Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 2693 (ALL)

RAJ VEER SINGH v. STATE OF U. P.

2010-09-03

A.P.SAHI, ARUN TANDON, ASHOK BHUSHAN

body2010
JUDGMENT Hon’ble Ashok Bhushan, J.—This Full Bench has been constituted on a reference made by a Division Bench vide its order dated 5th December, 2007 passed in this writ petition. The Division Bench has made reference for constituting a Larger Bench for consideration of following questions of law : (a) Whether a reference made by a Division Bench, which has not noticed a Constitution Bench judgment of this Court comprising of larger number of Judges, squarely applicable on the subject, was liable to be returned unanswered by the Full Bench only on the ground that Constitution Bench judgment has not been considered by the Division Bench while making the reference. (b) Whether the Full Bench in the case of Shahroj Anwar Khan (supra) is correct in recording in paragraph 21 that the word ‘’inquiry’ as contemplated under Rule 17(1)(a) (Para materia to Rule 49-A of the C.C.A. Rules) will include a preliminary inquiry to be precise whether the word ‘’inquiry’ in the said Rules includes within its ambit preliminary inquiry inasmuch as the Constitution Bench of this Court in the case of State of U.P. v. Jai Singh Dixit (supra) has specifically held that the word ‘’inquiry’, under Rule 49-A of the C.C.A. Rules, necessarily refer to formal departmental inquiry referable to Rule 55 and 56-A of the C.C.A. Rules or Rules 6 and 7 of the U.P. Police Officer of Subordinate Ranks (Punishment and Appeal) Rules, 1991. (c) Whether, while directing preliminary inquiry, the power to suspend has to be exercised on objective consideration of material on record of each case and therefore it is for the State Government on a challenge being made to an order of suspension in contemplation of an inquiry to justify by such material on record that irrespective of preliminary inquiry the authority was satisfied that suspension was warranted in the facts of the case. (d) Whether an order of suspension, in contemplation of a vigilance inquiry, would be within four corners of Rule 49-A.” 2. (d) Whether an order of suspension, in contemplation of a vigilance inquiry, would be within four corners of Rule 49-A.” 2. The Division Bench in its referring order expressed its doubts over the correctness of a Full Bench judgment in the case of Shahroj Anwar Khan v. State of U.P. and another, 2007(5) ADJ 403 (FB), principally on the ground that the ratio of the Full Bench judgment in Shahroj Anwar Khan’s case (supra) is not in accord with the five Judges Larger Bench of this Court in the case of State of U.P. v. Jai Singh Dixit, 1975 AWC 243. The Chief Justice in exercise of its power under Chapter V, Rule 6 of the Allahabad High Court Rules, 1952 constituted this Full Bench to decide whether the above questions (a) to (d) should be referred to a Larger Bench. The order of the Chief Justice dated 12th May, 2008 is to the following effect : “I nominate Hon’ble Ashok Bhushan, J., Hon’ble Arun Tandon, J. and Hon’ble Vikram Nath, J for deciding whether the above issues (a) to (d) should be referred to a Larger Bench.” The Larger Bench was again reconstituted on 10th August, 2010 nominating Hon’be A.P. Sahi, J. in place of Hon’ble Vikram Nath, J. 3. Brief facts of the case giving rise to reference by Division Bench dated 5th December, 2007 are as under; the writ petitioner Raj Veer Singh is employed as Assistant Director (Toxicology), Forensic Science Laboratory, Agra. In a telecast by television news channel “Star News” on 9th August, 2007 under the caption “Kanoon Ke Killer”, the petitioner was shown as stating that he can tamper forensic report on receiving illegal gratification. The Joint Director, Vidhi Vigyan Prayogshala passed an order on 18th August, 2007 restraining the petitioner from discharging his duties, which order was challenged by the petitioner by means of Writ Petition No. 40102 of 2007 in which the Court called for a counter affidavit but did not grant any interim order. On 10th August, 2007 Additional Inspector General of Police passed an order directing the Director, Vidhi Vigyan Prayogshala to conduct a preliminary inquiry with regard to employees and officers who are claimed to be involved in demanding bribe including Raj Veer Singh. A preliminary inquiry report dated 20th August, 2007 was submitted holding the petitioner prima facie involved in the corruption. A preliminary inquiry report dated 20th August, 2007 was submitted holding the petitioner prima facie involved in the corruption. After receiving the preliminary inquiry report, the State Government passed an order on 18th September, 2007 placing the petitioner under suspension. The State Government in the order stated that in the programme shown by television channel “Star News” under the heading “Kanoon Ke Killer” the conduct of the officer is highly objectionable and against the dignity of the office. In the preliminary inquiry report submitted by Superintendent of Police and Director, Vidhi Vigyan Prayogshala dated 20th August, 2007 petitioner’s prima facie involvement in corruption had been found proved, hence for taking necessary action inquiry by Vigilance Establishment Cell has also been proposed for which order was separately issued. The order dated 18th September, 2007 suspending the petitioner was challenged in the writ petition on the ground that only inquiry from vigilance department is contemplated, hence the suspension is contrary to Rule 4 of the U.P. Government Servants (Discipline and Appeal) Rules, 1999 (hereinafter referred to as the 1999 Rules). Reliance was placed on the Larger Bench judgment of five Judges in the case of State of U.P. v. Jai Singh Dixit (supra). Learned Standing Counsel appearing on behalf of the State had placed reliance on the Full Bench judgment in Shahroj Anwar Khan’s case (supra) contending that authorities have power to direct a fact finding inquiry or a preliminary inquiry and also resort to suspension while initiating such fact finding/preliminary inquiry. It was contended that proposal to hold a vigilance inquiry would, in no manner, restrict the competence of the State Government to keep the officer under suspension. Considering the above submissions of the learned counsel for the parties in the writ petition, above four questions have been referred to by the Division Bench doubting the correctness of the Full Bench in Shahroj Anwar Khan’s case (supra). 4. As is apparent from the order of Chief Justice dated 12th May, 2008, this Bench has been constituted to decide as to whether questions (a) to (d) should be referred to a Larger Bench. Thus this reference is to be answered in terms of the reference as made by the Chief Justice. 5. The relevant provisions regarding suspension of a government servant are necessary to be noted for considering the questions referred to. Thus this reference is to be answered in terms of the reference as made by the Chief Justice. 5. The relevant provisions regarding suspension of a government servant are necessary to be noted for considering the questions referred to. The U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as the 1999 Rules) have been framed under proviso to Article 309 of the Constitution of India. Rule 4 of the said rules deals with suspension. Rule 4(1), which is relevant is quoted as below : “4. Suspension.—(1) A Government Servant against whose conduct an inquiry is contemplated or is proceeding may be placed under suspending pending the conclusion of the inquiry in the discretion of the Appointing Authority: Provided that 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; Provided further that concerned Head of the Department empowered by the Governor by an order in this behalf may place a Government Servant or class of Government Servants belongings to Group ‘’A’ and ‘’B’ posts under suspension under this rule; Provided also that in the case of any Government Servant or class of Government Servants belonging to Group ‘’C’ and ‘’D’ posts, the Appointing Authority may delegate its power under this rule to the next lower authority.” 6. Prior to the 1999 Rules, the suspension of Government servant was regulated by Rule 49-A of the U.P. Civil Services (Classification, Control and Appeal) Rules, 1930 (hereinafter referred to as the C.C.A. Rules). The material part of Rule 49-A of the C.C.A. Rules was as follows : “49-A. 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 : Provided that in the case of any Government servant or class of Government servants, not belonging to a State service the appointing authority may delegate its power under this rule to the next lower authority. N.B. As a rule, suspension should not be recorded to unless the allegations against the Government servant are so serious that in the event of their being established, they may ordinarily be expected to warrant his dismissal, removal or reduction. N.B. As a rule, suspension should not be recorded to unless the allegations against the Government servant are so serious that in the event of their being established, they may ordinarily be expected to warrant his dismissal, removal or reduction. Suspension, where deemed necessary, should, as far as possible, immediately precede the framing of charges and their communication to the Government servant charged.” 