JUDGMENT S.R.Singh 1. SUBJECT matter of impugnment in the present petition is the order dated 24-3-1994 whereby the petitioner has been placed under suspension by the respondent no. 1. It would transpire from a perusal of the impugned order that it began with some complaint which the Chief Development Officer had received about the petitioner having committed irregularities in I R.D. Scheme and a report was called for from Sri S. N. Tiwari, District Economics and Statistics Officer. However, before any report could be submitted by Sri Tiwari, the respondent no. I passed the impugned order placing the petitioner under suspension and appointed one Sri Raja Ram Yadav, District Economics and Statistics Officer-II, Sonbbadra as the Enquiry Officer. 2. INITIALLY, the petition was taken up on 12-4-1994. The learned counsel appearing for the petitioner did not seem to be prepared with the case as the perfunctory manner in which he proceeded with assailing the impugned order indicated. I dismissed the writ petition and dictated a short order of dismissal. Later on, I was persuaded into not signing the order of dismissal and consequently, the master was deferred to a next date with a view to enabling the counsel to came prepared with the case. That is how the matter is up for consideration today. It may be observed that since the arguments advanced by the learned counsel appearing for the petitioner did not involve any disputed question of fact) the standing counsel proposed not to file any counter affidavit and agreed to the writ petition being disposed of finally at this stage after reckoning with the submissions made by him. Learned counsel for the petitioner has assailed the impugned order on three grounds : (1) that no disciplinary enquiry was proceeding against the petitioner nor any such enquiry was 'contemplated' within the meaning of rule 49 A of the U. P. Civil Services (Classification, Control and Appeal) Rules, (in short the 'CCA Rules') (iii) that the impugned order is vitiated due to non-application of mind; and (iii) that the respondent no. 1 was not competent to place the petitioner under suspension. Learned Standing Counsel refuted the submissions afore-stated and urged that in view of the fact that Raja Ram Yadav has been appointed as Enquiry Officer, it should be taken that the 'enquiry' is at least in contemplation within the meaning of rule 49-A of the CCA. 1 was not competent to place the petitioner under suspension. Learned Standing Counsel refuted the submissions afore-stated and urged that in view of the fact that Raja Ram Yadav has been appointed as Enquiry Officer, it should be taken that the 'enquiry' is at least in contemplation within the meaning of rule 49-A of the CCA. rules, which provides for suspension of a Government Servant against whose conduct an 'enquiry' is contemplated 'or' is proceeding' or in respect of or against whom an investigation, enquiry or trial relating to a criminal charge is pending. The material part of the rule reads as below :- "49-A (1) A Government Servant against whose conduct an enquiry is contemplated or is proceeding may be placed under suspension pending the conclusion of the enquiry in the discretion of the appointing authority ; Provided that in the case of any Government Servant or class of Government servant not belonging to a State Service, the appointing authority may delegate its power under this sub rule to the next lower authority : (i-A) A Government Servant in respect of or against whom an investigation, enquiry or trial relating to a criminal charge is pending may, at the discretion of the appointing authority under whom he is serving, be placed under suspension until the termination of alt proceedings relating to that charge, if the charge is connected with his duties or involved moral turpitude.'* 3. THE power to suspend a Government Servant vested in the appointing authority, both under sub-rule and sub-rule (1-A) is discretionary, as would be evident from the expression" may be placed under suspension...... in the discretion of the appointing authority" occurring in sub rule (1) and the expression "may, at the discretion of the appointing authority........be placed under suspension" occurring in sub-rule (i-A). But what is essential as a pre-requisite condition for exercise of discretion under sub-rule (1) is that an enquiry in respect of the conduct of the concerned Government Servant must either be in contemplation or It must be in progress, THE stage of exercising discretion to place a Government Servant under suspension comes only when an enquiry in respect of his conduct is either 'contemplated' or 'is proceeding I.e. the power to suspend a Government servant may be exercised either before actual commencement of the 'enquiry' or at any time during the course of 'enquiry'. 