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2023 DIGILAW 2740 (ALL)

Imtayaz Ahmad Ansari v. Power Corporation Ltd.

2023-12-05

MANJIVE SHUKLA

body2023
JUDGMENT : 1. Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Himanshu Singh, learned counsel appearing for the petitioner, Sri Adarsh Bhushan, learned counsel appearing for the Respondent No. 1 and Sri Devesh Vikram, learned counsel appearing for the Respondents No. 2 & 3. 2. Petitioner through this writ petition has assailed the order dated 06.05.2023 passed by the Superintending Engineer, Purvanchal Electricity Distribution Corporation Ltd., Kushinagar whereby petitioner's services have been placed under suspension in contemplation of disciplinary proceedings. 3. Learned Senior Advocate appearing for the petitioner has submitted that petitioner prior to passing of suspension order dated 06.05.2023 was working on the post of Senior Office Assistant in Vidyut Vitaran Mandal, Kushinagar and therefore, is governed by the Uttar Pradesh Power Corporation Limited Employees (Discipline and Appeal) Regulations, 2020 (hereinafter referred to as "the Regulations of 2020"). 4. It has further been submitted that Regulation 4 of the Regulations of 2020 provides that if disciplinary proceedings are either pending against an employee or contemplated, the appointing authority in his discretion can place the services of the said employee under suspension till conclusion of the disciplinary proceedings. 5. Learned Senior Advocate appearing on behalf of the petitioner has vehemently argued that a bare perusal of the suspension order dated 06.05.2023, in unambiguous terms, reveals that petitioner's services have been placed under suspension on the dictates of the higher officers and appointing authority has not exercised his discretion. It has further been argued on behalf of the petitioner that it is well settled proposition of law through catena of judgements of this court that once discretion has been vested in an administrative authority under the rules, he has to apply his independent mind over the facts and circumstances of the case and thereafter he can pass any order exercising his discretion but the said discretion cannot be exercised on the dictates of the higher officers. 6. Learned counsel appearing for the petitioner has drawn attention of this court towards the contents of the suspension order dated 06.05.2023 and has submitted that in the said order, appointing authority has categorically stated that he is placing services of the petitioner under suspension in compliance of the direction issued by the superior officers. 7. Learned Senior Advocate appearing for the petitioner has relied on the judgement and order dated 17.12.2013 passed in Writ-A No. 66759 of 2013 (Chandra Boss Vs. 7. Learned Senior Advocate appearing for the petitioner has relied on the judgement and order dated 17.12.2013 passed in Writ-A No. 66759 of 2013 (Chandra Boss Vs. State of U.P. and Others) and has submitted that in the said judgement, Co-ordinate Bench of this Court has categorically held that once under the Rules, discretion has been vested with the appointing authority but instead of using the said discretion, he has passed the order of suspension of services of an employee on the dictates of the higher officer, the said suspension order cannot sustain in the eyes of law. 8. Learned Senior Advocate has further relied on the judgement and order dated 27.10.2015 rendered by Division Bench of this Court in Writ-A No. 58619 of 2015, wherein this Court had occasion to consider the Rule 4(1) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as "the Rules of 1999") which is pari materia to Regulation 4(1) of the Regulations of 2020 and it has been held that appointing authority has been given discretion to place services of an employee under suspension either in contemplation of disciplinary proceedings or during pendency of the disciplinary proceedings but the said discretion has to be exercised independently by the appointing authority. Division Bench of this Court has further held that if the appointing authority has acted on the dictates of the superior officers and has placed services of employee under suspension then the said suspension order will not meet the requirements of Rule 4(1) of the Rules of 1999 as the appointing authority has not exercised his discretion independently. 9. Learned Senior Advocate appearing for the petitioner has also drawn attention of this court towards the fact that even in the fact finding inquiry report on the basis of which senior officers directed the appointing authority of the petitioner to place his services under suspension does not mention any role of the petitioner in entire process of forgery and therefore, even on merits suspension of the petitioner is not warranted. 10. Learned Senior Advocate appearing for the petitioner has thus concluded his arguments and has submitted that since the impugned suspension order does not meet the requirements of Regulation 4 (1) of the Regulations of 2020 therefore, suspension order dated 06.05.2023 cannot sustain in the eyes of law and is liable to be quashed by this court. 11. 