7. The ‘’N.B.’ note below the Rule 49-A of the C.C.A. Rules was subsequently deleted by the notification dated 23rd March, 1974. 8. The power to suspend a Government servant by the Government has always been conceded to the employer. The suspension of a Government servant no longer is regulated by contract of employment but is governed by the statutory rules, earlier by Rule 49-A of the C.C.A. Rules and now by Rule 4 of the 1999 Rules. The power of suspension, which is regulated by statutory rules, has to be exercised within the four corners of the statutory rules. Both, Rule 49-A of the C.C.A. Rules and Rule 4 of the 1999 Rules, as quoted above, provided that a Government Servant at the discretion of the appointing authority may be placed under suspension (i) against whose conduct an inquiry is contemplated or (ii) against whose conduct an inquiry is proceeding. 9. There is no difficulty in exercise of power of suspension by the appointing authority when inquiry is proceeding, i.e. when a firm decision is taken by the appointing authority to hold a disciplinary inquiry or charges have been served on the employee. However, suspension of a Government servant against whose conduct an inquiry is contemplated, sometime raises complicity because it is to be found out from the order of suspension and other attending facts and circumstance as to whether the inquiry is contemplated or not. The words “contemplate” and “contemplation” as defined in Webster Comprehensive Dictionary (Encyclopedic Edition) are as follows : “con.tem.plate 1 To look at attentively; gaze at. 2 To consider thoughtfully; ponder. 3 To intend or plan. 4. To treat of as contingent in the Constitution. - v.i. 5. To mediate; muse. [ con.tem.pla.tion 1 The act of keeping the eye or the mind fixed upon some object or subject. 2 Continued thought or abstraction in general; musing: contemplation of the heavens; absorbed in contemplation. 2 To consider thoughtfully; ponder. 3 To intend or plan. 4. To treat of as contingent in the Constitution. - v.i. 5. To mediate; muse. [ con.tem.pla.tion 1 The act of keeping the eye or the mind fixed upon some object or subject. 2 Continued thought or abstraction in general; musing: contemplation of the heavens; absorbed in contemplation. 3 Expectation or intention of doing, or deliberation on something to be done, as of taking a journey. 4 Holy meditation; a life of prayer and meditation as practiced by certain Roman Catholic orders. See synonyms under REFLECTION, THOUGHT”. 10. The word “contemplation” has also been defined in Black’s Law Dictionary in following manner : “Contemplation. the act of the mind in considering with attention. Continued attention of the mind to a particular subject. Consideration of an act of series of acts with the intention of doing or adopting them. The consideration of an event or state of facts with the expectation that it will transpire. See Consideration.” 11. The ‘’contemplation’ is an act of mind. Whether the appointing authority contemplated an inquiry while passing an order of suspension poses a question, for answering which question the state of mind of the appointing authority is to be found out at the relevant time, i.e., at the time of passing the suspension order. The state of mind can be deciphered and found out only on the basis of the acts, which are translated into action by the appointing authority. Thus the power to suspend a Government servant, against whose conduct an inquiry is contemplated, is a statutorily recognised power, which power, if questioned, the appointing authority is to satisfy that what was contemplated, was an inquiry against the conduct of Government servant. Various issues relating to suspension of a Government servant in contemplation of inquiry have cropped before the different Benches from time to time and it is useful to refer certain decided cases dealing with Rule 49-A of the 1930 Rules and Rule 4 of the 1999 Rules. 12. As noticed above, the Division Bench, making reference for constituting a Larger Bench, has referred to five Judges Larger Bench judgment in the case of State of U.P. v. Jai Singh Dixit (supra) with further observation that the Full Bench judgment in Shahroj Anwar Khan’s case (supra) is not in accord with the ratio of five Judges Larger Bench. 12. As noticed above, the Division Bench, making reference for constituting a Larger Bench, has referred to five Judges Larger Bench judgment in the case of State of U.P. v. Jai Singh Dixit (supra) with further observation that the Full Bench judgment in Shahroj Anwar Khan’s case (supra) is not in accord with the ratio of five Judges Larger Bench. Thus it is necessary to note the ratio of five Judges Larger Bench in State of U.P. v. Jai Singh Dixit (supra) for answering the reference. 13. The five Judges Larger Bench in State of U.P. v. Jai Singh Dixit (supra) was constituted on a reference made to examine the correctness of an earlier three Judges Full Bench on the same rule in the case of State of U.P. v. Jawahar Lal Bhargava, 1974 AWR 178, which Full Bench in its turn was constituted to examine the correctness of an earlier Division Bench judgment in the case of State of U.P. v. R.S. Nigam, 1973 A.L.J. 703. It is useful to refer to various stages when Benches of different strengths interpreted Rule 49-A of the C.C.A Rules from very beginning. 14. Rule 49-A of the C.C.A. Rules was considered by a learned Single Judge in the case of Rajendra Shanker Nigam v. State of U.P., 1973 A.W.R. 271. We begin with, by examining the said case at first instance. Rajendra Shanker Nigam was a member of Provincial Civil Services. The State Government after receiving complaint containing serious allegation of corruption against Rajendra Shanker Nigam passed an order of suspension. The suspension order was challenged in the writ petition on the ground that in the circumstances it was not open to the respondents to suspend in exercise of power under Rule 49-A of the C.C.A. Rules. The words ‘’inquiry is contemplated’ fell for consideration before the learned Single Judge. Interpreting Rule 49-A and the Note appended thereto, learned Single Judge laid down following in paragraphs 12 and 14 of the judgment in Rajendra Shanker Nigam v. State of U.P. (supra) : “12. ..... Second part of the note provides that suspension order should be made as far as possible immediately preceding the framing of the charges and their communication to the Government servant charged. ..... Second part of the note provides that suspension order should be made as far as possible immediately preceding the framing of the charges and their communication to the Government servant charged. This, in my opinion, clearly indicates that the intention of the rule making body was that an order for suspension should be passed only when the appointing authority has decided to frame a charge i.e. it has decided to initiate a departmental enquiry under R. 55 against the government servant concerned and not at any earlier stage. This, in my opinion indicates that u/R. 49-A, an enquiry against a government servant is contemplated, only when the appointing authority intends to start the same.” 14. In a particular case the question whether or not an order of suspension has been passed in contemplation of an enquiry u/R. 55, will depend upon its facts. Clearly it is for the appointing authority to indicate that after receipt of complaint against the government servant and before making the suspension order it intended to hold a departmental enquiry against him.” 15. Thus the view expressed by the learned Single Judge in the above case after considering the effect of Note appended to Rule 49-A of the C.C.A. Rules was that an order of suspension should be passed only when the appointing authority has decided to frame a charge, i.e. when he decided to initiate departmental inquiry against the Government Servant concerned and not at any earlier stage. 16. The State Government filed an appeal against the said judgment, which was decided by the Division Bench in the case of State of U.P. v. Rajendra Shanker Nigam, 1973 A.L.J 703. The Division Bench while interpreting Rule 49-A of the C.C.A. Rules did not give restricted meaning of Note appended to Rule 49-A. The Division Bench interpreting the Note made following observations in paragraph 13 : “13. The material and relevant expression in Rule 49-A is ‘’an inquiry is contemplated or is proceeding’. The term “contemplated” is not a term of art. It has been used in its plain ordinary meaning. The Shorter Oxford Dictionary, Volume 1 at page 380 defines the word ‘’contemplated’ to mean “to have in view, to expect, to take into account as a contingency”. It indicates a stage where an inquiry into the conduct of a government servant is imminently expected with a view to impose some punishment upon him. The Shorter Oxford Dictionary, Volume 1 at page 380 defines the word ‘’contemplated’ to mean “to have in view, to expect, to take into account as a contingency”. It indicates a stage where an inquiry into the conduct of a government servant is imminently expected with a view to impose some punishment upon him. On receipt of complaints against the conduct of a government servant the competent authority sets in motion an informal inquiry to certify the correctness of the allegations or to collect material with a view to hold a disciplinary inquiry so that if the alleged misconduct is established suitable punishment be awarded. The inquiry which will result in imposition of punishment can be said to be expected or contemplated. When the Government sets in motion its machinery for investigating the alleged complaints so that it may hold a formal inquiry more properly the formal inquiry is clearly contemplated, and the power to suspend comes into play. In S.C. Kharbanda v. State of U.P., a Division Bench observed : “The mere fact that a preliminary enquiry has been admittedly instituted in proof positive of the fact that the departmental enquiry is contemplated. Were it otherwise, the authorities would decline to undertake the preliminary enquiry.” According to this decision, the power to suspend will accrue when an informal inquiry has been instituted.” 