4. 4. THE term 'enquiry' has not been defined in the rules, but as per majority view in State of U P. v. Jai Singh Dixit, 1974 ALJ 862, the term 'enquiry contemplated by rule 49-A has reference to "the formal departmental enquiry and not to any informal preliminary or fact finding enquiry preceding the initiation of the formal disciplinary proceeding" as observed by D. S. Mathur, CJ, and the power of suspension under rule 49-A is available "in relation to an enquiry under Rule 55 or Rule 55-A held with a view to impose the major punishments of dismissal, removal or reduction in rank.' as observed by Satish Chandra, J. as he then was. A reading of Rules 55 and 55-A of the U.P.C.C.A. Rules would indicate that a formal departmental enquiry in the context of these rules is invariably preceded by framing of charges. Such being the purport and import of the term 'enquiry' occurring in Rule 49-A, I am of the view that in the instant case no enquiry was 'proceeding' within the meaning of Rule 49-A. Mere appointment of enquiry officer does not mean that the enquiry' is proceeding' in respect of the conduct of the Government Servant within the meaning of the rules. But the appointment of an enquiry officer with a view to make an enquiry in respect of the conduct of the petitioner certainly attracted the other eventuality i.e. the 'enquiry is contemplated as comprehended by Rule 49-A (1) of the CCA. Rules. When the appointing authority appointed an enquiry officer to make an enquiry in respect of the conduct of the petitioner it cannot be said an enquiry was not contemplated within the meaning of Rule 49-A (1) of the CCA Rules, As held by the Majority in Jai Singh Dixit's case (supra) the petitioner could be placed under suspension even before the framing of the charges and communication thereof to the petitioner". In this view of the matter, the submission that an enquiry into the conduct of the petitioner was not even 'contemplated' cannot be countenanced and, therefore, the first submission made by the learned counsel for the petitioner falls to the ground being devoid of merits, The minority view taken by K. B. Asthana, J. (as he then was) no doubt supports the petitioner but the court is bound to follow the majority view. 5. 5. COMING to the second submission as to whether the impugned order was passed by the respondent no. 1 with due application of mind to whatever may be relevant to the exercise of discretion vested in the appointing authority under Rule 49 A (1) of the CCA Rules it may be observed that the power under Rule 49 A vested in the appointing authority to place a Government Servant under suspension, is no doubt discretionary and can be exercised in diverse, varied and variegated circumstances giving rise to a misconduct warranting disciplinary enquiry, but it being open to judicial review under Article 226 of the Constitution can be tested on grounds of bad faith, malafides (personal or legal), irrationality, unreasonableness or non-application of mind. 6. AS observed by Prof. Wade, "all power has legal limits" and "arbitrary power and unfettered discretions are what the courts refuse to countenance", "statutory power" (further observed Prof. Wade "conferred for public purposes is conferred AS it were upon trust, not absolutely that is to say, it can validly be used only in the right and proper way which parliament when conferring it is presumed to have intended" and "in a system based on the rule of law, unfettered (governmental discretion is a contradiction in terms." In Breen v. Amalgmated Engineering Union; (1971) 2 QB 175 at 190, Lord Denning M. R. explained the legal position on the point in the following words : "The discretion of statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means at least this the statutory body must be guided by relevant considerations and not by irrelevant. If its decision is influenced by extraneous considerations which it ought not to have taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith, neverthless the decision will be set aside." 7. IN Roncarelli v. Duplessis, (1959) 86 DLR (2nd) 689 at 705, Rand J as quoted in Wades Administrative Law Fourth Edition 346, observed ".........There is no such (thing as absolute and untrammelled 'discretion'............no legislative Act can, without express language, be taken to contemplate an unlimited, arbitrary power, exercisable for any purpose, however, capricious or irrelevant, regardless of the nature or purpose of the statute.. ....'Discretion' necessarily implies good faith in discharging public duty: there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption." 