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2010 DIGILAW 671 (ALL)

Ugrasen Singh & Ors. v. State of U. P. & Ors.

2010-02-22

DEVENDRA KUMAR ARORA

body2010
Devendra Kumar Arora, J.- By means of present writ petition, the petitioners have 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 petitioners in service with all consequential benefits. 2. The petitioners no. 1 to 3 are Constables of Civil Police and petitioner no. 4 is Head Constable. The petitioners 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 for long time with the collusion of the police employees deputed in the beat. 3. Learned counsel for the petitioners submits that the impugned order of suspension suffers from lack of inherent jurisdiction inasmuch as the Deputy Inspector General of Police, Lucknow who passed the impugned order of suspension of the petitioners, is neither the Appointing Authority nor Disciplinary Authority, nor has jurisdiction, authority and competence to place the petitioners under suspension. The Appointing Authority of the petitioners is District Superintendent of Police and not Deputy Inspector General of Police, Lucknow who is higher in rank to the Appointing Authority of the petitioners. He is not empowered by the Appointing Authority to place the petitioners 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, Head Constable, 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. Further submission of learned counsel for the petitioners is that neither the departmental proceedings are contemplated against the petitioners 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 petitioners in discharge of their duties and unauthorised liquor was being made in collusion with the police, is absolutely wrong, baseless and without any basis. The allegation that there was negligence on the part of the petitioners in discharge of their 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 petitioners under suspension. The allegation contained in the inquiry report, on the basis of which the petitioners have 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. 4. It is also submitted by the learned counsel for the petitioners that during 18.02.2009 to 10.11.2009 the petitioners 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 petitioners have done each and every thing within their reach and control. 5. As per Rule 17 (1) (a) 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 an appointing authority of the petitioners as such he has no power to place the petitioners under suspension. 6. Learned counsel for the petitioner emphatically submitted that it is settled law that an authority competent has power to suspend the employee unless delegation is permitted and such delegation has legally been made. The counsel for the petitioners place reliance on the judgment reported in 2006 (3) UPLBEC 2247, Ashok Kumar Singh vs. State of U.P. & others. Paras-12, 13 and 14 of the same are being reproduced as under:- "12. The counsel for the petitioners place reliance on the judgment reported in 2006 (3) UPLBEC 2247, Ashok Kumar Singh vs. State of U.P. & others. Paras-12, 13 and 14 of the same are being reproduced as under:- "12. In the case of Balvantrai Ratilal Patel vs. state of Maharashtra, AIR 1968 Supreme Court 800, the Hon'ble Apex Court held that "the authority entitled to appoint the public servant is entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceedings, which may eventually result in a departmental enquiry against him. 13. In the case of Ram Narain Tiwari (supra), this Court held that an authority higher in rank than the Appointing Authority cannot pass the order of suspension and if such order of suspension is passed, the same would be incompetent and void. In the case of Bharat Lal (supra) another Division Bench of this Court held that it is only the Appointing Authority which can pass an order of suspension. So far as the law laid down in the case of Director General ESI vs. T. Abdul Razak (supra), is concerned, the Hon'ble Apex Court held that "the legal position is well settled that it is not necessary that the authority competent to impose the penalty must initiate the disciplinary proceedings and that the proceedings can be initiated by any superior authority who can be held to be the controlling authority who may be an officer subordinate to the Appointing Authority. [See State of M.P. vs. Shardul Singh, (1993) 4 SCC 419, 108; P.V. Srinivasa Sastry vs. Comptroller, (1993) 4 SCC 419 and Auditor General and Inspector General of Police vs. Thavasiappan), 1996) 2 SCC 145]. 14. The initiation of disciplinary inquiry and passing of an order of suspension are two things. Disciplinary inquiry against a public servant can be initiated even by an authority higher to the Appointing Authority but so far as the order of suspension is concerned, that will have to be passed by the Appointing Authority or by the authority lower in rank which has been delegated with such power but not by any other authority." 7. Disciplinary inquiry against a public servant can be initiated even by an authority higher to the Appointing Authority but so far as the order of suspension is concerned, that will have to be passed by the Appointing Authority or by the authority lower in rank which has been delegated with such power but not by any other authority." 7. Learned counsel for the petitioner further placed reliance on the judgment reported in 1986 (4) LCD 7, Tara Chand Gupta vs. Deputy Director of Horticulture, Faizabad Division, Faizabad and others, in which it has been held that the order of suspension can be passed either by the appointing authority or by the officer to whom the powers are delegated by the appointing authority. The officer to whom the power can be delegated should, as required by the rules, be an officer subordinate to the appointing authority. Any other authority empowered by the Governor by general or special order can also place the government servant under suspension. 8. The learned counsel for the petitioners also relied upon the judgment reported in 1984 (2) LCD 298, Ram Narain Tewari vs. The Joint General Manager and others. Para-5 of the same is being reproduced as under:- "5. It has been brought to our notice that the Hon'ble Supreme Court in Sampuran Singh vs. State of Punjab (1982) 3 SCC 200 has held that an order of dismissal or removal can be passed even by an authority superior to the appointing authority. They have given this decision on the interpretation of article 311 (1) of the Constitution which lays down that an authority subordinate to that by which a person was appointed shall pass order of his dismissal or removal. From the language of this provision their Lordships have held that it followed that an authority higher in rank can be appointing authority can pass an order of dismissal or removal. The language of the regulation 67 of the UPSRTC Employees (other than officers) Service Regulation, 1981, however provides that an order of suspension can be passed either by the appointing authority or by an other authority empowered in this behalf by the Board. Thus, the ratio of the decision in Sampuran Singh does not apply to the regulation under consideration." 9. Thus, the ratio of the decision in Sampuran Singh does not apply to the regulation under consideration." 9. The counsel for the petitioners 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 hgih status in the service hierarchy, would be taken." 10. 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. 11. 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 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 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 vide order dated 03.02.2009 and as such the impugned order has been passed by the competent authority. Hence, the present writ petition deserves to be dismissed. 12. 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. 13. The sum and substance of the argument of learned counsel for the petitioners 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 petitioners nor has jurisdiction or competence to place the petitioners under suspension. It is the District Superintendent of Police, who is the appointing authority of the petitioners and, as such, the order passed by an officer who is higher in rank than the appointing authority, is without jurisdiction and is liable to be set aside. The second ground of attack is that the suspension of the petitioners is a selective suspension and so many persons have been left out. 14. 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." 15. 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." 15. 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. 16. The learned Standing Counsel placed on record the order dated 03.02.2009, by which an officer in the rank of Deputy Inspector General has been posted as District Superintendent of Police in various districts including Lucknow. 17. From perusal of Section 3 (b) of U.P. Civil Police Constable and Head Constable Service Rules, 2008, read with First Amendment Rules 2009, it is evident that the appointing authority of the post of Constable and Head Constable is Superintendent of Police 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. 18. Admittedly, the suspension order has been passed by the Deputy Inspector General of Police/ Senior Superintendent of Police, who in pursuance of the order dated 03.02.2009 is posted in the capacity of District Superintendent of Police and in pursuance of the provisions of Rule 17 of Rules, 1991 is fully competent to place the petitioners under suspension and as such, it can very well be said that the impugned order does not suffer from any lack of jurisdiction. 19. None of the judgment cited by the counsel for the petitioners applied to the facts and circumstances of the present case. 20. The suspension order spells out the reason and therefore, it cannot be said that the same has been passed without there being any material. 21. 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. 22. 21. 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. 22. 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. 23. 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.