Amar Jeet Singh vs State Of U.P. Thru. Prin. Secy. ...
2021 Latest Caselaw 8364 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Chief Justice's Court
 

 
Case :- SPECIAL APPEAL No. - 237 of 2021
 

 
Appellant :- Amar Jeet Singh
 
Respondent :- State Of U.P. Thru. Prin. Secy. Social Welfare,Lko.& Ors.
 
Counsel for Appellant :- Hari Prasad Gupta
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Munishwar Nath Bhandari,Acting Chief Justice
 
Hon'ble Manish Kumar,J. 

By this appeal, a challenge is made to the judgment dated 15.07.2021 whereby the writ petition preferred by the petitioner against the order of suspension was dismissed.

The counsel submits that order of suspension has been passed by the authority without application of mind. It is even without appointing inquiry officer, thus, on the aforesaid ground itself, the order of suspension should have been set aside by the learned Single Judge.

It is further submitted that the appellant/petitioner has not committed any misconduct. A reference of the report of four members' Committee has been given to show that no allegation exists against the working of the appellant/petitioner.

In view of the above, the petitioner could not have been suspended.

The distribution of funds was on the verification made by the Verification Officer and if any illegality was committed or payment has been made, it was due to improper verification of the applications. Four members' Committee found that the eligible candidates were denied the benefit of scheme while ineligible were allowed benefits under a scheme of Social Welfare Department, State of U.P.

To support the argument, learned counsel for the appellant/petitioner has made a reference of the judgment of this Court in the case of Dr. Arvind Kumar Ram Vs. State of U.P., Civil Misc. Writ Petition No. 35923 of 2007 vide judgment dated 06.09.2007.

The judgment aforesaid has been given in reference to proviso to Rule 4 (1) of U.P. Government Servant (Discipline and Appeal) Rules, 1999 (for short "Rules of 1999").

In view of the above, the impugned order deserves to be set aside.

We have considered the submissions made by the counsel for the appellant/petitioner and perused the record.

The learned Single Judge has threshold referred to the allegations and the seriousness attached to it. The order of suspension has been passed in reference to it.

The first question raised by the counsel for appellant/petitioner is regarding the non-application of mind of the disciplinary authority. A perusal of the order of suspension shows as to on what basis it has been passed. The summary of the allegations against the appellant/petitioner has been given and taking note of the seriousness of the charges which includes financial irregularities, the appellant/petitioner was placed under suspension. In the order of suspension, the competent authority is not required to come with the conclusion of the allegation rather while passing the order of suspension, even allegations are not required to be disclosed. The order can be passed under the contemplation of the inquiry.

We do not find that the order of suspension suffers from non-application of mind.

The second ground raised by the counsel for the appellant/petitioner is that the inquiry officer has not been appointed while passing the order of suspension. The learned counsel could not refer to any provision requiring appointment of inquiry officer while passing the order of suspension. For ready reference, Rule 4 of the Rules of 1999 is quoted herein-:

"4. Suspension. - (1) A Government servant against whose conduct an inquiry is contemplated, or is proceeding may be placed under suspension pending the conclusion of the inquiry in the discretion of the appointing authority :

Provided that suspension should not be resorted to unless the allegations against the Government servant are so serious that in the event of their being established may ordinarily warrant major penalty :

Provided further that concerned Head of the Department empowered by the Governor by an order in this behalf may place a Government servant or class of Government servants belonging to Group 'A' and 'B' posts under suspension under this rule :

Provided also that in the case of any Government servant or class of Government servants belonging to Group 'C' and 'D' posts, the appointing authority may delegate its power under this rule to the next lower authority.

(2) A Government servant in respect of, or against whom an investigation, inquiry or trial relating to a criminal charge, which is connected with his position as a Government servant or 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.

(3) (a) A Government servant shall be deemed to have been placed or, as the case may be, continued to be placed under suspension by an order of the authority competent to suspend, with effect from the date of his detention, if he is detained in custody, whether the detention is on criminal charge or otherwise, for a period exceeding forty-eight hours.

(b) The aforesaid Government servant shall, after the release from the custody, inform in writing to the competent authority about his detention and may also make representation against the deemed suspension. The competent authority shall after considering the representation in the light of the facts and circumstances of the case as well as the provision contained in this rule, pass appropriate order continuing the deemed suspension from the date of release from custody or revoking or modifying it.

