Research › Search › Judgment

Allahabad High Court · body

2021 DIGILAW 691 (ALL)

Ashok Kumar Singh v. State of U. P.

2021-07-19

IRSHAD ALI

body2021
JUDGMENT : IRSHAD ALI, J. 1. Heard Shri S.K. Kalia, learned Senior Advocate assisted by Shri Sameer Kalia and Shri C.D. Chatterji, learned Additional Chief Standing Counsel for the State Shri Alok Sharma. 2. By means of the present writ petition the petitioner is challenging an order of suspension dated 21.5.2021 passed by the respondent no. 1 with the further prayer for issuance of writ of mandamus commanding respondents not to give effect the impugned order dated 21.5.2021 with the further prayer to allow the petitioner to work and function on the post of Joint Commissioner (SIB), Bulandshahar and also pay him regular salary as and when the same became due. 3. Brief facts of the case are as under:- “The petitioner was initially appointed on the post of Assistant Commissioner Sales Tax under the respondent no. 2 on 29.9.1998 after having been selected for the said post by the U.P. Public Service Commission. Subsequently, on account of his excellent services, the petitioner was promoted on the post of Deputy Commissioner in the year 2009 and thereafter again in the year 2015, he was promoted on the post of Joint Commissioner Commercial Tax which post he presently holds. In the month of July 2019 the petitioner was transferred from the Headquarters at Lucknow to District-Bulandshahr wherein he joined and started functioning as Joint Commissioner, Commercial Tax (SIB), Bulandshahr. On 26.3.2021 The State Election Commission notified the Three Level Panchayat Elections 2021 to be held in the State of Uttar Pradesh. Prior to that on 25.3.2021, the District Election Officer Bulandshahr/District Magistrate appointed the petitioner as Returning Officer for Development Block-Sikandrabad, District-Bulandshahr. On being appointed so, the petitioner on 27.3.2021 issued public notice of election scheduled for the post of Gram Pradhan, Member Gram Panchayat, Member Kshetra Panchayat and lastly Member Zila Panchayat. Subsequently, the District Election Officer (Panchayat)/District Magistrate Bulandshahr amended its earlier order dated 25.3.2021 and appointed the petitioner as Returning Officer for Development Block-Khurja in place of Development Block-Sikandarabad. As directed by the District Magistrate Bulandshahr the petitioner took charge of the post of Returning Officer, Development Block-Khurja and conducted the entire election process starting from the submission of nomination papers till the counting of votes and declaration of results (except for the Member Zila Panchayat), as per the notified election schedule, with utmost sincerity and transparency. As directed by the District Magistrate Bulandshahr the petitioner took charge of the post of Returning Officer, Development Block-Khurja and conducted the entire election process starting from the submission of nomination papers till the counting of votes and declaration of results (except for the Member Zila Panchayat), as per the notified election schedule, with utmost sincerity and transparency. The polling of votes took place on 29.4.2021 at all the polling booths of Development Block-Khurja and during which no untoward incident took place and the polling was got conducted in a peaceful and organized manner. On 2.5.2021 at 08:00 AM the counting of vote commenced under the direction and supervision of the petitioner at Jatiya Bal Vihar Inter College, Khurja which is situated in the said development block Khurja. At around 05:00 PM on 3.5.2021 the counting of votes got concluded under the control and supervision of the petitioner. Subsequently, the petitioner declared the result of the concerned posts of Gram Pradhan, Member Gram Panchayat and Member Kshetra Panchayat and also handed over the prescribed certificate to the returned candidates. After conclusion of counting of votes at 05:00 PM and declaration of result of the aforesaid 03 posts the petitioner and the polling team secured all the necessary documents and completed all the formalities, which took some time and only at around 06:30 PM the petitioner along with his team proceeded to District Headquarters. Before the petitioner could reach the District Headquarters with his team the Additional District Magistrate (Administration)/Deputy Election Officer Panchayat, Bulandshahar contacted the petitioner on his mobile no. 7235001008 and directed the petitioner to return to the place where the counting took place as some dispute had to be resolved. As per the directions of the Deputy Election Officer Panchayat/Additional District Magistrate (Administration) the petitioner reached the place of counting where the Deputy District Election Officer, Panchayat also reached, whereafter the aforesaid officer apprised the petitioner about the complaint of one candidate for the post of Member Zila Panchayat (Ward No. 25) who made the request for re-counting. As per the directions of the Deputy Election Officer Panchayat/Additional District Magistrate (Administration) the petitioner reached the place of counting where the Deputy District Election Officer, Panchayat also reached, whereafter the aforesaid officer apprised the petitioner about the complaint of one candidate for the post of Member Zila Panchayat (Ward No. 25) who made the request for re-counting. On the request made by the candidate the petitioner required the other counting staff to be present at the place of counting and further directed the support staff to call the other candidates of Ward No. 25 also till such time the support staff and the other candidates were reaching the place of counting, the petitioner along with his team in the presence of the Deputy Election Officer Panchayat/Additional District Magistrate (Administration) tried to sort out the objections of the aforesaid candidate and due to the efforts of the Petitioner and Deputy Election Officer Panchayat/Additional District