Sudhir Agarwal, J.@mdashLearned standing counsel was allowed a month''s time to file counter-affidavit on 31.7.2008. Almost two and half years since then have passed but respondents have chosen not to file any counter-affidavit. In the circumstances, this Court has no option but to proceed to dispose of the writ petition on the basis of material available on record.
2. Sri Nisheeth Yadav, learned counsel for the petitioner contended that the impugned order of suspension has been passed not by the competent authority but by an authority, may be higher in status, but not competent to pass the order of suspension under the Rules. He further submitted that suspension even otherwise is penal in nature inasmuch as no inquiry whatsoever has been initiated till date and, therefore also, it is liable to be set aside.
3. The petitioner was appointed as Class-IV employee on 10.3.1987 by Regional Transport Officer, Agra. Later on he was promoted as Enforcement Constable by Regional Transport Officer as stated in para 5 of supplementary-affidavit. The impugned order of suspension has been passed by the Additional Transport Commissioner (Enforcement). U. P., Lucknow. Rule 3 (a) of U. P. Transport Department Enforcement Staff (Group D) Service Rules. 1979 (hereinafter referred to as the "1979 Rules") defines appointing authority and reads as under :
3 (a) ''Appointing Authority'' mean the Assistant Transport Commissioner (Administration) for the posts at the Headquarters of the Transport Commissioner and the Regional Transport Officer for the posts in the Region;
4. The petitioner has categorically stated that he was appointed as Enforcement Constable by Regional Transport Officer and that is what provided in 1979 Rules.
5. Rule 4 (1) of U. P. Government Servant (Discipline and Appeal) Rules. 1999 (hereinafter referred to as the "1999 Rules") empowers the appointing authority to place a Government servant under suspension where an inquiry is contemplated or proceeding in the discretion of appointing authority. Second proviso says that the concerned Head of the Department empowered by the Governor by an order in this behalf may also place Government servant or class of Government servant belong to Group ''A'' and ''B'' posts under suspension. Obviously this proviso has no application to the case of petitioner because he is a Class-IV employee. Third proviso says that a Government servant belong to Group ''C and ''D'' posts may be placed under suspension by an authority subordinate to appointing authority provided such power is delegated to it. There is nothing in Rule 4 (1) of 1999 Rules which empowers any higher other authority to place a Group C and ''D'' Government servant under suspension.
6. I find substance in the submission of learned counsel for the petitioner that the Additional Transport Commissioner (Enforcement), U. P. Lucknow does not come within any of the above category prescribed under Rule 4 (1) of 1999 Rules so as to assume jurisdiction to place petitioner under suspension. The Additional Transport Commissioner (Enforcement) U. P. Lucknow is admittedly higher in hierarchy to Regional Transport Officer. In respect to Group ''C'' and ''D'' employees the rule provides that suspension can be made by appointing authority or by an authority who is next lower in rank to whom the power of suspension is delegated. It thus makes it clear that rule does not permit a higher authority to pass an order of suspension so far as Group ''C and ''D'' employees are concerned. An authority lower in rank and that too next lower in rank to appointing authority if delegated power of suspension it can be exercised by it otherwise only by appointing authority. No provision has been shown by learned standing counsel to show that a higher authority has been empowered to place under suspension a Group C or D'' Government servant or that there is any amendment in the rules empowering Additional Transport Commissioner (Enforcement) U. P., Lucknow to place an Enforcement Constable under suspension who is appointed by Regional Transport Officer. This results in making the impugned order of suspension wholly illegal and without jurisdiction.
7. Besides, the petitioner, as it is said, has not even been issued a charge-sheet so far. It is thus evident that petitioner has been kept for more than 2 and half years under suspension without even initiating departmental proceeding.
8. The order of suspension pending in a contemplated inquiry by itself is not a punishment but in case it is prolonged without initiation or completion of inquiry, it may become punitive with the passage of time. Whether such a prolonged suspension can be held valid and justified and whether the respondents can be allowed to keep an employee under suspension for an indefinite period! The answer is an emphatic No.
9. In fact this question is no more res integral. In
9 The prolonged suspension of the petitioner is clearly unjust and unwarranted. The question deals with the prolonged agony and mental torture of a suspended employee where inquiry either has not commenced or proceeds with snail pace. Though suspension in a contemplated or pending inquiry is not a punishment but 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 if resorted to by the competent authority to enquire into the allegations leveled against the employee giving him an opportunity of participation to find out whether the allegations are correct or not with due diligence and within a reasonable time. 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 in a prolonged enquiry is unreasonable. It 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.
10. A Division Bench of this Court in Gajendra Singh v. High Court of Judicature at Allahabad, 2004 (3) UPLBEC 2934, 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 colleagues and friends but by public at large too.
11. Disapproving unreasonable prolonged suspension, the Apex Court in Public Service Tribunal Bar Association v. State of U. P. and others, 2003 (1) UPLBEC 780 : 2003 (2) AWC 968 (SC). Observed 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)
12. The statutory power conferred upon the disciplinary authority to keep an employee under suspension during contemplated or pending disciplinary enquiry cannot thus be interpreted in a manner so as to confer an arbitrary, unguided an absolute power to keep an employee under suspension without enquiry for unlimited period or by prolonging enquiry unreasonably, particularly when the delinquent employee is not responsible for such delay. Therefore, I am clearly of the opinion that a suspension, if prolonged unreasonably without holding any enquiry or by prolonging the enquiry itself, is penal in nature and cannot be sustained.
13. The view I have taken is supported from another judgment of this Court in
10. In view of above discussion, the writ petition is allowed. The impugned order of suspension dated 27.6.2008 (Annexure-9 to the writ petition) is hereby quashed. However, this judgment shall not preclude respondents from proceeding with departmental enquiry, if any. No cost.
