Allahabad High Court
Siddhartha Pandey vs State Of U.P. And Another on 3 March, 2016
Author: Manoj Kumar Gupta
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 33 Case :- WRIT - A No. - 6147 of 2016 Petitioner :- Siddhartha Pandey Respondent :- State Of U.P. And Another Counsel for Petitioner :- Satish Mandhyan Counsel for Respondent :- C.S.C.,Ashish Mishra,Manish Goyal Hon'ble Manoj Kumar Gupta,J.
1. Heard counsel for the petitioner, learned standing counsel for respondent no.1 and Sri Ashish Mishra for respondent no.2.
2. The petitioner, while he was working as Sessions Clerk in the court of Additional District Judge, Court No.7, Fatehpur, was placed under suspension by impugned order dated dated 1.01.2016 passed by the second respondent (Incharge District Judge, Fatehpur). The allegation against the petitioner is that he had used unparliamentary language with the Incharge District Judge and misbehaved with him. He appeared to be in a state of intoxication and consequently, he was sent for medical examination at District Hospital, Fatehpur. Following the medical examination a report was given, according to which, his pupil was found dilated and there was alcoholic smell present on expiration. However, his blood pressure was found to be normal. The Incharge District Judge, on the same date, passed the impugned order placing the petitioner under suspension on charge of misconduct. The Additional District and Sessions Judge, Court No.5 has been appointed as Inquiry Officer and he has been authorised to frame a charge sheet and serve the same on the petitioner after getting it approved from the second respondent. Aggrieved thereby, the petitioner has preferred the instant writ petition.
3. The suspension order is being challenged primarily on two grounds. It is contended that the second respondent, who was officiating as District Judge on that date, was not competent to place the petitioner under suspension inasmuch as there was no delegation of administrative powers of the District Judge in his favour. The other ground on which challenge is laid to the suspension order is that the second respondent himself being the complainant could not be a judge in his own cause and thus, could not have placed the petitioner under suspension. It is urged that the petitioner was not under influence of intoxication, nor the medical examination proves any such fact.
4. On the other hand, learned counsel appearing on behalf of the second respondent submitted that on 1.1.2016, the date on which the impugned order was passed, the second respondent was holding the charge of the office of the District Judge and in view of provisions of Section 10 of the Begal, Agra and Assam Civil Courts Act, 18871, he was competent to place the petitioner under suspension. He further submitted that the doctrine of necessity impelled the second respondent to take the impugned decision and no exception can be taken to the same.
5. It is not in dispute that on 1.1.2016 when the impugned order was passed, the District Judge was absent from the place where his court is held. Section 10 of the Act specifically provides that in such circumstances, the Additional Judge, or, if an Additional Judge is not present at that place, the senior Subordinate Judge present thereat, shall, without relinquishing his ordinary duties, assume charge of the duties of the District Judge, and shall continue in-charge there of until the office is resumed. Sub-section 2 of Section 10 provides that while in charge of the office of the District Judge, the Additional Judge or Subordinate Judge, as the case may be, may, subject to any rules which the High Court may make in this behalf, exercise any of the powers of the District Judge. Thus, the Statute does not envisage a vacuum and makes provision authorising the Additional Judge to exercise any of the powers of the District Judge. Concededly, no rules have been framed by the High Court in this regard. The second respondent on that particular date was indisputably the senior most Additional Judge in the district court and therefore, as per provisions of Section 10, he was working as Incharge District Judge. Consequently, he was competent to exercise any of the powers of the District Judge.
6. The service of the petitioner is regulated by the Uttar Pradesh State District Court Service Rules, 20132. Under Rule 2 (1), the 'Appointing Authority' means the District and Sessions Judge of the District. Section 2 (12) defines 'Disciplinary Authority' to mean an Authority empowered under Rule 23 to impose penalty. Rule 23 (2) empowers the Appointing Authority to place a person under suspension against whose conduct an enquiry is contemplated or is proceeding. Under the third proviso, the Appointing Authority is empowered to delegate its power to the next lower authority. In the instant case, concededly there is no delegation of power to the next lower authority. The second respondent, in view of provision of Section 10 of the Act read with Rule 23 (2) was thus the Disciplinary Authority on that particular date and was competent to initiate disciplinary proceedings against the petitioner and place him under suspension.
7. Learned counsel for the petitioner submitted that there had been a delegation of power in favour of the second respondent by a notification dated 17.12.2015 but it is only in relation to financial matters. It is, therefore, sought to be suggested that the second respondent was not competent to exercise the administrative powers attached to the office of the District Judge. However, this Court is unable to accept the said contention in view of specific provisions of Section 10 of the Act which empowers the Incharge District Judge to exercise any of the powers of the District Judge.