17. The case which came for decision before the Full Bench in State of U.P. v. Jawahar Lal Bhargava (supra) arose from a writ petition filed by Jawahar Lal Bhargava challenging his suspension order. The writ petition was filed by Jawahar Lal Bhargava challenging the observation in the order that suspension has been ordered pending inquiry. It was contended that above observation was incorrect since no charge-sheet has been issued to the petitioner and at the time when order of suspension was passed neither any inquiry was proceeding nor any such inquiry was contemplated. The writ petition was allowed by the learned Single Judge holding that the order of suspension was passed at the time when preliminary inquiry was being held and the State Government has not applied its mind nor has considered the instance of any exceptional circumstances. It was held that suspension order has been passed not in accordance with Rule 49-A of the C.C.A. Rules. Reliance was placed on the Division Bench judgment in State of U.P. v. Rajendra Shanker Nigam (supra). 18. It was held that suspension order has been passed not in accordance with Rule 49-A of the C.C.A. Rules. Reliance was placed on the Division Bench judgment in State of U.P. v. Rajendra Shanker Nigam (supra). 18. Special appeal was filed by the State of U.P. against the said judgment. In the special appeal reference was made by the Division Bench for constituting a Larger Bench as in its opinion the decision of the Division Bench in State of U.P. v. Rajendra Shanker Nigam (supra) required reconsideration. Thus the Full Bench was constituted to answer the reference. The Full Bench judgment in State of U.P. v. Jawahar Lal Bhargava case (supra) had approved the interpretation of Rule 49-A and Note appended thereto of the C.C.A. Rules as was given by the learned Single Judge in the case of Rajendra Shanker Nigam v. State of U.P. and the broad interpretation which was given by the Division Bench in State of U.P. v. Rajendra Shanker Nigam (supra) that suspension can be directed even earlier to stage when decision is taken to hold disciplinary inquiry was disapproved. Interpreting the word ‘’inquiry’ under Rule 49-A of the C.C.A. Rules, it was held that word ‘’inquiry’ means nothing but a formal disciplinary proceeding and not an investigation of an informal character. The Full Bench took the view that the inquiry can be said to be contemplated only at the stage when the decision is taken by the appointing authority to start the formal proceedings. Following was laid down in paragraph 14 of the said judgment : “14. ....... Thus the word ‘’Inquiry’ means nothing but the formal disciplinary proceeding and not the investigation of an informal character which most often precedes the initiation of formal disciplinary proceedings envisaged by Rule 55. When the appointing authority takes a decision to start formal proceedings, then within 15 days of taking that decision charge or charges should be handed over to the charged officer. Thus there is a time lag of 15 days permitted between taking the decision to start formal proceedings and the service of charges on the charged officer. The direction given by the Governor envisages that at the time when a decision is taken by the appointing authority to start formal proceedings it must also be simultaneously decide whether the Officer should be placed under suspension pending the inquiry. The direction given by the Governor envisages that at the time when a decision is taken by the appointing authority to start formal proceedings it must also be simultaneously decide whether the Officer should be placed under suspension pending the inquiry. It is at this stage that it can be said that an inquiry is contemplated against the conduct of the Government servant. The only meaning that can be given to the phrase ‘’against whose conduct an inquiry is contemplated, occurring in clause (1) of Rule 49-A, would be against whose conduct an inquiry under Rule 55 is to be initiated”. That will be when a decision has been taken on the basis of the material collected on preliminary investigation and the appointing authority is prima facie satisfied that they have substance and the starting of formal proceedings would be justified. At any point of time prior to the taking of such a decision it could not be said that an inquiry under Rule 55 was contemplated. 19. Approving the view of the learned Single Judge in Rajendra Shanker Nigam v. State of U.P. (supra) that stage on which inquiry can be said to be contemplated is the stage when the appointing authority decides to proceed to hold an inquiry, following was laid down in paragraph 15 by the Full Bench in State of U.P. v. Jawahar Lal Bhargava case (supra) : 15. Though the verb ‘’contemplate’ has many meanings and has somewhat an ambiguous import, yet it has to be given a definite meaning in the context in which it has been used in harmony with the scheme laid down in the Civil Services (Classification, Control and Appeal) Rules pertaining to conduct and discipline of the Government servant who fall within the rule making power of the Governor under Art.309 of the Constitution. With great respect the meaning given by Seth, J. In Rajendra Shanker Nigam v. State of U.P., appears to be correct, that is to have in view an inquiry under Rule 55 or to hold an inquiry under Rule 55. This stage would not be reached unless the appointing authority decides in the circumstances of the case that it will proceed to hold an inquiry under Rule 55. This stage would not be reached unless the appointing authority decides in the circumstances of the case that it will proceed to hold an inquiry under Rule 55. Viewed in this light and the directions of the Governor as given in para 2 of the Appendix IV, quoted above, the substance of which is contained in the Note, the phrase “suspension, where deemed necessary should, as far as possible, immediately precede the framing of charges and their communication to the Government servant charged” occurring in the Note will mean where it is decided to suspend a Government servant pending a formal inquiry under Rule 55 the order of suspension as far as possible be passed immediately preceding the framing of the charges and their communication. By the use of the words ‘’as far as possible’ an intention is manifest that when the appointing authority considering the prevailing circumstances finds some practical difficulties, it may not take a decision to suspend a Government servant at the point of time immediately preceding the framing of charges and their communication to the Government servant charged and may defer the decision to suspend to a later date. The Note does not permit the appointing authority to suspend a Government servant before it decides to initiate a formal inquiry under Rule 55 against the Government servant. The Note fixes the earliest point of time for the exercise of the power of suspension. the phrase “as far as possible” cannot be construed as leaving a power with the appointing authority to suspend a Government servant at a point of time earlier then the earliest point of time fixed by the Note.” 20. In paragraph 16, the Full Bench in State of U.P. v. Jawahar Lal Bhargava case (supra) laid down that the power of suspension under Rule 49-A of the C.C.A. Rules can be exercised only when a decision is taken to start an inquiry under Rule 55. Following was laid down in paragraph 16 : “16. In paragraph 16, the Full Bench in State of U.P. v. Jawahar Lal Bhargava case (supra) laid down that the power of suspension under Rule 49-A of the C.C.A. Rules can be exercised only when a decision is taken to start an inquiry under Rule 55. Following was laid down in paragraph 16 : “16. The first part of the Note which says “as a rule suspension should not be resorted to unless the allegations against the Government servant are so serious that in the event of their being established they may ordinarily be expected to warrant his dismissal, removal or reduction” shows that only in cases where major punishments, that is dismissal, removal or reduction, can