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2013 DIGILAW 2749 (ALL)

UMA PATI MISHRA v. STATE OF U. P.

2013-11-08

SUDHIR AGARWAL

body2013
JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri Vijay Gautam, learned counsel for the petitioner and learned Standing Counsel for respondents. 2. It is contended that impugned order of suspension dated 10.4.2013 has been passed by Superintendent of Police, Banda though a preliminary inquiry is yet to be conducted, since Circle Officer Line, Banda has been directed to hold a preliminary inquiry. It is also contended that the order of suspension has been passed not in a contemplated or pending departmental inquiry but on the basis of charge mentioned therein and directing further to proceed to hold a preliminary inquiry and submit report. 3. Under U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as the “Rules, 1991”), suspension is not one of the punishments prescribed therein. On the contrary, Rule 17 contemplates that suspension can be effected in a contemplated or pending departmental inquiry or during a criminal investigation, inquiry or trial or when an officer is in jail for a particular period of time. In the present case none of these contingencies is available and, therefore, Rule 17 which authorises Competent Authority to place a police officer of subordinate rank under suspension is not at all attracted. 4. Admittedly, from endorsement No. 4 it is evident that Superintendent of Police, Banda has directed the Circle Officer Line to hold a preliminary inquiry, meaning thereby a preliminary inquiry has not been held and is now ordered and pending thereto impugned order of suspension has been passed. 5. A Five Judges Bench of this Court in State of U.P. v. Jay Singh Dixit and others, 1975 ALR 64 has held that an order of suspension can be passed in a contemplated or pending departmental inquiry and it does not include contemplated or pending preliminary inquiry. Recently, a Full Bench of this Court in Rajveer Singh v. State of U.P. and others, 2010 (10) ADJ 246 , has also taken same view with some further clarification. 6. In the present case, impugned order of suspension has been passed with a further direction to another officer to hold preliminary inquiry and submit report. Meaning thereby, the impugned order is in furtherance and contemplation of preliminary inquiry. 6. In the present case, impugned order of suspension has been passed with a further direction to another officer to hold preliminary inquiry and submit report. Meaning thereby, the impugned order is in furtherance and contemplation of preliminary inquiry. This Court does not intend to hold that in every case, holding of preliminary inquiry is a condition precedent, but when the competent authority finds it expedient first to hold a preliminary inquiry before taking decision, whether a regular departmental inquiry should be held or not, it means that there is no contemplation of a regular departmental inquiry and its possibility or exigency is yet to be decided by competent disciplinary authority. That being so, in contemplation or pendency of preliminary inquiry, an officer under the rules, cannot be suspended, since such a suspension is not permitted under statute. 7. It is not the case of respondents that the nature of charge was such that a regular departmental enquiry immediately was found expedient and for collecting material for initiating regular departmental enquiry, a fact finding enquiry was directed to the subordinate authority. The insistence on enquiry report after conducting preliminary enquiry shows that disciplinary authority itself is not very sure as to whether there is anything against the petitioner, prima facie, justifying regular enquiry and that is how a preliminary enquiry report is desired, though within a short time. 8. On this aspect I am also fortified by the observations made by Full Bench in Raj Veer Singh (supra). While answering question (b), the Court said that word “inquiry” under the Rules cannot include a preliminary enquiry and it means a regular departmental enquiry, as held by Larger Bench in Jay Singh Dixit (supra) and question No. (b) was answered accordingly. However, while further considering question No. (b) and (c), the Court noticed Larger Bench decision and observed that whether a preliminary enquiry has been conducted or not, or, if conducted, but is not complete, that by itself would not vitiate an order of suspension inasmuch as, in order to make an order of suspension valid, what is required is that the competent authority has satisfied itself on objective consideration of material that a regular departmental enquiry is contemplated and if it is already pending, the question of preliminary enquiry would not arise at all. This is evident from what has been said in para 43 and 46 of the judgment reproduced as under: “43. The answer No. 1 by the Full Bench is to the effect that Rule 17(1)(a) of the 1991 Rules does not prohibit passing of suspension order during pendency of preliminary inquiry. The five Judges Larger Bench in State of U.P. v. Jai Dingh Dixit case (supra) had considered the question in context of Rule 49-A of the C.C.A. Rules, which is a pari materia rule. As notice above, the three Judges Full Bench in State