Anand Prakash Chaurasia vs State Of U.P. Thru. Addl. Chief ...
2023 Latest Caselaw 21068 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:52449
 
Court No. - 7
 

 
Case :- WRIT - A No. - 5714 of 2023
 

 
Petitioner :- Anand Prakash Chaurasia
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Basic Education, U.P. Lucknow And 5 Others
 
Counsel for Petitioner :- Nisha Tiwari,Shreyash Agrawal,Vijay Prakash Chaurasia
 
Counsel for Respondent :- C.S.C.,Prashant Kumar Singh,Sarvesh Kumar Dubey
 

 
Hon'ble Abdul Moin,J.

1. Heard Ms. Nisha Tiwari, learned counsel for the petitioner, learned Standing Counsel for respondent no.1, Sri Aniruddh Kumar Singh holding brief of Sri Prashant Kumar Singh, learned counsel appearing for respondents no.2 to 4, and Sri Sarvesh Kumar Dubey, learned counsel for respondents no.5 and 6.

2. Under challenge is the suspension order dated 23.11.2022, a copy of which is Annexure-1 to the writ petition, passed by respondent no.2. A further prayer is for a mandamus commanding the respondents to complete the disciplinary proceedings initiated against the petitioner in a time bound manner and to make payment of arrears of salary to the petitioner which have become due pursuant to passing of the impugned suspension order dated 23.11.2022.

3. The case set forth by learned counsel for the petitioner is that the petitioner was working as Assistant Teacher in Primary School Jamura, Block Todarpur, District Hardoi. Vide order dated 06.09.2022, a copy of which is Annexure-5 to the writ petition, an explanation was called for from the petitioner pertaining to various allegations as levelled in the said order. The petitioner claims to have submitted his reply on 23.09.2022, a copy of which is Annexure-7 to the writ petition, vehemently denying the said charges as were indicated in the order dated 06.09.2022. It is contended that without considering the reply of the petitioner the impugned suspension order dated 23.11.2022, a copy of which is Annexure-1 to the writ petition, has been passed against him. It is also contended that a charge sheet has been issued to the petitioner on 07.01.2023, a copy of which is Annexure-11 to the writ petition, to which the petitioner has submitted his reply on 27.01.2023, a copy of which is Annexure-12 to the writ petition. Since submission of reply, the respondents have not proceeded further with the inquiry proceedings and the petitioner continues to be under suspension and hence the petition.

4. While seeking to challenge the impugned suspension order dated 23.11.2022 learned counsel for the petitioner has raised the following grounds namely (a) that the impugned suspension order dated 23.11.2022 is a non-speaking order and no reasons are forthcoming as to why the petitioner has been placed under suspension more particularly when it is a settled proposition of law that a suspension order can only be resorted to where the disciplinary authority is of the view that a major punishment of dismissal, removal or reduction in rank is to be imposed, (b) suspension is to be resorted to only in exceptional circumstances, (c) despite the petitioner repeatedly representing to the respondents for conclusion of the inquiry, the same has not been concluded so far, (d) approximately 100 villagers have submitted a representation to Hon'ble Chief Minister of the State dated 14.12.2022, a copy of which is Annexure-9 to the writ petition, whereby the excellent work being done by the petitioner in the school has been brought out and that it has been indicated that it is only the petitioner, in the capacity of Assistant Teacher who can carry out good work which was earlier being carried out by him on account of cooperation extended by his fellow teachers, Gram Pradhan and the school management, (e) that in the explanation that was called for from the petitioner on 06.09.2022 the ground of embezzlement was not there but subsequent thereto, the said ground has been indicated as an allegation in the suspension order which is uncalled for inasmuch as the reply was called for on six allegations and the suspension order records 21 different allegations., and (f) while passing the impugned order of suspension containing 21 allegations, no opportunity of hearing had been given to the petitioner. No other ground has been urged.