10. Learned Senior Advocate appearing for the petitioner has thus concluded his arguments and has submitted that since the impugned suspension order does not meet the requirements of Regulation 4 (1) of the Regulations of 2020 therefore, suspension order dated 06.05.2023 cannot sustain in the eyes of law and is liable to be quashed by this court. 11. Per-contra, Sri Adarsh Bhushan, learned counsel appearing for the Respondent No. 1 and Sri Devesh Vikram, learned counsel appearing for the Respondents No. 2 & 3 have vehemently argued that the appointing authority, in-fact has not acted on the dictates of the higher officers rather has applied his mind and has used his discretion and thereby has passed the order dated 06.05.2023, whereby petitioner's services have been placed under suspension. It has further been argued that even if the language used in the order of suspension does not reflect that the appointing authority has applied his discretion, it cannot be presumed that there is no application of mind on the part of the appointing authority and he has acted only on the dictates of the superior officers. 12. Learned counsels appearing for the respondents have relied on the judgement and order dated 03.08.2018 passed by the Coordinate Bench of this Court in Writ-A No. 14755 of 2018 (Rakesh Chandra Agnihotri Vs. State of U.P. and Others) and has submitted that in the said judgement it has been held that in all the cases where the suspension order has been passed in compliance of the directions issued by superior officers, it cannot be said that the appointing authority has not exercised his independent discretion. 13. Learned counsels appearing for the respondents have also relied on the judgement and order dated 11.01.2016 passed in Writ-A No. 68494 of 215 (Pradeep Kumar Trivedi Vs. 13. Learned counsels appearing for the respondents have also relied on the judgement and order dated 11.01.2016 passed in Writ-A No. 68494 of 215 (Pradeep Kumar Trivedi Vs. State of U.P. and Others) and have submitted that in the said judgement, Division Bench of this Court has categorically held that the scope of the judicial review in the matters of suspension of services of an employee is very limited and only in the cases where there is absolutely no charge against an employee, this court can interfere with the order of suspension but in normal circumstances, this court should refrain from interfering with the orders of suspension of services passed against the employees as the issue regarding suspension of services of an employee lies in the domain of the administrative authorities and they are the best judge to ascertain as to whether services of the employee should be placed under suspension or not. 14. Learned counsels for the respondents have also drawn attention of this Court towards the fact that along with the petitioner, services of various other employees have been placed under suspension relating to same forgery and out of the said employees, one Mr. Abhishek Sharma filed Writ-A No. 9917 of 2023 and in the said writ petition, an interim order was passed on 14.07.2023 whereby the order of suspension was stayed but later on when another employee filed Writ-A No. 12569 of 2023 (Swatantra Kumar Gupta Vs. State of U.P. and Others), the same Bench of this Court did not pass interim order and has finally disposed of the writ petition with a direction to the respondents to conclude the disciplinary proceedings expeditiously. 15. It has also been submitted by the learned counsels appearing for the respondents that Charge-Sheet against the petitioner has already been issued on 06.09.2023 and therefore, at this stage it would not be proper for this Court to interfere with the order of suspension. 16. I have considered the rival submissions advanced by the learned counsels appearing for the parties. 17. This court finds that Regulation 4(1) of the Regulations of 2020 provides that appointing authority in his discretion can place services of an employee under suspension either during pendency of the disciplinary proceedings or in contemplation of the disciplinary proceedings. 18. 16. I have considered the rival submissions advanced by the learned counsels appearing for the parties. 17. This court finds that Regulation 4(1) of the Regulations of 2020 provides that appointing authority in his discretion can place services of an employee under suspension either during pendency of the disciplinary proceedings or in contemplation of the disciplinary proceedings. 18. This court is of the view that the language used in Regulation 4(1) of the Regulations of 2020 is very clear and it is the discretion of the appointing authority either to place services of an employee under suspension or not and therefore, the order of suspension must reflect that there is at least some application of mind by the appointing authority. If there is no application of mind by the appointing authority and the order of suspension reflects that the said order has been passed only on the dictates of the higher officers, the said order does not fulfill the requirements of Regulation 4(1) of the Regulations of 2020. 