Masihuzzaman Siddiqui vs State Of U.P. Thru Addl.Chief ...
2019 Latest Caselaw 5441 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?AFR 
 
Court No. - 23
 

 
Case :- SERVICE SINGLE No. - 15098 of 2019
 

 
Petitioner :- Masihuzzaman Siddiqui
 
Respondent :- State Of U.P. Thru Addl.Chief Secy.Basic Edu.Lucknow And Anr
 
Counsel for Petitioner :- Sm Singh Royekwar,Sumeet Tahilramani
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajesh Singh Chauhan,J.

Heard learned counsel for the parties.

This Court passed the order dated 27.5.2019 as under:

"Heard Sri SM Singh Royekwar, learned counsel for the petitioner and the learned State counsel appearing on behalf of the opposite parties who is granted two days time to seek instructions as to whether any charge-sheet has been issued to the petitioner either in pursuance of the order dated 28.06.2018 or 03.12.2018 or regarding both.

List this case on 29.05.2019 as a fresh case in the additional cause list"

The case set forth by learned counsel for the petitioner is that vide order dated 28.6.2018 passed by the Special Secretary, Department of Basic Education, Anubhag-1 (Annexure no. 1A to the writ petition) the departmental inquiry has been initiated against the petitioner but the petitioner could not know the fate of that initiation of departmental inquiry vide order dated 28.6.2018 till 3.12.2018. However, vide office order dated 3.12.2018 on the same set of facts the petitioner was placed under suspension pending departmental inquiry directing the Director, Education, Basic Department, U.P. to prepare the charge-sheet against the petitioner within 15 days and get it approved from the government.

The submission of learned counsel for the petitioner is that the allegations against the petitioner vide orders dated 28.6.2018 and 3.12.2018 are almost the same and the competent authority could have conducted the departmental inquiry against the petitioner pursuant to its earlier order dated 28.6.2018. He has further submitted that if the departmental inquiry pursuant to the order dated 28.6.2018 has been dropped, at least the information to that effect should have been provided to the petitioner but no such information has been given to the petitioner. However, in a sheer mechanical manner the subsequent office order dated 3.6.2018 has been passed placing the petitioner under suspension.

Since the charge-sheet should have been prepared pursuant to the order dated 3.12.2018 within a period of 15 days but when no charge-sheet was prepared and issued to the petitioner till 23.5.2019, the petitioner filed this writ petition challenging both the aforesaid orders dated 28.6.2018 and 3.12.2018. This Court vide order dated 27.5.2019 has asked the learned counsel for the State-respondents as to whether the charge-sheet has been issued against the petitioner or not granting two days time but due to paucity of time the aforesaid case could not be taken up on 29.5.2019, 30.5.2019, 31.5.2019 and 2.7.2019.

Today, on being confronted as to whether the charge-sheet has been issued against the petitioner or not, the learned Standing Counsel has apprised the Court that till date no charge-sheet has been issued against the petitioner, however, the same is under preparation.

This is absolutely callous approach for the reason that when the office order dated 3.12.2018 (Annexure no. 1B) categorically provides that the charge-sheet against the petitioner shall be prepared and shall be put up before the competent authority for approval within 15 days, the same should have been produced before the competent authority within the aforesaid stipulated time but now 7 months period has passed w.e.f. the order dated 3.12.2018 no charge-sheet has been issued against the petitioner.

This is a trite law that the suspension is not punishment. The rationale behind this law is that the incumbent is placed under suspension for conducting independent departmental inquiry without having any influence thereon by the incumbent and, therefore, various government orders and the pronouncements of this Court provides that said departmental inquiry should be conducted and concluded strictly in accordance with law but with expedition and the incumbent should not be kept under suspension for sine die. It is true that the suspension is not a punishment but if any employee has been kept under suspension for long period that casts stigma on his career and also the employee faces humiliation from the society. If the employee at all is responsible for the charges leveled against him by means of suspension order, the charge-sheet should be issued promptly and after calling upon the defense reply from the employee departmental inquiry should be initiated at once and it should be conducted and concluded promptly following the principles of natural justice

In the present case despite the specific indication in the order dated 3.12.2018 itself that the charge-sheet should be prepared and produced before the competent authority for approval within a period of 15 days even no charge sheet has been prepared and issued to the petitioner by now.

