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2024 DIGILAW 837 (ALL)

Dharmendra Kumar v. State Of U. P.

2024-03-18

NEERAJ TIWARI

body2024
JUDGMENT : 1. Heard learned counsel for the petitioners, learned Standing Counsel for respondent no. 1 and Sri Kartikeya Saran, learned counsel for respondent nos. 2 & 3. 2. Present petition has been filed with the following prayer: "I. Issue a writ, order or direction in the nature of certiorari quashing the impugned Official Memorandum dated 18.01.2024 bearing letter No. 308, Official Memorandum dated 18.01.2024 bearing letter dated 310 and Official Memorandum dated 16.01.2024 bearing letter No. 309 issued by the Respondent No. 2 by which the Petitioner No. 1, 2 and 3 has been suspended respectively." 3. The case was heard on 22.02.2024 and the Court has passed the following order: "1. Heard learned counsel for the petitioner, learned standing counsel for respondent no. 1 and Sri Vinayak Ranjan, advocate holding brief of Sri Kartikeya Saran, learned counsel for respondent nos. 2 & 3. 2. Learned counsel for the petitioner submitted that suspension order against the petitioner has been passed without completion of inquiry, which is in the teeth of Rule 4 of Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 as well as judgment of this Court in the matter of Atiullah Khan Vs. State of U.P. and Others: 2013 SCC OnLine AII 5652. 3. Sri Vinayak Ranjan, advocate holding brief of Sri Kartikeya Saran, learned counsel for respondent nos. 2 & 3 prays for and is granted a week's time to seek written instruction about the initiation of inquiry and service of charge sheet upon the petitioner. 4. Put up this case as fresh on 29.02.2024." 4. Learned counsel for the respondents did not produce the instruction on the next date fixed i.e. 29.02.2024 and the Court has passed the following order: "1. Sri Vinayak Ranjan, Advocate, holding brief of Sri Kartikeya Saran, learned counsel for the respondents prays for and is granted three days' time to seek instruction as directed by this Court vide order 22.02.2024. 2. Put up as fresh on 05.03.2024." 5. Ultimately on 13.03.2024 Court has passed the following order: "1. Heard learned counsel for the petitioner, learned standing counsel for respondent no. 1 and Sri Vinayak Ranjan, advocate holding brief of Sri Kartikeya Saran, learned counsel for respondent nos. 2 & 3. 2. Sri Ranjan prays for and is granted three days and no more time to seek instruction in light of orders dated 22.02.2024 & 29.02.2024. 3. Heard learned counsel for the petitioner, learned standing counsel for respondent no. 1 and Sri Vinayak Ranjan, advocate holding brief of Sri Kartikeya Saran, learned counsel for respondent nos. 2 & 3. 2. Sri Ranjan prays for and is granted three days and no more time to seek instruction in light of orders dated 22.02.2024 & 29.02.2024. 3. Put up this case as fresh on 18.03.2024 at 10:00 AM." 6. Today, Sri Kartikeya Saran, learned counsel for respondent nos. 2 & 3 has not produced the instructions, but provided copies of charge sheet dated 16.03.2024 against the petitioners and submitted that the same have also been served upon the petitioners. He could not demonstrate the fact that suspension orders have been passed in contemplation of any inquiry or during the course of inquiry. 7. I have perused Regulation 4(1) of the Regulations, 2020, which is being quoted hereinbelow: ^^4&¼,d½ dksbZ dkfeZd ftlds vkpj.k ds fo:) dksbZ tkap vuq/;kr gS ;k mldh dk;Zokgh py jgh gS] fu;qfDr izkf/kdkjh vFkok mlds }kjk l'kDr vf/kdkjh ds foosd ij tkap dh lekfIr ds yfEcr jgus rd] fuyEcu ds v/khu j[kk tk ldsxk A^^ 8. From the perusal of Regulation 4(1) of the Regulations, 2020 it is apparently clear that any suspension order can only be passed either in contemplation of inquiry or during the course of inquiry. 9. I have also also perused judgment of Division Bench of this Court in the matter of Smt. Meera Tiwari(Supra) and judgment of this Court in Munshi Lal(Supra). 10. In the matter of Smt. Meera Tiwari(Supra), Division Bench of this Court has taken a specific view that once there is no contemplation of inquiry, no suspension order can be passed. Relevant paragraphs of the aforesaid judgment are being quoted hereinbelow: “Heard Sri A.N. Tripathi, learned Advocate for the appellant and Sri Ranvijai Singh, learned Standing Counsel for the respondents. 