19. To arrive at a correct conclusion, it is necessary to extract the suspension order dated 06.05.2023 which is as under: 20. The Superintending Engineer while passing the suspension order dated 06.05.2023, in unambiguous terms, has stated that he is passing the suspension order in compliance of the directions issued by the superior officers and further entire order does not reflect that there is even little application of mind on the part of the Superintending Engineer therefore, it cannot be said that the appointing authority has exercised his discretion while passing the order of suspension. 21. The Co-ordinate Bench of this Court has categorically dealt with the Rule 4(1) of the Rules of 1999 which is pari materia to Regulation 4(1) of the Regulations of 2020 and has held that if the order of suspension has been passed on the dictates of the higher officers and does not reflect the application of mind by the appointing authority then it cannot be said that the said order has been passed by the appointing authority while exercising his discretion therefore, the said order does not fulfill the requirements of Rule 4(1) of the Rule of 1999 and as such, the said order cannot sustain in the eyes of law. Relevant paragraphs of the judgement and order dated 17.12.2023 passed in Writ-A No. 66759 of 2013 are extracted as under: “9. Relevant paragraphs of the judgement and order dated 17.12.2023 passed in Writ-A No. 66759 of 2013 are extracted as under: “9. Rule 4(1) of U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as "Rules, 1999"), which confers power of suspension upon authority, relevant in this case, reads as under: "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 to the next lower authority." 10. An order of suspension is not to be passed in a routine manner as a regular course of business and without any application of mind. 11. Though an order of suspension in a contemplated or pending enquiry per se is not a punishment but it cannot be disputed that it visits certain civil consequences upon concerned Government servant. During the period of suspension, he is not paid full salary and allowances. It also cannot be doubted that it attaches civil stigma upon him vis a vis a society in which he lives and persons with whom he interacts. This Court has considered this aspect in Ayodhya Rai and others Vs. State of U.P. and others 2006(3) ESC 1755 wherein the Court held: "The questions deal with the prolonged agony and mental torture of an employee under suspension where inquiry either has not commended or proceed with snail pace. This is a different angle of the matter, which is equally important and needs careful consideration. State of U.P. and others 2006(3) ESC 1755 wherein the Court held: "The questions deal with the prolonged agony and mental torture of an employee under suspension where inquiry either has not commended or proceed with snail pace. This is a different angle of the matter, which is equally important and needs careful consideration. A suspension during contemplation of departmental inquiry or pendency thereof by itself is not a punishment but is resorted to by the competent authority to enquire into the allegations levelled against the employee giving him an opportunity of participation to find out whether the allegations are correct or not. In case, allegations are not found correct, the employee is reinstated without any loss towards salary, etc., and in case the charges are proved, the disciplinary authority passes such order as provided under law. However, keeping an employee under suspension, either without holding any enquiry, or by prolonging the enquiry is unreasonable and is neither just nor in larger public interest. A prolonged suspension by itself is penal. Similarly an order of suspension at the initial stage may be valid fulfilling all the requirements of law but may become penal or unlawful with the passage of time, if the disciplinary inquiry is unreasonably prolonged or no inquiry is initiated at all without there being any fault or obstruction on the part of the delinquent employee. No person can be kept under suspension for indefinite period since during the period of suspension he is not paid full salary. He is also denied the enjoyment of status and therefore admittedly it has some adverse effect in respect of his status, life style and reputation in Society. A person under suspension is looked with suspicion in the Society by the persons with whom he meets in his normal discharge of function." 12. A Division Bench of this Court in Gajendra Singh Vs. High Court of Judicature at Allahabad- 2004 (3) UPLBEC 2934 also observed as under: "We need not forget that when a Government officer is placed under suspension, he is looked with suspicious eyes not only by his collogues and friends but by public at large too." 13. Disapproving unreasonable prolonged suspension, the Apex Court has also observed in Public Service Tribunal Bar Association Vs. Disapproving unreasonable prolonged suspension, the Apex Court has also observed in Public Service Tribunal Bar Association Vs. State of U.P. & others- 2003 (1) UPLBEC 780 (S.C.) as under- "if a suspension continues for indefinite period or the order of suspension passed is mala fide, then it would be open to the employee to challenge the same by approaching the High Court under Article 226 of the Constitution." . . . . (Para 26). 