Allahabad High Court
Shabih Haider vs State Of U.P.Thru. Prin.Secy.,Housing ... on 6 December, 2017
Author: Rajnish Kumar
Bench: Devendra Kumar Arora, Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 2 Case :- SERVICE BENCH No. - 26771 of 2017 Petitioner :- Shabih Haider Respondent :- State Of U.P.Thru. Prin.Secy.,Housing & Urban Planning & Ors Counsel for Petitioner :- Sameer Kalia,Rajat Rajan Singh Counsel for Respondent :- C.S.C.,Ram Raj Hon'ble Dr. Devendra Kumar Arora,J.
Hon'ble Rajnish Kumar,J.
Heard Mr. S.K. Kalia, Senior Advocate, assisted by Mr. Sameer Kalia and Mr. Rajat Rajan Singh, learned Counsel for the petitioner, Mr. Sanjay Sarin, learned Standing Counsel for opposite party No.1 and Mr. Ram Raj, learned Counsel for the Meerut Development Authority, Meerut (opposite party Nos. 2 and 3).
The petitioner has approached this Court under Article 226 of the Constitution of India, questioning the validity and correctness of the order dated 28.8.2017 passed by the Principal Secretary, Department of Housing and Urban Planning, Government of U.P., Lucknow (opposite party No.1), whereby the petitioner who was working as Superintending Engineer (Civil) in the Meerut Development Authority, Meerut, has been placed under suspension in contemplation of disciplinary proceedings in pursuance to Rule-33 of U.P. Development Authority Centralized Services, 1985 read with U.P. Government Servant (Discipline & Appeal) Rules, 1999, inter alia on the ground that while working as Superintending Engineer in Meerut Development Authority, Meerut, he had prima facie committed irregularities in the work of shifting of Double Circuit 33 K.V. Electrical Line from Surajkund Try Junction to Mangal Pandey Nagar (Garh Road approach road) near Abu Nale.
According to the learned Counsel for the petitioner, as is evident from note-sheet dated 4.3.2015, a meeting was convened under the Chairmanship of Commissioner of Meerut Development Authority, Meerut with regard to shifting of Double Circuit 33 KV Electricity Line from Surajkund Try Junction to Mangal Pandey Nagar but the same was not approved due to certain reasons. Later, on 28.5.2015, a proposal was approved by the then Vice-Chairman of the Meerut Development Authority, Meerut (hereinafter referred as "the Development Authority") and other concerned officer with respect to shifting of Double Circuit 33 KV Electricity Line from Surajkund Try Junction to Mangal Pandey Nagar as it was causing hindrance in the construction of Cycle Track under Green U.P. Clean U.P. Scheme. The said work was to be done from the external development fund of the Development Authority for which a budget of Rs.2,73,17,750/- was approved and permission was granted for inviting tenders from the contractors.
After approval of the budget by the Vice-Chairman of the Development Authority, tenders were invited on 23.9.2015 to carry out the work but the same was cancelled on 4.11.2015 on a complaint made by a social activist on 29.9.2015. On 6.1.2016, fresh tenders were invited by the Chief Engineer of the Development Authority. In response thereof, three contractors participated in the fresh bid. After scrutiny of the bid, the contract was awarded to M/S R.C.C. Developers Ltd. The Tender Committee comprising Chief Engineer, Finance Controller and the Secretary of the Development Authority recommended for approval of the bid of M/s R.C.C. Developers Ltd. After approval of the bid by the Tender Committee, the Vice-Chairman of the Development Authority accepted the said recommendation on 12.4.2016.
After the bid was approved by the Tender Committee and accepted by the Vice-Chairman of the Development Authority on 12.4.2016 and after completion of all formalities, the Chief Engineer marked the file to the petitioner for taking appropriate necessary action, in pursuance of which the petitioner for the first time put a signature on 25.4.2016 and forwarded the same to the Executive Engineer-Sri Amar Pratap Singh and the concerned Clerk, who, thereafter, forwarded the same to the Junior Engineer for necessary action.
