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1995 DIGILAW 1160 (ALL)

Bhairav Dutt Sharma v. State of U. P.

1995-11-10

P.K.MUKHERJEE

body1995
JUDGMENT Paritosh K. Mukherjee, J. 1. In the instant writ petition, the petitioner has challenged the impugned order of suspension dated 29.6.1995 passed by the Superintendent of Police, Pithoragarh, which has been admittedly served upon the petitioner in the month of September, 1995. 2. Sri Ashok Khare, learned counsel for the petitioner submits that the order of suspension dated 29.6.1995 which had taken effect in the month of September, 1995, cannot be said to have taken effect from the date of passing of the order, i.e. 29.6.1995, but from the date of service, i.e., from the date of its service in the month of September, 1995, when the petitioner was not under the administrative control of Senior Superintendent of Police, Pithoragarh. Earlier, due to heart ailment, the petitioner absented from duty with effect from 22.12.1994 to 28.7.1995 when the Inspector General of Police, respondent No. 2 transferred the petitioner from District Pithoragarh to District Moradabad as Assistant Sub-Inspector. 3. On the other hand, Sri K.M. Sahai, learned standing counsel submitted that the petitioner was transferred to Moradabad on his own seeking, as such the petitioner cannot make any advantage out of it. 4. Be that as it may. It is settled principle of law, in view of the decisions of Apex Court in the cases of Bachittar Singh v. State of Punjab, AIR 1963 SC 395 and State of Punjab v. Amar Singh Harika, AIR 1966 SC 1313 , that an administrative order cannot be said to have taken effect unless it is served. In view of the above, this court is of the opinion that the order of suspension, although passed on 29.6.1095, but has been served upon the petitioner in the month of September, 1995, shall take effect with effect from September, 1995 and not from the date of passing, i.e., dated 29.6.1995. 5. Sri Sahai further submitted that as the where about of the petitioner was not known, as such the order of suspension dated 29.6.1995, passed by the Superintendent of Police, Pithoragarh could not be served upon the petitioner. 6. 5. Sri Sahai further submitted that as the where about of the petitioner was not known, as such the order of suspension dated 29.6.1995, passed by the Superintendent of Police, Pithoragarh could not be served upon the petitioner. 6. This court, at this stage, finds no material to arrive at necessary conclusion as to know the whereabouts of the petitioner, but since the petitioner has stated that during the aforesaid period he was suffering from heart ailment, and in support of his contention, a medical certificate has been annexed to the writ petition, the aforesaid prayer of the petitioner has been allowed. Accordingly, the impugned order of suspension dated 29.6.1995, passed by the respondent No. 5, serve upon the petitioner in the month of September, 1995 which Is to take effect from the date of its service upon the petitioner, i.e., in the month of September 1995 when the respondent No. 5 seized to have his jurisdiction and control over the petitioner, is hereby declared to be unsustainable in the eye of law and quashed. 7. This will not, however, prevent the respondents to pass a fresh order of suspension, along with charge-sheet, if any, in the exigencies of service, if there needed proceedings against the petitioner for alleged unauthorised absence" from duty as the petitioner has already represented before the respondent authorities that due to his heart ailment, the was absent from duties. 8. In any event the aforesaid order, if needed, shall be passed by the Senior Superintendent of Police, Moradabad as the petitioner is under jurisdiction and control of the aforesaid respondent, having been transferred from Pithoragarh to Moradabad, pursuant to the orders of Inspector General of Police, Bareilly dated 28.7.1995 and Deputy Inspector of Police, Moradabad dated 4.8.1995. With the aforesaid observations, writ petition is disposed of finally.