5. In this regard, reliance has been placed on a Division Bench judgment of this Court in the case of R.K. Verma vs. State of U.P. and others - MANU/UP/1689/2003 as well as the Division Bench judgment of this Court in the case of Kuldeep vs. Union of India and others passed in Misc. Bench No.34894 of 2018 decided on 05.12.2018. Reliance has also been placed on the judgments of this Court in the cases of Jagdamba Singh vs. State of U.P. and others passed in Writ-A No.5317 of 2020 decided on 10.07.2020 and Sachchida Nand Tripathi vs. State of U.P. and others passed in Writ-A No.69308 of 2013 decided on 17.12.2013.

6. Responding to the arguments of learned counsel for the petitioner, Sri Sarvesh Kumar Dubey and Sri Aniruddh Kumar Singh holding brief of Sri Prashant Kumar Singh, learned counsels for the respondents, argue that a perusal of the impugned suspension order would itself indicate the charges on which the competent authority has found it feasible to place the petitioner under suspension.

7. Sri Aniruddh Kumar Singh also argues that a perusal of only one of the charge of the various charges, as emerge from perusal of the impugned suspension order, would indicate that charge no.8 pertains to embezzlement of funds by the petitioner.

8. It is also contended that irrespective of calling for of the explanation of the petitioner vide order dated 06.09.2022 against which the petitioner has submitted a reply on 23.09.2022 the fact of the matter would remain that the competent authority has exercised his independent mind while placing the petitioner under suspension more particularly when the gross misconduct of embezzlement of funds clearly emerges from a perusal of the impugned suspension order itself. It is also contended that a charge sheet has been issued to the petitioner on 07.01.2023 and after consideration of the reply of the petitioner the inquiry proceedings would be concluded expeditiously.

9. Heard learned counsel for the parties and perused the records.

10. From a perusal of the records, it emerges that while the petitioner was working as Assistant Teacher in the school, an explanation was called for from him vide order dated 06.09.2022 to which the petitioner submitted his reply on 23.09.2022. Subsequent thereto, the petitioner has been placed under suspension vide order dated 23.11.2022 on various allegations including the allegation of having embezzled the funds. Admittedly, a charge sheet has also been served on the petitioner on 07.01.2023 against which the petitioner has submitted his reply on 27.01.2023 yet the respondents have not proceeded further with the inquiry proceedings. In these circumstances, the petitioner has come forward to challenge the impugned order of suspension dated 23.11.2022.

11. The grounds on which the order of suspension has been challenged have already been enumerated above.

12. So far as the ground of impugned order of suspension being a non-speaking order, suffice to state that from a perusal of the order impugned dated 23.11.2022 itself it emerges that the competent authority has found it feasible to place the petitioner under suspension on the basis of 21 allegations including the charge of embezzlement of funds. Thus, the contention on the part of the petitioner that the impugned suspension order is a non-speaking order and no reasons have been assigned cannot be said to be a ground legally sustainable in the eyes of law and thus the said ground is rejected.

13. So far as the ground taken by the petitioner that the suspension can only be resorted in an exceptional circumstance, suffice to state that as already indicated above one of the allegations, as levelled against the petitioner pertain to the petitioner having embezzled funds, which is a serious charge. It may be that embezzlement of funds may not be a serious charge so far as the petitioner is concerned but in view of the Court embezzlement of funds of even one rupee is a serious charge which entails imposition of an extreme penalty of dismissal, removal or reversion of a delinquent employee. Considering the aforesaid, the said ground is also rejected.

14. So far as the ground of repeated requests for conclusion of the inquiry is concerned, needless to mention that the respondents are always under an obligation, where an employee is under suspension and a charge sheet has also been issued, to conclude the inquiry expeditiously. It cannot be said that simply because an inquiry has not been completed the suspension order would become vitiated in the eyes of law. The circumstances may call for interference in the suspension order where an inquiry has not been completed expeditiously but in the facts and circumstances of the instant case where one of the allegations as indicated in the impugned suspension order also pertains to embezzlement of funds, this Court does not find any reason to interfere with the impugned suspension order simply on account of the fact that the inquiry has not been completed expeditiously. Thus, the said ground is also rejected.