8. The other issue which arises for consideration before this Court is whether, in the facts and circumstances of the instant case, the second respondent being the complainant himself, was competent to place the petitioner under suspension. Learned counsel for the petitioner has placed reliance on a Constitution Bench judgment of the Supreme Court in the case of Arjun Chaubey Vs. Union of India and others3, wherein the Supreme Court has held that where the complainant himself is the authority considering the explanation offered by the delinquent, the order of dismissal passed, was held to be in breach of the principles of natural justice. In that case, the appellant was working as a Senior Clerk in the office of Chief Commercial Superintendent, Northern Railway, Varanasi4. His explanation was called by CCS and finding it to be unsatisfactory, he was dismissed from service. The regular disciplinary enquiry was not held on the pretext that it was not reasonably practicable to hold an enquiry. Most of the charges related to alleged misconduct in relation to CCS himself. The Supreme Court noticing that the Disciplinary Authority himself was the complainant and also involved in assessing the weight of his own accusations, held the order of termination to have been passed in breach of principles of natural justice. The Supreme Court observed as under:-
"Evidently, Respondent 3 assessed the weight of his own accusations against the appellant and passed a judgment which is one of the easiest to pass, namely, that he himself was a truthful person and the appellant a liar. In doing this, Respondent 3 violated a fundamental principle of natural justice. The main thrust of the charges against the appellant related to his conduct qua Respondent 3. Therefore, it was not open to the latter to sit in judgment over the explanation offered by the appellant and decide that the explanation was untrue. No person can be a judge in his own cause and no witness can certify that his own testimony is true. Any one who has a personal stake in an inquiry must keep himself aloof from the conduct of the inquiry. The order of dismissal passed against the appellant stands vitiated for the simple reason that the issue as to who, between the appellant and Respondent 3, was speaking the truth was decided by Respondent 3 himself."
9. The Supreme Court in the case of State of U.P. Vs. Sheo Shanker Lal Srivastava and others5 was dealing with a case where Lok Ayukta charged his Private Secretary of certain misconduct. It was alleged that he had disobeyed the orders passed by the Lok Ayukta and also used indecent language. A show cause notice was issued to him by the Lok Ayukta and thereafter, the Lok Ayukta passed an order imposing punishment on him. The order passed by the Lok Ayukta awarding punishment was subjected to challenge on the ground that he himself being the complainant could not have conducted the enquiry nor was competent to impose any punishment. The Supreme Court held that the doctrine of necessity would be applicable and it would exclude the principles of natural justice. The order of punishment was upheld by observing as under:-
"13. It is true that the principle of natural justice is based on two pillars : (i) nobody shall be condemned without hearing; and (ii) nobody shall be a judge in his own cause.
14. It is, however, well known that the principles of natural justice can be excluded by a statute. They can also be waived.
15. In a case where doctrine of necessity is applicable compliance of the principles of natural justice would be excluded."
10. A learned Single Judge of this Court in the case of Awadhesh Kumar Gupta Vs. Board of Directors Allahabad U.P. Gramin Bank and others6 was confronted with a similar plea. It was contended that disciplinary proceedings initiated against the delinquent are liable to be struck down as the domestic enquiry was initiated by the complainant himself. The Court, after noticing various decisions of the Supreme Court, concluded by holding that doctrine of necessity would come into play and thus, no exception can be taken to the initiation of domestic proceedings by the complainant himself.
11. A Constitution Bench of the Supreme Court in the case of Union of India and another Vs. Tulsi Ram Patel7 as far back in the year 1985 examined the doctrine of natural justice and thereafter, held that the rules of natural justice "yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal strait-jacket. They are not immutable but flexible. These rules can be adapted and modified by statutes and statutory rules and also by the constitution of the Tribunal which has to decide a particular matter and the rules by which such Tribunal is governed".
12. In the instant case, indisputably, on the date the incident had occurred, the second respondent being the Disciplinary Authority, was competent to place the petitioner under suspension. As noted above, there had been no delegation of power by the District Judge under the third proviso to Rule 23 (2). The second respondent himself being a statutory delegatee in view of the provisions of Section 10 of the Act, was not competent to further delegate such power by taking recourse to the third proviso to Rule 23 (2). In such a situation, this Court does not find any illegality in the action of the second respondent in placing the petitioner under suspension.
13. The suspension of the petitioner during pendency of the disciplinary proceedings is not penal in nature. The charge, if proved, is serious enough to entail infliction of a major penalty. The own case of the petitioner is that he has not even been served with a charge sheet so far. The second respondent is not holding the enquiry himself, but has designated another officer as the Enquiry Officer. There does not appear to be any element of bais. Thus, it is not a fit case for interference under Article 226 of the Constitution.
14. The other pleas of the petitioner that he was not under the influence of intoxication on that particular date or that the report of medical examination does not indicate that he was under influence of liquor, are all questions which shall be examined during the course of the disciplinary enquiry. This is not the stage to go into these pleas, nor can suspension order be interfered with on such grounds.
15. The writ petition lacks merit and is dismissed.
16. Sri Mandhyan, learned counsel for the petitioner prayed that the disciplinary proceedings be directed to be concluded expeditiously.
17. Having regard to the facts of the case, it is hereby directed that the disciplinary proceedings be held and concluded expeditiously, in accordance with law.
18. No order as to costs.
(Manoj Kumar Gupta, J.) Order Date :- 3.3.2016 SL