Magistrate (Administration) and other district level officer the objections of the candidate were sorted out and upon which the said candidate requested for declaration of the result without insisting for re-counting of votes. The District level election officers left with the required counting sheet to enable them to declare the result. In all this process of consideration/removal of complaint/objection of the candidate (ward no. 25) it took considerable time for its resolution by the petitioner along with other election authorities and as such, the delay was caused which was neither deliberate nor intentional and the entire process was well within the knowledge of the district level election authorities. The Deputy Election Officer (Panchayat)/Additional District Magistrate (Administration) on 4.5.2021 appears to have submitted a letter to District Election Officer Panchayat/ District Magistrate stating that the petitioner did not submit the counting sheet to the Election Officer till 12:00 PM despite the fact that the counting had concluded about 05:00 PM due to which certain candidates of Ward No. 24, 25 and 26 had created a ruckus at the Collectorate premises as well as place of counting in Khurja citing that the result is being manipulated and due to which there was unrest at the said places. On 4.5.2021 the said letter was forwarded to the State Election Commission by the District Election Officer panchayat/District Magistrate vide his letter dated 4.5.2021. On 4.5.2021 the said letter was forwarded to the State Election Commission by the District Election Officer panchayat/District Magistrate vide his letter dated 4.5.2021. Thereafter, the State Election Commission, on the basis of the aforesaid letter of the District Magistrate dated 4.5.2021 forwarded a recommendation to the respondent no. 2 for suspension and initiation of disciplinary inquiry against the petitioner stating that the petitioner had shown indifference and had been negligent towards his duties while functioning as Returning Officer of Development Block-Khurja. The respondent no. 2 on 13.5.2021 on the basis of the aforesaid letter dated 12.5.2021 of the State Election Commission forwarded a recommendation to the respondent no. 1 for suspension and initiation of disciplinary inquiry against the petitioner. Thereafter in a most illegal and arbitrary manner, the State Government Issued the impugned order dated 21.5.2021 thereby placing the petitioner under suspension and also initiating disciplinary enquiry with respect to his role as Returning Officer, Development Block-Khurja.” 4. Assailing the order of suspension, learned Senior Advocate submits that provisions of rule 4 of U.P. Government Servant (Discipline and Appeal) Rules, 1999 prescribes that in case the charges are serious enough to impose major penalty, by recording satisfaction on the charges, the order of suspension could be passed. 5. Here in the present case the charge is that the petitioner has delayed in declaration of result of the members of the Zila Panchayat and on the said basis he has been placed under suspension. 6. The submission is that the order is arbitrary and contrary to the provisions contained under Rule 4 of the Rule 1999. In support of his submission he placed reliance upon a judgment rendered in the case of Dr. Arvind Kumar Ram 2007 SCC Online 1390 and invited attention towards Para 15 of the judgment. 7. He next submits that the order of suspension has been passed by the respondent on the dictates of the Election Commission and the recommendation made by the Commissioner Commercial Tax, U.P. Lucknow, therefore, the impugned order vitiates in law due to non application of mind while passing the impugned order. In support of submission he has placed reliance upon a judgment reported in Union of India and Another vs. Ashok Kumar Aggarwal, 2013 (16) SCC 147. 8. His last submission is that in the order it has been recorded that the charges levelled against the petitioner are proved. In support of submission he has placed reliance upon a judgment reported in Union of India and Another vs. Ashok Kumar Aggarwal, 2013 (16) SCC 147. 8. His last submission is that in the order it has been recorded that the charges levelled against the petitioner are proved. In this regard submission is that no preliminary inquiry was conducted against the petitioner to arrive at the conclusion that the charges levelled in the order of suspension are proved, therefore, his submission is that the order is bad in law and cannot be sustained. 9. On the other hand, learned Additional Chief Standing Counsel submits that the petitioner has carelessly handled the declaration of result and it is a serious charge which can impose a major penalty in initiation of disciplinary proceedings against the petitioner. 10. His last submission is that the submission advanced by the learned Senior Advocate that there is no application of mind, is incorrect. In fact, the competent authority after taking into consideration the recommendation of the Election Commission and Commissioner Commercial Tax has passed the order of suspension. The same does not suffer from any infirmity or illegality and is a just and valid order. 11. I have considered the submission advanced by the learned counsel for the parties, perused the judgment relied upon and the material brought along with the writ petition and the counter affidavit and rejoinder affidavit. 12. To resolve the controversy involved in the present writ petition, the provisions contained under Rule 4 of U.P. Government Servant (Discipline and appeal) Rules 1999 are quoted-below: “4. 