According to the petitioner, the officer of U.P.V.V.N.L. carried out an inspection of the wire that was procured to carry out the work. The inspection was carried out in District Holol of State of Gujrat, in the factory of M/s Ploycab Wire Limited, from where the electricity wire was to be purchased. After conducting thorough investigation, U.P.V.V.N.L. submitted a report. On 4.5.2016, the Executive Engineer-Sri Amar Pratap Singh wrote to the Executive Engineer of U.P.V.V.N.L. seeking direction for deposition of supervision charges. In pursuance to the letter dated 4.5.2016, the Executive Engineer of U.P.V.V.N.L. vide letter dated 4.6.2016 directed the Chief Engineer of the Development Authority to deposit Rs.18,80,452/- as supervision charges @15%. Thereafter, on 23.5.2016, the petitioner forwarded the agreement to the Chief Engineer for further action. On 4.6.2016, a payment of Rs.18,80,452/- was raised by the Junior Officers (Electrical Division) of Development Authority to be paid to U.P.V.V.N.L., a Government undertaking to carry out an inspection as supervision charge @ 15%.
It is also stated that as per Clause-4.6 (e) of the Electricity Supply Code, 2005, the supervision charge as a percentage as prescribed is to be paid before commencement of the work. In the meantime, the petitioner left for abroad after due sanction of his leave w.e.f. 11.7.2016 to 31.8.2016. During the leave of the petitioner, the first running bill of M/S R.C.C. Developers was prepared on 12.7.2016 and on 15.7.2016 and the same was forwarded by the Superintending Engineer Incharge, namely, Mr. Dinesh Chandra Tomar, an Executive Engineer. After approval of the Vice-Chairman of the Development Authority on 23.7.2016, the payment was made.
However, on the basis of the report of the Commissioner/Chairman of the Development Authority dated 11.8.2017, a First Information Report, bearing Case Crime No. 320 of 2017, was lodged by Shri Ajay Kumar Singh, Executive Engineer (E & M) of the Development Authority against 12 persons including the petitioner and by the impugned order, the petitioner has been placed under suspension.
According to the petitioner, from the facts narrated above, the petitioner was neither involved in the decision making process nor was involved in award of contract to M/s RCC Developers. The petitioner challenged the FIR dated 11.8.2017 by means of Criminal Misc. Writ Petition No. 18574 of 2017 : Shabih Haider Vs. State of U.P. and others, which was disposed of finally vide judgment and order dated 19.9.2017 with the direction that no coercive action shall be taken against the petitioner in the aforesaid case, till collection of credible evidence or a submission of police report under Section 173 (2) Cr.P.C.
As regard the order of suspension dated 28.8.2017, the petitioner preferred a representation dated 8.10.2017, narrating all the facts and circumstances seeking revocation of the suspension order but no heed was paid, compelling the petitioner to knock the door of justice.
Mr. S.K. Kalia, Senior Advocate, appearing for the petitioner has submitted that the petitioner has neither participated in any such meeting in which the work was approved and the budget was sanctioned nor the petitioner has signed anywhere for approval of such work, which is apparent from the note-sheet contained in Annexure No.2 to the writ petition itself. Further, the petitioner was not legally liable/entitled to participate in such meeting or take any such decision as these decisions are taken at very higher level. Therefore, he cannot be in any manner said to be involved for conceiving of the project and allocation of budget for the said purpose.
Elaborating his submission, Mr. Kalia has submitted that the petitioner had no role in inviting tenders or awarding of contract to any contractor. The petitioner was legally bound to follow the directions of superior officers such as Vice-Chairman, Chief Engineer etc. with respect to the aforesaid work, otherwise, the petitioner would have been charged with subordination. In this view of the matter, the petitioner being Superintending Engineer has only forwarded the agreement to the Chief Engineer for further action on 23.5.2016. Thus, the petitioner was neither involved in the bidding process, award of contract, rates of contract/work nor payment of bills to M/S R.C.C. Developers. The petitioner also did not have any direct control whatsoever over the rates of wire or the conditions of the contract, therefore, any allegation or charge with respect to such work is absolutely baseless and unjustified.
