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2023 DIGILAW 1555 (ALL)

Dharmendra Kumar Singh v. State of U. P.

2023-07-03

SARAL SRIVASTAVA

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JUDGMENT Saral Srivastava, J. Heard Sri Ashok Khare, learned Senior Advocate, assisted by Sri Kumar Shrestha, learned counsel for the petitioner and Sri Rajeshwar Tripathi, learned Chief Standing Counsel-IInd for the respondents. 2. The petitioner by means of present writ petition has assailed the suspension order dated 12.01.2023. 3. The facts in brief are that the petitioner since July, 2022 is posted as Deputy Labour Commissioner, Gautam Buddh Nagar. The petitioner issued three notices to the M/s. SEIKO Advance (India) Pvt. Ltd. (hereinafter referred to called as 'Company') for deposit of labour cess with regard to factory construction at Plot Nos.108, 109 and 110, Surajpur, Site-V, Guatam Buddh Nagar fixing 07.01.2023 for the purpose of objection by the Company. The representative of the company appeared before the petitioner on the date fixed and since the petitioner was engaged in scheduled meeting of the Labour Enforcement Officers, the petitioner instructed the concerned clerk and Labour Enforcement Officer to receive the documents which was submitted by representative of the company and to fix an early date for disposal of notices. 4. It appears that one of the directors of the Company being dissatisfied with the response of the petitioner made a complaint before the State Government against the petitioner. Acting upon the said complaint, the Additional Labour Commissioner, Uttar Pradesh issued a communication dated 09.01.2023 to the petitioner calling for a report with regard to the said complaint as inquiry was under way by two member committee consisting of Additional Labour Commissioner U.P. and Deputy Labour Commissioner. 5. On receiving the communication dated 09.01.2023, the petitioner called for an explanation from the concerned Labour Enforcement Officer, and after obtaining explanation from the concerned Enforcement Officer, the petitioner submitted a report dated 09.01.2023 to the Additional Labour Commissioner (Establishment), Kanpur. The petitioner also passed an order of suspension and institution of disciplinary proceedings against Mithilesh Kumar Sinha on 09.01.2023. However, the order dated 12.01.2023 was passed by the State Government instituting the departmental proceedings against the petitioner and suspending the petitioner, which order is impugned in writ petition. 6. The petitioner also passed an order of suspension and institution of disciplinary proceedings against Mithilesh Kumar Sinha on 09.01.2023. However, the order dated 12.01.2023 was passed by the State Government instituting the departmental proceedings against the petitioner and suspending the petitioner, which order is impugned in writ petition. 6. A counter affidavit has been filed by respondent State stating therein that on receiving a complaint through email, a committee consisting of Additional Labour Commissioner, Kanpur and Deputy Labour Commissioner, Kanpur was constituted which submitted its report in which it was stated that the petitioner was not discharging his duties properly nor he attended the foreign investors directly as desired by the State Government neither he gave time to them and the petitioner entrusted his juniors to do the same. Consequently, the Government passed an order dated 12.01.2023 suspending the petitioner and instituting disciplinary proceedings as his conduct was not appropriate and was in contravention of Rules 3 & 4 (A) of U.P. Government Servants Conduct Rules, 1956. 7. It is further stated that the petitioner may submit his defence in the inquiry proceedings and at this stage, no case for interference by this Court in exercise of power under Article 226 of the Constitution of India is made out. 8. Challenging the suspension order learned Senior Counsel for the petitioner has contended that the suspension order has been passed mechanically and without application of mind inasmuch as the charge against the petitioner in the suspension order is not such which may entail major punishment against the petitioner. He submits that the suspension order is in violation of Rule 4 of the Uttar Pradesh Government Servant (Punishment and Appeal) Rules, 1999. 9. It is further submitted that the charge that petitioner did not meet foreign investors personally is false and incorrect inasmuch as no foreign investor appeared before the petitioner on the date fixed rather the local representative of the Company appeared before the petitioner on the date fixed i.e. 07.01.2023 and was attend properly by the petitioner. As the petitioner was engaged in a scheduled meeting of Labour Enforcement Officers, therefore, the representative of the Company was asked to submit documents, petitioner instructed the concerned clerk and Labour Enforcement officer to receive the documents which were to be submitted by the local representative of the Company and fixed an early date for disposal of the notices. As the petitioner was engaged in a scheduled meeting of Labour Enforcement Officers, therefore, the representative of the Company was asked to submit documents, petitioner instructed the concerned clerk and Labour Enforcement officer to receive the documents which were to be submitted by the local representative of the Company and fixed an early date for disposal of the notices. It is further submitted that the necessary orders in the case of the Company has been passed and the company has deposited the payment as per the order of the Deputy Labour Commissioner, Noida. Thus, it is contended that the charge levelled against the petitioner is not such which can be the subject matter of any disciplinary action against the petitioner. 