Sri Gopal Maheep, Assistant Commissioner Excise/District Excise Officer Vs State of U.P. and Others

Amitava Lala, J.@mdashThe Challenge has been thrown in this writ petition in respect of the order of suspension dated 1^st November, 2006. From the order impugned, we find that the petitioner was found prima-facie guilty for certain charges in the nature of insubordination and dereliction of duties. Whether such charges will ultimately lead to major or minor punishment would be reflected from the charge sheet. Thus, this is not the appropriate stage where we justify the cause of suspension of the nature of punishment as to whether it is major or minor punishment and that too only on the basis of the probabilities. It appears that on the basis of certain alleged misconducts which consistently happened in the case of the petitioner and in consequence thereof the authority concerned issued order of suspension against the petitioner upon being prima-facie satisfied about the guilt.

2. Learned Senior Counsel appearing for the petitioner by citing a Division Bench decision of this Court rendered in the case of Ram Dular Tripathi Vs. State of U.P. and others, contended that suspension in Government service is permissible only where misconduct of Government servant warrants imposition of one of three major punishments namely dismissal, removal or reduction in rank upon him and that lack of efficiency or want of attainment of highest standards in discharge of duty would not ipso facto constitute misconduct. We have already stated above that this is not the appropriate stage where the Court will justify the cause of suspension or nature of punishment. However, we have gone through the factual position of that case and found that there was a delay of two or three minutes in moving of Chief Minister''s fleet in Circuit House till Vice President of India entered in his suite which caused inconvenience to the concerned Chief Minister and following the same the order of suspension was issued. Considering the factual circumstances of that case the said Division Bench held that if the Government servants are suspended on such flimsy ground, it would have adverse effect on the service, which may ultimately affect the working of the Government. According to us such judgment is factually distinguishable with the present one. In the present case cause of consistent misconducts have been made out by the authority. In any event, making more comment in this respect might jeopardize the interest of the petitioner and may sufficiently influence the inquiry proceedings as such, we refrain ourselves from making any comment on the issue herein. If, at all, made will not bind or influence the disciplinary proceeding.

3. So far as the next point is concerned, learned Senior Counsel appearing for the petitioner relied upon the decision of a Division Bench of this Court rendered in Smt. Meera Tiwari v. The Chief Medical Officer and Ors. 2001 (2) E.S.C. 824 and contended that order of suspension cannot be issued when there are no contemplation of inquiry or any proceeding is pending and therefore, the Division Bench of this Court held that single Judge was wrong in giving direction to complete the inquiry within a particular period. The Division Bench in paragraph 3 of the said judgment categorically held as under:

The impugned order of suspension does not refer to any contemplated inquiry or the fact that any inquiry is pending.

4. According to the said Division Bench, since the learned single Judge did not appropriately consider the issue, therefore the order that had been passed was contrary to Sub-rule (1) of Rule 4 of the U.P. Government Servant (Discipline & Appeal) Rules, 1999 (hereinafter referred to as ''the Rules, 1999''). Sub-Rule (1) of Rule 4 of the Rules, 1999 reads as under:

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 the 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.

5. To satisfy the test learned Senior Counsel appearing for the petitioner has relied upon Paragraph 14 of the judgment of a Division Bench of this Court rendered in State of U.P. and Ors. v. Rajendra Shanker Nigam and Ors. 1974 A.C.N. 263 containing meaning of "contemplation" which reads as follows;

The term "contemplated" is not a term of art. It has been used in its plain ordinary meaning. The Shorter Oxford Dictionary, Volume-1 at page 380 defines the word ''contemplated'' to mean have in view, to expect, to take into account as a contingency". It indicates a stage where an inquiry into the conduct of a Government servant is imminently expected with a view to impose some punishment upon him. On receipt of complaints against the conduct of a Government servant the competent authority sets in motion an informal inquiry to certify the the correctness of the allegations or to collect material with a view to hold a disciplinary inquiry so that if the alleged misconduct is established suitable punishment be awarded. The inquiry, which will result in imposition of punishment can be said to be expected or contemplated. When the Government sets in motion its machinery for investigating the alleged complaints so that it may hold a formal inquiry more properly the formal inquiry is clearly contemplated, and the power to suspend comes into play.

6. Paragraph 14 of the said judgment categorically says that the question of contemplation comes when an informal inquiry to certify the test is to be conducted by disciplinary authority and if found that the same will be lead to disciplinary inquiry so that if the same misconduct is established suitable punishment to be awarded. Therefore, that is the stage of contemplation.

7. In the facts and circumstances of the instant case whether it is contemplation or such stage that the proceedings may be initiated or not, has to be taken into account by the Court on the basis of prima-facie view of the authority concerned mentioned in the order of suspension. The view of the authority concerned under the order impugned dated 1^st November, 2006 shows that the petitioner was found prima-facie guilty and upon consideration of the same decided to conduct disciplinary proceedings against the person concerned. In such circumstances, there is no scope for the Court to interfere with the said order of suspension. Therefore, we cannot pass any such order interfering with the departmental proceedings at this stage. We normally observe and pass the following order in case of suspension taking into account balancing factors and we do not find any reason to deviate from such order. Therefore similar observation is made and order passed hereunder.

8. Suspension is not punishment. Normally such order is passed by an authority to maintain the independence of the enquiry. Therefore, Court can only interfere with the order of suspension in the rarest of the rare cases where it appears to be apparently punitive or malafide in nature or without jurisdiction. This is not such a case. Hence no order is passed with regard to order of suspension.

9.However, non-interference with the order of suspension will not entitle the authority to keep the enquiry proceeding pending indefinitely, therefore, such enquiry proceeding will be concluded preferably within a period of two months from the date of production of a certified copy of this order before the authority concerned.

10. Thus, the writ petition is disposed of. No order is passed as to costs.

V.C. Misra, J.

11. I agree.