2. The Special Appeal is directed against the order dated 4-4-2001 passed by the learned single Judge dismissing the writ petition. 3. The challenge in the writ petition was against the order of suspension. The contention of the appellant is that the learned single Judge did not property appreciale the question that suspension is not permissible unless enquiry is contemplated or enquiry is pending. 3. The challenge in the writ petition was against the order of suspension. The contention of the appellant is that the learned single Judge did not property appreciale the question that suspension is not permissible unless enquiry is contemplated or enquiry is pending. Learned counsel for the appellant referred to us sub-rule (1) of Rule 4 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 which is set out herein below: "4. Suspension (1) A Government servant against whose conduct an inqury 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 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 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 Servant belonging to Group 'C' and 'D' posts, the Appointing Authority may delegate its power under this rule to the next lower authority." 4. From the said rule it appears that a Government Servant against whose conduct an inquiry is contemplated, or its proceeding may be placed under suspension pending the conclusion of the enquiry. The impugned order of suspension does not refer to any contemplated inquiry or the fact that any inquiry is pending. 5. In that view of the matter, we are of the view that the order of suspension is against the provisions of Rule 4 of the U.P. Government Servant (Discipline and Appeal) Rules. 1999 and the same cannot be sustained. The learned single Judge has directed the inquiry to be completed within three months, it was not within the scope of the learned single Judge to direct any inquiry to be made on his own. We are of the view that since the order of suspension is contrary to Rule 4 of the said Rules, the same should be quashed and set aside. 6. The Special Appeal is allowed and the order of suspension is hereby quashed. 7. Appeal allowed.” 11. We are of the view that since the order of suspension is contrary to Rule 4 of the said Rules, the same should be quashed and set aside. 6. The Special Appeal is allowed and the order of suspension is hereby quashed. 7. Appeal allowed.” 11. This Court again in the matter of Munshi Lal(Supra), following the judgment of Division Bench of this Court in the matter of Smt. Meera Tiwari(Supra) has taken the same view. Relevant paragraphs of the aforesaid judgment are being quoted hereinbelow: "7. As the present case is squarely covered with the judgment of Division Bench of this Court in Smt. Meera Tiwari(Supra) and very same view has also been taken by this Court in Atiullah Khan(Supra), therefore, under such facts of the case of the case, impugned suspension order dated 19.01.2024 is hereby quashed. 8. Writ petition is allowed in light of judgment of this Court in Smt. Meera Tiwari(Supra) as well as Atiullah Khan(Supra). 9. However, this order shall not preclude the respondents to pass fresh order or to complete the inquiry against the petitioner in accordance with law." 12. From the perusal of Rregulation 4(1) of the Regulations, 2020 as well as law laid down by this Court in Smt. Meera Tiwari(Supra) & Munshi Lal(Supra), this Court is also of the view that suspension order can only be passed in contemplation of inquiry or during the pendency of inquiry and if in the suspension order, there is no such averment, the same is bad and liable to be set aside. 13. So far as present case is concerned, it is apparently clear that in the orders in question inquiry is neither contemplated nor pending, therefore, impugned suspension orders are in the teeth of Rregulation 4(1) of the Regulations, 2020 as well as law laid down by this Court in Smt. Meera Tiwari(Supra) & Munshi Lal(Supra). 14. Accordingly, impugned Official Memorandum dated 18.01.2024 bearing letter No. 308, Official Memorandum dated 18.01.2024 bearing letter dated 310 and Official Memorandum dated 16.01.2024 bearing letter No. 309 are hereby quashed. 15. Writ petition is allowed. 16. No order as to costs. 17. However, this order shall not preclude the respondents to pass fresh order or complete the departmental proceeding against the petitioners in accordance with law.