12. To resolve the controversy involved in the present writ petition, the provisions contained under Rule 4 of U.P. Government Servant (Discipline and appeal) Rules 1999 are quoted-below: “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 further that concerned Head of the Department empowered by the Governor by an order in this behalf may place a Government servant or class of Government servants belonging to Group ‘A’ and ‘B’ posts under suspension under this rule: Provided also that in the case of any Government servant or class of Government servants belonging to Group ‘C’ and ‘D’ posts, the appointing authority may delegate its power under this rule going through the verdict of the Hon’ble Supreme Court to the next lower authority. (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 the 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 placed 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. (b) The aforesaid Government servant shall, after the release from the custody, inform in writing to the competent authority about his detention and may also make representation against the deemed suspension. (b) The aforesaid Government servant shall, after the release from the custody, inform in writing to the competent authority about his detention and may also make representation against the deemed suspension. The competent authority shall after considering the representation in the light of the facts and circumstances of the case as well as the provision contained in this rule, pass appropriate order continuing the deemed suspension from, the date of release from custody or revoking or modifying it. (4) Government servant shall be deemed to have been placed, or as the case may be, continued to be placed under suspension by an order of the authority competent to suspend under these rules, with effect from the date of his conviction if in the event of a conviction for an offence he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed consequent to such conviction. Explanation - The period of forty-eight hours referred to in sub-rule will be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken to account. (5) Where a penalty of dismissal or removal from service imposed upon a Government servant is set aside in appeal or on review under these rules or under rules rescinded by these rules and the case is remitted for further inquiry or action or with any other directions: (a) if he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any such directions as aforesaid, be deemed to have continued in force on and from the date of the original order of dismissal of removal. (b) if he was not under suspension, he shall, if so directed by the appellate or reviewing authority, be deemed to have been placed under suspension by an order of the appointing authority on and from the date of the original order of dismissal or removal: Provided that nothing in this sub-rule shall be construed as affecting the power of the disciplinary authority in a case where a penalty of dismissal or removal in service imposed upon a Government servant is set aside in appeal or on review under these rules on grounds other than the merits of the allegations which, the said penalty was imposed but the case is remitted for further inquiry or action or with any other directions to pass an order of suspension pending further inquiry against him on those allegations so, however, that any such suspension shall not have retrospective effect. (6) Where penalty of dismissal or removal from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of law and the appointing authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal or removal was originally imposed, whether the allegations remain in their original form or are clarified or their particulars better specified or any part thereof a minor nature omitted: (a) if he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any direction of the appointing authority, ho deemed to have continued in force on and from the date of the original order of dismissal or removal. (b) if he was not under such suspension, he shall, if so directed by the appointing authority, be deemed to have been placed under suspension by an order of the competent authority on and from the date of the original order of dismissal or removal. (b) if he was not under such suspension, he shall, if so directed by the appointing authority, be deemed to have been placed under suspension by an order of the competent authority on and from the date of the original order of dismissal or removal. (7) Where a Government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise) and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Government servant shall continue to be under suspension till the termination of all or any of such proceedings. (8) Any suspension ordered or deemed to have been ordered or to have continued in force under this rule shall continue to remain in force until it is modified or revoked by the competent authority. (9) A Government servant placed under suspension or deemed to have been placed under suspension under this rule shall be entitled to subsistence allowance in accordance with the provisions of Fundamental Rule 53 of the Financial Hand Book, Volume 11, Parts II to IV.” 13. On its perusal it is evident that the disciplinary authority could have recorded its satisfaction while passing the order of suspension against an employee of the State Government. On perusal of the impugned order it is evident that the order does not contain satisfaction to arrive at the conclusion that the charges levelled against the petitioner is sufficient to impose major penalty. I have also perused the paragraph 21 and 22 of the judgment in the case of Ashok Agarwal (supra) which is being quoted below:- “21. The power of suspension should not be exercised in an arbitrary manner and without any reasonable ground or as vindictive misuse of power. Suspension should be made only in a case where there is a strong prima-facie case against the delinquent employee and the allegations involving moral turpitude, grave misconduct or indiscipline or refusal to carry out the orders of superior authority are there, or there is a strong prima-facie case against him, if proved, would ordinarily result in reduction in rank, removal or dismissal from service. The authority should also take into account all the available material as to whether in a given case, it is advisable to allow the delinquent to continue to perform his duties in the office or his retention in office is likely to hamper or frustrate the inquiry. 