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2019 DIGILAW 2329 (ALL)

Vijay Kumar Agrawal v. State Of UP

2019-10-15

SUNEET KUMAR

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JUDGMENT : Suneet Kumar, J. Heard Sri H.R. Mishra, learned Senior Counsel appearing for the petitioner and Sri Ajit Singh, learned Additional Advocate General for the State-respondents. 2. Petitioner, a Assistant Commissioner & Assistant Registrar, (Agriculture), Cooperative Societies, Varanasi Mandal, Varanasi, is assailing the impugned suspension order dated 4 August 2019 passed by the first respondent, Secretary, Cooperative, Government of U.P., Lucknow. 3. The allegation against the petitioner, inter-alia, is based on a preliminary enquiry report dated 3 August 2019, pertaining to Adarsh Krishi Sahkari Samiti, Umbha, District Sonbhadra (for short "the Adarsh Society"). The report in so far it relates to the petitioner primarily records that petitioner had not followed the mandatory provisions in the discharge of his duty under the Uttar Pradesh Cooperative Societies Act, 1965 (for short "Act, 1965"). Consequently, petitioner was placed under suspension pending contemplation of enquiry. The respondents have filed counter affidavit and supplementary counter affidavit bringing on record the charge sheet dated 16 September 2019, leveling three charges. First charge alleges that a society under the Act, 1965 can be constituted by the farmers by pooling their land, but in the instant case, the Adarsh Society was constituted against the provisions of Section 77-A. The matter pertaining to cancellation of registration of the Adarsh Society is pending before the Deputy Registrar, Cooperative Society, Vindhyachal Division, Mirzapur, and the Assistant Registrar Cooperative Society, Sonbhadra. The fact finding enquiry posed a question to the petitioner as to whether he had ever conducted any inspection/enquiry against the society, but the petitioner did not reply nor any inspection and/or enquiry in terms of Section 66 of the Act, 1965 was constituted/conducted against the Adarsh society. The second charge against the petitioner is that no audit was conducted against the society in terms of Rule 367 of the U.P. Cooperative Societies Rules, 1968, nor any attempt to that effect was made by the delinquent officer. The third charge against the petitioner is that the election to the society is to be held every five years under the Uttar Pradesh State Cooperative Societies Election Rules, 2014, in the presence of an observer appointed by the office of the District Magistrate/District Cooperative Election Commissioner, however, no such election was conducted. 4. The third charge against the petitioner is that the election to the society is to be held every five years under the Uttar Pradesh State Cooperative Societies Election Rules, 2014, in the presence of an observer appointed by the office of the District Magistrate/District Cooperative Election Commissioner, however, no such election was conducted. 4. The allegation primarily against the petitioner is that the petitioner failed in his duties by not contacting the concerned officers of the Cooperative at District Sonbhadra/Mirzapur for taking appropriate action against the Adarsh society. 5. In the aforesaid backdrop, it is urged by learned Senior Counsel for the petitioner that the allegation in the impugned suspension order and in the charge sheet, taken on face value do no constitute misconduct within the meaning of Uttar Pradesh Government Servant (Discipline & Appeal) Rules,1999 (for short 'Rules, 1999'). It is further contended that admittedly the alleged society came to be registered at District Sonbhadra on 10 October 1952, under the old Act and was re-registered in 1970 under the provisions of Act, 1965. The proceedings with regard to cancellation of registration of the society is pending before the competent authority. Petitioner came to be appointed by promotion as Assistant Commissioner and Assistant Registrar, Cooperative, on recommendation of the Uttar Pradesh Public Service Commission (UPPSC) Allahabad, on 29 May 2015. The first posting of the petitioner was at District Sultanpur where he joined on 14 July 2015, thereafter, he was transferred and posted in the same capacity at Varanasi vide order dated 31 July 2018. Petitioner joined the post on 2 August 2018. The administrative jurisdiction of the office of Assistant Commissioner and Assistant Registrar, Cooperative Societies, Varanasi, comprises of five divisions viz. Varanasi Division, Mirzapur Division, Azamgarh Division, Gorakhpur Division and Basti Division comprising 22 districts. 6. It is urged that an unfortunate incident occurred on 17 July 2019 in village Umbha, Police Station and Tehsil Ghorawal, District Sonbhadra, ten persons died and 28 persons were injured in a dispute pertaining to land. Varanasi Division, Mirzapur Division, Azamgarh Division, Gorakhpur Division and Basti Division comprising 22 districts. 