Counsel for the petitioner has further submitted that on 3.8.2016, when the payment was released, the same was not under the directions or authority of the petitioner as he was on sanctioned leave at that point of time. Moreso, the ex parte inquiry report conducted on the direction of the Commissioner/Chairman of the Development Authority shows that the same is based upon the fact that there was no need of shifting of double circuit 33 KV Electricity line, as in the other part of city not even the roads are available and further the payment of bill to the contractor and supervision charges to U.P.V.V.N.L. was not in accordance with the Rules and has caused loss to the exchequer of the Development Authority. Thus, the alleged irregularity is not attributable to the petitioner. His submission is that the petitioner has been suspended by the opposite party No.1 although the petitioner had no role or fault on his part but officials like the then Finance Controller Mr. Wasi Mohammad, Executive Engineer, Sri D.C. Tomar, Junior Engineer (Technical), Sri Jagjeevan Singh, Deori etc. who have actively participated in approval of project and passing of bills have not been even touched, therefore, it is clear that the impugned suspension order dated 28.8.2017 is nothing but a ruse.
Lastly, learned counsel for the petitioner has submitted that the petitioner has served as a responsible Government Officer for the last 34 years and there has never been any complaint or disciplinary proceeding against the petitioner. Infact the petitioner has been time and again given appreciation letters by the authorities for dedicated and hardworking approach of the petitioner. The petitioner is going to retire on 30.6.2018, therefore, such an action at the very fag end of his career would highly detrimental. It was also added that no charge-sheet has been given to the petitioner though considerable long time of about three months have elapsed since the date of suspension.
A counter affidavit has been filed on behalf of the opposite party No.1 and the same is taken on record. In the counter affidavit, it has been stated that the petitioner was involved in preparation of the agreement with M/s R.C.C. Developers Ltd. and thereafter, the petitioner was also a part of the proposal prepared for payment of Rs.18,80,452/- as supervision charges for shifting of the Electric Line to the Executive Engineer, Electric Urban Distribution Division-II. The petitioner has also approved and forwarded the proposal related with deviation of the work on 4.11.2016 and 25.11.2016 after execution of the agreement in the matter. The said proposal for deviation was prepared in the supervision of the petitioner and the same was forwarded by the petitioner after payment of Rs.1,45,00,000/- already made to M/s R.C.C. Developers Ltd. on 3.8.2016.
It has also been stated in the counter affidavit that the Divisional Commissioner, Meerut in its capacity as Chairman of the Development Authority has furnished the information related with the involvement of the officers and preparation of agreement as well as the name of the Engineers/Officers involved in the process of payment to the State Government by his letter dated 21.11.2017, in which the name of the petitioner finds place at serial No.8.
Learned Standing Counsel, while justifying the action of placing the petitioner under suspension, has submitted that disciplinary inquiry has been initiated against the petitioner on the basis of irregularity committed by him in shifting of 33 KV Electric Line while he was posted as Superintending Engineer in the Development Authority.
A counter affidavit has also been filed on behalf of the opposite party No.3 and the same is taken on record. In the said counter affidavit, in sum and substance, the averments made in the counter affidavit filed by opposite party No.1 have been reiterated thereby justifying the action of disciplinary proceedings against the petitioner.
A rejoinder affidavit has been filed on behalf of the petitioner to the counter affidavit filed on behalf of the opposite party No.1. Mr. S.K. Kalia, learned Senior Advocate appearing for the petitioner has submitted that since averments made in the counter affidavit filed on behalf of the opposite party No.1 has been reiterated in the counter affidavit filed on behalf of opposite party No.3, therefore, there is no need to file rejoinder affidavit to the said counter affidavit of opposite party No.3.
Refuting the allegations made in the counter affidavits, the petitioner has reiterated the fact that he had no role in initiation of project, approval of project, floating of tender, finalization of tender and awarding of contract. Similarly, with respect to payment of supervision charges, the petitioner cannot be held liable as it was released on the demand of U.P.V.V.N.L. vide its letter dated 4.6.2016 addressed to the Chief Engineer. The petitioner comes in the picture only when the proposals/orders are forwarded to him by the higher authorities such as Vice-Chairman, Secretary and Chief Engineer and thereafter, the petitioner has merely forwarded the same to the concerned Junior Officials, in daily routine of his office.