be imposed on the basis of the nature of the allegations against the Government servant that he may be suspended. Whether the seriousness of the allegations warrant in the ordinary course his dismissal, removal or reduction will certainly depend on the contents of those allegations. In as much as under clause (1) of Rule 49-A the power of suspension can be exercised only when a decision has been taken to start an inquiry under Rule 55 as held by us what is envisaged by the Note in its first part is that when on preliminary investigation such material has been collected which has substance to justify the departmental proceedings and it is expected that on the evidence brought before the inquiry Officer such misconduct on the part of the Government servant will be established which in normal course would justify the infliction of either of the major punishments-dismissal, removal or reduction in rank, then the power of suspension be resorted to. The expression ‘’as a rule’, occurring in the beginning of the Note, implies that that is always the rule to be observed. The word ‘’allegations’ used in first part of the Note do not mean the allegations contained in the complaint received against a Government servant but would mean the allegations having substance revealed by the investigation of an informal nature. The same conclusion would be reached if the provisions of rule 55-B are examined. When only minor penalties are decided to be imposed, like censure or stoppage at an efficiency bar even framing of formal charge or calling for explanation of the Government is dispensed with. The same conclusion would be reached if the provisions of rule 55-B are examined. When only minor penalties are decided to be imposed, like censure or stoppage at an efficiency bar even framing of formal charge or calling for explanation of the Government is dispensed with. Where other minor penalties are to be imposed, then only formal proceedings embodying the statement of the Offence or fault are to be drawn up, explanation of the person concerned obtained and the reason for punishment recorded. In this case also no formal charge need be framed and communicated to the person charged. Thus where minor punishments are to be imposed no formal inquiry as envisaged under Rule 55 is required. It is only in a case where prima facie material justifies the imposition of major penalties that charges are to be framed. The major penalties cannot be inflicted unless the requirement of Rule 55 has been complied with. It is the framing of the charge or charges and their communication to the Government servant charged which initiates or marks the start of the formal departmental proceedings under Rule 55. Since the suspension of a Government servant is not envisaged under the rules unless in the ordinary course on the charges framed it is expected that major punishment could be imposed, the suspension is to be resorted to either when an inquiry under Rule 55 is contemplated or is proceeding against a Government servant under that rule. The exercise of power of suspension thus is circumscribed under the scheme of the rules and it is to be resorted to at a point of time and under circumstances indicated therein. The exercise of power is not unbounded depending on the sweet will of the appointing authority. It is difficult, therefore, to accept the contention of the learned Chief Standing Counsel as his contention tends to confer on the appointing authority a power to be exercised on the basis of the subjectivity and not objectivity which Rule 49-A intends to achieve. The exercise of power is not unbounded depending on the sweet will of the appointing authority. It is difficult, therefore, to accept the contention of the learned Chief Standing Counsel as his contention tends to confer on the appointing authority a power to be exercised on the basis of the subjectivity and not objectivity which Rule 49-A intends to achieve. For the above reasons it is also not possible to accept the view of the Division Bench in the case of State of Uttar Pradesh v. Rajendra Shanker Nigam, that if there are compelling exceptional circumstances the power of suspension can be exercised even before deciding to hold a departmental inquiry under Rule 55 against a Government servant for that will again leave the matter to the subjective satisfaction of the appointing authority and to call upon it to justify the exercise of its power by establishing the existence of ‘’compelling and exceptional circumstances’ will hardly be of any benefit to the Government servant against whom the power of suspension is exercised. Even a review by a court of law in this regard will hardly be an adequate safeguard against discrimination as the concept of ‘’compelling and exceptional circumstances’ being elusive in its import and somewhat ephemeral in its content will introduce uncertainty in the situation which Rule 49-A with the Note appended aims to avoid.” 21. The five Judges Larger Bench in the case of State of U.P. v. Jai Singh Dixit (supra) was constituted on a reference in special appeal challenging the orders passed by the learned Single Judge quashing the suspension orders. The suspension orders were quashed by the learned Single Judge relying on Full Bench judgment in the case of State of U.P. v. Jawahar Lal Bhargava (supra). After the judgment of the Full Bench in State of U.P. v. Jawahar Lal Bhargava, the Note appended to Rule 49-A of the C.C.A. Rules was deleted by the Governor. The Division Bench hearing the special appeal felt that in view of deletion of Note appended to Rule 49-A with retrospective effect, the decision of Full Bench in the case of State of U.P. v. Jawahar Lal Bhargava (supra) required reconsideration. On the reference made by the Division Bench, the five Judge Larger Bench was constituted which ultimately decided the entire issue. 22. On the reference made by the Division Bench, the five Judge Larger Bench was constituted which ultimately decided the entire issue. 22. It is relevant to note the few facts giving rise to determination by five Judges Larger Bench. The suspension orders were passed with regard to four employees under Rule 49-A of the C.C.A. Rules. In Special Appeal No. 129 of 1974 and 137 of 1974, the suspension orders were quashed because the respondents were suspended before framing of charges or completion of preliminary inquiry, which is apparent from following facts as noted in paragraph 1 of the judgment in State of U.P. v. Jai Singh Dixit (supra) : “1. ..... The order of suspension pending inquiry was quashed in the first two Special Appeals because the respondent was suspended before the framing of charges or completion of the preliminary inquiry, and there were no compelling or exceptional circumstances to depart from the! normal rule not to place a Government servant under suspension before the framing of the charges. The order of suspension was quashed in the other two special appeals on the basis of the Full Bench decision in the State of U.P. v. Jawahar Lal Bhargava (1974) A.L.J. 282....” 23. The five Judges Larger Bench considered Rule 49-A of the C.C.A. Rules and the Note appended thereto. While interpreting the Note appended to Rule 49-A, following was observed by the Larger Bench in paragraph 26 : “26. Coming to the instant case, the Note has two parts : (1) As a rule, suspension should not be resorted to unless the allegations against the Government servant are so serious that in the event of their being established they may ordinarily be expected to warrant his dismissal, removal or reduction. (2) Suspension, where deemed necessary, should, as far as possible, immediately precede the framing of charges and their communication to the Government servant charged. It shall be noticed that the rule-making authority has used different words in the two parts- “as a rule “ in the first part and “ as far as possible “ in the other. Even if the first part is regarded as mandatory, the same cannot be said about the other. It shall be noticed that the rule-making authority has used different words in the two parts- “as a rule “ in the first part and “ as far as possible “ in the other. Even if the first part is regarded as mandatory, the same cannot be said about the other. The second part being directory cannot restrict the scope of the main provision and in suitable circumstances suspension pending inquiry can be ordered even though informal preliminary inquiry or the fact finding inquiry is not complete and no firm final decision has been taken to initiate departmental proceeding against the Government servant. In other words, there can be suspension pending inquiry even before the framing of charges and the communication thereof to the Government servant charged.” 