Dhruv Bhushan Dubey vs State Of U.P. And 3 Others
2018 Latest Caselaw 917 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- WRIT - A No. - 12708 of 2018
 

 
Petitioner :- Dhruv Bhushan Dubey
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Vijay Gautam,Atipriya Gautam, Devesh Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Ifaqat Ali Khan,J.

1. With the consent of learned counsel for parties, we proceed to decide this writ petition at this stage since parties stated that issue raised is purely legal and on the basis of record of writ petition it can be decided.

2. Heard Sri Vijay Gautam, learned counsel for petitioner and learned Standing Counsel for respondents.

3. The order of suspension dated 13.03.2018 passed by Senior Superintendent of Police, Ghaziabad (hereinafter referred to as "SSP") in contemplation of departmental inquiry under Rule 17(1)(a) of U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as "Rules, 1991") has been challenged by petitioner mainly on two grounds.

4. Firstly, it is contended that the very allegation stated in suspension order does not constitute misconduct whatsoever hence, impugned order of suspension is patently illegal and shows a total non application of mind on the part of Competent Authority. Secondly, it is contended that though in impugned order of suspension it has been said that departmental inquiry is contemplated but simultaneously another order has been issued on 13.03.2018 directing Superintendent of Police (City), Ghaziabad to make a preliminary inquiry in the matter and submit report.

5. The order passed by SSP, Ghaziabad for preliminary inquiry reads as under:

^^d`i;k {ks=kf/kdkjh uxj r`rh; dh layXu vk[;k fnukafdr 13-03-2018 dk voyksdu djsa] tks Fkkuk{ks= [kksMk ds vUrxZr fnukad [email protected] dh jkf= djhc 11-30 cts 04 O;fDr;ksa dh 'kjkc ihus ls e`R;q tSlh xEHhj ?kVuk ?kfVr gks tkus esa ykijokgh cjrus okys iqfyl dfeZ;ksa ds fo:) izkjfEHkd tkap djk;s tkus ds laca/k esa gSA

vr% izdj.k ls lEcfU/kr i= ewy:i ls layXu dj bl funsZ'k ds lkFk Hksts tk jgs gSa] fd izdj.k esa izkjfEHkd tkWap 07 fnol esa iw.kZ dj vk[;k miyC/k djkuk lqfuf'pr djsaA**

"Please have a perusal of the report of Circle Officer (City) - III dated 13.03.2018, which is related to conducting a preliminary inquiry against the police personnel showing negligence leading to a serious incident like the death of 04 persons due to consumption of liquor at 11:30 p.m. on the night of 12/13.03.2018 under the P.S. - Khoda.

Hence, the papers, in original, relating to the occurrence are being sent annexed hereto, with an instruction to ensure to submit a report after completing preliminary inquiry in the matter in seven days ." (English translation by Court)

6. This has been repeatedly held that an order of suspension can be passed when a departmental inquiry is contemplated or pending and this is the power conferred under Rule 17(1)(a) of Rules, 1991 but for the purpose of holding preliminary inquiry an order of suspension cannot be passed.

7. Under Rules, 1991, suspension is not one of the punishments prescribed therein. On the contrary, Rule 17 contemplates that suspension can be effected in a contemplated or pending departmental inquiry or during a criminal investigation, inquiry or trial or when an officer is in jail for a particular period of time. In the present case, none of these contingencies are available and, therefore, Rule 17 which authorises Competent Authority to place a police officer of subordinate rank under suspension, is not at all attracted.

8. Admittedly, from order dated 13.03.2018, it is evident that Superintendent of Police (City), Ghaziabad has been directed to hold a preliminary inquiry, meaning thereby, a preliminary inquiry has not been held so far which is now ordered and pending thereto, impugned order of suspension has been passed.

9. A Five Judges Bench of this Court in State of U.P. Vs. Jay Singh Dixit and others, 1975 ALR 64 has held that an order of suspension can be passed in a contemplated or pending departmental inquiry and it does not include contemplated or pending preliminary inquiry. Recently, a Full Bench of this Court in Rajveer Singh Vs. State of U.P. and others, 2010(10) ADJ 246 has also taken same view with some further clarification.

