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2007 DIGILAW 1536 (ALL)

BRAJ KISHOR VERMA v. STATE OF UTTAR PRADESH

2007-05-21

ASHOK BHUSHAN

body2007
JUDGMENT Hon’ble Ashok Bhushan, J.—Heard Shri J.P. Singh learned Counsel for the petitioner and learned Standing Counsel appearing for the respondent. 2. By this writ petition, the petitioner has prayed for quashing the suspension order dated 4.5.2007 passed by respondent No. 3. 3. Brief facts necessary for deciding the writ petition are; the petitioner is working as a Class-IV employee (peon) in the District Consumer Disputes Redressal Forum, Rampur. A letter dated 17.6.2006 was written by the President of District Consumer Disputes Redressal Forum, Rampur addressed to the Chairman of State Consumer Disputes Redressal Commission, U.P. Lucknow informing that petitioner is absent from 9.6. 2006 causing difficulty in the working of the forum, since the petitioner is the only Class-IV employee in the forum. It was also mentioned in the letter that the petitioner often leaves the station without permission and subsequently submits medical certificates which are suspicious. It was also mentioned that petitioner was also earlier warned. The respondent No. 3 after receiving the letter from the Chairman District Consumer Forum issued a notice dated 14.7.2006 to the petitioner asking his explanation. The petitioner appears to have given a reply dated 22.7.2006. In the said letter he mentioned that he assures that in future he shall not leave head quarter without permission. A show cause notice was issued on 17.11.2006 to the petitioner that he was absent from 19.10.2006 without any permission till 29.10.2006 and he may show cause as to why no salary be paid from 20.10.2006 to 31.10.2006. The petitioner appears to have sent a letter on 12.2.2007 making allegations against the Chairman of the District Forum. By order dated 4.5.2007 petitioner has been placed under suspension. The suspension order has been passed making several allegations against the petitioner including unauthorised absence, coming late to the office, leaving the office without permission and even after the direction not following the instruction of superior authority, indiscipline and negligence in performance of duty. The order stated that by initiating the disciplinary enquiry under U.P. Government Servant (Discipline and Appeal) Rules, 1999, petitioner is being suspended. 4. Shri J.P Singh, learned Counsel for the petitioner challenging the order contended that petitioner is only a Class-IV employee who cannot influence the disciplinary enquiry, hence suspension was not justified. The order stated that by initiating the disciplinary enquiry under U.P. Government Servant (Discipline and Appeal) Rules, 1999, petitioner is being suspended. 4. Shri J.P Singh, learned Counsel for the petitioner challenging the order contended that petitioner is only a Class-IV employee who cannot influence the disciplinary enquiry, hence suspension was not justified. It is further contended that allegations in the impugned order are vague and even they being established may not warrant major penalty, hence suspension was unjustified. 5. The learned Counsel for the petitioner has also placed reliance on a judgment of this Court reported in 1999(82) FLR 671 , Sunil Kumar Tyagi v. U.P. Khadi and Village Industry Board and another. 6. I have considered the submission and perused the record. 7. The suspension of the petitioner has been directed on the allegations as mentioned in the order by initiating a disciplinary enquiry and appointing an Inquiry Officer. The submission of the petitioner’s Counsel is that the petitioner being Class-IV employee cannot influence the enquiry, hence there was no justification for his suspension. The submission of the petitioner is that if an employee cannot influence the enquiry, suspension need not be resorted to. 8. In Rule 4 of U.P. Government Servant (Discipline and Appeal) Rules, 1999 no restriction in the power of disciplinary authority to suspend an employee can be read to the effect that suspension cannot be resorted to when an employee is not in a position to influence the enquiry. If such wide and general proposition as contended by petitioner is accepted, there may not be any occasion for suspension of Class-IV and Class-Ill employees since it cannot be presumed that they will be in a position to influence the enquiry. In Rule 4(1) only restraint which can be read in the power of suspension is that suspension can be resorted only when an inquiry is contemplated or is pending. In a case where serious misconduct is being committed by a Class-IV employee it cannot be accepted that suspension even in that case is not required since Class-IV employee is not in position to influence the enquiry. The judgment relied by the Counsel for the petitioner in Sunil Kumar Tyagi’s case was case on its own fact. There the petitioner was suspended while he was working at Orai on the charges pertaining to the year 1997 of his tenure of working at Lalitpur. The judgment relied by the Counsel for the petitioner in Sunil Kumar Tyagi’s case was case on its own fact. There the petitioner was suspended while he was working at Orai on the charges pertaining to the year 1997 of his tenure