In so far as plea of the opposite party No.1 made in para-6 and 7 of the counter affidavit regarding deviation, it has been stated in the rejoinder affidavit that the note-sheet which has been filed as Annexure No. CA-3 in the counter affidavit is incomplete and does not clarify the position correctly. A perusal of the note-sheet reveals that considering the widening of the road in future and maintenance of the underground wire, it was proposed that the route of the laying of cable be changed from underground to hanging of the wall of the nearby drain. As a result of such deviation, the cost of the project can be reduced from Rs.2,73,17,750/- to Rs.2,29,84,335.34. The said proposal was initiated by the Junior Officials and the same was forwarded to the petitioner by the Executive Engineer and thereafter, the petitioner, who was holding the charge of Chief Engineer, forwarded the same to the Secretary. However, the said proposal was never approved by the Secretary and Vice-Chairman of the Authority, therefore, reliance of the opposite party No.1 on the aforesaid noting is absolutely misconceived and is a failed effort to dig out some evidence which is otherwise not available.
We have examined the submissions of the learned counsel for the parties and perused the record produced by the opposite parties.
We are conscious of the fact that this Court while exercising discretionary jurisdiction under Article 226 of the Constitution does not interfere with the suspension order but there is not blanket ban. The Court has ample power to interfere in such matter if the same has been passed by an incompetent authority or mala fide or there is colourable exercise of power.
It is a settled law that the order of suspension is not to be passed in a routine manner but the competent authority is required to consider the gravity of the misconduct sought to be enquired into or investigated and the nature of the evidence placed before the appointing authority and thereafter by application of mind by the said authority. A non-objective and automatic order of suspension cannot sustain in law, unless the competent authority has exercised its power by considering the gravity of the alleged misconduct or the nature of the allegations levelled against the delinquent employee.
In State of Orissa Vs. Bimal Kumar Mohanty : A.I.R. 1994 SC 2296, the Apex Court in para 12 of the judgement held as under :-
"12. It is thus settled law that normally when an appointed authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending enquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the enquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or enquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending enquiry or contemplated enquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or enquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental enquiry or trial of a criminal charge."
From perusal of the records it reveals that the Divisional Commissioner in the capacity of Chairman of the Development Authority, on receipt of some complaint from local residents regarding payment of Rs.1.45 Crores without laying of cable, examined the issue and observed that in the present matter of laying double circuit 33 KV Electricity Line from Surajkund Try Junction to Mangal Pandey Nagar, it was found that from Bombay Bazar to Begam Pul and from Surajkund to Mangal Pandey Nagar, a decision was taken to construct a Cycle track and for construction of the said track, there was obstruction on account of Double Circuit 33 KV Electricity Line and it was decided to shift the same from High Tension Cable to underground cable. This project was placed in the meeting of Infrastructure Fund Committee, which was scheduled to be convene on 4.3.2015 but the same was not approved on account of certain reasons. The record also reveals that the said work was found to be extremely necessary, therefore, it was decided to be got executed from the External Development Fund and Administrative, Financial and Technical approval was given by the then Vice-Chairman for Rs.2,73,17,750/-. The Divisional Commissioner/Chairman of the Development Authority, after examining the chain of events from the stage of assessment till the award, opined that the award in question was made with an intention to misuse and misappropriate the Government fund as neither the work in question was required to be done nor there was any urgency and after non-approval for the execution of the said work from the infrastructural fund, the same has been decided to be executed from the external development fund, which was not warranted. The Divisional Commissioner further opined that it is also important from this angle that when majority of an area of the city, roads are not available, in such a situation, decision with regard to laying underground double cable 33 KV electricity line in a small portion of area with the expenditure of Rs.2,73,17,750/- cannot be justified and only intention appears to misappropriate the Government money in the garb of the work in question.
After going through the records and pleadings, it is evident that a decision was taken at the level of Vice-Chairman of the Development Authority and other concerned authorities for shifting of Double Circuit 33 KV Electricity Line from Surajkund Try Junction to Mangal Pandey Nagar and after finalization of the tender by the Tender Committee, the project was put to execution by the authorities of the Development Authority. The petitioner being one part in the execution team forwarded the same to the subordinate authorities.
As far as payment of supervision charge is concerned, the same was processed and forwarded by the petitioner to concerned authority as the supervision charges was necessary to be paid before the start of the work to the licensee as per Clause-4.6 (e) of the Electricity Supply Code, 2005, which is reproduced as under :
"If the work is to be done by the developer/applicant/development authority, the Licensee shall charge supervision charges as a percentage as given below, of the normative estimate arrived at on KVA or KW basis as specified in cost data book, which shall be deposited with the licensee before work begins.
