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2010 DIGILAW 669 (ALL)

Teerath Raj Yadav v. State of U. P. and Others

2010-02-22

DEVENDRA KUMAR ARORA

body2010
Hon'ble Devendra Kumar Arora, J.: - By means of this writ petition, the petitioner has sought a writ in the nature of certiorari for quashing of the impugned order of suspension dated 18.11.2009, contained in Annexure No. 1 to the writ petition as well as a writ in the nature of mandamus commanding the opposite parties to reinstate the petitioner in service with all consequential benefits. The petitioner was appointed as Constable of Civil Police in the year 1976. Later on, he was promoted to the post of Head Constable. He was provided selection grade as well as promotional grade of Head Constable vide order dated 22.2.2002. He was promoted to the post of Sub-Inspector of Civil Police (Special Category) vide order dated 30.6.2007passed by Deputy Inspector General of Police (Establishment), Police Headquarters, U.P., Allahabad for and on behalf of Deputy Inspector General of Police , U.P., Lucknow which was communicated to the petitioner by Senior Superintendent of Police, Lucknow. The petitioner joined on the promoted post on 11.7.2007 and since then he is continuing on the post of Sub Inspector of Civil Police (Special Category). The petitioner alongwith five other police officials have been placed under suspension by the impugned order dated 18.11.2009 on the allegation that on 12.10.2009 a raid was made in villages Sonai, Kanjera and Nahar Ka Purwa and seven persons were arrested alongwith equipment, raw material and unauthorised liquor under the provisions of Excise Act. During inquiry from villagers it was revealed that unauthorised liquor was being prepared in that village from long time with the collusion of police employees deputed in the beat. Learned counsel for the petitioner submitted that the impugned order of suspension suffers from lack of inherent jurisdiction inasmuch as the same has been passed by the Deputy Inspector General of Police, Lucknow who is neither the Appointing Authority nor Disciplinary Authority, nor has jurisdiction, authority and competence to place the petitioner under suspension. He is not empowered by the Appointing Authority to place the petitioner under suspension. He further argued that the impugned order of suspension is wholly discriminatory, selective and hit by Articles 14 & 16 of the Constitution of India inasmuch as S/Sri Kaushal Kishore Bajpai, H.C., Kanhaiya Lal Yadav, Constable, Awadhesh Kumar, Constable, and other police personnels posted in the same beat have neither been placed under suspension nor proceeded departmentally in any manner whatsoever. It is further submitted that neither the departmental proceedings are contemplated against the petitioner nor charges have been framed, even Enquiry Officer has not been appointed so far. The allegation that there was negligence on the part of the petitioner in discharge of duties and unauthorised liquor was being made in collusion with the police, is absolutely wrong, baseless and without any basis. There was no material with the opposite parties to place the petitioner under suspension. The allegation on the basis of which the petitioner has been placed under suspension, falls in the category of minor punishment and therefore the impugned order of suspension is wholly illegal, arbitrary and without any authority of law. The appointing authority of the petitioner is the Deputy Inspector General of Police (Establishment), Police Headquarter U.P., Allahabad, whereas the impugned order has been passed by the Deputy Inspector General of Police/ Senior Superintendent of Police, Lucknow, who is not appointing authority of the petitioner, as such, the impugned order is without jurisdiction and deserves to be quashed. It is also submitted by the learned counsel for the petitioner that during 18.02.2009 to 10.11.2009 the petitioner arrested as many as 39 persons under the provisions of Excise Act and recovered equipments, raw material and unauthorized liquor from several villagers falling under the beat where they were posted. Similarly, six persons of village Nihar Purwa were arrested by the petitioners on 04.03.2009 and 28.09.2009 under the provisions of Excise Act. The petitioner has done each and every thing within his reach and control. Learned counsel for the petitioner further submitted that as per Section 3 (b) of U.P. Sub-Inspector, Inspector (Civil Police) Rules, 2008, (here-in-after referred to as the Rules, 2008) the appointing authority for the post of Sub-Inspector and Inspector is Deputy Inspector General of Police, U.P. As per rule 17 of U.P. Police Officers of the Subordinate Ranks (Punishment & Appeal) Rules, 1991 (here-in-after referred to as the Rules, 1991), it is the appointing authority or by any other authority not below the rank of Superintendent of Police, authorized by him in this behalf can place a police officer under suspension pending the conclusion of enquiry and since Deputy Inspector General of Police/ Senior Superintendent of