of working at Lalitpur. Following observations were made by this Court in paragraph-2 of the judgment : “Taking into account the attending history of the present case, it appears that petitioner was not pulling on well with his superiors and a transfer order dated August 11, 1998 was passed, which was quashed by this Court vide judgment and order dated September 2, 1998 (Annexure 14 to the petition). It also appears that in the year 1999 some complaint was made and a criminal case was lodged after he was arrested by laying trap while allegedly taking bribe. It is not relevant at this stage in the present proceedings to go into the merits of the earlier action of the parties. Presently petitioner is serving at Orai. The respondents have passed the impugned order of suspension dated April 6, 1997 during the tenure of his working at Lalitpur. The suspension order, however, does not show that working of the petitioner at Orai will be detrimental in fair and impartial holding of enquiry. The impugned order of suspension has been passed in routine manner since the petitioner is working at place (Orai) away from Lalitpur in respect of which he has committed alleged embezzlement. Apparently there is no apprehension of any evidence or material being interfered or tampered as such” 9. The Court after considering the entire facts and circumstances of that case particularly the fact that petitioner at the time of suspension was working at Orai at a place other than Lalitpur where embezzlement was said to have been committed, took the view that there is no question of enquiry being interfered by the petitioner. Following observations were made in paragraph-4. “After considering entire facts and circumstances of the case, particularly the fact that the petitioner is now working at Orai, a place other than the place (Lalitpur) where alleged embezzlement is said to have been committed by the petitioner, there is no danger of enquiry being interfered by the petitioner in any manner. Secondly charge is of the year 1997. Suspension order dated April 6, 1999 is after 15 months. Secondly charge is of the year 1997. Suspension order dated April 6, 1999 is after 15 months. Courts have now and then cautioned in such matters requiring the concerned authorities not to pass suspension order merely on suspicion or mere receipt of complaint. The suspension too entail serious consequences.” 10. Thus in the above case, suspension was interfered with particularly on the ground that the petitioner of that case was working at a different place than the place where charges were alleged. In the above case the Court observed that there was no danger that the enquiry be interfered with by the petitioner in any manner. The observation of the Court in the said judgment were on the facts of that case and no such proposition of law was laid down that in case an employee is not in a position to influence the enquiry, the suspension cannot be made. 11. In the present case from the facts brought on the record by petitioner himself, it is clear that serious allegations were made with regard to his working at District Consumer Disputes Redressal Forum, Rampur. It was for the disciplinary authority to decide as to whether continuing in light of said charges was necessary or not. The disciplinary authority having taken a view to suspend the petitioner, no exception can be taken to the exercise of power. 12. The second submission of the Counsel for the petitioner is that in view of Rule 4(1) proviso of 1999 rules the allegations are not such which may warrant any major penalty, hence suspension is unjustified. It is true that proviso to Rule 4(1) of 1999 Rules provides ‘that suspension would not be resorted to unless the allegations against the Government servant are so serious that in the event their being established may ordinarily warrant major penalty." 13. The allegations against the petitioner cannot be treated to be minor one. The allegations against the petitioner who was working as Class-IV employee are serious in nature. As mentioned in the letter of the Chairman of the District Consumer Forum, petitioner is the only Class-IV employee working in the forum. Frequent unauthorised absence, coming late to the office and going out of the office without permission even before time were serious charges as per duties of Class-IV employees is concerned. As mentioned in the letter of the Chairman of the District Consumer Forum, petitioner is the only Class-IV employee working in the forum. Frequent unauthorised absence, coming late to the office and going out of the office without permission even before time were serious charges as per duties of Class-IV employees is concerned. The major penalties are not only removal or dismissal but withholding of increment with cumulative effect or reduction to a lower grade or time scale or to lower stage in a time scale are also included in the major penalties. Thus it is too early to come to conclusion that none of the allegations against the petitioner are serious enough to warrant a major penalty. The second submission of the petitioner’s Counsel also cannot be accepted. 14. None of the submissions raised by Counsel for the petitioner has any substance. The writ petition lacks merit and is dismissed. ————