14. The rule framing authority is also aware of all these facts and that is why it has not given an unbridled power of suspension to the Appointing Authority but in the rules, which have now been framed afresh in 1999, it has been specifically provided that appointing authority shall apply its mind to the fact that act or omission constituting misconduct, in respect whereto a departmental enquiry should be held, is of such grave nature that in case charge(s) is/are proved, major penalty upon concerned Government servant can be imposed. Therefore, it is not every act or omission constituting misconduct, which would justify suspension but when charge(s) are so serious so as to result, if prove, in major penalty only then he can be placed under suspension and not otherwise. 15. In the present case, respondent no.1 has admitted this fact that he did not apply his mind to any one or the other aspect and simply towed the line as drawn by Minister concerned i.e. he surrendered to the command of Minister and simply complied the same without any application of mind on his part. The mandatory requirement of Rule 4 of Rules, 1999 has completely been given a go bye by respondent no.1, before passing impugned order of suspension. In the present case, Minister obviously was not competent to place petitioner under suspension. His direction could have been taken into consideration but the law nowhere give it status of a statutory command with which respondent no.1 was under an obligation to follow. On the contrary respondent no.1 himself was under an obligation to apply his own mind looking into the entire facts and circumstances, to find out whether requisites of statute justify an order of suspension. Unfortunately, that has not been done, as admitted by respondent no.1 himself that he has not looked into all these aspects while passing impugned order of suspension.” 22. Unfortunately, that has not been done, as admitted by respondent no.1 himself that he has not looked into all these aspects while passing impugned order of suspension.” 22. The Division Bench of this Court vide judgement and order dated 27.10.2015 passed in Writ-A No. 56819 of 2015 has considered the identical issue which is involved in this writ petition and has held that Rule 4(1) of the Rules of 1999 gives discretion to the appointing authority and therefore it is only the appointing authority who can exercise his discretion and can place the services of the employee under suspension. Cases where the appointing authority has proceeded on the dictates of the superior officers and without applying his mind, has placed the services of an employee under suspension, the said order does not fulfill the requirements of Rule 4 (1) of the Rules of 1999 and therefore, order of suspension cannot sustain in the eyes of law. Relevant paragraphs of the order dated 27.10.2015 passed in Writ-A No. 58619 of 2015 are extracted as under: "In order to appreciate the respective arguments, we proceed to put a glance of Rule 4 (1) of U.P. Government Servant (Discipline & Appeal) Rules 1999:- "4. Relevant paragraphs of the order dated 27.10.2015 passed in Writ-A No. 58619 of 2015 are extracted as under: "In order to appreciate the respective arguments, we proceed to put a glance of Rule 4 (1) of U.P. Government Servant (Discipline & Appeal) Rules 1999:- "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 Servants or class of Government Servant belonging to Group 'A' and 'B' posts under suspension under this rule : Provided also that in the case Government Servant or class of Government Servant belonging to Group 'C' and 'D' posts, the Appointing Authority may delegate its power under this rule to the next lower authority." Bare perusal of the rules in question would go to show that a Government servant can be placed under suspension pending the conclusion of the inquiry in the discretion of the Appointing Authority and the same also provides 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. Thus the authority of suspension has been conferred with the appointing authority and this is also clear that 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." On the parameters of the provisions as quoted as above, the order of suspension in question indicates that in the present case that State Government had been apprised of the factual situation and State Government on being apprised with the report against the petitioner, the State Government in its turn proceeded to pass an order mentioning therein that the petitioner should be placed under suspension with immediate effect and disciplinary action be initiated under Rule 7 of U.P. Government Servant (Discipline & Appeal) Rules 1999. After receipt of the said letter in question, the Additional Director of Eduction (Basic), U.P., Allahabad, the Appointing Authority has proceeded to pass the order of suspension and by means of order of suspension the Appointing Authority has proceeded to categorically mention this fact that the said authority of suspension is being exercised by him pursuant to the decision taken by the State Government on 30.09.2015. Once such is the factual situation in the present case that discretion has been taken away by the State Government from the Appointing