22. In view of the above, the law on the issue can be summarised to the effect that suspension order can be passed by the competent authority considering the gravity of alleged misconduct, i.e. serious act of omission or commission and the nature of evidence available. It cannot be actuated by mala-fide, arbitrariness, or for ulterior purpose. Effect on public interest due to the employee’s continuation in office is also a relevant and determining factor. The fact of each case have to be taken into consideration as no formula of universal application can be laid down in this regard. However, suspension order should be passed only where there is a strong prima facie case against the delinquent, and if the charges stand proved, would ordinarily warrant imposition of major punishment i.e. removal or dismissal from service or reduction in rank etc.” 14. On perusal of the aforesaid provisions, it is evident that the disciplinary authority would record reasons and satisfaction in the suspension order against an employee. 15. In view of the above, I am of the considered opinion that the respondents while passing the impugned order of suspension has failed to record reasons to arrive at conclusion of satisfaction that the charges are serious enough to impose major penalty. 16. In regard to the second submission of Shri Kalia, learned Senior Advocate that the order was passed without application of mind and on the dictate of the Election Commission and recommendation of the Commissioner I examined the material on record. 17. On examination of the letter of the election commission dated 12.5.2021 it is evident that it is a clear cut dictate to take decision to place the petitioner under suspension. 18. I have also perused the letter of the Commissioner dated 13.5.2021 who also by recording the story has recommended to pass the order of suspension against the petitioner, therefore, the submission advanced by the learned Senior Advocate appears to have some substance in the matter. In this regard the ingredients and finding returned is also relevant for consideration as has been laid down in the case of Dr. In this regard the ingredients and finding returned is also relevant for consideration as has been laid down in the case of Dr. Arvind Kumar Ram (supra) Para 15 of which is being quoted below:- “15. Rule 4(1) and the first proviso, in our opinion, should be read strictly and the appointing authority should exercise its discretion after calling for the record and after applying its mind. Otherwise the exercise of discretion would lead to arbitrariness and would result in injustice and unfairness to the Government Servant. The intention of the rule being that suspension should be an exception, it must be followed strictly. The first proviso being a restriction on exercise of power of the appointing authority, it requires the subordinate authority to make recommendation an a fair and just consideration of material on record. Even if the subordinate authority fails to discharge its duty it does not absolve the appointing authority from discharging its obligation by calling for the records and consider objectively if the allegations were so serious that it would result in imposition of major penalty/unless allegations were such that there could be no doubt about the applicability of the proviso. Even in such cases, the rule; of fair play must be read as requiring the appointing authority to record its own reasons. Otherwise it would be surrendering his discretion to the recommendation of the subordinate authority. Such action would be arbitrary and contrary to the letter and spirit of the rule.” 19. On examination of the ratio laid down in Para 15, it is evident that mere recommendation cannot be made a ground in passing the order. The competent authority who has been empowered to pass the order would apply its own mind. 20. On perusal of the recommendation of the Election Commission as well as the Commissioner Commercial Tax, it is evident that the respondent no. 1 merely relied upon the orders of the Election Commission and Commissioner Commercial Tax and has proceeded to pass the impugned order. 21. Thus, in the opinion of the Court, the order impugned cannot be sustained. 22. I have also perused the statement of fact made in Para 38 of the writ petition in regard to recording of finding that the charges are proved and the submission in this regard that without holding preliminary inquiry against an employee this satisfaction cannot be recorded. 23. 22. I have also perused the statement of fact made in Para 38 of the writ petition in regard to recording of finding that the charges are proved and the submission in this regard that without holding preliminary inquiry against an employee this satisfaction cannot be recorded. 23. The statement of fact made in Para 38 of the writ petition has been replied in Para 32 of the counter affidavit wherein on perusal it is reflected that there is no statement of fact that preliminary inquiry was conducted against the petitioner and thereafter the satisfaction was recorded. Therefore, the submission advanced by the learned Senior Advocate in this regard appears to be correct. 24. In view of the reasons assigned above, the impugned order cannot be sustained and it is hereby set-aside. 25. Writ Petition succeeds and is allowed. 26. Respondents are directed to permit the petitioner to allow to work on the post of Joint Commissioner (SIB), Bulandshahar and pay him regular salary month by month as and when became due. 27. It is, however, made clear that the disciplinary proceedings pending against the petitioner shall go on and shall be completed within three months from the date of production of certified copy of this order.