24. From the above, it is clear that the five Judges Larger Bench interpreted the Note to the effect that it cannot restrict the scope of main provision and in suitable circumstances suspension pending inquiry can be ordered even though informal preliminary inquiry or the fact finding inquiry is not complete and no firm final decision has been taken to initiate departmental proceeding against the Government servant. The word ‘’inquiry’ as used in Rule 49-A of the C.C.A. Rules was held to be regular departmental proceeding and the said inquiry is an ‘’inquiry’ as is used in Rule 55 and 55A of the C.C.A. Rules, i.e. formal departmental inquiry. To support its conclusion that word ‘’inquiry’ used in Rule 49-A is a formal departmental inquiry, it was observed in paragraph 30 that if the word ‘’inquiry’ used in Rule 49-A of the C.C.A. Rules is interpreted to be a preliminary inquiry or fact finding inquiry then it will lead to anomalous result since in that event it would be permissible to suspend a Government servant pending informal inquiry but not after charges have been framed. The said example was given to bring home the point that inquiry under Rule 49-A of the C.C.A. Rules is a regular disciplinary inquiry. Following was laid down in paragraph 30 by the five Judges Larger Bench : “30. The said example was given to bring home the point that inquiry under Rule 49-A of the C.C.A. Rules is a regular disciplinary inquiry. Following was laid down in paragraph 30 by the five Judges Larger Bench : “30. The inquiry contemplated by Rule 49A cannot have reference to an informal preliminary inquiry or a fact finding ‘inquiry preceding the actual disciplinary proceeding, otherwise it shall be permissible to suspend a Government servant pending such informal inquiry, but not after charges have been framed and regular departmental proceeding is pending. This shall lead to an anomalous situation. We are, therefore, ,of opinion that the “ inquiry “ contemplated by Rules 49A and 1A has reference to the formal departmental inquiry, end not to any informal preliminary or fact finding inquiry preceding the initiation of the formal disciplinary proceeding.” 25. The five Judges Larger Bench interpreted the phrase “inquiry is contemplated”. Summing up the various aspects on the above subject, following was laid down in paragraph 37 by the five Judges Larger Bench : “37. To put it in brief, a departmental inquiry is contemplated when on objective consideration of the material the appointing authority considers the case as one which would lead to a departmental inquiry, irrespective of whether any preliminary inquiry, summary or detailed, has or has not been made or if made, is not complete. There can, therefore, be suspension pending inquiry even before a final decision is taken to initiate the disciplinary proceeding i.e., even before the framing of the charge and the communication thereof to the Government servant.” 26. From the ratio as laid down in paragraph 37 of the five Judges Larger Bench judgment in State of U.P. v. Jai Singh Dixit (supra), it is clear that the departmental inquiry can be said to be contemplated when on objective consideration of the material the appointing authority considers the case as one which would lead to a departmental inquiry, irrespective of whether any preliminary inquiry, summary or detailed, has or has not been made or if made, is not complete. 27. The five Judges Larger Bench specifically expressed its disagreement with the view taken by the earlier Full Bench in State of U.P. v. Jawahar Lal Bhargava (supra). Following was laid down by the five Judges Larger Bench in paragraphs 40 and 43 : “40. 27. The five Judges Larger Bench specifically expressed its disagreement with the view taken by the earlier Full Bench in State of U.P. v. Jawahar Lal Bhargava (supra). Following was laid down by the five Judges Larger Bench in paragraphs 40 and 43 : “40. This leads us to the consideration of earlier decisions of this Court. The Full Bench case of State of U.P. v. Jawahar Lal Bhargava (supra) was summed up by Gopi Nath, J. as below: “A Full Bench of this Court in Special Appeal No. 214 of 1973 decided on February 25, 1974 explained the scope of Rule 49A and held that the enquiry mentioned in that rule means the departmental inquiry as envisaged by Rule 55. When the preliminary enquiry is over and a decision is reached that formal departmental proceedings should commence the question of placing an officer under suspension arises. At any point of time prior to that stage the question of placing an officer under suspension does not arise.” 43. It shall be noticed that in the opinion of the Full Bench also, the expression an “ inquiry is contemplated ‘’ means an inquiry is expected. However, a restricted view was taken of the expression to mean the decision to hold an inquiry under Rule 55 or the decision to initiate regular departmental proceeding. Once a firm and final decision has been taken to hold a formal departmental inquiry, such an inquiry is certain and not merely expected. Consequently, we are in respectful disagreement with the view expressed by the Full Bench regarding the scope of Rule 49A or Rule 1A.” 28. The five Judges Larger Bench again in paragraph 48 has laid much emphasis that there shall always be objective satisfaction of the appointing authority before a Government servant can be suspended pending inquiry. Following was laid down in paragraph 48 : “48. In case the matter is considered in the manner already suggested by us above there shall always be objective satisfaction of the appointing authority before the Government servant can be suspended pending inquiry. To suspend a Government servant on receipt if complaints containing allegations of dishonesty or if misconduct, without the appointing authority being satisfied that the allegations made have substance, which would later justify taking disciplinary proceeding, shall be on subjective consideration and has to be disapproved by the Courts of law. To suspend a Government servant on receipt if complaints containing allegations of dishonesty or if misconduct, without the appointing authority being satisfied that the allegations made have substance, which would later justify taking disciplinary proceeding, shall be on subjective consideration and has to be disapproved by the Courts of law. But where there exist circumstances to satisfy the appointing authority that the allegations made have substance, suspension pending inquiry shall be on objective consideration, and not subjective. It is a different thing that the appointing authority may like to have the matter investigated or further investigated so that the total material may come on the record and a proper departmental inquiry can be held.” 29. The conclusions were recorded by the five Judges Larger Bench in paragraphs 52 and 55 of the judgment, which are as under : “52. For the reasons indicated above, we are of the opinion that even when the Note below Rule 49A or Rule 1A was a part of the main rule it did not restrict the scope of the relevant rule. The power of suspension pending inquiry under this rule could be exercised at an early stage also, i.e., before the framing of charges and communication thereof to the Government servant, provided that on objective consideration of the material the appointing authority was satisfied that after investigation or further investigation there shall be a formal departmental inquiry under Rules 55 and 55A. This power was to be ordinarily exercised in the manner contemplated by the Note.” 55. To conclude, suspension pending inquiry under Rule 49A of the U.P. Civil Services (Classification, Control and Appeal) Rules or Rule 1A of the U.P. Punishment and Appeal Rules can be ordered at any stage prior to or after the framing of charges, when on objective consideration the authority concerned is of the view that a formal departmental inquiry under Rules 55 and 55A of the C.C.A. Rules or Rules 5 and 5A of the U.P. Punishment and Appeal Rules is expected, or such an inquiry is proceeding. At what stage the power under the above rules can be exercised shall always depend on the facts and circumstances of each case.” 30. In the above five Judges Larger Bench concurring judgment was also delivered by Hon’ble Satish Chandra, J. for self and for Hon’ble Yashodanandan, J. laying down following in paragraphs 69, 70, 71 and 72 : “69. At what stage the power under the above rules can be exercised shall always depend on the facts and circumstances of each case.” 30. In the above five Judges Larger Bench concurring judgment was also delivered by Hon’ble Satish Chandra, J. for self and for Hon’ble Yashodanandan, J. laying down following in paragraphs 69, 70, 71 and 72 : “69. The next question is as to the correct connotation and significance of the term contemplated in the phrase “inquiry is contemplated or is proceeding.” It is obvious that contemplated cannot mean the same thing as “proceeding” in relation to the inquiry; else the term ‘“contemplated” would be superfluous. In this context the word “contemplated” refers to a stage of the inquiry different than when it is proceeding. From the moment the inquiry has been commenced, it can be said to be proceeding. In my opinion an inquiry commences when it is set in motion or is initiated. Formal departmental proceedings start when a decision to hold them is taken; because the decision directly leads to and sets in motion the various ministerial steps of the proceeding, like framing and communication of charges, calling for an explanation, hearing witnesses, etc., etc. The decision to hold a formal departmental inquiry sets it in motion or initiates it. From this point of time onwards the inquiry proceeds. 