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Allahabad High Court · body

2001 DIGILAW 52 (ALL)

LALLAN PRASAD v. STATE OF UTTAR PRADESH

2001-01-17

O.P.GARG

body2001
O. P. GARG, J. ( 1 ) THE short and moot point for determination and consideration in the present petition is whether a Government servant can be placed under suspension pending departmental inquiry or in contemplation thereof by an order passed by an officer higher in rank than the appointing authority? The controversy has arisen in the wake of the following facts. ( 2 ) THE petitioner, who is a Boring Technician in the Department of Minor Irrigation and is posted at Vikas Khand, Virnao, district Ghazipur, has been placed under suspension in contemplation of departmental inquiry by order dated 21. 9. 2000 by the Superintending Engineer, minor Irrigation Circle, Allahabad. There is no dispute about the fact that the services of the petitioner are governed by U. P. Laghu Sinchai Boring Providhigya Sewa Niyamawali, 1993 (hereinafter referred to as the niyamawali) and in pursuance of Rule 3 (ka), the Executive engineer, (Adhishashi Abhiyanta) of concerned Mandal of the Minor Irrigation Department is the appointing authority. ( 3 ) IT is also an indubitable fact that the order of suspension dated 21. 9. 2000, a copy of which is annexure-1 to the petition, has been passed by Superintending Engineer, Minor Irrigation Circle, allahabad, who is an authority higher in rank to the Executive Engineer, i. e. , the appointing authority. The gravamen of the charges against the petitioner is that he has submitted false travelling Allowance bills for Rs. 9308. 90p. on the basis of forged and fictitious documents by misleading the authorities. He has further misconducted himself by capricious and indisciplined behaviour. ( 4 ) THE only ground canvassed to challenge the aforesaid order of suspension in this writ petition under Article 226 of the Constitution of India is that it is vitiated on account of the fact that it has not been passed by the Executive Engineer, competent to appoint the petitioner under the rules. ( 5 ) THE position is accepted at all hands that the Executive Engineer concerned is the appointing authority of the petitioner, while the Superintending Engineer who has suspended the petitioner is an officer higher in rank than the Executive Engineer. ( 6 ) HEARD S/sri M. M. Rai and Sudhakar Pandey, learned counsel for the petitioner, learned standing counsel as well as Ms. Naheed Ara Moonis appearing on behalf of the respondent No. 4. ( 6 ) HEARD S/sri M. M. Rai and Sudhakar Pandey, learned counsel for the petitioner, learned standing counsel as well as Ms. Naheed Ara Moonis appearing on behalf of the respondent No. 4. ( 7 ) SRI Sudhakar Pandey, learned counsel for the petitioner urged that since the Executive engineer has been specified as the appointing authority under the rules governing the service conditions, no other officer is empowered to suspend the petitioner. He further urged that when specific provision with regard to the appointing authority has been made in the rules, no other authority can exercise the powers to initiate disciplinary proceedings or to suspend an employee. In short, the submission of the learned counsel for the petitioner is that when a rule deals with a particular subject and is exhaustive on that subject, it has to be followed and no other course in violation thereof is permissible. In support of his contention, the learned counsel for the petitioner placed reliance on the Full Bench decision of this Court in the case of S. P. Srivastaua v. Banaras Electric Light and Power Company Ltd. , 1968 ALJ 257, in which it was observed that it is a well known cannon of construction that when a particular mode of doing something is specified by statute, the modes of doing that thing are prohibited by necessary implication. A reference was also made to the decision of the Apex Court in Babaji Kondaji Garad and others v. Nasik Merchants Cooperative Bank Ltd. , AIR 1984 SC 192 , in which the principles of interpretation of statutes and construction of legislative measures came to be considered. It was held that when statutes require certain things to be done in a particular manner, it can be done in that manner alone, unless a contrary indication is to be found in the statutes. There can be no quarrel about the proposition of law laid down in the aforesaid two decisions with regard to the interpretation and construction of the provisions of law and the rules. There can be no quarrel about the proposition of law laid down in the aforesaid two decisions with regard to the interpretation and construction of the provisions of law and the rules. ( 8 ) SRI Pandey further placed reliance on the decision of the Division Bench of this Court in the case R. N. Tiwari v. Joint General