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2002 DIGILAW 1883 (ALL)

SATISH CHANDRA SHARMA v. STATE OF U. P.

2002-12-11

G.K.GUPTA, PRADEEP KANT

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PRADEEP KANT, J. ( 1 ) HEARD the learned counsel for the petitioner Dr. L. P. Misra, learned counsel for the University and Sri Devendra Arora, learned Additional Chief Standing Counsel for the State. ( 2 ) THE petitioner, who is presently posted as Registrar, Mahatma Jyotiba Phule Rohilkhand university, Bareilly, being aggrieved by an order of suspension dated 2nd November, 2002, has approached this Court under Article 226 of the Constitution. ( 3 ) THE first submission of the learned counsel for the petitioner is that in view of Rule 36 of the u. P. State Universities (Centralised) Service Rules, 1975 (hereinafter referred to as Centralised service Rules), the petitioner could not be placed under suspension, as these Rules do not vest any power with the State Government to suspend a member of the Centralised Service. U. P. State Universities (Centralised) Service Rules, 1975, have been enacted by the Governor under the powers conferred by Sub-section (1) of Section 17 of the U, P. State Universities Act, 1973. as re-enacted and amended by U. P. Universities (Re-enactment and Amendment) Act, 1974. These Rules have been framed for creation of a separate service of the Registrars, Deputy registrars and Assistant Registrars, common to all the Universities to which the aforesaid Act applies, and for regulating the recruitment to and conditions of service of persons appointed to any such service. Rule 3 of the Centralised Service Rules provides for creation of Centralised service of Registrars, Deputy Registrars and Assistant Registrars. Besides, these Rules prescribe for various matters in relation to the recruitment, qualification, reservation, confirmation, seniority and other conditions of service. Rule 36 deals with the disciplinary proceedings, which reads as under : "36. Disciplinary proceedings.-- (1) Subject to such modifications as the State Government may make from time to time, and subject to the provisions of sub-rules (2) to (9), the rules relating to disciplinary proceedings, appeals and representations against punishment, applicable to the employees of the State Government shall mutatis mutandis apply to the members of the centralised Service. Disciplinary proceedings.-- (1) Subject to such modifications as the State Government may make from time to time, and subject to the provisions of sub-rules (2) to (9), the rules relating to disciplinary proceedings, appeals and representations against punishment, applicable to the employees of the State Government shall mutatis mutandis apply to the members of the centralised Service. (2) The power to start disciplinary proceedings and to impose : (a) the punishment of dismissal or removal from service or reduction in rank on the members of the Centralised Service shall vest in the State Government ; and (b) other punishments shall vest in the Vice-Chancellor of the University in which the member of such service is for the time being posted : provided that it shall be necessary to consult the Commission before passing an order imposing any of the punishments referred to in Clause (a), (3) Where disciplinary proceedings against a member of the Centralised Service have been started in accordance with the provisions of Sub-rule (2) : (a) by the Vice-Chancellor and after the completion of inquiry, he comes to a provisional conclusion that a punishment, referred to in Clause (a) of Sub-rule (2) is called for, he shall refer the case along with his findings and recommendations to the State Government for orders ; (b) by the State Government and, during or after the completion of enquiry, it comes to a provisional conclusion that a punishment to which Clause (b) of Sub-rule (2) applies is called for, it shall refer the case to the Vice-Chancellor who shall pass such orders as he deems fit, and shall send a report of the action taken to the State Government. (4) Notwithstanding anything contained in Sub-rules (1) to (3), the State Government may direct the Vice-Chancellor of a University in which any member of the Centralised Services is for the time being posted to start disciplinary proceedings against him and to inform it of the result thereof or, as the case may be, refer the case to the State Government for its final orders under clause (a) of Sub-rule (3 ). (5) Where the Vice-Chancellor of any University wants to start disciplinary proceeding against a member of the Centralised Service, who has been transferred to some other University, he shall submit a report to the State Government to that effect, and thereupon, the State Government may: (i) itself proceed in accordance with Clause (a) of Sub-rule (2) ; or (it) direct the Vice-Chancellor of the first-mentioned University to start and conclude the inquiry in accordance with Clause (b) of the said sub-rule or, as the case may be, refer the case to the state Government for its final order under Clause (a) of Sub-rule (3) ; or (iii) direct the Vice-Chancellor of the University in which such member is for the time being posted to start and conclude the inquiry against such member and inform the State Government of the result thereof or, as the case may be, refer the case to the State Government for its final order under Clause (a) of Sub-rule (3 ). (6) Where the Vice-Chancellor of a University is competent to start disciplinary proceedings under this rule, he may hold the inquiry himself or may appoint any other officer of the university for the purpose. (7) The State Government may, at any stage, transfer any proceedings under this rule from one officer to another officer in the same University, or from the Vice-Chancellor of one University to the Vice-Chancellor of any other University, and, unless any direction is issued to the contrary, the officer or the