Load 50KW (56 KVA) upto 3600 KW (4000 KVA :- 15% Above 3600 KW upto 9000 KW (10,000 KVA) :- 8% Above 9000 KW (10,000 KVA) :- 5% In other cases, Licensee shall commence the work after the applicant has deposited the full amount of the estimate. Until the normative cost estimates are enforced, the supervision charges shall be levied as percentage specified above on estimated material cost and shall also include the estimated labour cost, cost of material handling and storage/inventory, and shall not include the system loading charges and the establishment costs."
Admittedly, the petitioner had only forwarded the agreement to the Chief Engineer for further action on 23.5.2016. Respondents have failed to show by any document that the petitioner had played active role in initiation of project, approval of project, floating of tender, finalization of tender and awarding of contact. In so far as payment of supervision charges are concerned, the same was released on the demand of U.P.V.V.N.L. vide its letter dated 4.6.2016 addressed to the Chief Engineer.
It is relevant to add here that the impugned suspension order has been passed in pursuance to Rule-33 of U.P. Development Authority Centralized Services, 1985 read with U.P. Government Servant (Discipline & Appeal) Rules, 1999. Rule 33 of U.P. Development Authority Centralized Services, 1985 deals with the disciplinary proceedings and provides that subject to such modifications as the Government may make from time to time the rules regarding disciplinary proceedings, appeals and representations against punishments, as are applicable to the Government Servants shall apply to the officers and other employees of the service.
Rule-4 of the U.P. Government Servant (Discipline & Appeal) Rules, 1999 provides that a Government Servant against whose conduct an inquiry is contemplated or is proceeding may be placed under suspension pending 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 they being established may ordinarily warrant major penalty.
Rule 4 of Uttar Pradesh Government Servant (Discipline & Appeal) Rules, 1999 is reproduced below:
"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.
(2) A Government Servant in respect of, or against whom an investigation, inquiry or trial relating to a criminal charge, which is connected with his position as a Government Servant or which is likely to embarrass him in the discharge of his duties or which involves moral turpitude, is pending, may at the discretion of the appointing Authority or the Authority to whom the power of suspension has been delegated under these rules, be placed under suspension until termination of all proceedings relating to that charge.
(3) (a) A Government Servant shall be deemed to have been placed or as the case may be, continued to be place under suspension by an order of the Authority Competent to suspend, with effect from the date of his detention , if he is detained in custody, whether the detention is on criminal charge or otherwise , for a period exceeding forty eight hours.
(b) The aforesaid Government Servant shall after the release from the custody , inform in writing to the Competent Authority about his detention and may also make representation against the deemed suspension. The competent authority shall after considering the representation in the light of the facts and circumstances of the case as well as the provision contained in this rule, pass appropriate order continuing the deemed suspension from the date of release from custody or revoking or modifying it.
(4) Government Servant shall be deemed to have placed or, as the case may be, continued to be under suspension by an order of the Authority Competent to suspend under these rules, with effect from the date of his conviction if in the event of a conviction for an offence he is sentenced to a term of imprisonment exceeding forty eight hours and is not forthwith dismissed or removed consequent to such conviction.
Explanation- The period of forty-eight hours referred to in sub-rule will be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken to account.
(5) Where a penalty of dismissal or removal from service imposed upon a Government Servant is set aside in appeal or on review under these rules or under rules rescinded by these rules and the case is remitted for further inquiry or action or with any other directions-
(a) if he was under suspension immediately before the penalty was awarded to him , the order of his suspension shall, subject to any such direction as aforesaid be deemed to have continued in force on and from the date of the original order of dismissal or removal;
(b) if he was not under suspension, he shall, if so directed by the appellate or Reviewing Authority, be deemed to have been placed under suspension by an order of the Appointing Authority on and from the date of the original order of dismissal or removal:
Provided that nothing in this sub-rule shall be construed as affecting the power of the Disciplinary Authority is a case where a penalty of dismissal or removal in service imposed upon a Government Servant is set aside in appeal or on review under these rules grounds other than the merits of the allegations which, the said penalty was imposed but the case is remitted for further inquiry or action or with any other directions to pass an order of suspension being further inquiry against him on those allegations so, however, that any such suspension shall not have retrospective effect.
