Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 3483 (ALL)

PHOOL SINGH v. STATE OF U. P.

2014-11-24

SUNEET KUMAR

body2014
JUDGMENT Hon’ble Suneet Kumar, J.—The petitioner is class III employee working as a clerk with the Nagar Palika Parishad, Bijnor, service conditions are governed under the Uttar Pradesh Municipalities Act 1916 read with U.P. Municipal Board Servants (Inquiry, Punishment and Termination of Services) Rules, 1960 (hereinafter referred to as ‘1960 Rules’) 2. By means of this writ petition, the petitioner has challenged the complaint dated 27.5.2014 made by the respondent No. 3/4, Executive Officer, Nagar Palika Parishad, Bijnor, approval dated 29.5.2014 granted by the President, Nagar Palika Parishad and the consequential order of suspension dated 2.6.2014 passed by respondent No. 3. 3. Submission of learned counsel for the petitioner is that the suspension order is a mala fide exercise of power in order to punish the petitioner, is wholly without jurisdiction as the appointing authority of the petitioner is the Municipality and not the President, the order is without application of mind as the President has merely countersigned the complaint lodged by the Executive Officer against the petitioner. The order nowhere states that enquiry is either pending or contemplated, and finally the allegations, if accepted as correct, are not serious to warrant the imposition of major penalty. 4. Learned counsel for the petitioner in support of his submission has relied upon the following judgments: Smt. Meera Tiwari v. The Chief Medical Officer and others, 2001 (3) UPLBEC 2057 , Om Prakash Gupta v. The State of U.P., 1995 AIR 600, Ram Dular Tripathi v. State of U.P. and other, 1998(1) AWC 282 and Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and another, 1999(2) ESC 1009 (SC). 5. Per contra, Sri Anil Tiwari, learned counsel for the Parishad would submit that the order dated 2.6.2014 is not the order of suspension, but merely communication of the order, suspension was passed vide order dated 29.5.2014 by the President. The allegations against the petitioner, are very serious, as is reflected in the complaint made by the Executive Officer recommending the suspension and initiation of disciplinary proceedings which was duly approved and endorsed by the President on 29.5.2014. 6. It is alleged that the petitioner, being a clerk, had disobeyed the order of the Commissioner and has been indulging in illegal activities which was not in the interest of the Nagar Palika Parishad. 6. It is alleged that the petitioner, being a clerk, had disobeyed the order of the Commissioner and has been indulging in illegal activities which was not in the interest of the Nagar Palika Parishad. Petitioner has removed important records from the Nagar Palika, as well as, the service book is in the custody of the petitioner, questions was raised in the Assembly regarding Nagar Palika, Bijnor, but proper reply could not be sent to the Assembly as the files and records were in the custody of the petitioner which was not handed over to the Nagar Palika, on 20.6.2014 the Executive Officer was threatened, by some persons, at the behest of the petitioner to withdraw the suspension order, respondent No. 3 lodged First Information Report on 20.6.2014, thus, the order of suspension pending enquiry is legal and lawful order. 7. Learned counsel for the respondents in support of his submission has relied upon the following judgments: Management Hotel Imperial, New Delhi v. Hotel Workers Union, AIR 1959 SC 1342 , Balvantray Ratilal Patel v. State of Maharash, (1968) 2 SCR 577 , Shrimati Hira Devi and others v. District Board, Shahjahanpur through the Collector, AIR 1952 SC 362 , T. Cajee v. U. Jormanik Siem and another, AIR 1961 SC 276 , R.P. Kapur v. Union of India and another, AIR 1964 SC 787 , L.K. Verma v. HMT Ltd. and another, (2006) 2 SCC 269 and V.P. Gidroniya v. State of Madhya Pradesh and another, (1970) 1 SCC 362 . 8. Rival submissions fall for consideration. 9. The submission of learned counsel for the petitioner is two fold, firstly that the order of suspension is without jurisdiction as the competent authority mentioned under the 1960 Rules is the Municipality and not the President. Secondly, it is argued that the suspension order dated 2.6.2014 does not refer to any allegation nor does it state that enquiry is either contemplated or pending, by merely endorsing the complaint of the executive officer would not mean that the order of suspension was passed by the President, finally there is allegation of malafides against the respondent No. 4, the Executive Officer. 10. It is further contended that the petitioner is a clerk, a class III employee belonging to the non centralized service of the Nagar Palika Parishad. 10. It is further contended that the petitioner is a clerk, a class III employee belonging to the non centralized service of the Nagar Palika Parishad. Section 74 of the U.P. Municipalities Act 1916 (hereinafter referred to as ‘Act’) provides, servants on posts in non-centralised service, carrying scale of pay equal to or higher than the lowest scale of pay admissible to the clerical staff, shall be appointed and may be dismissed, removed or otherwise punished, or the services of a probationer may be terminated, by the President, subject to the right of appeal. Proviso to Section 74 refers the certain posts including Tax and Sectional Head Clerks whose appointments on such posts shall be subject to the approval of the Municipality. Section 74 is as follows : “74. Appointment and dismissal of permanent superior staff.