10. Per contra, learned Chief Standing Counsel-IInd would contend that in order to allure the foreign investors in the State of U.P. to improve the economy of the State and make the State congenial for investment by the foreign investors, the State Government has issued directions to the officers to give personal attention to the representative of the foreign investors so that they may not face any difficulty in carrying on their business in the State. Therefore, it was expected of the petitioner to give personal attention to the representative of the company which admittedly the petitioner did not do, and as such the conduct of petitioner was prima facie found to be in violation of Rules 3 and Rule 4 (a) of the U.P. Government Servants Conduct Rules, 1956. It is submitted that as there was serious charge against the petitioner, therefore, he has been suspended. It is further submitted that the State Government is empowered to suspend the petitioner and as the suspension is not a punishment, therefore, this Court may refrain from interfering with the order of suspension. It is further contended that the allegation levelled against the petitioner clearly makes out a charge of misconduct, and therefore, the disciplinary proceedings has rightly been instituted against the petitioner. 11. I have considered rival submissions of the parties and perused the records. 12. In the present case, the petitioner while posted as Deputy Labour Commissioner issued three notices to the Company fixing 07.01.2023 for deposit of Labour cess. The representative of the company appeared on the fixed date i.e. 07.01.2023. 11. I have considered rival submissions of the parties and perused the records. 12. In the present case, the petitioner while posted as Deputy Labour Commissioner issued three notices to the Company fixing 07.01.2023 for deposit of Labour cess. The representative of the company appeared on the fixed date i.e. 07.01.2023. However, according to the petitioner, the petitioner was engaged in scheduled meeting of Labour Enforcement Officer due to which the petitioner directed the Labour Enforcement Officer and concerned clerk to receive the documents which were to be submitted by the representative of the Company. The company made a complaint to the State Government alleging that the petitioner directed them to meet Mithilesh Kumar Singh and Vijay Kumar Tripathi who after looking after the papers of the company told the representative of the company that the company would have to pay penalty as the Labour cess paid by the Company was not sufficient and they also demanded a gratification of Rs.1 lakh for each plot i.e. Rs.3 lakh in total. 13. On the said complaint, the fact finding inquiry committee consisting of Additional Labour Commissioner, U.P. and Deputy Labour Commissioner was constituted who submitted the report, wherein it is stated that the petitioner conduct in not attending representative of the Company was in violation of Rule 3 & 4 (A) of U.P. Government Servants Conduct Rules, 1956 and in complete disregard to the direction of the State Government. Consequently, the petitioner has been suspended and disciplinary inquiry has been constituted against the petitioner. 14. The facts as stated above reveals that the charge against the petitioner prima facie appears to be only of that negligence and dereliction in duty inasmuch as the petitioner did not attend the representative of the company personally. The Rule 4 of the Uttar Pradesh Government Servant (Punishment and Appeal) Rules, 1999 clearly provides that an officer can be suspended only if the charge against the petitioner are of such a nature that if proved would entail major punishment. 15. The respondent in the counter affidavit has also stated that the suspension order has been passed only for the reason that the petitioner did not attend the representative of the company personally which was in disregard to the direction of the State Government. Besides this, there is no other allegation levelled against the petitioner in the counter affidavit. 16. 15. The respondent in the counter affidavit has also stated that the suspension order has been passed only for the reason that the petitioner did not attend the representative of the company personally which was in disregard to the direction of the State Government. Besides this, there is no other allegation levelled against the petitioner in the counter affidavit. 16. In such view of the fact, this Court is of the view that the charge against the petitioner is not such which may entail a major punishment and thus, suspension order has been passed in disregard to the Rule 4 of Uttar Pradesh Government Servant (Punishment and Appeal) Rules, 1999. 17. So far as the contention of the learned Senior Counsel for the petitioner that allegation against him does not make out a charge to institute a disciplinary proceedings is concerned, this Court may note that the petitioner is not disputing the fact that he did not attend personally the representative of the company rather he instructed the concerned clerk and Labour Enforcement Officer to receive the said documents which were being submitted by local representative of the company and fixed an early date. The question as to whether the petitioner was justified in not attending the representative of the company in view of the fact that he was engaged in scheduled meeting of Labour Enforcement Officer can be looked into only in disciplinary proceedings as it is a matter of inquiry. 18. In such view of the fact, this Court does not find merit in the submission of learned counsel for the petitioner that allegation against the petitioner does not make out a charge against the petitioner for continuing disciplinary proceedings. 19. Thus, for the reasons given above, suspension order is set aside and it is open to the State Government to continue with inquiry, if it so desires. 20. The writ petition is, accordingly, allowed subject to observations above with no order as to costs.