of U.P. v. Jawahar Lal Bhargava (supra) has taken the view that the occasion for passing a suspension order shall arise only when a firm decision is taken to hold an inquiry and at any earlier point of time the power of suspension cannot be exercised. The aforesaid view of the three Judges Full Bench in State of U.P. v. Jawahar Lal Bhargava (supra) was disapproved by the Full Bench. As noticed above, the rationale of three Judges judgment in State of U.P. v. Jawahar Lal Bhargava (supra) was that till a preliminary inquiry is not completed, no firm decision can be taken by the appointing authority for suspension. The five Judges Larger Bench in paragraph 37, while considering the question as to when departmental inquiry can be said to have been contemplated, has laid down that a departmental inquiry is contemplated when on objective consideration of the material the appointing authority considers the case as one which would lead to a departmental, inquiry, irrespective of whether any preliminary inquiry, summary or detailed, has or has not been made or if made, is not complete. The above ratio of the Full Bench clearly lays down that the fact that preliminary inquiry has, or has not been made or if made, is not complete is not relevant, relevant is objective consideration of the materials by the appointing authority. The ratio of the five Judges Larger Bench in State of U.P. v. Jai Singh Dixit, still holds good and in view of the above ratio, the answer given by the Full Bench in Shahroj Anwar Khan’s case (supra) is in accord with the above ratio. The answer No. 1 of the Full Bench in Shahroj Anwar Khan’s case (supra) lays down that there is no prohibition of passing a suspension order during pendency of preliminary inquiry. The answer No. 1 of the Full Bench in Shahroj Anwar Khan’s case (supra) lays down that there is no prohibition of passing a suspension order during pendency of preliminary inquiry. However, whether a suspension order passed during pendency of preliminary inquiry is valid or not is another question which has to be answered according to the test as laid down by the Larger Bench in State of U.P. v. Jai Singh Dixit (supra) i.e. when on objective consideration of the materials the appointing authority considers the case as one which would lead to a departmental inquiry. Thus the answer No. 1 given by the Full Bench in Shahroj Anwar Khan’s case laying down that there is no prohibition of passing a suspension order during pendency of preliminary inquiry, is in accord with the ratio of five Judges Larger Bench in State of U.P. v. Jai Singh Dixit case (supra) as noted in paragraph 37 of the judgment. We, however, add that the question that a suspension order passed during pendency of inquiry is valid or not, is a separate question, which may be considered in the light of the ratio of five Judges Larger Bench in the case of State of U.P. v. Jai Singh Dixit. As noticed above, in the event a suspension order does not satisfy the test laid down by the five Judge Larger Bench in paragraph 99, i.e. there is no objective consideration by the appointing authority on the materials that a formal department inquiry is expected, the suspension can be quashed. Hon’ble Satish Chandra, J. giving concurring judgment in State of U.P. v. Jai Singh Dixit (supra) has laid down in paragraph 72 that existence of power which should not be confused with its abuses. The power of suspension may be vested with the appointing authority during pendency of the preliminary inquiry but whether the power has been exercised validly is another question which had to be separately looked into in the light of the ratio of five Judges Larger Bench in State of U.P. v. Jai Singh Dixit case. The five Judges Larger Bench in paragraph 72 of the judgment laid down following : “72. The existence of power which should not be confused with its abuses. In case of abuse, the particular exercise of the power will be bad and will be quashed. The five Judges Larger Bench in paragraph 72 of the judgment laid down following : “72. The existence of power which should not be confused with its abuses. In case of abuse, the particular exercise of the power will be bad and will be quashed. But that has no bearing on the question of law as to when, on a proper construction of the Rule, does the power arise.” “46. The view taken by the Division Bench in Kripa Shanker Prasad’s case (supra) that suspension could not have been ordered while directing preliminary inquiry is not in accord with the ratio of five Judges Larger Bench in State of U.P. v. Jai Singh Dixit case (supra) and thus no exception can be taken to answer No. 2 given by the Full Bench in Shahroj Anwar Khan’s case (supra). As observed above, while considering challenge to a suspension order passed during pendency of preliminary/fact finding inquiry, the test to be applied in examining the correctness or otherwise of the suspension order is as to whether on objective consideration of the materials the appointing authority considers the case as one which would lead to a departmental inquiry, as laid down by the five Judges Larger Bench in State of U.P. v. Jail Singh Dixit case. The issues having already covered by the five Judges Larger Bench, the Question No. (b) needs no reference to the Larger Bench.” 