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2015 DIGILAW 339 (UTT)

RAM LAL v. STATE OF UTTARAKHAND

2015-07-03

K.M.JOSEPH, V.K.BIST

body2015
JUDGMENT K.M. Joseph, C.J. (Oral) Appellant is the writ petitioner. Appellant challenged an order, by which he was placed under suspension. By the self-same order, the authority also proceeded to appoint an Inquiry Officer. The Inquiry Officer was asked to serve the charge-sheet. Aggrieved thereby, appellant filed the writ petition. The learned Single Judge dismissed the writ petition. Hence, the appeal. 2. We have heard Mr. Amar Shukla, learned counsel appearing for the appellant and Mr. H.M. Bhatia, learned Brief Holder appearing for the State/respondents. 3. The learned counsel for the appellant would submit that this is a case, where, contrary to the Rules and the declaration of law made following the Rules, the impugned order has been passed. This is for the reason that, under the Rules, an officer can be placed under suspension only on very serious charges such as would, normally, result in imposition of a major penalty. He would submit that, in the facts of this case, appellant was asked to discharge duties by the Magistrate and the Sub Divisional Magistrate asked the appellant to do something else. This fact was brought to the notice of the Magistrate and the appellant has, actually, not done anything, which warrants placing him under suspension. Next, the learned counsel would contend that, at any rate, having regard to the part of the selfsame order, whereby an Inquiry Officer was also appointed and, what is more, the Inquiry Officer was called upon to serve the charge-sheet upon the appellant, the order is patently illegal. He brings to our notice a judgment of the learned Single Judge passed in the case of Uday Pratap Singh vs. State of Uttarakhand & others, reported in 2012 (1) U.D. 365 , 2012(1) UAD 797 4. We have also heard Mr. H.M. Bhatia, learned Brief Holder appearing for the respondents. 5. Under the Uttaranchal Government Servant (Discipline and Appeal) Rules, 2003, a Government servant can be placed under suspension when an inquiry is contemplated in regard to his conduct or inquiry is already ongoing. One of the limitations on this power is to be found in the first proviso to Rule 4, which reads as follows: “4. Suspension. 5. Under the Uttaranchal Government Servant (Discipline and Appeal) Rules, 2003, a Government servant can be placed under suspension when an inquiry is contemplated in regard to his conduct or inquiry is already ongoing. One of the limitations on this power is to be found in the first proviso to Rule 4, which reads as follows: “4. Suspension. – (1) A Government Servant against whose conduct an inquiry is contemplated or is proceeding may be placed under suspension pending the conclusion of the inquiry in the discretion of the Appointing Authority: Provided that suspension should not be resorted to unless the allegations against the Government Servant are so serious that in the event of their being established may ordinarily warrant major penalty.” 6. As far as the appointment of an Inquiry Officer is concerned, it is settled law, by virtue of the Rules prevailing in the State and decisions of the court interpreting them, that an Inquiry Officer can be appointed only after the disciplinary authority issues a charge-sheet calling upon the delinquent officer to submit his explanation and, if, after considering the explanation of the delinquent officer, it is found necessary to hold an inquiry, only at that stage, an Inquiry Officer can be appointed. As far as the charge-sheet is concerned, after the amendment to the Rules in 2010, it is not disputed that the charge-sheet is to be signed by the disciplinary authority. The power of issuing the charge-sheet cannot be delegated to the Inquiry Officer. Therefore, in the light of these settled principles, if we examine the impugned order; it is clear that it is afflicted by two vices. Firstly, even without issuing a charge-sheet and calling for an explanation, an Inquiry Officer has been appointed. This part of the order cannot be sustained. Equally without legal foundation and contrary to law is the direction to the Inquiry Officer to serve the charge-sheet upon the appellant. These portions are clearly unsustainable and, therefore, they deserve to be quashed. 7. The learned counsel for the appellant has a case, therefore, that the order of suspension also, being part of the impugned order, must perish along with the rest of the order. We are afraid, this submission of the appellant cannot be accepted. These portions are clearly unsustainable and, therefore, they deserve to be quashed. 7. The learned counsel for the appellant has a case, therefore, that the order of suspension also, being part of the impugned order, must perish along with the rest of the order. We are afraid, this submission of the appellant cannot be accepted. It is true that the learned counsel for the appellant has drawn our attention to the judgment of the learned Single Judge, wherein the learned Single Judge has quashed the order of suspension along with a similar portion of the order as we have found to be objectionable. But, we are afraid that the order of suspension, if it is found to be otherwise unobjectionable, should not perish for the reason that it is contained in the order along with which there is an illegality committed in the form of an appointment of an Inquiry Officer and, what is more, a direction to the Inquiry Officer to serve the charge-sheet. That the order countenanced the appointment of an Inquiry Officer without following the law and also contains a direction to serve the charge-sheet by the Inquiry Officer, would not suffice, in our view, to interfere with the order of suspension contained in the said order. We would think that they are separable and it is not as if it is inseparable and the order must perish as a whole. If the legal part is separable from the illegal part, we would think that the legal part can be sustained. In such circumstances, while we uphold the contention of the appellant regarding the portion of the impugned order appointing the Inquiry Officer and also directing the Inquiry Officer to serve the charge-sheet; the order of suspension, in our view, does not suffer from any illegality such as to warrant our interference. 8. Therefore, we partly allow the appeal. While we sustain the order of suspension, we quash the order by which the Inquiry Officer was appointed and also the direction to the Inquiry Officer to serve the charge-sheet. 8. Therefore, we partly allow the appeal. While we sustain the order of suspension, we quash the order by which the Inquiry Officer was appointed and also the direction to the Inquiry Officer to serve the charge-sheet. We, however, leave it open to the competent authority to follow the Rules; the disciplinary authority will take upon itself the task of serving the charge-sheet as per the Rules; consider the explanation of the appellant; thereafter, take a decision as to whether an Inquiry Officer is to be appointed; and, if an Inquiry Officer is to be appointed, to appoint him. The issuance of the charge-sheet will not be unnecessarily delayed and, if the matter is governed by law in the form of Rules or Government Order, necessarily, the disciplinary authority must take steps to issue the charge-sheet and also to conclude the inquiry at the earliest without any unnecessary delay and as per law.