10. In the present case, impugned order of suspension has been passed with a further direction to another officer to hold preliminary inquiry and submit report. Meaning thereby, the impugned order is in furtherance and contemplation of preliminary inquiry. This Court does not intend to hold that in every case, holding of preliminary inquiry is a condition precedent, but when the competent authority finds it expedient first to hold a preliminary inquiry, before taking decision whether a regular departmental inquiry should be held or not, it means that there is no contemplation of a regular departmental inquiry and its possibility or exigency is yet to be decided by competent disciplinary authority. That being so, in contemplation or pendency of preliminary inquiry, an officer under the rules, cannot be suspended, since such a suspension is not permitted under statute.

11. It is not the case of respondents that the nature of charge was such that a regular departmental enquiry immediately was found expedient and for collecting material for initiating regular departmental enquiry, a fact finding enquiry was directed to the subordinate authority. The insistence on enquiry report after conducting preliminary enquiry shows that disciplinary authority itself is not very sure as to whether there is anything against the petitioner, prima facie, justifying regular enquiry and that is how a preliminary enquiry report is desired, though within a short time. This by itself makes it very clear that impugned order, as a matter of fact, is in a contemplated or pending preliminary enquiry and mention of contemplated departmental enquiry in opening part of suspension order is nothing but a camouflage. This by itself would not give any sanctity or better status to the impugned order and cannot protect it from the dictum of law laid down by Full Bench of this Court in Jay Singh Dixit (supra) as also Raj Veer Singh (supra).

12. On this aspect I am also fortified by the observations made by Full Bench in Raj Veer Singh (supra). While answering question (b), the Court said that word "enquiry" under the Rules cannot include a preliminary enquiry and it means a regular departmental enquiry, as held by Larger Bench in Jay Singh Dixit (supra) and question no. (b) was answered accordingly. However, while further considering question no. (b) and (c), the Court noticed Larger Bench decision and observed that whether a preliminary enquiry has been conducted or not, or, if conducted, but is not complete, that by itself would not vitiate an order of suspension inasmuch as in order to make an order of suspension valid, what is required is that the competent authority has satisfied itself on objective consideration of material that a regular departmental enquiry is contemplated and if it is already pending, the question of preliminary enquiry would not arise at all. This is evident from what has been said in para 43 and 46 of the judgment reproduced as under:

"43. The answer No.1 by the Full Bench is to the effect that Rule 17(1)(a) of the 1991 Rules does not prohibit passing of suspension order during pendency of preliminary inquiry. The five Judges Larger Bench in State of U.P. vs. Jai Dingh Dixit case (supra) had considered the question in context of Rule 49-A of the C.C.A. Rules, which is a pari materia rule. As notice above, the three Judges Full Bench in State of U.P. vs. Jawahar Lal Bhargava (supra) has taken the view that the occasion for passing a suspension order shall arise only when a firm decision is taken to hold an inquiry and at any earlier point of time the power of suspension cannot be exercised. The aforesaid view of the three Judges Full Bench in State of U.P. vs. Jawahar Lal Bhargava (supra) was disapproved by the Full Bench. As noticed above, the rationale of three Judges judgment in State of U.P. vs. Jawahar Lal Bhargava (supra) was that till a preliminary inquiry is not completed, no firm decision can be taken by the appointing authority for suspension. The five Judges Larger Bench in paragraph 37, while considering the question as to when departmental inquiry can be said to have been contemplated, has laid down 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. The above ratio of the Full Bench clearly lays down that the fact that preliminary inquiry has, or has not been made or if made, is not complete is not relevant, relevant is objective consideration of the materials by the appointing authority. The ratio of the five Judges Larger Bench in State of U.P. vs. Jai Singh Dixit still holds good and in view of the above ratio, the answer given by the Full Bench in Shahroj Anwar Khan's case (supra) is in accord with the above ratio. The answer No.1 of the Full Bench in Shahroj Anwar Khan's case (supra) lays down that there is no prohibition of passing a suspension order during pendency of preliminary inquiry. However, whether a suspension order passed during pendency of preliminary inquiry is valid or not is another question which has to be answered according to the test as laid down by the Larger Bench in State of U.P. vs. Jai Singh Dixit (supra) i.e. when on objective consideration of the materials the appointing authority considers the case as one which would lead to a departmental inquiry. Thus the answer No.1 given by the Full Bench in Shahroj Anwar Khan's case laying down that there is no prohibition of passing a suspension order during pendency of preliminary inquiry, is in accord with the ratio of five Judges Larger Bench in State of U.P. vs. Jai Singh Dixit case (supra) as noted in paragraph 37 of the judgment. We, however, add that the question that a suspension order passed during pendency of inquiry is valid or not, is a separate question, which may be considered in the light of the ratio of five Judges Larger Bench in the case of State of U.P. vs. Jai Singh Dixit. As noticed above, in the event a suspension order does not satisfy the test laid down by the five Judge Larger Bench in paragraph 99, i.e. there is no objective consideration by the appointing authority on the materials that a formal department inquiry is expected, the suspension can be quashed. Hon'ble Satish Chandra , J. giving concurring judgment in State of U.P. vs. Jai Singh Dixit (supra) has laid down in paragraph 72 that existence of power which should not be confused with its abuses. The power of suspension may be vested with the appointing authority during pendency of the preliminary inquiry but whether the power has been exercised validly is another question which had to be separately looked into in the light of the ratio of five Judges Larger Bench in State of U.P. vs. Jai Singh Dixit case. The five Judges Larger Bench in paragraph 72 of the judgment laid down following:-