Police, Lucknow is not the appointing authority of the petitioner as such he has no power to place the petitioner under suspension. The counsel for the petitioner on the question of selective suspension placed reliance on the judgment reported in 1999 (6) Supreme Court Cases 257, K. Sukhendar Reddy vs. State of A.P. and another. Para-7 of the same is being reproduced:- "7. ............. That being so, the officer of the rank of the appellant, against whom it has now come out that the disciplinary proceedings are not contemplated, cannot be kept under suspension for an indefinite period, particularly in a situation where many more senior officers may ultimately be found involved, but the appellant alone has been placed under suspension. The Government cannot be permitted to resort to selective suspension. It cannot be permitted to place an officer under suspension just to exhibit and feign that action against the officers, irrespective of their high status in the service hierarchy, would be taken." Learned Standing Counsel while opposing the writ petition submitted that since it is purely legal question, therefore, no counter affidavit is required and he will oppose the writ petition by placing reliance on the provisions of relevant rules and regulations. Learned Standing Counsel submitted that the suspension is referable to Rule 17 of Rules 1991, which provides that at the discretion of the appointing authority or by any other authority not below the rank of Superintendent of Police authorized by him in this behalf can place a police officer under suspension against whose conduct an enquiry is contemplated and section 7 of the Police Act, 1861 provides that "subject to provisions of Article 311 of the Constitution and to such rules as the State Government may from time to time make under this Act, the Inspector General, Deputy Inspector General, Assistant Inspectors General and District Superintendents of Police may at any time dismiss, suspend or reduce any police-officer of subordinate ranks whom they shall think fit, remiss or neglect in the discharge of his duty or unfit for the same. It is further submitted by the learned Standing Counsel that Rule 11 of Rules 1991 gives power to superior authorities. Para-490 (13) of the Police Regulations also provides that all or any of the functions exercised by a Inquiry Officer under these rules may also be exercised by an authority superior to the Superintendent of Police. It is further submitted by the learned Standing Counsel that Rule 11 of Rules 1991 gives power to superior authorities. Para-490 (13) of the Police Regulations also provides that all or any of the functions exercised by a Inquiry Officer under these rules may also be exercised by an authority superior to the Superintendent of Police. Learned Standing Counsel further submitted that the post of Zonal Inspector General of Police have been abolished and Inspector General Range have been posted in nine districts including Lucknow. Officers in the rank of Deputy Inspector General of Police have been posted as District Superintendent of Police and as such the impugned order has been passed by the competent authority. The learned Standing Counsel also placed on record the order passed by the Deputy Inspector General of Police, Lucknow Range, U.P. dated 01.11.1991, by which powers have been delegated for the purposes of Rule 17 of U.P. Police Officers of Subordinate Ranks (Punishment & Appeal ) Rules, 1991 to the Senior Superintendent of Police, Lucknow and Superintendent of Police (City), Superintendent of Police (Rural Area), Superintendent of Police (Traffic) to exercise the authority vested in him as appointing authority to place under suspension any police officers of the subordinate ranks of U.P. police vested under them. Hence, the present writ petition deserves to be dismissed. I have considered the submissions of learned counsel for the respective parties and gone through the record as well as relevant provisions of the act and rules. In sum and substance the argument of learned counsel for the petitioner is that the impugned suspension order has been passed by the Deputy Inspector General of Police/ Senior Superintendent of Police, Lucknow is without authority as he is neither the appointing authority nor the disciplinary authority of the petitioner nor has jurisdiction or competence to place the petitioner under suspension. It is the Deputy Inspector General of Police (Establishment) Police Headquarter U.P., Allahabad, who is the appointing authority of the petitioner and, as such, the suspension order is without jurisdiction and is liable to be set aside. The second ground of attack is that the suspension of the petitioner is a selective suspension and so many persons have been left out. The second ground of attack is that the suspension of the petitioner is a selective suspension and so many persons have been left out. As per Rule 3 (a) of U.P. Police Officers of the Subordinate Rank (Punishment & Appeal) Rules, 1991 the "appointing authority" means the authority empowered to make appointments to the post