Vice-Chancellor to whom such proceedings are transferred shall continue the proceedings from the stage at which it was so transferred. (8) During the course of inquiry under this rule, the Vice-Chancellor or the officer appointed by him as inquiry officer under Sub-rule (6) may exercise all the powers of the inquiring authority under the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witnesses and production of Documents) Act. 1976. (9) Notwithstanding anything contained in these rules, it shall be lawful for the State government to direct that the disciplinary proceedings against any member of the Centralised service may be started in respect of any act or omission relating to the period before the date of his absorption in such service under Rule 7 and thereupon the provisions of Sub-rules (1) to (8)shall mutatis mutandis apply. " ( 4 ) ON the strength of Sub-rule (1) of Rule 36, it has been contended that subject to the provisions of Sub-rules (2) to (9), only the rules relating to disciplinary proceedings, appeals and representations against punishment, as may be applicable to the employees of the State government, would mutatis mutandis apply to the members of the Centralised Service meaning thereby that in case of conduct of disciplinary. proceedings (here we are concerned only with disciplinary proceedings and not with appeals and representations against punishment), the procedure or the provisions not covered by Sub-rules (2) to (9) of the aforesaid Rule or the aforesaid clauses are silent with respect to any matter regarding holding of disciplinary proceedings, then in that case only, the Rules applicable to the employees of the State government, would apply for the said purpose. But in case the disciplinary proceedings are covered by Sub-rules (2) to (9), then there will be no applicability of the Rules to the employees of the State Government. ( 5 ) IN support of the aforesaid argument, it has further been submitted that suspension of a member of the Centralised Service from service cannot be taken to mean the holding of disciplinary proceedings or conduct of disciplinary proceedings and, therefore. in the absence of any such power being given to the State Government for suspending a member of the Centralised service, under the Centralised Service Rules, the power of suspension could not be exercised on the strength of U. P. Government Servants (Discipline and Appeal) Rules, 1999. ( 6 ) U. P. Government Servants (Discipline and Appeal) Rules. 1999 (hereinafter referred to as 1999 Rules) have been framed by the Governor in exercise of the powers conferred by the proviso to Article 309 of the Constitution and in supersession of the Civil Services (Classification, Control and Appeal) Rules, 1930 and Punishment and Appeal Rules for subordinate Service Uttar Pradesh, 1932. There is no dispute that in the matter of disciplinary proceedings, the aforesaid Rules apply to the employees of the State Government, as is evident by Rule 1 (3) of the aforesaid 1999 Rules. ( 7 ) RULE 4 of the 1999 Rules gives power of suspension to the appointing authority against a government servant against whose conduct an enquiry is contemplated or is proceeding for placing him under suspension pending conclusion of the enquiry. ( 7 ) RULE 4 of the 1999 Rules gives power of suspension to the appointing authority against a government servant against whose conduct an enquiry is contemplated or is proceeding for placing him under suspension pending conclusion of the enquiry. The first proviso attached to the said Rule specifically provides that the suspension should not be resorted to unless the allegations against the Government servant are so serious that in the event of their being established may ordinarily warrant major punishment. Rules 7, 8 and 9 give the procedure for imposing major penalties whereas Rule 10 gives the procedure for imposing minor penalties. ( 8 ) RULE 3 of the 1999 Rules deals with the penalties, namely, minor penalties and major penalties. Suspension can be resorted to under these rules either in contemplation of the disciplinary proceedings or during the pendency of the disciplinary proceedings keeping in mind the prohibitory proviso that the suspension should not be resorted to unless the allegations are so serious that may ordinarily warrant major penalty in case they are proved. ( 9 ) 1999 Rules is a complete Code for holding the disciplinary proceedings wherein the suspension of a Government servant has been provided while proceeding to take disciplinary proceedings either in contemplation of disciplinary proceedings or pending disciplinary proceedings. Rule 4 allows the appointing authority or his delegatee, as the case may be, to place a Government servant under suspension in the given circumstances at his discretion. The power to place a Government servant under suspension at the discretion of the appointing authority or his delegatee, as the case may be, has been given to facilitate the disciplinary proceedings where the allegations are so serious that in the event of their being established may ordinarily warrant major penalty. Looking to the scheme of 1999 Rules, it is clear that the suspension of a government servant is directly related to the disciplinary proceedings, may be under contemplation or pending. Thus, the Rules relating to disciplinary proceedings cannot be isolated from the power of suspension given under the Rules. Looking to the scheme of 1999 Rules, it is clear that the suspension of a government servant is directly related to the disciplinary proceedings, may be under contemplation or pending. Thus, the Rules relating to disciplinary proceedings cannot be isolated from the power of suspension given under the Rules. The phraseology used in Rule 36 (1) of the centralised Service Rules cannot be interpreted to mean that though the Rules relating to disciplinary proceedings applicable to the Government servant subject to Sub-rules (2) to (9), shall mutatis mutandis apply to the members of the Centralised Service, but that would exclude the power of suspension provided under the 1999 Rules. Since Rule 36 does not envisage in itself any provision of suspension of a member of the Centralised Service and the Rules relating to the disciplinary proceedings, as applicable to the employees of the State Government, have been made applicable mutatis mutandis to the members of the Centralised Service, it can be safely presumed that it would include the power of suspension also. The words occurring in sub-rule (1) of Rule 36, namely, ". . . . . . . . . . . . . . . . . . . . . . . . . . . . the rules relating to disciplinary proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . " would mean all the rules relating to disciplinary proceedings, and not the rules only for conduct of disciplinary proceedings, namely, the procedure for holding the disciplinary proceedings. ( 10 ) THE argument of the learned counsel for the petitioner that Rule 36 (1) would not give any power of suspension to the State Government of a member of the Centralised Service, as it has not been specifically provided under the said Rule, is to be tested with the intention of the rulemaking authority while introducing this Rule 36. The Centralised Service Rules, 1975, do not provide for any punishment in case the enquiry is held under Rule 36. The punishment is provided under Rule 3 of the 1999 Rules under two heads, namely, minor penalties and major penalties. The Centralised Service Rules, 1975, do not provide for any punishment in case the enquiry is held under Rule 36. The punishment is provided under Rule 3 of the 1999 Rules under two heads, namely, minor penalties and major penalties. The intention of the rule-making authority could not be that in case the disciplinary proceedings against an erring member of the Centralised Service are held, then no punishment would be awarded. The Centralised Service Rules, 1975, do not provide for any punishment, either minor or major and the punishment have been provided only in 1999 Rules, which may be inflicted upon the erring member of the Centralised Service. In case Rule 36 is not taken as a comprehensive rule so as to include all matters relating to disciplinary proceedings, it would make the said rule wholly ineffective, as no punishment, which has not been provided under centralised Service Rules, 1975, can be awarded unless the recourse is taken to the 1999 Rules. This obviously cannot be the intention of the aforesaid Rule. The words "rules relating to disciplinary proceedings" would mean and include all rules relating to disciplinary proceedings, as may be applicable to the Government servants, which would be applicable to the members of the Centralised Service also subject to Sub-rules (2) to (9) of Rule 36. The suspension of a government servant is also a rule relating to disciplinary proceedings, may be, that it can be resorted to even before the actual commencement of the disciplinary proceedings i. e. , in contemplation of the disciplinary proceedings and also in pending disciplinary proceedings. The penalties can also be awarded only under 1999 Rules and not under Centralised Service Rules, 1975. Thus, on a plain construction of Sub-rule (1) of Rule 36, the Rules applicable to the employees of the State Government would apply mutatis mutandis to the members of the centralised Service subject to Sub-rules (2) to (9) and since the 1999 Rules, which are in force at present, are the Rules which are applicable to the Government servants, the said Rules would be applicable to the members of the Centralised Service subject to the provisions of Sub-rule (1) of rule 36. ( 11 ) THE second argument of the learned counsel for the petitioner is that first it has to be determined as to whether the proceedings have to be initiated for a major penalty or for minor penalty and only then the disciplinary proceedings can be initiated either by the State government or by the Vice-Chancellor in view of Sub-rule (2) of Rule 36. This submission has no merit, as in view of Sub-rule (3) if the disciplinary proceedings have been started in accordance with the provisions of Sub-rule (2) by the Vice-Chancellor, who, after completion of enquiry comes to the a provisional conclusion that any major punishment is called for. he is required to refer the case along with the findings and recommendation to the State Government for orders and if during or after completion of the enquiry, the State Government comes to the provisional conclusion that a punishment to which Clause (b) of Sub-rule (2) applies is called for, then it shall refer the case to the Vice Chancellor, who shall pass such orders as he deems fit and shall send a report of the action taken to the State Government. Thus, the disciplinary proceedings may be started by the Vice-Chancellor or the State Government, as the case may be, but the final order of inflicting punishment have to be passed in the case of major punishment by the State Government and if any other punishment are to be awarded, then they would be awarded by the Vice-Chancellor. Thus, it is immaterial as to whether the proceedings are commenced for major penalty or for minor penalty because the orders imposing such penalties have to be passed by such authority prescribed for the same. ( 12 ) THE third submission of the learned counsel for the petitioner is that in view of the directions issued by the State Government to the Vice-Chancellor to make an enquiry and submit the report, the petitioner could not have been suspended nor the disciplinary proceedings could be started without waiting for the enquiry report being sent by the Vice-Chancellor. Reliance has been placed upon Sub-rule (4) of Rule 36, which reads as under : "notwithstanding anything contained in Sub-rules (1) to (3), the State Government may direct the Vice-Chancellor of a University in which any member of the Centralised Services is for the time being posted to start disciplinary proceedings against him and to inform it of the result thereof or, as the case may be, refer the case to the State Government for its final orders under clause (a) of Sub-rule (3 ). " ( 13 ) THE aforesaid Sub-rule (4) gives power to the State Government to direct the vice-Chancellor of a University to start disciplinary proceedings against an erring officer and to inform the result thereof or, as the case may be, refer the case to the State Government. In the instant case, there is no such direction issued by the State Government to the Vice-Chancellor for holding any enquiry. The letter dated 23. 