Seturam vs State Of U.P. Thru. Prin. Secy. ...
2021 Latest Caselaw 11196 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 4
 
Case :- SERVICE SINGLE No. - 22703 of 2021
 

 
Petitioner :- Seturam
 
Respondent :- State Of U.P. Thru. Prin. Secy. Revenue Lko. & Ors.
 
Counsel for Petitioner :- Indrajeet Shukla
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rakesh Srivastava,J.

1. Heard Shri Indrajeet Shukla, learned counsel for the petitioner and Shri Pradeep Kumar Singh, learned Additional Chief Standing Counsel for the State-respondents.

2. The petitioner was posted as Lekhpal at Hazipur Beeri, Tehsil Kadipur, District Sultanpur. By an order dated 05.08.2021, the petitioner was transferred from Kadipur to Baldirai. By a subsequent order dated 12.08.2021 the transfer of the petitioner to Baldirai was modified and the he was transferred from Kadipur to Jaisinghpur. The order dated 12.08.2021 was assailed by the petitioner in Writ Petition No.18845 (SS) of 2021, Seturam v. State of U.P. and others. However, the said writ petition was withdrawn by the petitioner. Even after withdrawing his writ petition the petitioner did not comply with transfer order. On 20.09.2021 the petitioner refused in writing to hand over charge of Tehsil Kadipur.

3. On 21.09.2021, the Sub-divisional Officer, respondent no.3 herein, passed an order whereby the petitioner has been suspended from service. The relevant portion of the order dated 21.09.2021 is extracted below: -

"rglhynkj dknhiqj }kjk v/kksgLrk{kjh ds le{k bl vk'k; dh fjiksVZ izLrqr fd;k x;k gS fd Jh lsrwjke ys[kiky {ks= gkthiqj chjh rglhy dknhiqj ij rSukr gSA Jh lsrwjke ys[kiky ds ikl {ks=&vyhiqj dkaik dk Hkh pktZ gSA dk;kZy; ftykf/kdkjh lqyrkuiqj LFkkukUrj.k vkns'k i= la[;k&[email protected]&Hkwys[[email protected] fnukad 12 vxLr 2021 ds }kjk budk LFkkukUrj.k rglhy t;flagiqj ds fy;s gqvk gSA mDr vkns'k ds dze esa {ks=h; jktLo fujh{kd ds ek/;e ls Jh lsrwjke ys[kiky dks QnZ pktZ izLrqr djus gsrq voxr djk;k x;k gSA ckj&ckj funsZ'k fn;s tkus ds ckotwn buds }kjk vius ys[kiky {ks= dk pktZ gLrxr ugha fd;k tk jgk gSA fnukad 20-09-2021 dks Jh lsrwjke ys[kiky }kjk fyf[kr :i ls pktZ nsus ls budkj fd;k x;k ftlls ftykf/kdkjh egksn; ds vkns'k dk vuqikyu ugha gks ik jgk gSA blls Li"V gS fd Jh lsrwjke ys[kiky rglhy dknhiqj }kjk mPpkf/kdkfj;ksa ds vkns'k dh vogsyuk dh x;h gS tks vuq'kklughurk dh Js.kh esa vkrk gSA"

(emphasis supplied)

4. The order dated 21.9.2021 is under challenge in the present writ petition.

5. The learned counsel for the petitioner has submitted that the charges levelled against the petitioner are not grave enough to warrant any major penalty. He has further submitted that the suspension order does not reflect that any inquiry is contemplated and in the absence of any recital in the suspension order that an inquiry is contemplated or is proceeding against the petitioner, the suspension order cannot be sustained and is liable to be set aside. In support of his contention the learned counsel has placed reliance upon a judgment dated 27.02.2007 of this Court in Special Appeal No. 180 of 2007, Hari Shanker Mishra v. State of U.P. and others.

6. Learned Standing Counsel, on the other hand, has supported the impugned order.

7. Rule 4(1) of the Uttar Pradesh Government Servant (Disciplinary and Appeal) Rules, 1999 (for short 'the Rules') reads as under:

"4(1). 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."