"72. The existence of power which should not be confused with its abuses. In case of abuse, the particular exercise of the power will be bad and will be quashed. But that has no bearing on the question of law as to when, on a proper construction of the Rule, does the power arise."

"46. The view taken by the Division Bench in Kripa Shanker Prasad's case (supra) that suspension could not have been ordered while directing preliminary inquiry is not in accord with the ratio of five Judges Larger Bench in State of U.P. vs. Jai Singh Dixit case (supra) and thus no exception can be taken to answer No.2 given by the Full Bench in Shahroj Anwar Khan's case (supra). As observed above, while considering challenge to a suspension order passed during pendency of preliminary/fact finding inquiry, the test to be applied in examining the correctness or otherwise of the suspension order is as to whether on objective consideration of the materials the appointing authority considers the case as one which would lead to a departmental inquiry, as laid down by the five Judges Larger Bench in State of U.P. vs. Jail Singh Dixit case. The issues having already covered by the five Judges Larger Bench, the Question No.(b) needs no reference to the Larger Bench."

13. The Court also said, on a challenge that the order of suspension has been passed in contemplation or pendency of a preliminary enquiry and not in a contemplation of departmental enquiry, it would be for the State Government to justify by placing such material on record, as necessary to show that irrespective of preliminary enquiry, the authority concerned was satisfied that the suspension was warranted in the facts of the case. Para 47 of the judgment in Raj Veer Singh (supra) reads as under:

"47. Whether, while directing preliminary inquiry, the power to suspend has to be exercised on objective consideration of material on record of each case and therefore it is for the State Government on a challenge being made to an order of suspension in contemplation of an inquiry to justify by such material on record that irrespective of preliminary inquiry the authority was satisfied that suspension was warranted in the facts of the case."

14. In the order, where factum of contemplation of enquiry is mentioned, simultaneously, with conduct of a preliminary enquiry, unless the objective consideration on the part of respondent-competent authority is shown by appropriate material, the Court may draw an inference that there is no objective consideration on the part of competent authority and order of suspension has been passed without proper application of mind, mechanically, and, on the one hand, an attempt has been made to depict is if the requirement of statute has been fulfilled, but simultaneously since requisite material is not available on record to allow competent authority to form an opinion, an order has been passed for preliminary enquiry, so as to collect such material. In fact, such an enquiry is a fact finding enquiry which would subsequently make relevant material available to the competent authority, to take an appropriate decision in the matter. Such an order, in effect, is a colourable exercise of power and it is difficult to sustain the same in a case where the State has miserably failed to justify its order in the manner as has been observed in para 47 of the judgment in Raj Veer Singh (supra).

15. In view of the above discussion, it cannot be said that the impugned order of suspension satisfies the requirement of law and is sustainable.

16. Secondly, order of suspension alleges that four persons died in the night of 12/13.03.2018 at about 11.30 pm after consuming liquor. Death is a serious matter and it shows negligence on the part of petitioner. It is not the allegation that there was some spurious liquor consumed by those persons and petitioner is guilty of not controlling of sale of such liquor. Mere fact that four persons died by consuming liquor in the area of petitioner does not constitute misconduct. As a Police Inspector petitioner was not expected to meet and sit with every person in his area of operation to find out whether he is consuming liquor or not. Unless an inquiry in the matter of misconduct is to be made, disciplinary proceeding cannot be held.