70. In this view, the word “contemplated” occurring in the phrase “inquiry is contemplated or is proceeding” must refer to a stage earlier than whence the inquiry) is proceeding. The term contemplated means “to have in view” “expected”, “to take into account as a contingency.” A person can nave an inquiry in view, or expect an inquiry before he decides to hold it. This also corroborates the interpretation that the word “contemplated” occurring in the phrase inquiry is contemplated or is proceeding points to a stage when the inquiry is expected; that is, prior to the taking of the decision to hold the inquiry. We are unable to share the view expressed by the Full Bench in J.L. Bhargava’s case that the word contemplated is equivalent to decide. 71. The question as to when is an inquiry in view or expected is a question of fact dependant on the circumstances of each case. In law such an expectation can happen on receipt of information of commission of misconduct or during or after a preliminary inquiry. 72. 71. The question as to when is an inquiry in view or expected is a question of fact dependant on the circumstances of each case. In law such an expectation can happen on receipt of information of commission of misconduct or during or after a preliminary inquiry. 72. The existence of power should not be confused with the abuse. In case of abuse, the particular exercise of the power will be bad and will be quashed. But that has no bearing on the question of law as to when, in a proper construction of the Rule, does the power arise. 31. The five Judges Larger Bench concluded its opinion in following words in paragraph 99 : “Suspension pending inquiry under Rule 49 A of the U.P. Civil Services (Classification, Control and Appeal) Rules or Rule 1A of the U.P. Punishment and Appeal Rules can be ordered at any stage prior to or after the framing of charges, when on objective consideration the authority concerned is of the view that a formal departmental inquiry under Rules 55 and 55A of the C.C.A. Rules or Rules 5 and 5A of the U.P. Punishment and Appeal Rules is expected, or such an Inquiry is proceeding. At what stage the power under the above rules can be exercised shall always depend on the facts and circumstances of each case.” 32. The five Judges Larger Bench expressly overruled the three Judges Full Bench in the case of State of U.P. v. Jawahar Lal Bhargava (supra). The ratio of the judgment of five Judges Larger Bench, which is deducible from various issues raised and decided by Full Bench, can be summed up as follows : (i) The word ‘’inquiry’ as occurring in Rule 49-A of the C.C.A. Rules refers to regular departmental inquiry as mentioned in Rule 55 and 55A of the C.C.A. Rules and does not refer to informal/fact finding inquiry or preliminary inquiry. (ii) A departmental inquiry is contemplated when on objective consideration of the material the appointing authority considers the case as one which would lead to a departmental inquiry, irrespective of whether any preliminary inquiry, summary or detailed, has or has not been made or if made, is not complete. (ii) A departmental inquiry is contemplated when on objective consideration of the material the appointing authority considers the case as one which would lead to a departmental inquiry, irrespective of whether any preliminary inquiry, summary or detailed, has or has not been made or if made, is not complete. (iii) The contemplation of disciplinary inquiry is a stage earlier when a decision is taken to hold a formal inquiry since when a firm decision is taken to hold departmental inquiry such an inquiry is certain and not merely contemplation. (iv) Suspension under Rule 49-A of the C.C.A. Rules can be ordered at any stage prior to or after framing of the charges when on objective consideration the authority concerned is of the view that a formal departmental inquiry is expected or such an inquiry is proceeded. (v) At what stage the power under Rule 49-A for suspension can be exercised shall always depend on the facts and circumstances of each case. After noticing the ratio of five Judges Larger Bench, now we proceed to consider as to whether the four questions (a) to (d) as referred to this Bench need a reference to a Larger Bench, i.e. a Bench of five Judges. We proceed to give our answer considering each question separately. Question No. (a). 33. Whether a reference made by a Division Bench, which has not noticed a Constitution Bench judgment of this Court comprising of larger number of Judges, squarely applicable on the subject, was liable to be returned unanswered by the Full Bench only on the ground that Constitution Bench judgment has not been considered by the Division Bench while making the reference. 34. The first question is as to whether the Full Bench in Shahroj Anwar Khan’s case (supra) ought to have been returned unanswered since the Division Bench making reference did not notice the Larger Bench judgment in State of U.P. v. Jai Singh Dixit case (supra). The Full Bench in Shahroj Anwar Khan’s case (supra) did consider the five Judges Larger Bench in State of U.P. v. Jai Singh Dixit and relied on propositions laid down by the Larger Bench in paragraphs 33 and 37. The Full Bench in Shahroj Anwar Khan’s case (supra) did consider the five Judges Larger Bench in State of U.P. v. Jai Singh Dixit and relied on propositions laid down by the Larger Bench in paragraphs 33 and 37. The Full Bench in Shahroj Anwar Khan’s case (supra) has answered the reference in following manner : “(1) Rule 17(1)(a) of the U.P. Police Officer of Subordinate Ranks (Punishment and Appeal) Rules, 1991, does not prohibit passing of a suspension order during the pendency of a preliminary inquiry. (2) The Division Bench judgment rendered in Kripa Shanker Prasad (supra), does not lay down the correct law.” 35. The hypothetical question, which has cropped up for consideration before this Bench, is as to whether the Full Bench in Shahroj Anwar Khan’s case (supra) ought to have returned the reference unanswered. The above question, which has been raised, is now only an academic question since the answer to it does not decide the merits of the controversy which is involved in the case in which reference has been made nor answering to this question shall in any way effect the ratio of Full Bench judgment in Shahroj Anwar Khan’s case (supra). The Court normally does not adjudicate upon academic question answer to which question does not in any manner help deciding the controversy before the Court or deciding the issue and controversy before the Court. The Apex Court in the case of Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi, 1987 (Supp.) SCC 93, has laid down that Court should not undertake to decide an issue unless it is a living issue between the parties. If an issue is purely academic in that its decision one way or the other would have no impact on the position of the parties, it would be waste of public time. Following was laid down in paragraph 4 of the said judgment : “4. ........ Court should not undertake to decide an issue unless it is a living issue between the parties. If an issue is purely academic in that its decision one way or the other would have no impact on the position of the par- ties, it would be waste of public time to engage itself in deciding it. ........ Court should not undertake to decide an issue unless it is a living issue between the parties. If an issue is purely academic in that its decision one way or the other would have no impact on the position of the par- ties, it would be waste of public time to engage itself in deciding it. Lord Viscount Simon in his speech in the House of Lords in Sun Life Assurance Company of Canada v. Jervis, [1944] AC 111 observed; “I do not think that it would be a proper exercise of the Authority which this House possesses to hear appeals if it occupies time in this case in deciding an academic question, the answer to which cannot affect the respondent in any way. It is an essential quality of an appeal fit to be disposed of by this House that there should exist between the parties a matter in actual controversy which the House undertakes to decide as a living issue.” 36. In view of the above, we are of the view that no purpose shall be served in referring the question (a) for consideration by a Larger Bench of five Judges, moreso when the issues, which have been arisen in the writ petition giving rise to reference are, as submitted by the learned counsel for both the parties, fully covered by the five Judges Larger Bench in State of U.P. v. Jai Singh Dixit case (supra). Question No. (b). 37. Whether the Full Bench in the case of Shahroj Anwar Khan (supra) is correct in recording in paragraph 21 that the word ‘’inquiry’ as contemplated under Rule 17(1)(a) (Para materia to Rule 49-A of the C.C.A. Rules) will include a preliminary inquiry to be precise whether the word ‘’inquiry’ in the said Rules includes within its ambit preliminary inquiry inasmuch as the Constitution Bench of this Court in the case of State of U.P. v. Jai Singh Dixit (supra) has specifically held that the word ‘’inquiry’, under Rule 49-A of the C.C.A. Rules, necessarily refer to formal departmental inquiry referable to Rule 55 and 56-A of the C.C.A. Rules or Rules 6 and 7 of the U.P. Police Officer of Subordinate Ranks (Punishment and Appeal) Rules, 1991. 