8. A reading of the rule clearly indicates that a member of a service may be placed under suspension from service where an inquiry into grave charge against him is "contemplated" or "is proceeding".

9. The charge levelled against the petitioner is the non-compliance of the transfer order dated 12.08.2021 whereby the petitioner was transferred from Tehsil Kadipur to Tehsil Jaisinghpur. In the order it has been specifically stated that on 20.09.2021 the petitioner had refused in writing to hand over the charge of Tehsil Kadipur, which amounted to violation of the lawful order of his superiors and fell in the category of indiscipline. The petitioner unsuccessfully challenged his transfer order before this Court. In the circumstances, the petitioner was left with no other option but to hand over the charge at Kadipur. Non-compliance with the transfer order by the petitioner amounts to refusal to obey the orders passed by superiors for which the employer can reasonably be expected to take appropriate action against the employee concerned. In case of such insubordination, termination of service would be a possibility. Such a decision purely rests within the discretion of the employer.

10. In Gujarat Electricity Board v. Atmaram Sungomal Poshani, (1989) 2 SCC 602 the Apex Court has observed as under :

"4. ..... Transfer from one place to other is necessary in public interest and efficiency in the public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance with the transfer order, he would expose himself to disciplinary action under the relevant rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other."

(emphasis supplied)

11. In view of the above, it cannot be said that the charges levelled against the petitioner are not grave enough to warrant any major penalty.

12. The second submission of the learned counsel for the petitioner that as in the impugned order of suspension it is no where mentioned as to whether any inquiry is contemplated or already proceeding against the petitioner and as such, the suspension order cannot be sustained is also without substance and the same is also liable to be rejected. In Hari Shankar Misra (supra) on which reliance has been placed by the learned counsel for the petitioner in support of his contention, there was no recital in the suspension order that any inquiry is pending or proceeding against the petitioner of the said case. The order of suspension was attempted to be justified on behalf of the respondent on the basis of a subsequent order whereby Inquiry Officer was appointed. In this background a Division Bench of this Court held as follows: -

"The contention of the learned Standing Counsel that since now an inquiry officer has been appointed on 1.2.2007 and, therefore, the order of suspension cannot now be interfered with because of the pendency of the proceeding can also not be accepted in view of well settled legal position that the order impugned is to be tested on the reason mentioned in the order and the grounds cannot be supplemented by giving fresh reasons in the form of affidavit or by issuing subsequent orders. Reference may be made to the judgment of Hon'ble Apex Court in the case of Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851 wherein the Hon'ble Apex Court has held as under: -

"When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to the court on account of a challenge, get validated by additional ground later brought out."

Therefore, in view of the exposition of law made by the Hon'ble Apex Court the impugned order has to be tested by this Court on the reason or the grounds mentioned therein and the respondents cannot be permitted to supplement the reasons or grounds by filing counter affidavit. Therefore, we are of the view that the Hon'ble Single Judge having not addressed on that issue fell in error."

13. In the case at hand, a copy of the suspension order has been endorsed to Naib Tehsildar, Dostpur. A perusal of endorsement no.3 makes it evident that Naib Tehsildar, Dostpur has been appointed as Inquiry Officer, and that he has been directed to prepare a charge sheet within a week. The appointment of Naib Tehsildar, Dostpur as an Inquiry Officer to hold an inquiry against the petitioner is not in dispute. Thus, a Inquiry Officer has been appointed and he has been directed to prepare a charge sheet against the petitioner and this is apparent from a reading of the suspension order itself, which shows that inquiry is proceeding against the petitioner for the charges mentioned in the suspension order.

14. In view of the above discussion, the judgment passed in Hari Shankar Misra (supra) is distinguishable on facts. The petitioner derives no benefit from the said judgment.

15. The impugned order of suspension satisfies the requirements of law and is sustainable. There is no infirmity or illegality in the order impugned in the present writ petition.

16. The writ petition is devoid of merit and is, accordingly, dismissed.

Order Date :- 6.10.2021

Anupam