17. Mere statement of an incident is one thing but unless it is alleged that delinquent employee has some fault in incident which constitute misconduct, mere occurrence of incident causing even death, per se, cannot be said to constitute misconduct on the part of employee concerned and hence no question of initiating disciplinary proceeding in the case in hand would arise. In this context we may refer to some authorities which have explained as to what "misconduct" is.

18. 'Misconduct' has been defined in Black's Law Dictionary, Sixth Edition at page 999:

"A transgression of some established and definite rule of action a forbidden act, a dereliction from duty, unlawful behavior, wilful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness."

19. 'Misconduct in Office' has been defined as:

"Any unlawful behavior by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly and failure to act in the face of an affirmative duty to act."

20. P. Ramanatha Aiyar's Law Lexicon, Reprint Edition 1987 at page 821 defines ''misconduct' thus:

"The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected."

21. Meaning of 'misconduct' came up for consideration before Apex Court in Union of India Vs. J. Ahmed, AIR 1979 SC 1022, wherein, explaining the term 'misconduct' Court held as under:

"It would be appropriate at this stage to ascertain what generally constitutes misconduct, especially in the contest of disciplinary proceedings entailing penalty." (para 10)

"Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pearce v. Foster) (1988) 17 QBD 536 (at p.542). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspaper)]. (1959) 1 WLR 698. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt., Central Railway, Nagpur Divn., Nagpur, 61 Bom LR 1596: (AIR 1961 Bom 150) and Satubha K. Vaghela v. Moosa RazaF, (1969) 10 Guj LR 23. The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under: -

"Misconduct means, misconduct arising from ill motive; act of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct."

In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Management, Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik, (1966) 2 SCR 434: (AIR 1966 SC 1051), in the absence of standing orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Union of India, (1967) 2 SCR 566: (AIR 1967 SC 1274), the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani v. Air France, Calcutta, (1964) 2 SCR 104: (AIR 1963 SC 1756), wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar (examples) instances of which (are) a railway cabinman signalling in a train on the same track where there is a stationary train causing headlong collision; a nurse giving intraveious injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashing causing heavy loss of life. Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Co.-op. Department Stores Ltd., (1978) 19 Guj LR 108 at p.120). But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty." (para 11)

22. Again in State of Punjab and others vs. Ram Singh Ex-Constable, (1992) 4 SCC 54 Court has held as under: -

"Thus it could be seen that the word ''misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order." (para 6)

23. In the context of Section 31 of Advocates Act, 1961, Apex Court in Noratanmal Chouraria Vs. M.R. Murli & another 2004 (5) SCC 689 said:

"Misconduct, inter alia, envisages breach of discipline, although it would not be possible to lay down exhaustively as to what would constitute conduct and indiscipline, which, however, is wide enough to include wrongful omission or commission whether done of omitted to be done intentionally or unintentionally. It means, "improper behaviour, intentional wrongdoing or deliberate violation of a rule or standard of behaviour".

Misconduct is said to be a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand, it is a violation of definite law."

24. In Baldev Singh Gandhi Vs. State of Punjab & others AIR 2002 SC 1124, with reference to provisions of Punjab Municipal Act, the Apex Court, considering term 'misconduct' held as under :

" 'Misconduct' has not been defined in the Act. The word 'misconduct' is antithesis of the word 'conduct.' Thus, ordinarily the expression 'misconduct' means wrong or improper conduct, unlawful behaviour, misfeasance, wrong conduct, misdemeanour etc."

25. Mere fact that four persons after consuming liquor has died in the area in which petitioner posted by itself and by no stretch of imagination can constitute misconduct so as to justify an order of suspension. When confronted, learned Standing Counsel appearing for respondents also could not explain as to how mere fact that some persons have died by consuming liquor would justify an order of suspension against petitioner unless there is some allegation against petitioner constituting omission or commission of an act which may constitute misconduct. Hence, for this reason also order of suspension cannot sustain.

26. In the result, writ petition is allowed. Impugned order of suspension dated 13.03.2018 is hereby set aside.

Order Date :- 25.5.2018

AK