38. 38. As noted above, the five judges Larger Bench in State of U.P. v. Jai Singh Dixit (supra) in paragraphs 29 and 30 have categorically laid down that the word ‘’inquiry’ as used in Rule 49-A of the C.C.A. Rules relates to ‘’formal departmental inquiry’ as used in Rules 55 and 55-A of the C.C.A. Rules, the word ‘’inquiry’ does not include within its ambit fact finding inquiry/preliminary inquiry. Rule 17(1)(a) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 is pari materia to Rule 49-A of the C.C.A. Rules. In paragraph 21 of the Shahroj Anwar Khan’s case (supra) three Judges Full Bench made following observations : “A preliminary inquiry cannot be excluded from the term ‘’inquiry’ as covered under this clause.” 39. The above observation of the Full Bench in Shahroj Anwar Khan’s case (supra) are not in accord with ratio laid down by five Judges Larger Bench in the case of State of U.P. v. Jai Singh Dixit. The pendency or contemplation of inquiry, which is envisaged under Rule 49-A of the C.C.A. Rules as well as Rule 19(1)(a) of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 is pendency of regular departmental inquiry. It is well settled that decision of a Larger Bench is binding on a Bench consisting of lessor or cordinate strength. The Apex Court in the case of Central Board of Dawoodi Bohra Community and another v. State of Maharashtra and another, (2005)2 SCC 673 , laid down following in paragraph 12 : “12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms : (1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength. (2) A Bench of lesser quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. (2) A Bench of lesser quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of co- equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co- equal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted. (3) The above rules are subject to two exceptions: (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and others and Hansoli Devi and others (supra).” 40. What has been laid down by the Apex Court in the aforesaid case is fully applicable for the judgments of the High Court. The five Judges Larger Bench in the case of Rana Pratap Singh v. State of U.P. and others, 1996 (Supp) AWC 92, laid down the similar proposition. 41. What has been laid down by the Apex Court in the aforesaid case is fully applicable for the judgments of the High Court. The five Judges Larger Bench in the case of Rana Pratap Singh v. State of U.P. and others, 1996 (Supp) AWC 92, laid down the similar proposition. 41. The ratio of five Judges Larger Bench in State of U.P. v. Jai Singh Dixit (supra) that word ‘’inquiry’ as used in Rule 49-A of the C.C.A. Rules means ‘’regular departmental inquiry’ is binding on the Full Bench deciding Shahroj Anwar Khan’s case (supra) and this Bench both. The said ratio of five Judges Larger Bench still holds good, which has not been disputed by learned counsel for either of the parties. The ratio of five Judges Larger Bench in State of U.P. v. Jai Singh Dixit case (supra) being binding, we see no reason to refer the question (b) to a Larger Bench of five Judges. The ratio of the judgment of Full Bench in Shahroj Anwar Khan’s case (supra) has to be read in the light of the ratio of five Judges Larger Bench in State of U.P. v. Jai Singh Dixit case (supra). 42. The question may arise as to whether two answers given by the Full Bench in Shahroj Anwar Khan’s case (supra) need reconsideration by a Larger Bench. The two questions referred to the Full Bench and its answers are as follows : Questions referred to the Full Bench in Shahroj Anwar Khan’s case : 1. Whether Rule 17(1)(a) of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 prohibits passing of a suspension order during the pendency of preliminary enquiry. 2. Whether the Division Bench judgment rendered in Kripa Shanker Prasad and others v. State of U.P. and others, 2004 (55) ALR 536, lays down the correct law. The Answers given by the Full Bench in Shahroj Anwar Khan’s case : 1. Rule 17(1)(a) of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991, does not prohibit passing of a suspension order during the pendency of a preliminary inquiry. 2. The Division Bench judgment in Kripa Shanker Prasad (supra), does not lay down the correct law. 43. Rule 17(1)(a) of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991, does not prohibit passing of a suspension order during the pendency of a preliminary inquiry. 2. The Division Bench judgment in Kripa Shanker Prasad (supra), does not lay down the correct law. 43. The answer No. 1 by the Full Bench is to the effect that Rule 17(1)(a) of the 1991 Rules does not prohibit passing of suspension order during pendency of preliminary inquiry. The five Judges Larger Bench in State of U.P. v. Jai Dingh Dixit case (supra) had considered the question in context of Rule 49-A of the C.C.A. Rules, which is a pari materia rule. As notice above, the three Judges Full Bench in State of U.P. v. Jawahar Lal Bhargava (supra) has taken the view that the occasion for passing a suspension order shall arise only when a firm decision is taken to hold an inquiry and at any earlier point of time the power of suspension cannot be exercised. The aforesaid view of the three Judges Full Bench in State of U.P. v. Jawahar Lal Bhargava (supra) was disapproved by the Full Bench. As noticed above, the rationale of three Judges judgment in State of U.P. v. Jawahar Lal Bhargava (supra) was that till a preliminary inquiry is not completed, no firm decision can be taken by the appointing authority for suspension. The five Judges Larger Bench in paragraph 37, while considering the question as to when departmental inquiry can be said to have been contemplated, has laid down that a departmental inquiry is contemplated when on objective consideration of the material the appointing authority considers the case as one which would lead to a departmental, inquiry, irrespective of whether any preliminary inquiry, summary or detailed, has or has not been made or if made, is not complete. The above ratio of the Full Bench clearly lays down that the fact that preliminary inquiry has, or has not been made or if made, is not complete is not relevant, relevant is objective consideration of the materials by the appointing authority. The ratio of the five Judges Larger Bench in State of U.P. v. Jai Singh Dixit still holds good and in view of the above ratio, the answer given by the Full Bench in Shahroj Anwar Khan’s case (supra) is in accord with the above ratio. The ratio of the five Judges Larger Bench in State of U.P. v. Jai Singh Dixit still holds good and in view of the above ratio, the answer given by the Full Bench in Shahroj Anwar Khan’s case (supra) is in accord with the above ratio. The answer No. 1 of the Full Bench in Shahroj Anwar Khan’s case (supra) lays down that there is no prohibition of passing a suspension order during pendency of preliminary inquiry. However, whether a suspension order passed during pendency of preliminary inquiry is valid or not is another question which has to be answered according to the test as laid down by the Larger Bench in State of U.P. v. Jai Singh Dixit (supra) i.e. when on objective consideration of the materials the appointing authority considers the case as one which would lead to a departmental inquiry. Thus the answer No. 1 given by the Full Bench in Shahroj Anwar Khan’s case laying down that there is no prohibition of passing a suspension order during pendency of preliminary inquiry, is in accord with the ratio of five Judges Larger Bench in State of U.P. v. Jai Singh Dixit case (supra) as noted in paragraph 37 of the judgment. We, however, add that the question that a suspension order passed during pendency of inquiry is valid or not, is a separate question, which may be considered in the light of the ratio of five Judges Larger Bench in the case of State of U.P. v. Jai Singh Dixit. As noticed above, in the event a suspension order does not satisfy the test laid down by the five Judge Larger Bench in paragraph 99, i.e. there is no objective consideration by the appointing authority on the materials that a formal department inquiry is expected, the suspension can be quashed. Hon’ble Satish Chandra , J. giving concurring judgment in State of U.P. v. Jai Singh Dixit (supra) has laid down in paragraph 72 that existence of power which should not be confused with its abuses. The power of suspension may be vested with the appointing authority during pendency of the preliminary inquiry but whether the power has been exercised validly is another question which had to be separately looked into in the light of the ratio of five Judges Larger Bench in State of U.P. v. Jai Singh Dixit case. The power of suspension may be vested with the appointing authority during pendency of the preliminary inquiry but whether the power has been exercised validly is another question which had to be separately looked into in the light of the ratio of five Judges Larger Bench in State of U.P. v. Jai Singh Dixit case. The five Judges Larger Bench in paragraph 72 of the judgment laid down following : “72. The existence of power which should not be confused with its abuses. In case of abuse, the particular exercise of the power will be bad and will be quashed. But that has no bearing on the question of law as to when, on a proper construction of the Rule, does the power arise.” 