Authority by giving mandatory directive for placing petitioner under suspension whereas 'discretion' as per Blacks Law Dictionary means, "individual judgement: the power of free decision making". The Appointing Authority has not proceeded to exercise his independent mind and has exercised authority of suspension on the directives of State Government. Division Bench of this Court in the case of Dr. Arvind Kumar Rana Vs. State of U.P., 2007 (4) AWC, in reference of same set of Rules has taken the view that authority of suspension cannot be exercised on mere recommendation, the Appointing Authority is obligated to apply his own independent mind, the first proviso to Rule 4 (1) is mandatory and obligates Appointing Authority to prima facie record satisfaction about the seriousness of the allegations levelled and as to whether ultimately it may entail into awarding major penalty. Accordingly in the facts of the case passing of such suspension order has to be accepted being in breach of Rule 4 (1) of U.P. Government Servant (Discipline & Appeal) Rules 1999 as on its face value the discretion has not been independently exercised by the Appointing Authority in question. In view of this the order of suspension, based on this short ground is quashed but we leave it open to the Appointing Authority to apply his independent mind and if facts and circumstances do warrant to pass fresh order of suspension." 23. Learned counsels appearing for the respondents have relied on the judgement and order dated 03.08.2018 passed by the Co ordinate Bench of this Court in Writ-A No. 14755 of 2018. I have gone through the judgement and order dated 03.08.2018 and I find that even in this judgment, the Court has come to the conclusion that at least there must be some material in the suspension order to show that the appointing authority has exercised his independent discretion. I have gone through the judgement and order dated 03.08.2018 and I find that even in this judgment, the Court has come to the conclusion that at least there must be some material in the suspension order to show that the appointing authority has exercised his independent discretion. It has further been held in the judgement that merely because the suspension order has been passed on the dictates of the superior officers, it will itself not make the suspension order invalid and it will have to be seen as to whether appointing authority has applied his mind or not. The fact remains that even in the aforesaid judgement, Co-ordinate Bench of this Court has categorically held that there must be reflection in the suspension order regarding application of mind by the appointing authority and exercise of his discretion independent to the directions issued by the higher officers. 24. So far as the suspension order dated 06.05.2023, which is impugned in the writ petition is concerned, this Court is of the view that the suspension order clearly reflects that there is no application of mind by the appointing authority while placing the services of petitioner under suspension rather on the contrary, the order reflects that the said order has been passed in compliance of the directions issued by the superior officers therefore, suspension order does not fulfill the requirements of Regulation 4(1) of the Regulations of 2020 as such, the impugned order dated 06.05.2023 cannot sustain in the eyes of law. So far as the arguments advanced by the learned counsels appearing for the respondents regarding charges levelled against the petitioner and judgement and order dated 11.01.2016 passed in Writ-A No. 68494 of 2015 are concerned, since this Court is interfering with the order of suspension only on the legal ground and is not adjudicating the charges on merits, the arguments advanced by the learned counsels appearing for the respondents do not carry any weight. 25. 25. So far as the case of the respondents that Co-ordinate Bench of this Court initially in Writ-A No. 9917 of 2023 has passed the interim order whereby suspension order has been stayed but later on the same Bench in another matter in Writ-A No. 12569 of 2023 has refused to grant interim order and has passed final order whereby direction has been issued to conclude the disciplinary proceedings expeditiously is concerned, this court finds that in both the matters issue regarding compliance of Regulation 4(1) of the Regulations of 2020 was not raised and once the said issue was not raised, there was no occasion for the Court to decide the said issue. 26. In view of the aforesaid reasons, this writ petition is allowed. Order dated 06.05.2023, to the extent of suspension of petitioner's services, is quashed. Respondents are directed to reinstate the petitioner in service and pay him salary as and when it becomes due. Respondents are also expected to conclude the disciplinary proceedings initiated against the petitioner expeditiously. 27. Since this court has quashed the order of suspension only on the ground that the said order does not fulfill the requirements of Regulation 4(1) of the Regulations of 2020 therefore, if there is requirement, it is always open for the Appointing Authority to pass order in accordance with the provisions of Regulation 4(1) of the Regulations of 2020.