(6) Where penalty of dismissal or removal from service imposed upon Government Servant is set aside or declared or rendered void in consequence of or by a decision of a court of law and the Appointing Authority, on consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegation on which the penalty of dismissal or removal was originally imposed, whether the allegations remain in their original form or are clarified or their particular better specified or any part thereof a minor nature omitted :
(a) if he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any direction of the appointing Authority, be deemed to have continued in force on and from the date of the original order of dismissal or removal
(b) if he was not under such suspension, he shall, if so effect by the Appointing Authority, be deemed to have been placed under suspension by an order of the Competent Authority and from the date of original order of dismissal or removal.
(7) where a Government Servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise) and any other disciplinary proceeding is connected against him during the continuance of that suspension, the Authority Competent to place him under suspension may, for reasons to be recorded by him in writing direct that the government Servant shall continue to be under suspension till termination of all or any such proceeding.
(8) any suspension ordered or deemed to have been ordered or to have continued in force under this rule shall continue in force until it is modified or revoke by the Competent Authority.
(9) A Government Servant placed under Suspension or deemed to have been placed under suspension under this rule shall be entitled to suspension allowance in accordance with the provisions of Fundamental rule 53 of Financial Hand book, Volume II, Parts II to IV."
In a case reported in 2010 (28) LCD 1248, Dhirendra Kumar Rai Versus State of U.P., a Division Bench of this Court has considered various pronouncements of this Court as well as of Hon'ble Supreme Court with regard to power of the State Government to place a Government employee under suspension and while interpreting Rule 4 of the U.P. Government Servant (Discipline and Appeal) Rules 1999, observed as under :-
"98. Hon'ble Supreme Court in a case reported in AIR 1959 SC 1342, The Management of Hotel Imperial, New Delhi and others V. Hotel Workers' Union, has held that power to suspend is the creature of statute or contract and decision be taken keeping in view the letter and spirit of statute.
99. In a case reported in 1974 ALJ 92, State of U.P. v. Jai Singh Dixit (Alld.) a Special Bench of Allahabad High Court consisting of five Hon'ble Judges while interpreting the provisions contained in U.P. Punishment and Appeal Rules and power to State Government to suspend a government servant held that "the power of suspension arise when on an objective consideration the appointing authority is of the view that a formal disciplinary inquiry is expected or is proceeding". It has further been held 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, they may ordinarily be expected to warrant his dismissal, removal or reduction. Meaning thereby suspension may be resorted to only in case there is serious misconduct on the part of government servant which may culminate into major penalty after due enquiry.
100. A Division Bench of Allahabad High Court in case reported in 1997 (31) ALR 605, Ram Dular Tripathi v. State of U.P. And others while interpreting Rule 49-A(1) of the Civil Services (CCA Rules) deprecated the suspension of government servant on flimsy ground observing that such suspension will have adverse affect on the service which may ultimately affect the working of the government. The principle opined by Hon'ble Five Judges of this Court in the case of Jai Singh Dixit (supra) has been reiterated and followed.
Their Lordship of Allahabad High Court in the case of Ram Dular Tripathi (supra) further held that mere lack of efficiency or skill does not ipso facto constitute misconduct and call for suspension for a government servant. To reproduce relevant portion from the judgment of Ram Dular Tripathi (supra) which is as under:-
"A Government servant can be suspended only if his conduct is such so as to warrant the inquiry under Rule 55 where one of the three major punishment can be imposed. Mere lack of efficiency skill or failure to attain the highest standards in discharge of duty would not ipso facto constitute misconduct. The suspension of the Government servant on such a ground cannot be sustained."
101. Hon'ble the Supreme Court in the case of State of Orissa v. Bimal Kumar Mohanty reported in 1994(4) SCC 126, has ruled that order of suspension should not be passed as an administrative routine in the mechanical manner. It should be on consideration of gravity of alleged misconduct or the nature of allegations imputed to a delinquent employee. In the case of A. Radha Krishna Moorthy (supra), their lordships of Hon'ble Supreme Court has ruled that disciplinary proceedings should not be initiated on vague charges. The charge should be clear and specific according to service rules and not of general nature. In the case of K. Sunkhendar Reddy (supra), the Hon'ble Supreme Court deprecated the practice of passing selective orders of suspension."
At the face of record, the Appointing Authority while passing the order of suspension has not applied his mind to the material available on record as well as towards Rule 4 of the U.P. Government Servant (Discipline and Appeal) Rules 1999. Such action on the part of the opposite parties, seems to be not correct and reprehensible.
