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2010 DIGILAW 580 (ALL)

JAGDISH PRASAD v. STATE OF U. P.

2010-02-15

SUDHIR AGARWAL

body2010
JUDGMENT Hon’ble Sudhir Agarwal, J.—With the consent of learned counsel for the parties, this writ petition is being decided finally at this stage under the Rules of the Court on the basis of the record of writ petition. 2. The grievance of the petitioner is that he was placed under suspension vide order dated 10.3.2000 but till date neither any charge-sheet has been issued to the petitioner nor the departmental inquiry has proceeded and the respondents illegally and arbitrarily are continuing the petitioner under suspension. 3. This Court vide order dated 10.10.2007 granted time to the respondents to file counter-affidavit but till date neither any counter-affidavit has been filed nor otherwise the respondents have shown any reason as to why they have not initiated or completed departmental inquiry so far. 4. Learned counsel for the petitioner stated at the bar that till date the position continue to be the same as neither any charge-sheet has been issued to the petitioner nor the departmental inquiry has been initiated. 5. This is really surprising that a suspension allegedly made in a contemplated departmental inquiry appointing one Sri Shripal Dohre, Deputy Basic Education Officer (First), Shahjahanpur as Inquiry Officer and directing him to complete disciplinary inquiry within 15/30 days and submit report, yet has failed to complete the alleged inquiry for the last almost 10 years. In fact even a charge-sheet has not been issued to petitioner. 6. Whether such a prolong suspension can be held valid and justified and whether the respondents can be allowed to keep an employee under suspension for an indefinite period is a moot question needs to be answered in this case. The answer is an emphatic No. 7. This question has already been answered by this Court in Smt. Anshu Bharti v. State of U.P. and others, 2008(5) ESC 3264 : 2008(9) ADJ 355 and in paras 9, 10, 11, 12 and 13 this Court has observed as under : “9. . . . . . The prolonged suspension of the petitioner is clearly unjust and unwarranted. The question deals with the prolonged agony and mental torture of a suspended employee where inquiry either has not commenced or proceed with snail pace. Though suspension in a contemplated or pending inquiry is not a punishment but this is a different angle of the matter, which is equally important and needs careful consideration. The question deals with the prolonged agony and mental torture of a suspended employee where inquiry either has not commenced or proceed with snail pace. Though suspension in a contemplated or pending inquiry is not a punishment but this is a different angle of the matter, which is equally important and needs careful consideration. A suspension during contemplation of departmental inquiry or pendency thereof by itself is not a punishment if resorted to by the competent authority to enquire into the allegations levelled against the employee giving him an opportunity of participation to find out whether the allegations are correct or not with due diligence and within a reasonable time. In case, allegations are not found correct, the employee is reinstated without any loss towards salary, etc., and in case the charges are proved, the disciplinary authority passes such order as provided under law. However, keeping an employee under suspension, either without holding any enquiry, or in a prolonged enquiry is unreasonable. It is neither just nor in larger public interest. A prolonged suspension by itself is penal. Similarly an order of suspension at the initial stage may be valid fulfilling all the requirements of law but may become penal or unlawful with the passage of time, if the disciplinary inquiry is unreasonably prolonged or no inquiry is initiated at all without there being any fault or obstruction on the part of the delinquent employee. No person can be kept under suspension for indefinite period since during the period of suspension he is not paid full salary. He is also denied the enjoyment of status and therefore admittedly it has some adverse effect in respect of his status, life style and reputation in society. A person under suspension is looked with suspicion in the society by the persons with whom he meets in his normal discharge of function. 10. A Division Bench of this Court in Gajendra Singh v. High Court of Judicature at Allahabad, 2004 (3) UPLBEC 2934 , observed as under : “We need not forget that when a Government officer is placed under suspension, he is looked with suspicious eyes not only by his collogues and friends but by public at large too.” 11. 10. A Division Bench of this Court in Gajendra Singh v. High Court of Judicature at Allahabad, 2004 (3) UPLBEC 2934 , observed as under : “We need not forget that when a Government officer is placed under suspension, he is looked with suspicious eyes not only by his collogues and friends but by public at large too.” 11. Disapproving unreasonable prolonged suspension, the Apex Court in Public Service Tribunal Bar Association v. State of U.P. and others, 2003(1) ESC 65 (SC), observed as under : “If a suspension continues for indefinite period or the order of suspension passed is malafide, then it would be open to the employee to challenge the same by approaching the High Court under Article 226 of the Constitution........................(Para 26) 12. The statutory power conferred upon the disciplinary authority to keep an employee under suspension during contemplated or pending disciplinary enquiry cannot thus be interpreted in a manner so as to confer an arbitrary, unguided an absolute power to keep an employee under suspension without enquiry for unlimited period or by prolonging enquiry unreasonably, particularly when the delinquent employee is not responsible for such delay. Therefore, I am clearly of the opinion that a suspension, if prolonged unreasonably without holding any enquiry or by prolonging the enquiry itself, is penal in nature and cannot be sustained. 13. The view I have taken is supported from another Judgment of this Court in Ayodhya Rai and others v. State of U.P. and others, 2006 (3) ESC 1755.” 8. In view of the above, I have no hesitation in holding that the continued suspension of the petitioner for the last almost 10 years is wholly illegal, arbitrary and cannot be sustained. The writ petition is allowed. The impugned order of suspension dated 10.3.2000 is hereby set aside. The petitioner shall be entitled for all consequential benefits as also the costs which is quantified to Rs. 5000/-. ————