Arvind Kumar vs State Of U.P. And 2 Others
2023 Latest Caselaw 14963 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Neutral Citation No. - 2023:AHC:103046
 
Court No. - 38
 

 
Case :- WRIT - A No. - 6376 of 2023
 

 
Petitioner :- Arvind Kumar
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Adarsh Shukla,Prabhakar Awasthi
 
Counsel for Respondent :- CSC
 

 
Hon'ble Saurabh Srivastava,J.

1. Heard Shri Prabhakar Awasthi, learned counsel for the petitioner and Shri Anurag Pandey, learned Standing Counsel for the State respondents.

2. Present petition has been filed seeking the following reliefs:-

"i. Issue a writ, order or direction in the nature of Certiorari calling for the records of the case and to quash the impugned suspension order dated 21.03.2023 passed by the Sub Divisional Magistrate-Bahedi, Bareilly (Annexure No. 12 to the writ petition).

ii. Issue a writ, order or direction in the nature of Mandamus commanding the respondents not to disturb the peaceful continuance of petitioner as Lekhpal-Tehsil-Bahedi, District-Bareilly and also to pay him full salary month by month as and when same falls due."

3. It is the case of the petitioner that under some charges levelled against him on the basis of the report submitted by the Naib Tehsildar approved by the Tehsildar culminated into initiation of disciplinary proceedings under Rule 7 of the U.P. Government Servant (Discipline & Appeal) Rule 1999 in which the chargesheet has been served upon the petitioner and the same has been replied. Thereafter, inquiry has been initiated by the Tehsildar who has been designated and appointed as an Inquiry Officer vide order dated 27.02.2023 at the time of framing charges against the petitioner.

4. On 21.03.2023, it has been reported by the Tehsildar/Inquiry Officer that there are ample chances of tampering of evidences by the petitioner and as such, he may be put under suspension for conduction of fair inquiry.

5. On receipt of the report as submitted by the Inquiry Officer, being the Disciplinary Authority, the respondent no. 2 passed the order dated 21.03.2023, through which the services of the petitioner has been suspended and the same has been put under challenge in the present petition, precisely on the ground that the suspension order can be passed only on consideration of the charges as levelled against the petitioner. The suspension order cannot be passed merely on assumption.

6. Moreover, at the time of passing the suspension order, the Disciplinary Authority has to exercise his discretion by way of applying his independent and free mind by way of quantifying that whether the suspension passed against the delinquent is necessary or not for substantiating his arguments as raised by the learned counsel for the petitioner.

7. The learned counsel for the petitioner has relied upon the judgment passed by the Division Bench of this Court in Writ A No. 58619 of 2015 (V.N. Daipuria versus State of U.P. & 3 Others) decided on 27.10.2015. The operative and decisive portion of the judgment is quoted herein-below:-

"On the parameters of the provisions as quoted as above, the order of suspension in question indicates that in the present case that State Government had been apprised of the factual situation and State Government on being apprised with the report against the petitioner, the State Government in its turn proceeded to pass an order mentioning therein that the petitioner should be placed under suspension with immediate effect and disciplinary action be initiated under Rule 7 of U.P. Government Servant (Discipline & Appeal) Rules 1999. After receipt of the said letter in question, the Additional Director of Eduction (Basic), U.P., Allahabad, the Appointing Authority has proceeded to pass the order of suspension and by means of order of suspension the Appointing Authority has proceeded to categorically mention this fact that the said authority of suspension is being exercised by him pursuant to the decision taken by the State Government on 30.09.2015. Once such is the factual situation in the present case that discretion has been taken away by the State Government from the Appointing Authority by giving mandatory directive for placing petitioner under suspension whereas 'discretion' as per Blacks Law Dictionary means, "individual judgement: the power of free decision making". The Appointing Authority has not proceeded to exercise his independent mind and has exercised authority of suspension on the directives of State Government. Division Bench of this Court in the case of Dr. Arvind Kumar Rana Vs. State of U.P., 2007 (4) AWC, in reference of same set of Rules has taken the view that authority of suspension cannot be exercised on mere recommendation, the Appointing Authority is obligated to apply his own independent mind, the first proviso to Rule 4 (1) is mandatory and obligates Appointing Authority to prima facie record satisfaction about the seriousness of the allegations levelled and as to whether ultimately it may entail into awarding major penalty. Accordingly in the facts of the case passing of such suspension order has to be accepted being in breach of Rule 4 (1) of U.P. Government Servant (Discipline & Appeal) Rules 1999 as on its face value the discretion has not been independently exercised by the Appointing Authority in question. In view of this the order of suspension, based on this short ground is quashed but we leave it open to the Appointing Authority to apply his independent mind and if facts and circumstances do warrant to pass fresh order of suspension.

Writ petition is allowed, accordingly. "

8. Per contra, learned Standing Counsel vehemently opposed the prayer as made in the petition and supported the order dated 21.03.2023 passed by the respondent no. 2.

9. By bare perusal of the judgment passed by the Division Bench of this Court in V.N. Daipuria (Supra), it is crystal clear that the order of suspension has been held as illegal on the recommendation of the State Government and the same has been passed without invoking the discretion of the Disciplinary Authority and recording the reasons for suspension, the directions and the recommendations as made by the State Government only.

10. The judgment rendered by the Hon'ble Division Bench of this Court is not applicable in the present case, as the case in hand is slightly different. In the instant matter the order of suspension has been passed by the Disciplinary Authority only on the recommendation of the Tehsildar who has been nominated as an Inquiry Officer vide order dated 27.02.2023 for conduction of fair inquiry, wherein it has been presumed by the Inquiry Officer that if the petitioner will remain at the services of posting where he is presently posted, he may tamper evidences which may not culminate into fair inquiry.

11. The recommendation made by the Inquiry Officer is different as made in the case relied upon by the learned counsel for the petitioner and as such, the case of V.N. Daipuria is not applicable in the instant matter, since the recommendations for suspension has been made by the Inquiry Officer under the disciplinary proceedings initiated against the petitioner not by any other authority who is not related to disciplinary proceedings as in the case mentioned by learned counsel for the petitioner.

12. In view of the aforesaid facts and circumstances, there is hardly any scope for interference in the order dated 21.03.2023 which impugned the present petition and as such, the writ petition is liable to be and is accordingly, dismissed.

13. However, it is made clear that the respondent no. 2 may take every steps for finalizing the disciplinary proceedings as initiated against the petitioner, as expeditiously as possible, preferably, within a period of four months from the date of production of certified copy of this order.

14. It is however made clear that the petitioner will extend all possible support in favour of the respondent no. 2 for arriving over the directions as passed above.

Order Date :- 12.5.2023

SY