9. The Court also said, on a challenge that the order of suspension has been passed in contemplation or pendency of a preliminary enquiry and not in a contemplation of departmental enquiry, it would be for the State Government to justify by placing such material on record, as necessary to show that irrespective of preliminary enquiry, the authority concerned was satisfied that the suspension was warranted in the facts of the case. Para 47 of the judgment in Raj Veer Singh (supra) reads as under: “47. Whether, while directing preliminary inquiry, the power to suspend has to be exercised on objective consideration of material on record of each case and therefore it is for the State Government on a challenge being made to an order of suspension in contemplation of an inquiry to justify by such material on record that irrespective of preliminary inquiry the authority was satisfied that suspension was warranted in the facts of the case.” 10. In the present case, though this matter is pending for sufficiently long time, but there is no attempt on the part of State to place such material before this Court and demonstrate that the authority concerned was satisfied that regular departmental enquiry is contemplated irrespective of the fact that preliminary enquiry was simultaneously ordered and that would have made no difference at all. If a challenge is made and State fails to justify, the Court in absence of any material, would be justified in drawing an inference that the order of suspension containing endorsement in itself for directing a preliminary enquiry and to submit preliminary report, is nothing but an order of suspension in contemplation or pendency of a preliminary enquiry only and there is no material with the competent authority showing objective consideration about regular departmental enquiry. Unless the objective consideration on the part of respondent-competent authority is shown by appropriate pleading(s) and material, the Court may draw an inference that there is no objective consideration on the part of competent authority and order of suspension has been passed without proper application of mind and mechanically. In fact, such an enquiry, if is a fact finding enquiry which would subsequently make relevant material available to the competent authority to take an appropriate decision in the matter, pending enquiry, such an order of suspension, in effect, is a colourable exercise of power and it is difficult to sustain the same particularly, where the State has miserably failed to justify its order, in the manner as has been observed in para 47 of the judgment in Raj Veer Singh (supra). 11. There is one more aspect in this matter. From a bare perusal of impugned order, it does not appear that any departmental inquiry is contemplated or pending. This is a condition precedent, as is evident from a bare reading of Rule 17 of Rules, 1991. A perusal of the order of suspension impugned in this writ petition nowhere shows that an enquiry is in contemplation or pending, warranting suspension of the petitioner in the present case. The question whether such an order of suspension would be valid, came up for consideration before a Division Bench in Meera Tiwari (Smt.) v. Chief Medical Officer and others, 2001 (3) UPLBEC 2057 , wherein it was held as under: “3. The question whether such an order of suspension would be valid, came up for consideration before a Division Bench in Meera Tiwari (Smt.) v. Chief Medical Officer and others, 2001 (3) UPLBEC 2057 , wherein it was held as under: “3. From the said rule it appears that a Government Servant against whose conduct an inquiry is contemplated, or is proceeding may be placed under suspension pending the conclusion of the inquiry. The impugned order of suspension does not refer to any contemplated inquiry or the fact that any inquiry is pending. 4. In that view of the matter, we are of the view that the order of suspension is against the provisions of Rule 4 of the U.P. Government Servant (Discipline & Appeal Rules, 1999 and the same cannot be sustained..........” 12. A similar dispute came up for consideration before another Division Bench of this Court in Special Appeal No. 180 of 2007 Hari Shanker Misra v. State of U.P. and others, decided on 27.2.2007 in which, following the judgment in Meera Tiwari (supra), the suspension order was set aside since it was nowhere mentioned therein that the order of suspension was passed either in contemplation of disciplinary proceedings or pendency thereof. The same view has also been adopted by another Division Bench (in which I was also a member) in Radhey Shyam Srivastava v. State of U.P. and others, 2008 (1) ADJ 466 and in a Single Judge decision of this Court in Smt. Anshu Bharti v. State of U.P. and others, 2008(9) ADJ 355 . 13. In view of the above discussion, it cannot be said that the impugned order of suspension satisfies the requirement of law and is sustainable. 14. In the result, the writ petition is allowed. The impugned order of suspension dated 10.4.2013 is hereby quashed. 15. However, this order shall not preclude the respondent-competent authority from proceeding to conclude inquiry and pass final order or to pass a fresh order, if so finds expedient, in accordance with law. 16. No costs.