—Subject to the provision of Sections 57 to 73, servants on posts in the non-centralised services, carrying scale of pay equal to or higher than the lowest scale of pay admissible to the clerical staff, shall be appointed and may be dismissed, removed or otherwise punished, or the services of a probationer may be, terminated, by the President subject to the right of appeal, except in the case of the termination of the service of a probationer, to such authority within such time and in such manner as may be prescribed. Provided that appointment on the posts of Tax Superintendent, Assistant Tax Superintendent, Inspectors, Head Clerks, Sectional Head Clerks, Sectional Accountants, Doctors, Vaids, Hakim and Municipal Fire Station Officers, shall be subject to the approval of the [Municipality]. 11. Section 75 provides for appointment of permanent inferior staff and the power is vested with the Executive Officer. The servants referred to as the inferior staff would mean servants carrying scales of pay lower than the lowest scale of pay referred to in Section 74, and Section 76 confers power of punishment and dismissal of permanent inferior staff upon the Executive Officer and when there is no Executive Officer on the President. Section 76 and 77 are as follows : 76. Section 76 and 77 are as follows : 76. Punishment and dismissal of permanent inferior staff.—Except as otherwise provided, the Executive Officer, and where that is no Executive Officer, the President may dismiss, remove or otherwise punish servants of the [Municipality], or terminate the services of probationers, [referred to in Section 75], subject to their right of appeal, except in the case of termination of the service of a probationer, to such authority within such time and in such manner as may be prescribed.] 77. Limitation of powers conferred by Sections 71 to 76.—(1) the provisions of Sections 71, 73, 74, 75 and 76, shall be subject to the provisions of,- (a).......... (b)......... (2) The provisions of Sections 74, 75 and 76 shall also be subject to the provisions of any regulation raising any maximum or minimum monthly salary prescribed in those sections with reference to the respect powers of the [Municipality], the [President] and the Executive Officer over the staff.” 12. The powers conferred under Section 74, 75 and 76 is subject to the provisions of Section 78 and any rule pertaining to suspension or dismissal [removal or other punishment or discharge or termination of service] of such persons so appointed. The power of suspension is covered under Section 77-B. Section 77-B, sub-clause 1 and sub-clause 5, is as follows : 77-B. Power of suspension.—(1) The authority competent to punish an officer or servant of the [Municipality] may place him under suspension,— (a) where a disciplinary proceedings against him is contemplated or pending; or (b) where a criminal case against him in respect of an offence involving moral turpitude is under investigation, enquiry or trial. (2)................ (3)................ (4)................ (5) [Municipality] shall act under this section by a special resolution supported by not less than two-thirds of the members constituting the Board. 13. Sub-clause 9 of Section 2 defines “Municipality” means an institution of self-Government [referred to in clause (e) of Article 243-P] and sub-section (22) of Section 2 defines “servant of the [Municipality]” means any person in the pay and service of the [Municipality]. Section 9 provides for the Composition of Municipality which shall consist by a President who shall be its Chairman, elected members, Ex officio members and nominated member. 14. The Service conditions of the servants belonging to the non-centralized servants is governed under 1960 Rules. Section 9 provides for the Composition of Municipality which shall consist by a President who shall be its Chairman, elected members, Ex officio members and nominated member. 14. The Service conditions of the servants belonging to the non-centralized servants is governed under 1960 Rules. “Servants” in the Rules has been defined, meaning servant of the Municipality and competent authority means the authority or Board (Municipality) competent under the law to take such action. Rule 4 provides for the penalties which can be imposed by the Board for sufficient reasons. Sub-clause of Rule 4 is as follows : “4. Subject to the provisions of these rules and any law governing a Municipal Board, the following penalties may, for good and sufficient reasons, be imposed upon a servant by the competent authority, namely (i) Censure, (ii) With holding of increments, including stoppage at an efficiency bar. (iii) Reduction to a lower post or a time-scale, or to a lower stage in a time-scale. (iv) Suspension” Rule 8(i) provides for suspension of servant of Municipality during enquiry or contemplation of enquiry. Rule 8(i) is as follows : “8(1) Subject the provisions of any law governing the municipal board, a servant against whose conduct an inquiry is contemplated or is proceeding, may in the discretion of the competent authority be placed under suspension pending the conclusion of the enquiry.” 