Manager (Administration Personnel) and another, 1986 (1)AISLJ 20, to lend strength to his submission that the suspension by an authority senior to the appointing authority but not empowered by the rules is not permissible. The petitioner of that case was suspended in contemplation of inquiry by the Joint General Manager, U. P. State Road transport Corporation while his appointing authority was the Regional Manager, an authority lower in rank than the Joint General Manager. On behalf of the petitioner of that case, contention was raised that an order by an authority not competent to pass is void and bad in law. The order of suspension was quashed on the ground that the Joint General Manager was not the person competent to suspend the petitioner of that case. A careful study of the aforesaid decision would reveal that it was nowhere laid down that the authority superior to the appointing authority cannot pass an order of suspension or initiate departmental inquiry. In that case, undisputed facts were that the appointing authority was the Regional Manager but the Board of Directors of the u. P. State Road Transport Corporation had passed a resolution empowering the General manager also to pass order of suspension and to initiate disciplinary action against certain categories of persons whose appointing authority was lower in rank than the Chairman and the general Manager. There was no delegation and authorisation in favour of the Joint General manager. The submission on behalf of the U. P. State Road Transport Corporation that on the date on which the order was passed, the General Manager was out of station and the Joint general Manager was discharging his functions and, therefore, the order was passed by the Joint general Manager exercising the power of General Manager was valid and operative was negatived on the ground that a bare perusal of the order impugned showed that it has been passed by Joint General Manager in whose favour there was no delegation and accordingly, the order of suspension was held to be illegal. The case of Sampuran Singh v. State of Punjab, 1982 (3) SCC 200 , was also distinguished on the ground that the language of Regulation 67 of the U. P. State road Transport Corporation Employees (other than officers) Service Regulations, 1931 provides that an order of suspension can be passed either by the appointing authority or by any one of the authorities empowered in this behalf by the Board. In view of this specific provision it was held that the decision of the Apex Court in Sampuran Singh (supra) does not apply to the case. The decision of R. N. Tiwari (supra) is of no help to the petitioner. It is not an authority on the point that the authority higher in rank to the appointing authority cannot suspend a delinquent subordinate in the department. ( 9 ) SRI Sudhakar Pandey further placed reliance on the decision in the case of State of U. P. and others v. Ram Singh and another, 1997 UPLBEC 1160, as well as Division Bench decision of this Court in Amanat Hussain v. Assistant Conservator of Forests, 1989 (1) UPLBEC 484. The law which flows from these two decisions is that an authority subordinate to the appointing authority if not invested with the power of suspension either under the rule or by specific authorization or delegation, is not entitled to pass an order of suspension and if an order of suspension has been passed by such an authority, it would be bad in law. These authorities have no bearing on the question that the order of suspension passed by an authority superior to the appointing authority is not sustainable. The reliance on these two decisions is, therefore, misplaced. ( 10 ) ONE cannot lose sight of the fact that an order of suspension in contemplation of the disciplinary inquiry or during the pendency thereof or even during the investigation, enquiry or trial of a criminal charge, does not amount to an order of punishment. The employee concerned continues to be in service. He is merely forbidden from performing his duties. It is well settled proposition of law that an enquiry may be initiated against a delinquent employee even by an officer who is subordinate to the appointing authority as in such a case, provisions of Article 311 of the Constitution of India would not be attracted. He is merely forbidden from performing his duties. It is well settled proposition of law that an enquiry may be initiated against a delinquent employee even by an officer who is subordinate to the appointing authority as in such a case, provisions of Article 311 of the Constitution of India would not be attracted. An order of suspension passed against a government servant pending departmental inquiry is neither one of dismissal nor removal from service within the meaning of Article 311 of the Constitution of India. This position has been clearly laid