This Court strongly deprecates the attitude of the competent authority / authorities and considers such conduct of the authorities as harassment of the employee which may not be admissible in the garb of suspension order. The Hon'ble Apex Court in re: Ajay Kumar Chaudhary vs. Union of India and others reported in (2015) 7 SCC 291 vide para 21 has observed as under:

"21. We, therefore, direct that the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of Charges/Chargesheet is not served on the delinquent officer/employee; if the Memorandum of Charges/Chargesheet is served a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the concerned person to any Department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognize that previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us." (Emphasis added)

This has been noticed that the view of the Hon'ble Apex Court in re: Ajay Kumar Chaudhary (supra) has been expressed in a case where the rules categorically provides that if the incumbent is placed under suspension he should be given charge sheet within three months and if the charge-sheet is not provided to those employees, the competent authority shall reconsider the same. Since the charge-sheet was not issued in the case of Ajay Kumar Chaudhary in three months, therefore, the Apex Court observed that the currency of suspension order should not be extended beyond three months, if within this period memorandum of charges / charge-sheet is not served on the delinquent officer / employee.

It is true that the rules referred in re: Ajay Kumar Chaudhary (supra) are not the same as the present case is but the analogy of law and the concern of the Court is the same and i.e the person should not be kept under suspension without charge-sheet for unlimited period and if any incumbent is placed under suspension without any charge-sheet for unlimited period then the suspension order would be treated as stigmatic which law does not permit.

The Division Bench of this Court in Service Single No. 11780 of 2017: Om Prakash Yadav vs. State of U.P. and others vide judgment and order dated 19.12.2017 has observed as under:

"The purpose of suspension is not to keep a person out of work without conducting an inquiry. Suspension is not a punishment yet, it can not be taken recourse for punishing the officer placed under suspension by other means. If a person is kept under suspension for an unspecified period, it definitely becomes a punishment. It was never designed by the legislatures in that manner. Suspension should be resorted in serious matters when likely punishment is major penalty. The opposite parties can not suspend a person and forget him and keep his life in a limbo. We take the instructions on record and direct that the suspension of the petitioner shall remain stayed until further order of the Court or till the completion of the inquiry. It is made clear that the inquiry may go on but the petitioner must be reinstated on the post on which he was working and the petitioner should be reinstated. It will be at the discretion of the State Government to post him any where of their choice."

This again shows the concern of the Court wherein the person is under suspension without any inquiry. When the charge-sheet is not issued, the inquiry cannot be commenced, therefore, such type of suspension are suspension without inquiry.

This Court vide judgment and order dated 12.4.2019 in Service Single No. 10276 of 2019 in re: Ram Ratan Vs. State of U.P. and others has apprised the concern of the Court to the Chief Secretary, State of U.P. for doing the needful but it appears that till date no needful exercise has been carried out even at the end of Chief Secretary, State of U.P. inasmuch as had any reasonable exercise been initiated by the said authority after the judgment and order dated 12.4.2019 in re: Ram Ratan (supra), the present petitioner would have been served the charge-sheet after the order dated 27.5.2019 passed by this Court in the present matter by asking the learned State Counsel as to whether the charge-sheet has been issued to the petitioner or not.

Therefore, it appears that the State-authorities are not caring the directions of this Court in its letter and spirit and on account of the unwarranted inaction on the part of the State authorities the Courts quite often feel to pass such orders which would have been not passed if the proper exercise strictly in accordance with law is carried out at the end of the State-authorities.

In the light of the aforesaid facts and circumstances the Court records its anguish, displeasure and dissatisfaction towards the inaction on the part of the State-authorities and has got no option except to quash the suspension order. Accordingly, the office order dated 3.12.2018 (Annexure no. 1B to the writ petition) is hereby quashed. However, the liberty is given to the competent authorities to serve the charge-sheet upon the petitioner at the earliest, preferably within a period of 15 days from today and if such charge-sheet is served upon the petitioner, the departmental inquiry may be conducted and concluded, if so warranted, strictly in accordance with law with expedition preferably within a period of five months from the date of production of certified copy of the order of this Court and thereafter the final decision may be taken, if it is so warranted, against the petitioner within a further period of one month.

Since the suspension order has been quashed, therefore, the authorities are directed to reinstate the petitioner within a period of 15 days and place him at any place where the authorities deem fit and proper and the petitioner shall be paid his all consequential benefits strictly in accordance with law.

Since this Court has directed to conduct departmental inquiry as aforesaid, however, strictly in accordance with law, therefore, the office order dated 28.6.2018 (Annexure no. 1 to the writ petition) is kept in abeyance and while conducting the departmental inquiry against the petitioner the charges leveled against the petitioner vide order dated 28.6.2018 may be inquired into strictly in accordance with law, if so warranted.

In view of the above, the writ petition is allowed.

No orders as to costs.

Order Date :- 3.7.2019

Om

[Rajesh Singh Chauhan, J.]