(4) Government servant shall be deemed to have been placed, or as the case may be, continued to be placed under suspension by an order of the authority competent to suspend under these rules, with effect from the date of his conviction if in the event of a conviction for an offence he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed consequent to such conviction.

Explanation. - The period of forty-eight hours referred to in sub-rule will be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken to account.

(5) Where a penalty of dismissal or removal from service imposed upon a Government servant is set aside in appeal or on review under these rules or under rules rescinded by these rules and the case is remitted for further inquiry or action or with any other directions :

(a) if he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any such directions as aforesaid, be deemed to have continued in force on and from the date of the original order of dismissal of removal;

(b) if he was not under suspension, he shall, if so directed by the appellate or reviewing authority, be deemed to have been placed under suspension by an order of the appointing authority on and from the date of the original order of dismissal or removal:

Provided that nothing in this sub-rule shall be construed as affecting the power of the disciplinary authority in a case where a penalty of dismissal or removal in service imposed upon a Government servant is set aside in appeal or on review under these rules on grounds other than the merits of the allegations which, the said penalty was imposed but the case is remitted for further inquiry or action or with any other directions to pass an order of suspension pending further inquiry against him on those allegations so, however, that any such suspension shall not have retrospective effect.

(6) Where penalty of dismissal or removal from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of law and the appointing authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal or removal was originally imposed, whether the allegations remain in their original form or are clarified or their particulars better specified or any part thereof a minor nature omitted :

(a) if he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any direction of the appointing authority, ho deemed to have continued in force on and from the date of the original order of dismissal or removal;

(b) if he was not under such suspension, he shall, if so directed by the appointing authority, be deemed to have been placed under suspension by an order of the competent authority on and from the date of the original order of dismissal or removal.

(7) Where a Government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise) and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Government servant shall continue to be under suspension till the termination of all or any of such proceedings.

(8) Any suspension ordered or deemed to have been ordered or to have continued in force under this rule shall continue to remain in force until it is modified or revoked by the competent authority.

(9) A Government servant placed under suspension or deemed to have been placed under suspension under this rule shall be entitled to subsistence allowance in accordance with the provisions of Fundamental Rule 53 of the Financial Hand Book, Volume 11, Parts II to IV."

A perusal of the Rules of 1999 does not show that either the charge-sheet should be served prior to the order of suspension or inquiry officer to be appointed rather the suspension order can be passed under the contemplation of the disciplinary action.

Thus, even second ground raised by the counsel for the appellant/petitioner is not made out.

At this stage, we may refer to the judgment cited by counsel for the appellant/petitioner in the case of Dr. Arvind Kumar Ram (supra). The order of suspension in that case seems to have been passed to find out whether the allegations warrant a major penalty against the appellant/petitioner.

The language of the impugned order of suspension before us does not show a direction to find out whether the charges levelled against the appellant/petitioner would be so serious, warrants major punishment. Proviso to Rule 4 (1) of the Rules of 1999 requires order of suspension be passed when allegations against the government servant are serious and if established, ordinarily warrants major penalties.

The learned Single Judge has recorded finding about the allegations to be serious and at this stage, if we record finding on it further, a prejudice may cause to the appellant/petitioner himself. We however conclude that the order of suspension does not suffer from any illegality in reference to proviso to Rule 4 (1) of the Rules of 1999.

The last argument is in reference to the report of four members' committee. The allegations against the appellant/petitioner is regarding financial irregularities effecting the Exchequer. It is by distributing funds to those who were not eligible and at the same time to deprive those who were eligible. The truthfulness of the allegation would come in the disciplinary inquiry after serving charge-sheet to the appellant/petitioner which said to have not been served till date.

At this stage, we do not want to make comment on the allegations against the appellant/petitioner as it may otherwise cause prejudice to either of the parties. However, this appeal is disposed of without causing interference in the order of suspension so as the impugned judgment but with a direction to the respondents to take a decision for service of charge-sheet, if it has not already been served. The action for it would be taken without further delay and if the response to the charge-sheet is given by the appellant/petitioner and finding not to be satisfactory, the inquiry thereupon would also be conducted expeditiously.

Order Date :- 22.7.2021

Nirmal_Sinha

(Manish Kumar, J.) (Munishwar Nath Bhandari, A.C.J.)