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Uttarakhand High Court · body

2007 DIGILAW 119 (UTT)

Charan Singh v. State of Uttaranchal

2007-03-19

M.M.GHILDIYAL

body2007
Judgment Heard Sri Sharad Sharma, learned counsel for the petitioner and Sri N.P. Sah, learned Standing Counsel for the State of Uttarakhandlrespondent nos. 1 &2. 2. By means of this writ petition, the petitioner has prayed to issue a writ in the nature of certiorari quashing the order dated 04-12-2006 passed by the respondent no. 1, annexed as annexure no. 4 to the writ petition. 3. On 12-02-2007, learned Standing Counsel was granted time to file counter affidavit, but no counter affidavit has been filed till date. 4. By the impugned order dated 4th December 2006: the petitioner, who was working as Sanitary and Food Inspector, Nagar Palika Parishad, Manglore, District Haridwar was put under suspension on two counts. Firstly, the petitioner was caught red handed and trapped by the vigilance party while he was taking bribe of Rs. 5,0001- and secondly, that he was put behind the bars for more than 48 hrs. 5. The petitioner has challenged the impugned order on various grounds. It was contended firstly that prior to passing of the impugned order i.e. on 4th December 2006, the petitioner was already bailed out, as such, in view of Rule 3 (a) of Uttaranchal Govt. Servant Disciplinary & Appeal Rules 2003 (hereinafter referred to as the Rules), the petitioner should not have been placed under suspension as the suspension order under Rule-3 (a) can be passed only when a person is behind the bars, which is clear from the Rule 3 (b) which provides that after release from the custody, the person who has been put behind the bars, may inform in writing to the competent authority who shall after considering the representation in the light of the events may pass further orders including revoking or modifying the suspension order. Rule 3 (a) and 3 (b) of tile Rules are quoted hereunder : "3 (a). A Government servant shall be deemed to have been placed or, as the case may be, continued to be placed under suspension by an order of the Authority competent to suspend, with effect from the date of his detention, if he is detained in custody, whether the detention is on criminal charge or otherwise, for a period exceeding forty eight hours." "(b). The aforesaid Government servant shall, after the release from the custody, inform in writing to the Competent Authority about his detention and may also make representation against the deemed suspension. The Competent Authority shall, after considering the representation in the light of the facts and circumstances of the case as well as the provisions contained in this Rule pass appropriate order continuing the deemed suspension from the date of release from custody or revoking or modifying it." 6. Submission of the learned counsel for the petitioner is that the petitioner has been deprived of the benefit of Clause-(b) of Rule 3 of the said Rule, as the suspension order has been passed after the petitioner was bailed out. Counsel for the petitioner has submitted that the petitioner was permitted to join the office on 15th December 2006, after he was released on bail on 30th November 2006. After his release on bail and joining the office he has already moved representation before the competent authority, to consider the facts and pass order for revoking the suspension order which is still pending before the competent authority. 7. So far these two grounds of assailing the impugned order are concerned, as already pointed out, the petitioner was not suspended only under deemed suspension, but be was put under suspension under Rule 4 of the Rules, as is evident from the suspension order itself that the petitioner is being suspended as he was caught red handed by the vigilance party in taking bribery of Rs. 5,000/- and further he has been put behind the bars for more than 48 hrs. 8. So far the apprehension of the petitioner that he has been deprived of Clause (b) of Rule-3 of the Rules, I direct the respondents to take decision on the representation of the petitioner moved before them under Clause-(b) of Rule-3 of the Rules, taking into consideration the facts. 9. Learned counsel for the petitioner has contended that the impugned order is bad in the eyes of law, as it was passed malafide. 9. Learned counsel for the petitioner has contended that the impugned order is bad in the eyes of law, as it was passed malafide. Submission of the learned counsel for the petitioner is that on 4th December 2006, the Secretary, who has passed the impugned order, has written a letter to the Director Urban Development Directorate; wherein he has stated that he is unable to understand as to why the petitioner who was caught red handed taking bribe of Rs, 5,0001- was not suspended by the Director, further the petitioner remained behind the bars for more than 48 hrs. In these circumstances, the petitioner could have been suspended but for the reasons best known to the Director, he has not passed the suspension order and on the complaint made to the Secretary, the Secretary directed the Director, Urban Development Department to pass order. Even after receiving directions from the Secretary, since the Director has not passed the suspension order, hence, the Secretary has himself passed the suspension order on the same day i.e. on 4th December 2006. Contention of the learned counsel for the petitioner is that the Secretary has written a letter on 4th December 2006 to the Director to pass an order of suspension by on the same day the Secretary himself has passed the suspension order, which illustrates that the Secretary has passed the impugned order mala-fide. I do not find force in the submission of the learned counsel for the petitioner. As is clear from the correspondence that the Director was hand in globs with the petitioner. Though the petitioner was caught red handed taking bribe of Rs. 5,000/- and was put behind the bars for more than 48 hrs., even then the Director has not complied the order passed by the Secretary for suspension of the petitioner, therefore the Secretary was compelled to pass the suspension order, I do not find any mala-fide in passing order by the Secretary. 