44. Now comes the answer No. 2 given by the Full Bench in Shahroj Anwar Khant’s case (supra) as to whether the Division Bench judgment in Kripa Shanker Prasad’s case (supra), does not lay down the correct law. In Kripa Shanker Prasad v. State of U.P., 2004(1) ESC 33, the appellant was suspended on 9th February, 2007 on serious allegations. The order further stated that preliminary inquiry will be held. The writ petition was dismissed by the learned Single Judge against which appeal was filed. The Division Bench placing reliance on several judgments took the view that during pendency of preliminary inquiry suspension could not have been ordered. Following was laid down in paragraph 13 of the said judgment : “13. In view of the above as preliminary enquiry is only a means to find out as to whether the facts and circumstances involved in a particular case warrant holding of a regular inquiry we are of the considered opinion that suspension order could not be passed during the pendency of preliminary enquiry. Our view stands fortified by the judgment of this Court in Hari Nath Sharma v. State of U.P. and others, (1997)3 ESC 1833, wherein this Court rejected the contention that suspension order impliedly mean that enquiry stood initiated or contemplated. Appeal deserves to be allowed on this count alone. However, there is another aspect of the matter which requires consideration.” 45. Appeal deserves to be allowed on this count alone. However, there is another aspect of the matter which requires consideration.” 45. As noticed above, the ratio of five Judges Larger Bench clearly lays down that suspension can be resorted even when preliminary inquiry has been ordered, not ordered, if ordered not complete, thus there is no prohibition in passing an order of suspension during pendency or simultaneously directing for preliminary inquiry provided there are sufficient materials on which an objective satisfaction is reached by the appointing authority that regular departmental inquiry is expected in the matter. It is relevant to refer to a Division Bench judgment of this Court, which had occasion to consider Rule 4 of the 1999 Rules, i.e. Dalvir Singh v. State of U.P., 2001 All CJ 1205. In the said case the Division Bench has laid down that preliminary inquiry can be ordered simultaneously. Following was laid down in paragraphs 16, 19 and 20 of the said judgment : “16. The decision in Tejpal Singh v. Deputy Inspector General of Police, PAC, Agra and another, 1999(82) F.L.R. 262, cannot be stretched to the unreasonable length that without receipt of the preliminary enquiry report an employee in no circumstance can be suspended in spite of the fact that the express ‘’enquiry’ occurring in the Rules of 1991 means a regular departmental enquiry. 19. Even in those cases where preliminary enquiry has been ordered it would not necessarily mean that such an enquiry has been ordered with a view to collect prima facie material against the delinquent employee. In a case where the preliminary enquiry has been ordered, the order of suspension cannot be treated to have vitiated merely on the ground that the competent authority has not waited for the result of the preliminary enquiry. The preliminary enquiry may be ordered simultaneously with the order of suspension with a view to ascertain whether on the facts and in the circumstances and the nature of the allegations against a delinquent employee. The procedure prescribed for inflicting the major punishment or the minor punishment is to be adopted. 20. The crux of the matter is that a Government servant can be placed under suspension by the competent authority after objective consideration of the allegations, the material available and the telling circumstances requiring suspension in public interest, even without a preliminary enquiry. The procedure prescribed for inflicting the major punishment or the minor punishment is to be adopted. 20. The crux of the matter is that a Government servant can be placed under suspension by the competent authority after objective consideration of the allegations, the material available and the telling circumstances requiring suspension in public interest, even without a preliminary enquiry. If a preliminary enquiry has been ordered simultaneously with the order of suspension, it shall not stand vitiated, and in all the cases it is not necessary for the competent authority to wait for the result of the preliminary enquiry” 46. The view taken by the Division Bench in Kripa Shanker Prasad’s case (supra) that suspension could not have been ordered while directing preliminary inquiry is not in accord with the ratio of five Judges Larger Bench in State of U.P. v. Jai Singh Dixit case (supra) and thus no exception can be taken to answer No. 2 given by the Full Bench in Shahroj Anwar Khan’s case (supra). As observed above, while considering challenge to a suspension order passed during pendency of preliminary/fact finding inquiry, the test to be applied in examining the correctness or otherwise of the suspension order is as to whether on objective consideration of the materials the appointing authority considers the case as one which would lead to a departmental inquiry, as laid down by the five Judges Larger Bench in State of U.P. v. Jail Singh Dixit case. The issues having already covered by the five Judges Larger Bench, the Question No. (b) needs no reference to the Larger Bench. Question No. (c). 47. Whether, while directing preliminary inquiry, the power to suspend has to be exercised on objective consideration of material on record of each case and therefore it is for the State Government on a challenge being made to an order of suspension in contemplation of an inquiry to justify by such material on record that irrespective of preliminary inquiry the authority was satisfied that suspension was warranted in the facts of the case. 48. The question No. (c) is a question which has been answered by the five Judges Larger Bench in State of U.P. v. Jai Singh Dixit case (supra). 48. The question No. (c) is a question which has been answered by the five Judges Larger Bench in State of U.P. v. Jai Singh Dixit case (supra). The five Judges Larger Bench has laid down in paragraph 37 that departmental inquiry is contemplated when on objective consideration of the materials the appointing authority considers the case as one which would lead to a departmental inquiry irrespective of whether any preliminary inquiry, summary or detailed, has or has not been made or if made, is not complete. The question is specifically answered in paragraphs 37 and 48 by the five Judges Larger Bench. The question (c) having been specifically answered by the Larger Bench in State of U.P. v. Jai Singh Dixit case (supra), which answer still holds good, hence we see no reason to refer the said question for consideration by a Larger Bench of five Judges. Question No. (d) 49. Whether an order of suspension, in contemplation of a vigilance inquiry, would be within four corners of Rule 49-A. 50. The answer to question No. (d) can be found in paragraph 37 of the five Judges Larger Bench in State of U.P. v. Jai Singh Dixit. As observed above, suspension under Rule 49-A of the C.C.A. Rules can be ordered in contemplation of ‘’inquiry’ which word means regular departmental inquiry. The ‘’contemplation of a preliminary inquiry’ is not contemplated while exercising the power of suspension under Rule 49A of the C.C.A. Rules. As laid down by the five Judges Larger Bench whether any preliminary inquiry, summary or detailed, has or has not been made or if made, is not complete, is not relevant, the relevant consideration is when on objective consideration of the materials the appointing authority considers the case as one which would lead to a departmental inquiry. The final conclusion of the five Judges Larger Bench as given in paragraph 99 of the judgment, as quoted above, lays down that suspension can be ordered at any stage prior to or after the framing of the charges when on objective consideration the authority concerned is of the view that formal departmental inquiry under Rules 55 and 55-A is expected or is proceeded. The answer to question (d) having already given by the five Judges Larger Bench in State of U.P. v. Jai Singh Dixit case (supra), the said question is not needed to be referred to the Larger Bench. 51. In view of what has been said above, we are of the view that all the four questions, which have been referred to for consideration for referring to Larger Bench are fully covered by the five Judges Larger Bench in the case of State of U.P. v. Jai Singh Dixit case (supra) and we see no necessity to refer the aforesaid four questions for consideration by a Larger Bench. 52. List the writ petition before the appropriate Bench hearing such matters. —————