The writ petition is finally disposed of in the above terms.

Order Date :-03.08.2018.

Pramod