which a Police Officer for the time being holds: and Rule 17 (1) (a) of Rules, 1991 reads as under:- "17. Suspension - (1) (a) Police-officer against whose conduct an enquiry is contemplated, or is proceeding, may be placed under suspension pending the conclusion of the enquiry in the discretion of the appointing authority or by any other authority not below the rank of Superintendent of Police, authorised by him in this behalf." As per Rule 3 (b) of U.P. Sub-Inspectors and Inspectors (Civil Police) Service Rules, 2008, the "appointing authority" means the Deputy Inspector General of Police, U.P. Section 7 of the Police Act, 1861 empowers the Inspector General, Deputy Inspector General, Assistant Inspectors General and District Superintendents of Police to dismiss, suspend or reduce any police-officer of the subordinate ranks whom they shall think fit remiss or neglect in the discharge of his duty or unfit for the same. For the purposes of Rule 17 of Rules, 1991 there is a delegation of powers by the Deputy Inspector General, Lucknow Range, U.P. dated 01.11.1991 in favour of Senior Superintendent of Police, Lucknow, Superintendent of Police (City), Superintendent of Police (Rural Area) and Superintendent of Police (Traffic) as well as Superintendent of Police Raebareli, Sitapur, Hardoi, Unnao and Kheri to exercise the authority vested in him as appointing authority to place under suspension any police officer of the subordinate ranks of U.P. Police posted under them. Vide order dated 03.02.2009 an officer of the rank of Deputy Inspector General has been posted as District Superintendent of Police in various districts including Lucknow. From perusal of Rules 2008, it is evident that the appointing authority of the post of Sub-Inspector is Deputy Inspector General, U.P. and in pursuance of Rule 17 (1) (a) of Rules, 1991 the appointing authority or any other authority not below the rank of Superintendent of Police in his discretion may place the police officers under suspension. From perusal of Rules 2008, it is evident that the appointing authority of the post of Sub-Inspector is Deputy Inspector General, U.P. and in pursuance of Rule 17 (1) (a) of Rules, 1991 the appointing authority or any other authority not below the rank of Superintendent of Police in his discretion may place the police officers under suspension. The petitioner himself in para-5 of the writ petition stated that he was promoted to the post of Sub-Inspector, Civil Police (Special Category) by the Deputy Inspector General of Police (Establishment), Police Headquarter, U.P., Allahabad by order dated 30.06.2007 for and on behalf of the Deputy Inspector General of Police, U.P. Lucknow and surprisingly in para-7 of the writ petition, the petitioner states that the Deputy Inspector General of Police, Lucknow is neither appointing authority nor disciplinary authority nor has jurisdiction etc. and thus, it is petitioner's own admission that the appointing authority of the petitioner is Deputy Inspector General of Police, U.P., Lucknow. The petitioner has tried to make out his case by making misleading statement. Admittedly, the suspension order has been passed by the Deputy Inspector General/ Senior Superintendent of Police, Lucknow and the Senior Superintendent of Police, Lucknow has been delegated the powers for the purposes of Rule 17 of Rules, 1991 by the Deputy Inspector General of Police, Lucknow Range, Lucknow, U.P. dated 01.11.1991 and, as such, impugned order does not suffer from lack of jurisdiction. Apart from this, the Sub-Inspector while posted in a district his appointing authority will became the concerned Deputy Inspector General and the authority who has suspended the petitioner is of the rank of Deputy Inspector General, who is fully competent to place the petitioner under suspension in pursuance of Rule 17 (1) (a) of Rules, 1991. The suspension order spells out the reason and therefore, it cannot be said that the same has been passed without there being any material. So far as the second ground of the petitioner with respect to selective suspension is concerned, the same is also without any basis because the petitioner alongwith four others have been placed under suspension, therefore, it cannot be said that the opposite parties have resorted to selective suspension. The judgment cited by the learned counsel for the petitioner does not apply to the facts and circumstances of the present case. The judgment cited by the learned counsel for the petitioner does not apply to the facts and circumstances of the present case. In view of the above, the claim of the petitioner fails on both the ground and the writ petition lacks merits and is liable to be dismissed. Accordingly, the writ petition is dismissed. However, it is provided that the opposite parties will complete the enquiry against the petitioner within a period of three months from the date of receipt of a certified copy of this order, if the same has already not been completed and pass final order after providing opportunity of hearing to the petitioner within a further period of one month.