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2010 DIGILAW 1648 (ALL)

HARIDAYA NAND SHARMA v. STATE OF U. P.

2010-05-19

DEVENDRA KUMAR ARORA

body2010
JUDGMENT Hon’ble Devendra Kumar Arora, J.—Heard learned counsel for parties and perused the record. 2. By means of this writ petition, the petitioner has prayed for a writ in the nature of certiorari for quashing of the impugned order dated 16.2.2010, passed by opposite party No. 3, as contained in Annexure No. 1 to the writ petition. Petitioner has further prayed for a writ in the nature of mandamus commanding the opposite parties to allow the petitioner to continue to work and discharge his duties on the post of Senior Clerk/Accountant and to pay him salary regularly. 3. The facts of the case, in brief, are that the petitioner is working as Senior Clerk/Accountant in the office of the District Development Officer, Balrampur who has been placed under suspension by means of order dated 16.2.2010. 4. Submission of learned counsel for the petitioner is that the impugned order of suspension has been passed at the behest of the directions issued by Special Secretary, Rural Development Department, Government of U.P., Lucknow dated 3rd February, 2010 (Annexure No. 2 to the writ petition), without application of mind by the competent authority. 5. In support of his contention, learned counsel for the petitioner relies on a Division Bench Judgment of this Court dated 7.3.1994 passed in Special Appeal No. 8 (SB) of 1994 Dinesh Kumar Srivastava v. State of U.P. and others in which it is held as under : “A bare perusal of the documents, indicated above, including the order of suspension shown that there was a kind of clear direction on the part of the higher authorities to place the petitioner under suspension immediately.” He further relies on judgment and order dated 12.01.2010 passed by this Court in Writ Petition No. 8410 (SS) of 2009 Ram Saharey Verma v. State of U.P. and others in which this Court has held as under : “In the instant case, the appointing authority of the petitioner is Director. Though the Director has passed the suspension order, but it has been passed on the basis of the letter written by the Special Secretary dated 3.2.2010, contained in Annexure No. 4 to the writ petition. Further, the Opposite Party No. 2, without applying his mind, has passed the suspension order. Though the Director has passed the suspension order, but it has been passed on the basis of the letter written by the Special Secretary dated 3.2.2010, contained in Annexure No. 4 to the writ petition. Further, the Opposite Party No. 2, without applying his mind, has passed the suspension order. It is settled law and normally, when an appointing authority or the disciplinary authority seeks to suspend a delinquent employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or deflection of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity or misconduct sought to be inquired and nature of evidence placed before the appointing authority and the authority concerned should consider all aspects and decide whether suspension is expedient or not and the same not be in an administrative routine and automatic manner.” 6. Learned Standing counsel does not dispute that the impugned suspension order has been passed at the dictates of the Special Secretary, Rural Development Department, Government of U.P., Lucknow. 7. Since the only legal question involved in the present writ petition is as to whether action of the appointing authority/ competent authority in passing the suspension order at the dictates of the higher authority is justifiable or not, the present writ petition is being considered and disposed of finally at the admission stage itself. 8. I have considered the arguments of the learned counsel for the respective parties and gone through the record. 9. Rule 4 of U.P. Government Servant (Discipline & Appeal) Rules 1999 provides that a government servant against whose conduct an inquiry is contemplated, or is proceeding, may be placed under suspension pending the conclusion of the inquiry in the discretion of the Appointing Authority. It is further provided 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 penalty. 10. In sum and substance, an employee can be placed under suspension in contemplation of an inquiry or during pendency of inquiry at the discretion of the Appointing Authority. This discretion is to be exercised by the Appointing Authority, if the allegations against a government servant are so serious that in the event of there being established, may warrant imposition of major penalty against the delinquent employee. This discretion is to be exercised by the Appointing Authority, if the allegations against a government servant are so serious that in the event of there being established, may warrant imposition of major penalty against the delinquent employee. Therefore, a discretion has to be exercised by the competent authority subjectively taking into consideration the entire material against the delinquent employee independently and the same cannot be exercised mechanically at the dictates of the higher authority. The higher authority at the most can request the appointing authority/competent authority to examine the case independently and pass appropriate orders after independent application of mind. It is settled proposition of law that when Statute confers power on a particular authority or person to perform certain functions, it cannot be exercised by any other person. In the Purtabpur Company Ltd. v. Cane Commissioner of Bihar, AIR 1970 SC 1894, the Hon’ble Supreme Court has observed as under (Paras 13 and 14) : “The powers exercisable by the Cane Commissioner under Clause 6 (1) is statutory power. He alone could have exercised that power, while exercising that power, he cannot obligate his responsibilities in favour of any one, not even in favour of the State Government or the Chief Minister. It was not proper for the Chief Minister to have interfered with the functions of the Cane Commissioner......the Executive Officers, entrusted with statutory discretion, may, in some cases, be obliged to take into account consideration of public policy and in some context the policy of the Minister or the Government as the whole when it is relevant factor in weighing the policy but this will not absolve them from the duty to exercise the personal judgment in individual case unless explicit statutory provisions have been made for them to be given binding instructions by a superior.” 11. Similarly, in Tarlochan Dev Sharma v. State of Punjab, (2001) 6 SCC 260 , AIR 2001 SC 2524 , the Hon’ble Supreme Court, after placing reliance upon a large number of its earlier judgment, observed as under : “In the system of Indian democratic governance, as contemplated by the constitution, senior officers occupying good position as Secretaries, are not supposed to mortgage their own discretion, volition and decision-making authority and be prepared to give way or being pushed back or pressed ahead at the behest of the politicians for carrying out command having no sanctity in law......No Government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior.” 12. A perusal of the impugned order reveals that the suspension order dated 16.2.2010 has been passed in pursuance of the directions issued by the Special Secretary, Rural Development dated 3rd February, 2010 and apparently the suspension order has not been passed by the competent authority after due application of independent mind. As such the suspension order cannot be sustained and the same deserves to be quashed. 13. Writ petition is, therefore, allowed. The impugned suspension order dated 16.2.2010 is hereby quashed. However, it is open for the competent authority to pass afresh order if the material available on record against the petitioner is found so grave which may warrant awarding of major punishment against the petitioner, as per rules. There is no order as to costs. ————