Allahabad High Court
Abhishek Singh vs State Of U.P. And 3 Others on 30 September, 2020
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 83 Case :- WRIT - A No. - 7440 of 2020 Petitioner :- Abhishek Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Birendra Pratap Yadav,Krishna Kant Yadav Counsel for Respondent :- C.S.C. Hon'ble Ajay Bhanot,J.
The impugned order of suspension dated 10.04.2019 was passed in purported exercise of Rule 4 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 which requires suspension of a government employee who was in detention for a period exceeding 48 hours. The Rule 4(3) is extracted hereunder for ease of reference:
"4. Suspension. -(3) (a) A Government servant shall be deemed to have been placed or, as the case may be, continued to be placed 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."
The impugned order references Rule 15 of the aforesaid Rules. However it is a typographical error. Rule 15 does not confer any such power. The impugned order dated 10.04.2019 records that the petitioner was facing criminal proceedings registered as Case no. 0080/207 under Sections 498A, 323, 504, 506, 313, 376 IPC read with Section of Dowry Prohibition Act. The petitioner was detained from 16.11.2017 to 27.01.2018 (2017 is incorrectly transcribed in the order). On this footing the petitioner was suspended by the impugned order.
Sri Birendra Pratap Yadav, learned counsel assisted by Sri Krishna Kant Yadav, learned counsel for the petitioner submits that upon being bailed out the petitioner made an application to the authorities and was permitted to resume his duties on 29.01.2018. Subsequently, the suspension order was passed on 10.04.2019 i.e. more than one year after his release from detention. He further submits that the petitioner is not facing any case under Section 376 IPC. The relevant provisions under which the chargesheet has been filed against the petitioner are Sections 498A, 323, 504, 506, 313 IPC read with Section of Dowry Prohibition Act. The order has been passed with malafide intent, and Section 376 IPC has been falsely incorporated only to enhance the gravity of the offence. In fact the petitioner has been falsely implicated due to a matrimonial dispute. The order of suspension clearly reflects non application of mind.
Learned Standing Counsel defends the impugned order by calling attention to Rule 4 of the Rules 1999.
Heard learned counsel for the parties.
From the record it is evident that the petitioner is not being prosecuted under Section 376 IPC. The criminal proceedings arise out of a matrimonial dispute. The petitioner was detained from 16.11.2017 to 27.01.2018, in pursuance of the criminal case registered as Case Crime No. 80 of 2017 under Sections 498A, 323, 504, 506, 313 IPC and 3/4 Dowry Prohibition Act. He stood suspended by operation of Rule 4 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999. The petitioner was enlarged on bail on 19.01.2018.
The petitioner made a representation before the authorities on 21.01.2018, under Rule 4 of the Rules of 1999 for reinstatement in service after he had been enlarged on bail. The aforesaid representation of the petitioner was allowed and the petitioner was reinstated in service. The petitioner continued to discharge his duties thereafter, till the impugned order was passed. There was no occasion for a denovo exercise under Rule 4 of the Rules 1999, more than one year after his detention. Further the recital in order dated 10.04.2019 records that the petitioner is facing prosecution under Section 376 IPC., is factually incorrect in light of the narrative in the preceding paragraphs.
In light of this discussion, I find that the order is arbitrary and illegal. The order dated 10.04.2019 is liable to be set aside and is set aside.
The writ petition is allowed.
The petitioner shall make an application for salary and allowances to which he is entitled. The same shall be decided by the authorities within a period of one month.
Order Date :- 30.9.2020 Pravin