8. EXPLAINING the phraseology 'discretion must be exercised reasonably'; Lord Greene M. R. adopted the following formula in Associated Provincial Picture Houses Ltd. v. Wedbesbury Corporation, (1948) I KB 223 at 230. "Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting-unreasonably', Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.........It is so unreasonable that it might almost be described as being done in bad faith; and, in fact all these things run into one another." Whether the discretion under Rule 49 A (i) of the CCA rules or under rule 1-A (1) of the 'Punishment and Appeal rules for subordinate service UP' has been properly exercised or not depends on answer to the question whether the appropriate authority has, in exercise of its discretion acted reasonably and in good faith ; Acting reasonably and in good faith' may be explained thus. 'When an authority seeks to exercise statutory power-whether purely administrative or discretionary or quasi-judicial, without applying his mind to the questions before him or the conditions and circumstances relevant to the exercise of power and the facts and circumstances before him, it ceases to be a bonafide exercise of power ' Basu on Administrative Law, Second Edn. p. 184 (See also D' Souza v. State of Bombay, (1956) SCR 382 and Barium Chemicals v. Company Law Boards, AIR 1967 SC 295 . 9. p. 184 (See also D' Souza v. State of Bombay, (1956) SCR 382 and Barium Chemicals v. Company Law Boards, AIR 1967 SC 295 . 9. IN State of Bihar v. Sri P. P. Sharma, JT 1991 (2) SC 147 at p. 173 para 51, the Apex Court held "...........the determination of a plea of malafide involves two questions, namely (1) whether there is a personal bias or an oblique motive : and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power." 10. IN the instant case, I am of the firm view that the impugned order is vitiated, though a disciplinary enquiry was contemplated within the meaning of rule 49 A of the Rules, because of non-application of mind to the conditions and circumstances relevant to the exercise of power. IN Jai Singh Dixit's case also, it has been observed that" for proper exercise of discretion of placing a Government servant under suspension in contemplation of disciplinary enquiry, it is necessary that "there must be application of mind in the eye of law, in good faith and not arbitrarily." It is true that an informal enquiry or investigation-open or secret- is not a condition precedent for the appointing authority to make up its mind to hold a formal enquiry within the meaning of the Rules and as observed by D. S. Mathur, CJ in Jail Singh Dixit's case (Supra) "In many instances the appointing authority will be in a position to form an opinion after summary investigation, secret enquiry or inspection of the record that the allegation made against the Government Servant have substance and in due course formal departmental action shall be taken against him" and "in a few cases, it may be possible for the appointing authority to form such an opinion at an earlier stage also i.e. at the stage of receiving or entertaining a complaint" but since in the present case a sort of an Informal enquiry was already ordered and a report called for, the respondent no. 1 was excepted to await the report unless he could not brook delay in the matter for any pressing reason to be recorded on file. 1 was excepted to await the report unless he could not brook delay in the matter for any pressing reason to be recorded on file. Further the non-application of mind is writ large on face of the record inasmuch as even after appointing Sri Raja Ram Yadav as appointing authority, Sri Surendra Nath has been directed with a tone of warning-cum-regret, to immediately submit his report as would be evident from the endorsement of the order to Sri Tiwari. 11. IT is evident that the respondent no. 1, on receipt of the complaint against the petitioner, was not in a position to make up his mind as to whether a formal departmental enquiry within the meaning of rule 55 or rule 55 A should be initiated and in was probably for this reason that he had directed Sri S. N. Tiwari, the District Economics and Statistics Officer, Sonbhadra to submit a report on the complaint received against the petitioner. The report was obviously not received till the date on which the impugned order was passed and there seems nothing else and nothing more on the basis of which the respondent could have reasonably made up his mind to hold a formal departmental enquiry within the meaning of rule 49 A (1) of the CCA Rules. In all fairness, the respondent no. 1 ought to have awaited the enquiry report, which he had earlier called for from Sri Surendra Nath Tiwari, or in the alternative, he ought to have applied his mind to the gravamen as contained in the complaint made against the petitioner before deciding whether, in the facts and circumstances of the case, the accusations against him were trustworthy, substantial