15. A bare perusal of the provisions of the Act and 1960 Rules, the petitioner a clerk, is permanent superior staff within the meaning of Section 74 belonging to the non-centralized service, can be appointed and dismissed by the President, Section 77 read with 1960 Rules the authority competent to pass an order of suspension is the President not the Board, Section 77-B read with Rule 8(i) refers to ‘competent authority’ and not the Board, thus, the competent authority for punishment of superior staff is the President. Thus, it is evident from the provisions of the Act and the rules, stated herein above, the competent authority to place the petitioner under suspension is the President and not the Board. 16. As regards, the second submission, as to whether the order of the Chairman dated 29.5.2014 endorsing the complaint of the Executive Officer recommending suspension pending enquiry or contemplation of enquiry is an order of suspension or not, requires close reading of the complaint. 16. As regards, the second submission, as to whether the order of the Chairman dated 29.5.2014 endorsing the complaint of the Executive Officer recommending suspension pending enquiry or contemplation of enquiry is an order of suspension or not, requires close reading of the complaint. The executive officer complained on 27.5.2014 alleging that the petitioner had scanned his signature and issued contract, the petitioner did not attend the Tehsil Diwas in spite of the directions of the Commissioner, Moradabad Division, Moradabad, as such, the petitioner was removed as Lekha Lipik and was made the pairokar to pursue the cases of the Nagar Palika Parishad. The petitioner did not inform the Executive Officer of the important cases, as a result, the Nagar Palika Parishad lost certain important cases thus resulting in loss to the Nagar Palika; in spite of the directions being issued to the petitioner, appeal was not filed before the High Court, as such, the Palika lost several crores, there are allegations of the petitioner conniving with the opposite party against the interest of the Palika; keeping in custody of the service book; filing of proxy complaints, thus the Executive Officer recommended that the petitioner be placed under suspension pending enquiry, which was duly approved and endorsed by the President on 29.5.2014, the petitioner was thereafter communicated the order of suspension on 2.6.2014 by the Executive Officer. 17. The contention of learned counsel for the petitioner that endorsement of the President dated 29.5.2014 is not the suspension order, the order dated 2.6.2014 communicating that the petitioner has been placed under suspension is the order of suspension, cannot be accepted for the simple reason that the petitioner was placed under suspension on 29.5.2014 i.e. the moment President approved the proposal. It would be wrong to say that the President did not apply his mind. The complaint made by the executive officer alleges serious allegation against the petitioner, which if true, would follow imposition of major penalty, the President by merely endorsing the complaint and directing to proceed, as proposed would mean that the petitioner was placed under suspension with immediate effect pending enquiry. Merely because the communication order dated 2.6.2014, passed pursuant to the endorsement dated 29.5.2014, does not refer or mention that the petitioner was placed under suspension pending enquiry, is not correct, as the suspension and enquiry was already proposed which was approved and accepted by the President. Merely because the communication order dated 2.6.2014, passed pursuant to the endorsement dated 29.5.2014, does not refer or mention that the petitioner was placed under suspension pending enquiry, is not correct, as the suspension and enquiry was already proposed which was approved and accepted by the President. It is settled principle of law that the suspension order comes into effect the date it is passed and not from the date of communication, unlike termination or dismissal order. 18. An order passed by a competent authority dismissing a Government servant from services requires communication thereof vide State of Punjab v. Amar Singh Harika, AIR 1966 SC 1313 , but an order placing a Government servant on suspension does not require communication of that order vide State of Punjab v. Khemi Ram, (1969) 3 SCC 28 . What is, therefore, necessary to be borne in mind is the knowledge leading to the making of the order. An order of suspension ordinarily would be presumed to have been made when it is signed. 19. The contention on behalf of the petitioner is that the order is not only mala fide exercise of power but the order of suspension is a punishment order under Rule 4(4)(iv), hence opportunity should have been given to the petitioner before passing the order. 20. Suspension in service jurisprudence is of different kinds, viz as punishment if provided under the service rules, inherent power of the employer to suspend and thirdly, rules providing for suspension during pending enquiry or contemplation of enquiry. 