10. 2002 only required the Vice-Chancellor to intimate as to whether he is holding any enquiry from his own level and, if so, the report of such enquiry should be faxed immediately to the State Government and if no enquiry has been conducted, even then the report be submitted by FAX. In response to the aforesaid letter dated 23. 10. 2002, the State Government was informed that a committee has been constituted by the vice-Chancellor but it did not give the date as to when the committee has been constituted. i. e. , before October, 23 or after the receipt of the aforesaid letter. The letter by which the aforesaid information has been sent to the State Government is dated 24. 10. 2002. In the absence of any direction being issued by the State Government for holding enquiry by the Vice-Chancellor, the provision of sub-rule (4) of Rule 36 would not be attracted. ( 14 ) LASTLY, the learned counsel for the petitioner with great tenacity assailed the order of suspension on the ground that the same has been passed on an absolute false report of the two ladles, who were being subjected to enquiry under the orders of the Vice-Chancellor in which the petitioner was required to submit his report. ( 14 ) LASTLY, the learned counsel for the petitioner with great tenacity assailed the order of suspension on the ground that the same has been passed on an absolute false report of the two ladles, who were being subjected to enquiry under the orders of the Vice-Chancellor in which the petitioner was required to submit his report. The proximity of the dates of the incident alleged and the orders of Vice-Chancellor requiring the Registrar to hold the enquiry against the two ladies coupled with the fact that the report of the incident of 6. 8. 2002 has been made on 8. 9. 2002, has been pressed into service for showing that the petitioner has been suspended on the basis of such reports which have been made by the two ladies for stalling the enquiry against them. The petitioner also brought on record certain certificates and evidence to show that on the date of occurrence, he was busy in a selection committee throughout the day. The truthfulness of the charge for which the petitioner has been suspended cannot be the subject matter of enquiry in writ jurisdiction, particularly when the allegations and counter allegations and certain evidence disputing the claim of the either parties raise the disputed question of fact, which cannot be decided in writ jurisdiction. We also refrain from entering into the disputed question of fact, as any observation made by us may result in prejudice to either of the parties in the aforesaid enquiry. ( 15 ) LEARNED State Counsel has also alternatively submitted that if the Court comes to the conclusion that there is no power of suspension under the Rules, even then the petitioner being a government servant, the State Government has inherent power to suspend the petitioner, but in that case, he will be entitled to full salary, though he would remain under suspension. Since we have found that the State Government was having power to suspend the petitioner, we have not addressed ourselves on this argument. ( 16 ) BEFORE parting, we would like to observe that the disciplinary proceedings against the petitioner should be concluded expeditiously. We, therefore, provide that in case no charge-sheet has been issued to the petitioner till date, the same shall be issued within a period three weeks from the date a certified copy of this order is produced before the authority concerned. We, therefore, provide that in case no charge-sheet has been issued to the petitioner till date, the same shall be issued within a period three weeks from the date a certified copy of this order is produced before the authority concerned. The petitioner, on receipt of the charge-sheet, within three days ask for copies of such documents, which he may deem necessary and the enquiry officer, after being satisfied of the relevancy of such documents, shall provide such copies to the petitioner within next three days. In case for any valid reasons the copies of some such of the documents could not be provided, the petitioner shall be allowed inspection of such documents for which the petitioner shall be allowed free access to the aforesaid documents at a particular place and time. This exercise will be allowed and carried through within a period of seven days. The petitioner shall thereafter submit his reply to the charge-sheet within fifteen days and the enquiry officer shall complete the enquiry and submit his report to the authority concerned within next one month. The authority competent, on the receipt of the enquiry report, shall take necessary steps and pass final orders within next four weeks. The petitioner shall cooperate in the enquiry and if any adjournment is sought for by the petitioner, such period of adjournment shall stand excluded from the time schedule given above. In case the charge-sheet is not served within the time prescribed or the enquiry is not completed within the time schedule, despite cooperation of the petitioner, the suspension order shall stand revoked on the expiry of the given period, but in that event too, the enquiry shall be completed expeditiously. ( 17 ) SUBJECT to above directions, the writ petition is dismissed. .