15. So far as the ground that approximately 100 villagers have submitted a representation dated 14.12.2022 to the Hon'ble Chief Minister indicating the excellent work that has been done by the petitioner in the capacity of being an Assistant Teacher is concerned, suffice to state that the same cannot and will not depart from the fact of the allegation of embezzlement of funds that have been carried out by the petitioner. It could be that the villagers may not be aware of the fact of embezzlement of funds that has been carried out by the petitioner which resulted in their submitting a representation to the Hon'ble Chief Minister of the State but, as already indicated above, once one of the charge on which the petitioner has been placed under suspension pertains to embezzlement of funds consequently merely because the villagers have represented to the Hon'ble Chief Minister the same would not be a ground for quashing of the impugned suspension order. Thus, the said ground is also rejected.

16. So far as the ground that in the explanation that was called for on 06.09.2022 the ground of embezzlement was not there and it was subsequently indicated as an allegation in the suspension order is concerned, learned counsel for the petitioner has been unable to indicate either from the U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as the 'Rules, 1999') or from any case law that where an explanation has been called for a preliminary inquiry and a reply against the same has been submitted the grounds on which explanation was called for can only be made a basis for passing of the suspension order. Thus the said ground is also rejected.

17. As regards the ground taken by learned counsel for the petitioner that while passing the suspension order containing 21 allegations no opportunity of hearing had been given, learned counsel for the petitioner has been unable to demonstrate either from the Rules, 1999 or from any case law that an order of suspension is to be preceded by an opportunity of hearing. The said ground being patently misconceived is rejected out rightly.

18. As regards the Division Bench judgment in the case of R.K. Verma (supra) is concerned, suffice to state that the Division Bench of this Court has itself held in paragraph 23 of the judgment that the suspension should not be resorted to unless the allegations against the employee are so serious that in the event of their being established against him, the same would ordinarily warrant major punishment.

19. As already indicated above, one of the allegations levelled against the petitioner is of embezzlement of funds which, in view of the Court, is an extremely serious charge which may result into a major penalty being imposed against the petitioner. Thus, the said judgment would not come to the help of the petitioner.

20. So far as the Division Bench judgment in the case of Kuldeep (supra) is concerned, the dispute in the said case pertained to an order being passed directing for recovery from the delinquent employee. The Division Bench was of the view that as no opportunity of hearing had been given to the delinquent employee prior to passing the order of recovery consequently the order was in gross violation of rules of natural justice and was thus quashed. In the instant case, learned counsel for the petitioner has been unable to indicate from the rules that an order of suspension is to be preceded by an opportunity of hearing. Thus, the judgment in the case of Kuldeep (supra) shall have no applicability to the facts of the instant case.

21. Even otherwise, Rules, 1999 do not contemplate issuance of a show cause notice prior to placing the delinquent employee under suspension.

22. So far as the judgment of this Court in the case of Sachchida Nand Tripathi (supra) is concerned, this Court has held that where an order of suspension contains an endorsement for a preliminary inquiry then the said order of suspension would be nothing but an order of suspension in contemplation or pendency of a preliminary inquiry alone.

23. In the instant case, it is not that the petitioner has been placed under suspension on the ground of contemplation of a preliminary inquiry rather suspension order itself indicates that the petitioner is being placed under suspension as a disciplinary inquiry is proposed against him. This has been followed by issuance of a charge sheet on 07.01.2023. Thus, the principle as laid down by this Court in the case of Sachchida Nand Tripathi (supra) would have no applicability in the facts of the instant case.

24. So far as the judgment in the case of Jagdamba Singh (supra) is concerned, this Court has placed reliance on an earlier judgment of this Court in the case of Sachchida Nand Tripathi (supra). The judgment of Sachchida Nand Tripathi (supra) has already been distinguished by this Court and consequently even the judgment of Jagdamba Singh (supra) would have no applicability in the facts of the instant case.

25. Keeping in view the aforesaid discussion, no case for interference with the impugned suspension order is made out. Accordingly, the writ petition is dismissed.

26. However, it would be open for the respondents to complete the inquiry against the petitioner in accordance with law. Needless to mention that the petitioner shall cooperate in the inquiry proceedings.

Order Date :- 8.8.2023

(Abdul Moin, J.)

A. Katiyar