6. It is urged that an unfortunate incident occurred on 17 July 2019 in village Umbha, Police Station and Tehsil Ghorawal, District Sonbhadra, ten persons died and 28 persons were injured in a dispute pertaining to land. Pursuant thereof, the State Government vide Office Memorandum dated 17 July 2019 appointed three member enquiry committee, headed by Additional Chief Secretary, Revenue and two other members i.e. Commissioner, Vindhyachal Division, Mirzapur and Additional Chief Secretary Revenue and Basic Education, Government of U.P. The fact finding enquiry committee submitted report dated 3 August 2019 recommending the suspension of the petitioner and other officials of the Revenue and also directed that First Information Report be lodged against the officials including the petitioner. The allegation against the petitioner is confined to the charges leveled against the petitioner in the charge sheet. There is no imputation of misconduct spelled out in the charges with regard to the role or involvement of the petitioner leading to the incident at village Umbha. The responsibility, if any, of the officials of the Co-operative would have to be identified at district Sonbhadra/Mirzapur under which the alleged society was functioning. The petitioner, being the head and incharge of five divisions could not have been placed under suspension on vague and general allegations. The charge is merely an opinion/inference expressed by the enquiry committee not based on any material. 7. Learned counsel for the petitioner further submits that the respondents are bound to follow the provisions mandated under Rules, 1999 governing disciplinary proceedings. Rule 4 provides for suspension, whereunder, Government Servant against whose conduct an inquiry is contemplated or is proceeding may be placed under suspension pending 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 being established may ordinarily warrant major penalty. Rule 4 for the purpose of the instant case is extracted : "4. Rule 4 for the purpose of the instant case is extracted : "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: Provided xx xx xx Provided xx xx xx (2) A Government Servant in respect of, or against whom an investigation, inquiry or trial relating to a criminal charge, which is connected with his position as a Government Servant or which is likely to embarrass him in the discharge of his duties or which involves moral turpitude, is pending, may at the discretion of the appointing Authority or the Authority to whom the power of suspension has been delegated under these rules, be placed under suspension until termination of all proceedings relating to that charge. (3) (a) A Government Servant shall be deemed to have been placed or as the case may be, continued to be place under suspension by an order of the Authority Competent to suspend, with effect from the date of his detention, if he is detained in custody, whether the detention is on criminal charge or otherwise, for a period exceeding forty eight hours." 8. Further, it is contended that the appointing authority of the petitioner is the Principal Secretary/Secretary Cooperative, Government of U.P. The impugned order has been passed based on the fact finding enquiry report mechanically without application of mind as to whether the allegation prima facie constitutes misconduct in sofar it relates to the petitioner. It is further contended that even assuming that there was negligence in not complying the provision of the Act and Rules it cannot be said that the office of Assistant Commissioner and Assistant Registrar at Varanasi was remotely responsible for the death of innocent villagers arising out of land dispute at district Sonbhadra. 9. In rebuttal, the learned Additional Advocate General submits that the mandatory duties assigned upon the Assistant Registrar for inspection of the societies and mandating audit was not done, therefore, petitioner is also responsible for the incident that occurred in village Umbha. It is further urged that had the petitioner been vigilant the incident could have been avoided. 9. In rebuttal, the learned Additional Advocate General submits that the mandatory duties assigned upon the Assistant Registrar for inspection of the societies and mandating audit was not done, therefore, petitioner is also responsible for the incident that occurred in village Umbha. It is further urged that had the petitioner been vigilant the incident could have been avoided. It is, therefore, urged that the allegations are serious and in the event of charges being proved, it would warrant imposition of major penalty. Criminal prosecution is also pending against the petitioner. 10. On specific query, learned counsel appearing for the respondent admits that the alleged society came to be registered in 1952 and since then it is functioning, the proceedings pertaining to cancellation of registration of the Adarsh society is pending before the competent authority of the Cooperative at district Mirzapur and Sonbhadra. It is not being disputed that the petitioner came to be appointed Assistant Registrar in 2015 and his second posting at Varanasi was made, one year before the occurrence of the incident at Sonbhadra. It is also not being disputed that petitioner has five divisions comprising 22 districts under his jurisdiction and Adarsh Society falls under the jurisdiction of Deputy Registrar/Assistant Registrar, Cooperative at Mirzapur and Sonbhadra. Petitioner has not been suspended pending criminal proceedings, nor has the petitioner been arrested. The only material relied upon while passing the impugned suspension order or framing of the charge sheet is the fact finding enquiry report. 