and serious enough to warrant dismissal, removal or reduction in rank in the event of being found established at the end of the formal enquiry. IT was not enough merely to say- "I.R.D. Yojna ke Antargat Dhandali Ke Aarop Me Tatkaleek Prabhav Se Nilambit Karke........." The respondent no. 1 was expected to act with a sense of responsibility and accountability too. 12. IT was not enough merely to say- "I.R.D. Yojna ke Antargat Dhandali Ke Aarop Me Tatkaleek Prabhav Se Nilambit Karke........." The respondent no. 1 was expected to act with a sense of responsibility and accountability too. 12. IT may be observed that with constantly ever increasing incidents of arbitrariness in exercise of statutory powers, whether administrative or discretionary or quasi judicial, by the executive or statutory authorities, the ambit and scope of judicial review or judicial scrutiny/surveillance in relation to exercise of such discretionary powers too has been enormously expanded as of encessity, to secure justice and ensure the rule of law. Today, perhaps, there is no field of state activities, which may be immune from judicial scrutiny on the touch-stone of 'reasonableness', 'fairness' and 'absence of malafides', which are regarded as backbone and basic features of 'rule of law' and essential ingredients of Article 14 of the Constitution of India. As such, it would be but proper if the appropriate authority invested with the discretionary power under rule 49 A (1) records, in brief, in the order itself, the nature and gravamen of accusation in respect of which the enquiry is contemplated or is proceeding and as far as possible, before placing a Government Servant under suspension in contemplation of disciplinary enquiry, it should ordinarily get the allegations of misconduct verified exparte by investigation or preliminary enquiry, inspection of record or otherwise unless the circumstances of the case are such that it cannot brook delay in which case the pressing cause must be stated on file. For example, on apprehension that the employee, if not suspended immediately, may destroy the evidence against him or otherwise tamper the record so as to suit him, may be cited as an instance of pressing cause to place the Government servant under suspension without any exparte preliminary investigation, enquiry etc. There must, however, be something on the record to show that the discretion has been exercised in good faith, fairly and reasonably. In Sirajuddin v. State of Madras, 1970 (2) SCR 931, their lordships of the Supreme Court have held that "before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amounts to serious misdemeanour or misconduct, there must be suitable preliminary enquiry into the allegations by a responsible officer"-(State of Bihar v. Sri P. P. Sharma, JT 1991 (2) SC 147 at p 173. 13. 13. IN U. P. Raj Krishi Utpadan Parishad v. Sanjeev Ranjan, JT 1992 (2) SC 550 at p. 555, the Supreme Court has although held that "whether the employees should or should not continue in their office during the period of enquiry is a matter to be assessed by the concerned authority and ordinarily the court should not interfere with the order of suspension", but at the same time their lordships have carved an exception, "unless they are passed malafide or without there being a prima-facie evidence on record connecting the employee with the misconduct in; question". Suspension ordered without application of mind to the conditions and circumstances relevant to exercise of discretion is taken to be done malafide. The appropriate authority should while exercising its discretion under rule 49 A (1) direct itself to the question whether the charges are substantial and supported by prima facie evidence or they are baseless, malicious or vindictive and have been made to harass the concerned government servant or to keep him out of employment. Non application of mind to these aspects would vitiate the order. 14. IN view of my conclusion era the second ground of attack and also in view of the direction contained hereafter I do not consider it necessary to examine the third ground of attack. In the result, the petition succeeds and is allowed. The impugned order dated 24-3-1994 is quashed. The respondent no. 1 is directed to reconsider the matter in the light of his judgment and pass an order afresh, if it is warranted, depending on the nature and gravity of the accusation made in the complaint received against the petitioner; existence of prima facie evidence including the report it submitted in the meantime by Sri Surendra Nath Tiwari and such other material/record as may be available with the respondent no. I, stating therein the substance of the charge as also the fact whether the authority passing the order is the appointing authority or its delegate. Petition allowed.