The fundamental right conferred by Article 21 with regard to dignity and quality of life of an individual is also available to a government servant. Any action taken by the State Government hastily, without application of mind, or for extraneous reasons or consideration affecting the dignity and quality of life of a government servant, will have demoralizing effect and the government servant will not be able to discharge his/her obligation independently, in accordance to law, to serve the country.
Needless to say that suspension is not a punishment, but, the order of suspension passed on unfounded ground for extraneous reasons or without application of mind, causes mental pain and agony to a government employee and also lowers his/her status in public eyes. Accordingly, the government or state authority, should not use the power of suspension without application of mind in a routine manner. There should not be compromise with the dignity of a government employee on one or other pretext and make him/her viable to autocratic rule and compel them to succumb with the unlawful order. The power to suspend a government employee cannot be used as a punitive measure while taking recourse of suspension. The State authority must apply their mind to the material available on record and keeping in view the letter and spirit of Rule 4 of U.P. Government Servant (Discipline and Appeal) Rules 1999.
In the present case, on repeated asking, neither learned Standing Counsel nor Counsel for the Development Authority could point out any irregularity committed by the petitioner in laying double circuit 33 KV Electricity Line from Surajkund Try Junction to Mangal Pandey Nagar. They have also failed to justify or give any reason with regard to process of payment towards supervision charges to U.P.V.V.N.L., rather it has been fairly conceded by the learned Standing Counsel that as per the provisions of Clause-4.6 (e) of the Electricity Supply Code, 2005, the same is to be paid to the licensee before the commencement of the work. Therefore, the charge of payment of centage prior to commencement of work has been levelled prima facie on wrong premise.
It is relevant to add here that during the course of initial hearing of the present case, a query was made from the opposite parties with regard to the action taken against other authorities of the Development Authority, who were involved in conceiving and approving the project, it has been informed that a letter has been sent by the Divisional Commissioner/Chairman of the Development Authority to the Principal Secretary on 21.11.2017 giving the names of persons who were involved in estimation, tender, approval of the tender as well as in the process of payment, which contains the name of Vice-Chairman and Secretary of the Development Authority but apparently, no action has been taken against the said authorities of the Development Authority.
Apart from the above, perusal of FIR contained in Annexure No.13 to the writ petition reveals that the names of engineers with their designation have been mentioned but as far as the then Vice-Chairman and the then Secretary of the Meerut Development Authority, Meerut are concerned, in the FIR, it has only mentioned the then Vice-Chairman and the then Secretary and their address have been shown as India, whereas the FIR has been lodged by the Executive Engineer of the Development Authority, which shows something fishy in the matter as the complainant of the FIR is Executive Engineer of the Development Authority and he must be knowing their names and present posting but has deliberately been omitted with oblique motive. It is also relevant to mention that the petitioner was placed under suspension in the month August, 2017 and since then, more than three months have elapsed but till date, undisputedly, charge-sheet has not been served upon the petitioner and no justifiable reason has been given by the opposite parties in this context. The law is well settled that a person cannot be placed under suspension for an indefinite period.
On considering the facts in its entirety and also taking into consideration that the petitioner has been transferred on 3.7.2017 from Meerut Development Authority, Meerut to Lucknow Development Authority, Lucknow, therefore, he would not be able to interfere with the disciplinary proceedings in any manner, we find that the impugned suspension order is unwarranted when the petitioner has apparently no role for conceiving, approval and finalization of tenders and process for payment of supervision charge was initiated in consonance with the provisions contained in clause 4.6(e) of the Electricity Supply Code-2005.
For the reasons aforesaid, the present writ petition is allowed. The impugned order of suspension dated 28.8.2017 is hereby quashed. The petitioner shall be reinstated in service at his present place of posting with full back wages.
However, it will be always open for the authority concerned to proceed with the inquiry and if any material comes against the petitioner during inquiry, it is open for the authority to proceed against the petitioner in accordance with law.
Order Date :- 6.12.2017 Ajit/-
Hon'ble Dr. Devendra Kumar Arora,J.
Hon'ble Rajnish Kumar,J.
The writ petition is allowed vide order of date passed on separate sheets.
Order Date :- 6.12.2017 Ajit/-