Allahabad High Court
Rajendra Kumar Shukla vs State Of U.P. Thru. Addl. Chief ... on 24 July, 2023
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:48260
Court No. - 7
Case :- WRIT - A No. - 5231 of 2023
Petitioner :- Rajendra Kumar Shukla
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Forest Deptt. U.P. Lucknow And 4 Others
Counsel for Petitioner :- Alok Singh
Counsel for Respondent :- C.S.C.,Rishabh Tripathi
Hon'ble Abdul Moin,J.
1. Heard learned counsel for the petitioner, learned Standing Counsel for the respondent no. 1 and Shri Rishabh Tripathi, learned counsel for the respondents no. 2 to 5.
2. With the consent of learned counsel appearing for the contesting parties, the writ petition is finally disposed of.
3. Under challenge is the suspension order dated 14.07.2023, a copy of which is annexure 1 to the petition, whereby the petitioner has been placed under suspension by the General Manager (Personnel).
4. Shri Rishabh Tripathi, learned counsel for the respondents no. 2 to 5, at the very outset, states that the competent authority to place the petitioner under suspension is General Manager (Personnel). However Shri Tripathi has produced a letter dated 12.07.2023 issued by the Under Secretary of the Department of Environment, Forest and Climate Change whereby directions have issued to place the petitioner under suspension.
5. Upon this, learned counsel for the petitioner has placed reliance on the judgement of Hon'ble Apex Court in the case of Anirudhsinghji Karansinghji Jadeja v. State of Gujarat reported in 1995 (5) SCC 302 to argue that it is settled position of law that though the authority competent has exercised the power of placing the petitioner under suspension yet once the said power has been exercised at the behest / direction of a higher authority it would be deemed that the said power has not been exercised with application of mind by the competent authority.
6. Having heard learned counsel for the parties and having perused the record what emerges is that the order of suspension of the petitioner dated 14.07.2023 has been passed by the General Manager (Personnel). Admittedly, the competent authority who placed the petitioner under suspension is also the General Manager (Personnel). However perusal of the letter dated 12.07.2023 that has been sent by the Under Secretary of the Department of Environment, Forest and Climate Change indicates that a direction has been issued to the Managing Director of the Corporation to place the petitioner under suspension.
7. The Apex Court in the case of Anirudhsinghji Karansinghji Jadeja (supra) has categorically held that whenever the power is exercised by the competent authority yet on the basis of the directions issued by some other authority it would be deemed that there has been failure to exercise the power.
8. For the sake of convenience, the relevant observations of Hon'ble Supreme Court in the case of Anirudhsinghji Karansinghji Jadeja (supra) are reproduced below:
"This is a case of power conferred upon one authority being really exercised by another. If a statutory authority has been vested with jurisdiction, he has to exercise it according to its own discretion. If the discretion is exercised under the direction or in compliance with some higher authority's instruction, then it will be a case of failure to exercise discretion altogether. In other words, the discretion vested in the DSP in this case by Section 20A (1) was not exercised by the DSP at all.
12. Reference may be made in this connection to Commissioner of Police vs. Gordhandas Bhanji, 1952 SCR 135, in which the action of Commissioner of Police in cancelling the permission granted to the respondent for construction of cinema in Greater Bombay at the behest of the State Government was not upheld, as the concerned rules had conferred this power on the Commissioner, because of which it was stated that the Commissioner was bound to bear his own independent and unfettered judgment and decide the matter for himself, instead of forwarding an order which another authority had purported to pass.
13. It has been stated by Wade and Forsyth in 'Administrative Law', 7th Edition at pages 358 and 359 under the heading 'SURRENDER, ABDICATION, DICTATION' and sub- heading "Power in the wrong hands" as below:-
"Closely akin to delegation, and scarcely distingushable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with some one else, or may allow some one else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void. So strict are the courts in applying this principle that they condemn some administrative arrangements which must seem quite natural and proper to those who make them.....".
"Ministers and their departments have several times fallen foul of the same rule, no doubt equally to their surprise....".
14. The present was thus a clear case of exercise of power on the basis of external dictation. That the dictation came on the prayer of the DSP will not make any difference to the principle. The DSP did not exercise the jurisdiction vested in him by the statute and did not grant approval to the recording of information under TADA in exercise of his discretion."
9. Thus, keeping in view the letter dated 12.07.2023 issued by the Under Secretary, Department of Environment, Forest and Climate Change as well as the order of suspension though has been passed though by the competent authority yet at the behest and on the basis of the directions issued by the Under Secretary, the suspension order merits to be quashed.
10. Accordingly, the writ petition is allowed. The order dated dated 14.07.2023, a copy of which is annexure 1 to the petition, is quashed.
11. Consequences to follow.
12. It would be open for the respondents to proceed against the petitioner in accordance with law.
Order Date :- 24.7.2023
J.K. Dinkar