10. Learned counsel for the petitioner has further submitted that the Secretary was not competent to pass suspension order. It is not disputed that under the Rules, the appointing authority of the petitioner's cadre is the State Govt. The Director has been authorized by the Govt. under the G.O. dated 20th February 2002 to take action against the petitioner's cadre. But, the Govt. Order issued on 20th February 2002 cannot prevail upon the Rules. It is not disputed that under the Rules, the appointing authority of the petitioner's cadre is the State Govt. The Director has been authorized by the Govt. under the G.O. dated 20th February 2002 to take action against the petitioner's cadre. But, the Govt. Order issued on 20th February 2002 cannot prevail upon the Rules. Since, the appointing authority under the Rules, is State Govt., hence the Secretary is competent to pass the impugned order. 11. Counsel for the petitioner has further contended that no inquiry is contemplated, as is clear from the impugned order, which illustrate that the impugned order has been passed under Rule 3 (a) of the Rules and not under Rule 4 of the Rules. No charge-sheet has been issued to the petitioner till date either by the Criminal Court or by the Department. He has further submitted that the petitioner has not been paid a single penny as suspension allowance. He has further submitted that since the impugned order has been passed on a complaint of some person, the authority while passing the order should have disclosed his application of mind. 12. Learned counsel for the petitioner has placed reliance on the judgment of the Division Bench of the Allahabad High Court in the case of Onkar Nath Pandey and others vs. State of U.P. and another reported in 1987 U.P. Local Bodies and Educational Cases, page 202 wherein the Division Bench has held that the petitioner who is Sub Inspector of Police has been placed under suspension by the order of Senior Superintendent of Police dated 16th April 1986. Since there is no disciplinary proceeding or a judicial proceeding pending against him, in these circumstances in case no charge sheet has been submitted in connection with in the criminal case, or there has been charge sheet given to the petitioner in any departmental proceeding, the impugned suspension order dated 16th April 1986 shall stand set-aside., In the case cited, the petitioner was placed under suspension on 16th April 1986 and till the date of decision Le. 5th December 1986, after about 8 months, the petitioner was not served the charge sheet by the Department or by the Criminal Court. 13. 5th December 1986, after about 8 months, the petitioner was not served the charge sheet by the Department or by the Criminal Court. 13. Here, in the present case, the petitioner was placed under suspension on 4th December 2006 and thereafter 3Y:z months have been passed, therefore the ratio of the aforesaid cited case is not fully applicable in the present case, in the circumstances of the case. Further the learned counsel for the petitioner has made statement at bar that he has yet not received the charge-sheet in the Department proceedings or in the Criminal Case. Since only 3Y2 months have been passed, therefore the ratio of the aforesaid cited case will not help the petitioner in the present case. 14. Learned counsel for the petitioner has further submitted that since the suspension order has been passed on the complaint of a person, against whom the petitioner has already taken action long back, the competent authority should have disclosed application of hismind when the suspension order was passed. I do not find any force on the submission of the learned counsel for the petitioner because while passing the suspension order, the authority has applied his mind as to why the suspension order is being passed and even has given substantial reasons in passing the suspension order. On the basis of complaint of one Mr. Aggarwal, the vigilance team came into action then they have caught the petitioner red handed taking bribe of Rs. 5,000/-, this fact has been mentioned by the respondent in the suspension order in full application of mind. Apart from this, the authority has also mentioned in the suspension order that the petitioner was behind the bars for more than 48 hrs. I find no force in the submission of the learned counsel for the petitioner. 15. In the facts and circumstances mentioned above, I deem it fit and proper to direct the petitioner to make representation before the competent authority, stating the facts that he has already been released on bail and has already joined the office, for 3 days, in case, he has already not moved the same to that effect, and the authority concerned is directed to take decision on the same in accordance with law, considering all the facts mentioned in the body of the judgment. In case, the appointing authority propose to initiate the Departmental proceedings against the petitioner, the authority shall take all necessary action, including appointment of an Inquiry Officer, period specifying for submission of charge-sheet and submission of inquiry report and after receiving the report from Inquiry Officer, it is expected from the respondents that they shall pass final order within a period of four months from the date of production of a certified copy of this order. 16. The respondents are further directed to make payment of subsistence allowance to the petitioner forthwith including the arrears from the date of his suspension. 17. The petitioner is directed to cooperate with the inquiry, if any initiated against him. He is further directed to submit a certified copy of this order before the respondents within a period of 10 days from today. 18. With these directions, the writ petition is finally disposed of. No order as to costs.