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2010 DIGILAW 593 (UTT)

ATTAR SINGH RATHOD v. STATE OF UTTARAKHAND

2010-08-20

BARIN GHOSH, V.K.BIST

body2010
JUDGMENT [Per : Hon’ble Barin Ghosh, C.J. (Oral)] Mr. M.C. Pant, Advocate for the appellant and Mr. H.M. Raturi, Standing Counsel for the State/respondents. 2. On 21st June, 2010 by the order impugned in the writ petition, appellant, a Government employee, was suspended. By the suspension order, an Enquiry Officer was appointed who was asked to frame charges and to conclude the enquiry proceedings within a period of one month. The suspension order required the appellant to establish that he is not engaged gainfully otherwise and that he is attending office on regular basis as a condition precedent for payment of subsistence allowance. In the writ petition it was contended that the order, as it stands, is illegal, inasmuch as suspension as well as engagement of Enquiry Officer simultaneously by one order, is not permissible. The learned Judge noting the unamended provisions of the law contained in sub-clause (1) of Rule 4 and Rule 7 of the Uttarakhand Government Servant (Discipline and Appeal) Rules, 2003 held that there is no embargo in issuing a composite order of suspension and appointment of Enquiry Officer. We are enable to accept, even without taking into account the amendment effected to the said rules, the views expressed by the learned Judge. The power to suspend though vests in the disciplinary authority, such power is used in circumstances which are always not akin to power to be exercised for initiating disciplinary action. A government employee may be suspended in the event a criminal case involving moral turpitude is pending against the government servant. A government servant may also be suspended when a disciplinary proceeding has commenced or is in contemplation. Merely because a criminal case is pending against a government servant or a disciplinary proceeding has been initiated or is in contemplation would not ipso-facto justify suspension. Consideration for user of power to suspend would depend upon many aspects including whether retaining the employee in question would cause hindrance in the normal functioning of the office. It must always be kept in mind that suspension is not a punishment. In the event, an employee is suspended in contemplation of disciplinary proceeding, it is obligatory on the part of the disciplinary authority, soon after suspending the employee in question, to frame charges against him and to serve a chargesheet containing such charges upon the employee in question. It must always be kept in mind that suspension is not a punishment. In the event, an employee is suspended in contemplation of disciplinary proceeding, it is obligatory on the part of the disciplinary authority, soon after suspending the employee in question, to frame charges against him and to serve a chargesheet containing such charges upon the employee in question. The disciplinary authority can not in law delegate his obligation pertaining to framing of charge and serving of chargesheet upon the Enquiry Officer. It is only when the disciplinary authority being not satisfied with the reply given to the chargesheet by the delinquent, feels that the matter is such that the charges are required to be enquired, he can appoint an Enquiry Officer, if he is not inclined to enquire into the charges himself but not before that. In the circumstances, even under the unamended law, the order impugned in the writ petition could not be issued. However, the order in the writ petition has two parts; one deals with suspension and the other deals with appointment of Enquiry Officer and delegation upon him the authority of the disciplinary authority to frame charges. These are severable. While the first part is not interferable, the second part is interferable. 3. Learned counsel for the appellant submitted that in terms of the amended sub-rule (1) of Rule 4 of the said Rules, it is now mandatory on the part of disciplinary authorities to use the power of suspension only when grave allegations, which may result in awarding of major punishment, is pending consideration or in contemplation and to state the same in the suspension order. It was submitted that the suspension order does not state so, and at the same time, the reason for the suspension as disclosed does not warrant an enquiry into any grave misconduct which may result in awarding of a major penalty. It was accordingly, submitted that the part of the impugned order dealing with suspension is also interferable. 4. It is true that the amended provision required the disciplinary authority, while exercising power of suspension, to be cautious and circumspect as regard the nature of the allegations against the person proposed to be suspended and only then to use the power of suspension. 4. It is true that the amended provision required the disciplinary authority, while exercising power of suspension, to be cautious and circumspect as regard the nature of the allegations against the person proposed to be suspended and only then to use the power of suspension. It is also true at the same time, that by reason of the amendment it is now a requirement to state so in the body of the suspension order. However, the amended Rule does not show anywhere that non-compliance of the newly incorporated directions would result in any consequence, and accordingly, that part of Sub Rule (1) of Rule 4 of the said Rules, which has been inserted by the amendment, should be deemed to be directory and not mandatory and accordingly, we are of the view that part of the impugned order, dealing with suspension, is not interferable. 5. We accordingly, dispose of this appeal by setting aside the judgment and order under appeal and at the same time, by directing the disciplinary authority to issue a chargesheet against the appellant within a period of 15 days from today and to give the appellant an opportunity to deal with the same within a period of 15 days therefrom and thereupon, if not satisfied with the explanation given to appoint an Enquiry Officer to enquire into the charge, if he is not inclined to enquire into the same, and to complete such enquiry within a period of one month from the date of giving reply to the chargesheet. The disciplinary authority is further directed to complete the disciplinary proceeding within a period of two months therefrom after discharging his obligations in relation thereto in accordance with law. While passing the final order in the disciplinary proceeding, the disciplinary authority shall specifically and separately deal with the suspension order and the benefits that may be given or may be denied to the appellant, during the period of suspension. The appellant shall attend the office in terms of the impugned order and shall be paid his subsistence allowance. The disciplinary authority is directed to ensure release of subsistence allowance forthwith. A declaration to be given by the appellant in writing to the disciplinary authority that he is not gainfully engaged otherwise would suffice the requirement pertaining to proof that the appellant is not otherwise gainfully engaged as mentioned in the impugned order of suspension. The disciplinary authority is directed to ensure release of subsistence allowance forthwith. A declaration to be given by the appellant in writing to the disciplinary authority that he is not gainfully engaged otherwise would suffice the requirement pertaining to proof that the appellant is not otherwise gainfully engaged as mentioned in the impugned order of suspension. The order of suspension dated 21.06.2010 is upheld but that part of the said order appointing Enquiry Officer and delegating in him the power of disciplinary authority to frame charge, is interfered with and quashed. It shall be open to the appellant to seek review of the suspension order in accordance with rules. 6. We think that it shall be appropriate on the part of the government to ensure that its officers know the Laws the government has made in relation to its employees, so that officers of the government, who are authorized to exercise power over subordinates, do not exercise such power in contravention of Laws made by the Government. 7. Let a copy of this order be sent by the Court at its own cost, to the Secretary, Personal Department, Government of Uttarkhand.