11. The Division Bench of this Court in Jeetendra Nath Singh Versus State of U.P. and others (Civil Misc. Writ Petition No. 33269 of 2007) decided on 2 November 2017, while considering the suspension order passed on the recommendation of an official who had no concern either with department or the appointing authority, the Court held that the order of suspension passed by the Inspector General, Registration, U.P., Lucknow, on the recommendation of Deputy Inspector General of Police, Railway, Allahabad Region, Allahabad, is without application of mind, exercise of independent discretion, and passed in a mechanical manner against the mandate of Rule 4 of Rules, 1999. It was further held that pursuant to the First Information Report petitioner therein was not detained. In the circumstances, the impugned order of suspension came to be quashed. 12. It was further held that pursuant to the First Information Report petitioner therein was not detained. In the circumstances, the impugned order of suspension came to be quashed. 12. The Division Bench in Shabih Haider Versus State of U.P. and others, (2018) 1 ADJ 327 (DB) (LB), held that the order of suspension is not to be passed in a routine manner but the competent authority is required to consider the gravity of the misconduct sought to be enquired into or investigated and the nature of the evidence placed before the appointing authority. The power of the State Government to place government servant under suspension is creature of the statute and/or contract and the decision be taken keeping in view the letter and spirit of the statute. The power of suspension arises when on an objective consideration the appointing authority is of the view that a formal disciplinary inquiry is expected or is proceeding. It was also held placing reliance on the decision of a Five Judge Bench of this Court in State of U.P. v. Jai Singh Dixit (Alld.),1974 AllLJ 92, that mere lack of efficiency or skill does not ipso facto constitute misconduct and call for suspension of a government servant. 13. This Court normally would decline to interfere in disciplinary proceedings and the impugned suspension order unless it is shown that it is in violation of statutory rules and does not constitute allegations of misconduct to warrant imposition of major penalty taking the allegations on face value. 14. The three charges at a glance would convey the impression that the petitioner was not a very efficient officer. Some negligence is being attributed to him and lack of qualities expected of an officer of the rank of Assistant Commissioner and Assistant Registrar. The question, therefore, is whether lack of efficiency or competence can be elevated to acts and omission to constitute misconduct. The answer can be found in the observation of the Supreme Court in Union of India and others Versus J. Ahmed, (1979) AIR SC 1022, which is extracted: "The five charges listed above at a glance would convey the impression that the respondent was not a very efficient officer. Some negligence is being attributed to him and some lack of qualities expected of an officer of the rank of Deputy Commissioner are listed as charges. Some negligence is being attributed to him and some lack of qualities expected of an officer of the rank of Deputy Commissioner are listed as charges. to wit, charge No. 2 refers to the quality of lack of leadership and charge No. 5 enumerates inaptitude, lack of foresight, lack of firmness and indecisiveness. These are qualities undoubtedly expected of a superior officer and they may be very relevant while considering whether a person should be promoted to the higher post or not or having been promoted, whether he should be retained in the higher post or not or they may be relevant for deciding the competence of the person to hold the post, but they cannot be elevated to the level of acts of omission or commission as contemplated by Rule 4 of the Discipline and Appeal Rules so as to incur penalty under rule 3. Competence for the post, capability to hold the same, efficiency requisite for a post, ability to discharge function attached to the post, are things different from some act or omission of the holder of the post which may be styled as misconduct so as to incur the penalty under the rules......." 15. The allegation does not disclose the imputation of the allegation constituting misconduct. The charges do not list/disclose the acts and omission to constitute misconduct under the Conduct Rules. 16. Having due regard to the facts and circumstances and to the allegations made against the petitioner, this Court, prima facie, is of the opinion that the mandate of proviso to Rule 4 is not made out. Accordingly, the writ petition is allowed. The impugned suspension order dated 4 August 2019 passed by the first respondent, Secretary, Cooperative, Government of U.P., Lucknow, is set aside and quashed. Petitioner shall be reinstated, however, the pending disciplinary proceedings against the petitioner shall continue and be concluded expeditiously preferably within four months from the date of receipt of certified copy of this order, provided the petitioner cooperates and there is no other impediment. 17. No cost.