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2016 DIGILAW 893 (ALL)

Brijesh Kumar Srivastava v. State of U. P.

2016-03-09

D.Y.CHANDRACHUD, YASHWANT VARMA

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JUDGMENT Having been unsuccessful in his challenge to an order of suspension, the original petitioner is in appeal. The appellant instituted writ proceedings assailing an order of suspension dated 15 January 2016 passed by the second respondent. The writ petition has come to be disposed of with the learned Single Judge holding that considering the allegations recorded in the impugned order, no interference was warranted with the order of suspension. Noticing the submission of the counsel for the appellant that no charge-sheet had been served upon him, the writ petition was disposed of calling upon the respondents to issue a charge-sheet to the appellant within fifteen days in case they contemplate holding a departmental enquiry and that the enquiry itself be completed within a period of two months. The judgment rendered by the learned Single Judge on 10 February 2016 forms subject matter of this appeal. 2. The appellant is a Lekhpal attached to the office of the second respondent. It transpires that a complaint with regard to illegal construction on public utility land was made on 5 January 2016. This complaint was marked by the second respondent for further compliance to the appellant. As the order impugned in the writ petition itself records, the complaint dated 5 January 2016 was handed over to the appellant on 12 January 2016. On 15th/19th January 2016, the second respondent passed an order suspending the appellant. The order records that despite the complaint having been duly forwarded to the appellant for compliance, no steps had been taken by him as a result of which the image of the department had been sullied and the second respondent embarrassed before his superior officers. The second respondent proceeded to hold that the appellant was guilty of having conducted himself in violation of the Conduct Rules and also having failed to abide by directions issued by a superior officer. On this state of the record, the second respondent proceeded to suspend the appellant. 3. In the writ petition the appellant had averred that upon receipt of the complaint on 12 January 2016, he sent a communication to the complainant on 14 January 2016 to be present on site on 18 January 2016 when in his presence further action may be taken. 3. In the writ petition the appellant had averred that upon receipt of the complaint on 12 January 2016, he sent a communication to the complainant on 14 January 2016 to be present on site on 18 January 2016 when in his presence further action may be taken. It was further asserted that on 18 January 2016 a spot inspection was undertaken where after a report was submitted by the appellant recording that the encroachment and illegal construction cannot be removed by the consolidation authorities and that the same would have to be demolished by the tehsil authorities with the aid of police force. A report of the spot inspection was duly submitted. 4. The appellant further points out that the order of suspension carried two conflicting dates inasmuch as while the first page of the order carries a date of 19 January 2016, the last page carries a date of 15 January 2016. It was lastly submitted that the order of suspension itself had been made in violation of the provisions of Rule 4 of the U.P. Government Servants (Discipline and Appeals) Rules, 1999. It was contended that while the power to suspend a Government servant does stand conferred upon the appointing authority, the first proviso to Rule 4 mandates that the power to suspend shall not be resorted to unless the allegations against the Government servant are so serious that in the event of they being established may ordinarily warrant the imposition of major penalty. It was submitted that considering the nature of the complaint against the appellant it could not be said that the charge, even if, proved would warrant the imposition of a major penalty and therefore also the order of suspension was liable to be set aside. 5. We find force in the submission advanced on behalf of the appellant. From the facts as noticed above, it is apparent that the complaint dated 5 January 2016 was received by the appellant only on 12 January 2016. The appellant did attend to the complaint and also submitted a report of compliance on 18 January 2016. The order of suspension if made on 15 January 2016 or for that matter even on 19 January 2016 was in our opinion clearly not warranted. This was not a case where the appellant had sat on the complaint or committed inordinate delay in attending to the same. The order of suspension if made on 15 January 2016 or for that matter even on 19 January 2016 was in our opinion clearly not warranted. This was not a case where the appellant had sat on the complaint or committed inordinate delay in attending to the same. In fact the complaint was admittedly handed over to the appellant on 12 January 2016 and the order of suspension passed on 15th/19th January 2016. Moreover, the allegation of not attending to a complaint would clearly, in the facts and circumstances of this case, not fall in the category of a serious charge which in the event of being established would ordinarily warrant the imposition of a major penalty. 6. Additionally, we find that the order of suspension does not record that it was being passed in contemplation of a departmental enquiry being instituted. No such recital stands recorded in the order impugned in the writ proceedings. The judgment rendered by the learned Single Judge is, in fact, rendered unsustainable additionally on the ground that while refusing to interfere with the order of suspension, the writ petition itself was disposed of with liberty to the respondents to issue a charge sheet to the appellant "in case they contemplate holding a departmental enquiry against the petitioner". The decision either to institute proceedings for taking disciplinary action or contemplate initiation of such proceedings must obviously precede the passing of an order of suspension. 7. Therefore both, on account of what we have noted above as well as a failure to bear in mind the mandate of the proviso to Rule 4, in our opinion, renders the order of suspension unsustainable. For the aforesaid reasons, we also hold that the judgment of the learned Single Judge is liable to be set aside. 8. Accordingly, we allow the special appeal and set aside the judgment and order of the learned Single Judge dated 10 February 2016. Consequently, Writ-A No. 5644 of 2016 shall stand allowed and the order of suspension dated 15th/19th January 2016 is quashed. We, however, leave it open to the respondents to take such further steps in relation to initiation of disciplinary proceedings against the appellant as may be permissible in law. Appeal allowed.