down by a Constitution Bench of the Honble Supreme Court in the case of Mohd. Gause v. State of Andhra Pradesh, AIR 1957 SC 246 . Clause (1) of Article 311 will get attracted only when an employee of the category specified in the Article or one who holds a civil post under the Union or State is dismissed or removed from service. The provisions of thesaid clause has no application, whatever, to a situation where a Government servant has been merely placed under suspension pending departmental inquiry since such action does not constitute either dismissal or removal from service. It was in this context that the Apex Court in Sampuran singh (supra) took a view that by necessary implication, the removing authority may be higher in rank to the appointing authority. ( 11 ) THE point in hand came to be directly considered and decided by this Court in the case of kamlesh Kumar Chaurasia v. State of U. P. and others, 1992 (19) ALR 522. In that case, the chief Secretary of the State who is higher in rank to the Joint Director of Medical and Health passed an order of suspension. It was held that Chief Secretary who undoubtedly is the superior authority could pass order of suspension though such an order could not be passed by an authority inferior or subordinate to the appointing authority unless specifically authorised. Placing reliance on the decision of the Apex Court in Sampuran Singh (supra) : State of U. P. v. Ram Naresh Lal. AIR 1970 SC 1263 and R. P. Kapoor v. Union of India and another. Placing reliance on the decision of the Apex Court in Sampuran Singh (supra) : State of U. P. v. Ram Naresh Lal. AIR 1970 SC 1263 and R. P. Kapoor v. Union of India and another. AIR 1964 sc 784 , as well as the decision of this Court in Mritunjai Singh v. State of U. P. , AIR 1971 Alld 214, it was held that on general principles, the State Government being employer has a right to suspend a public servant. The Government acts through its Secretaries and the Chief Secretary is highest civil servant of the State. Therefore, the impugned order of suspension, it was observed, can be treated to be one passed by the State Government, which has the authority to suspend the petitioner (of that case ). ( 12 ) IN view of the peculiar structural hierarchy of the Government, the powers which are conferred on the subordinate authorities are exercisable by the superior officers. In this connection, a reference may be made to clause (e) of paragraph 3 in Annexure-Part IV under the heading delegation and Forms appended to Financial Hand Book. Part II to IV, which provides that any power delegated to any authority may also be exercised by any authority higher to such authority in the same department and also by the administrative department concerned, and any such higher authority or the administrative department concerned may modify or cancel any orders passed by a lower authority. ( 13 ) SEQUEL to the above provisions, a reference was made to the observations made by this Court in the case of Committee of Management Sri Gandhi Adarsh Inter College, Lavedi district etawah and others v. Joint Director of Education, Kanpur Region, Kanpur and others, (1999) 1 uplbec (Sum) 27, which run as under : ". . . . . A superior officer has the implied and implicit administrative power to perform the functions which its subordinate can discharge. If a subordinate officer has omitted to perform his administrative duty or administrative function, the superior would certainly step in to pass appropriate correct order on administrative side. If the illegal and incorrect administrative orders of the subordinates are allowed to exist and continue, the very purpose of creating the hierarchy in the civil services would frustrate. . . . . If the illegal and incorrect administrative orders of the subordinates are allowed to exist and continue, the very purpose of creating the hierarchy in the civil services would frustrate. . . . . " ( 14 ) IN the instant case, there is an allegation that the appointing authority was in collusion with the present petitioner and since the former was not inclined to initiate disciplinary proceedings against the latter, the Superintending Engineer, an officer higher in rank, had no option but to pass an order of suspension in contemplation of the departmental inquiry. This fact has been controverted by the petitioner. So far as the truthfulness and correctness of this allegation is concerned, it is not required to be sifted but the fact remains that if such a situation arises, should the higher authorities be rendered to a helpless state. The answer to it is an emphatic no. The hierarchical structure of the governmental machinery is founded on the presupposition that the higher departmental authorities may exercise all such powers, as may be vested in the subordinate officer. If any void or vacuum