21. In L.K. Verma v. HMT Ltd. and another, (2006) 2 SCC 269 , the Supreme Court held as follows : “17. Suspension is of three kinds. An order of suspension may be passed by way of punishment in terms of the conduct rules. An order of suspension can also be passed by the employer in exercise of its inherent power in the sense that it may not take any work from the delinquent officer but in that event, the entire salary is required to be paid. An order of suspension may be passed by way of punishment in terms of the conduct rules. An order of suspension can also be passed by the employer in exercise of its inherent power in the sense that it may not take any work from the delinquent officer but in that event, the entire salary is required to be paid. On order of suspension can also be passed, if such a provision exists in the rule laying down that in place of the full salary, the delinquent officer shall be paid only the subsistence allowance specified therein.” [Refer: Management of Hotel Imperial v. Hotel Workers’ Union, (1960) 1 SCR 476 , T. Cajee v. U. Jormanik Siem and another, AIR 1961 SC 276 and R.P. Kapoor v. Union of India and another, AIR 1964 SC 787 ] 22. In V.P. Gidroniya v. State of Madhya Pradesh and another, (1970) 1 SCC 362 , the Constitution Bench of the Supreme Court held as under : “8..............The general principle is that an employer can suspend an employee of his pending an enquiry into his misconduct and the only question that can arise in such a suspension will relate to the payment of his wages during the period of such suspension. It is now well-settled that the power to suspend, in the sense of a right to forbid an employee to work, is not an implied terms in an ordinary contract. Between master and servant, and that such a power can only be the creature either of a statute governing the contract or of an express term in the contract itself. Ordinarily, therefore, the absence of such a power either as an express term in the contract or in the rules framed under some statute would mean that an employer would have no power to suspend an employee of his and even if he does so in the sense that he forbids the employee to work, he will have to pay the employee’s wages during the period of suspension. Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the order of suspension has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay. Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the order of suspension has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay. It is equally well-settled that an order of interim suspension can be passed against the employee while an enquiry is pending into his conduct even though there is no such term in the contract of employment or in the rules, but in such a case the employee would be entitled to his remuneration for the period of suspension if there is no statute or rule under which, it could be withheld. The distinction between suspending the contract of a service of a servant and suspending him from performing the duties of his office on the basis that the contract is subsisting is important. The suspension in the latter case is always an implied term in every contract of service. When an employee is suspended in this sense, it means that the employer merely issues a direction to him that he should not to the service required of him during a particular period. In other words the employer is regarded as issuing an order to the employee which because the contract is subsisting, the employee must today.” 23. Suspension as punishment can be imposed after holding departmental enquiry. The Supreme Court in Balvantray Ratilal Patel v. State of Maharashtra, AIR 1968 SC 800 , observed as follows : “...........On general principles therefore the Government like any other employer, would have a right to suspend a public servant in one of two ways. It may suspend any public servant pending departmental enquiry or pending criminal proceedings; this may be called interim suspension. The Government may also proceed to hold a departmental enquiry and after his being found guilty order suspension as a punishment if the rules so permit. This will be suspension as a penalty.” 24. In the 1960 Rules, suspension is provided both as a punishment, as well as, pending enquiry or contemplation of enquiry (Rule 4(4)(iv) and Rule 8(1) of 1960 Rules). Suspension pending enquiry or contemplation of enquiry provided under Rule 8(1), is not a punishment. This will be suspension as a penalty.” 24. In the 1960 Rules, suspension is provided both as a punishment, as well as, pending enquiry or contemplation of enquiry (Rule 4(4)(iv) and Rule 8(1) of 1960 Rules). Suspension pending enquiry or contemplation of enquiry provided under Rule 8(1), is not a punishment. It is not the case of the respondents that suspension by way of punishment was imposed upon the petitioner. 25. The petitioner was placed under suspension on 29.5.2014, the moment the President accepted the proposal of Executive Officer to place the petitioner under suspension pending enquiry. The order dated 2.6.2014 is merely communication of the suspension order pending euquiry, it is not an order of punishment. In my opinion, there is no illegality or infirmity in the impugned orders. For the reasons and law stated herein above, the writ petition fails and is accordingly dismissed. No order as to costs. —————