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2013 DIGILAW 2137 (ALL)

Badri Prasad v. State of U. P.

2013-08-22

SUDHIR AGARWAL

body2013
JUDGMENT Sudhir Agarwal, J. 1. The Bench Secretary has placed before me a copy of the letter dated 20.08.2013 of the High Court Bar Association, Allahabad addressed to Hon'ble the Chief Justice informing that the Association has resolved on 20.08.2013 to abstain from judicial work on 22.08.2013 and the Hon'ble Judges are requested not to pass any adverse order on 22.08.2013, which has been circulated under the order of Hon'ble Senior Judge dated 20.08.2013 to this Bench. 2. This case has been listed under the section of old cases, heading, 'Suspension'. Called in revised, but no counsel appeared on behalf of petitioner. Learned Standing Counsel appearing for respondents is present. However, I have perused the record and heard learned Standing Counsel. 3. The writ petition is directed against the suspension order dated 25.11.2009 (Annexure 16 to the writ petition) passed by Director, Fisheries, U.P. Lucknow placing the petitioner under suspension in a contemplated departmental enquiry. More than three years since then have passed. Nothing is on record to show that alleged enquiry has concluded. Obviously, respondents, when placed the petitioner under suspension, never intended to continue his suspension for an indefinite period. It is really strange that an employee is allowed to continue under suspension for such a long time and the respondent-disciplinary authority did not find expedient to conclude enquiry for such a long period. 4. The order of suspension pending in a pending or contemplated inquiry by itself is not a punishment but in case it is prolonged without initiation or completion of inquiry, it may become punitive with the passage of time. Whether such a prolonged 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 the moot question need to be answered in this case. The answer is an emphatic no. 5. This question has already been answered by this Court in Smt. Anshu Bharti Vs. State of U.P. and others, 2009(1) AWC 691 , 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. . . . . . 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. 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 Vs. 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 Vs. Disapproving unreasonable prolonged suspension, the Apex Court in Public Service Tribunal Bar Association Vs. State of U.P. & others 2003 (1) UPLBEC 780 (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 & others Vs. State of U.P. & others 2006 (3) ESC 1755." 6. In view of above discussion, the impugned order of suspension cannot sustain. This writ petition is allowed. Impugned order of suspension dated 25.11.2009 (Annexure 16 to the writ petition) is hereby quashed. 7. This order, however, shall not preclude the respondents from initiating/completing departmental proceeding, if any, pending or contemplated, as the case may be, against the petitioner, if not already concluded.