arises, it is permissible for the higher authorities to exercise all those powers and functions, which may be resorted to or taken recourse to by their subordinates. ( 15 ) AS said above, service conditions of the petitioner are regulated by the Niyamawali. Apart from the provision made in Rule 3 (Ka) that the Executive Engineer of concerned Mandal of the minor Irrigation Department shall be the appointing authority of Boring Technicians, there is no legal interdict of the rules that the superior authority cannot initiate disciplinary action against such technicians. The silence of a rule on the point has no exclusionary effect except where it flows from necessary implication. The Niyamawali governing the service conditions of the petitioner does not prohibit the initiation of disciplinary inquiry by an authority other than the appointing authority. ( 16 ) THE firm legal position which emerges from the various decisions of the Apex Court or of this Court may thus be stated that insofar as initiation of inquiry by an officer subordinate to the appointing authority is concerned, it is unobjectionable. The initiation can be by an officer subordinate to the appointing authority. ( 16 ) THE firm legal position which emerges from the various decisions of the Apex Court or of this Court may thus be stated that insofar as initiation of inquiry by an officer subordinate to the appointing authority is concerned, it is unobjectionable. The initiation can be by an officer subordinate to the appointing authority. Only the dismissal/removal shall not be by an authority subordinate to the appointing authority (See Transport Commissioner, Madras-5 v. Thiru A. Radha Krishna Moorthy, JT 1994 (7) SC 744 ). The order of interim suspension is capable of being passed by the appointing or the disciplinary authority or an authority subordinate to the appointing authority if permissible under the rules or duly authorised in that behalf. In the absence of delegation or due authorisation, the subordinate authority, though may initiate inquiry, cannot pass an order of interim suspension. But converse is not true, for, an authority higher in rank to the appointing authority can always exercise the powers and functions which its subordinate functionary can perform. ( 17 ) THE matter may be viewed with yet another angle. Though the order of punishment is normally subject to scrutiny by means of a departmental appeal to be preferred before a designated higher authority, the order of suspension pending inquiry or in contemplation of the inquiry is not appealable. No appeal lies against an interim order of suspension. Therefore, an employee who has been suspended by an authority higher to the appointing authority cannot complain that he has been deprived of the right of appeal. The delinquent employee is not prejudiced in any manner, if the order of suspension is passed by a higher authority. ( 18 ) IN the conspectus of above discussion, I have no hesitation in recording a firm finding that an order of suspension pending inquiry or in contemplation of such inquiry or, for that matter, during the investigation, enquiry and trial on a criminal charge, of a Government servant may be passed by an authority superior and higher in rank to the appointing authority. There is no law to the contrary. Therefore, by virtue of his placement higher in hierarchy, the Superintending engineer could pass an order of suspension of the petitioner in contemplation of the inquiry. There is no law to the contrary. Therefore, by virtue of his placement higher in hierarchy, the Superintending engineer could pass an order of suspension of the petitioner in contemplation of the inquiry. ( 19 ) LEARNED counsel for the petitioner wanted me to go into the merits or demerits of the allegations on the strength of which the petitioner has been suspended. The truthfulness, correctness and the genuineness or otherwise of the allegations/charges against the petitioner have to be determined by the Inquiry Officer after evidence. The Apex Court has repeatedly pointed out that even when the matter comes to the High Court or Tribunal after the imposition of punishment, it has no jurisdiction to go into truth of the allegations/charges, except in a case where they are based on no evidence, i. e. , where they are perverse. The jurisdiction of this court, i. e. the power of judicial review, is limited to the examination of the procedural correctness of the decision, making process. This writ court cannot sift the merits of the allegations against the petitioner. ( 20 ) FOR the reasons stated above, the order of suspension passed by the Superintending Engineer cannot be legally faulted or assailed. The writ petition, therefore, turns out to be devoid of any merits and substance and it is accordingly dismissed without any order as to costs. .