Allahabad High Court
Mohd. Hasim Iqbal vs State Of U.P. And Another on 6 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 2893
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 36 Case :- WRIT - A No. - 11374 of 2019 Petitioner :- Mohd. Hasim Iqbal Respondent :- State Of U.P. And Another Counsel for Petitioner :- Shri Chandra,A.K. Verma Counsel for Respondent :- Sunil Kumar Misra Hon'ble Mrs. Sunita Agarwal,J.
Heard Sri A.K. Verma learned counsel for the petitioner and Sri M.C. Chaturvedi learned Senior Advocate assisted by Sri Sunil Kumar Misra learned Advocate for the respondents.
The petitioner is aggrieved by the suspension of his services vide order dated 18.6.2019 on the allegation that the petitioner did not remove unauthorized occupation of House no. A-275, which was allotted to one Smt. Nirmala Dixit wife of Sri Sharad Chandra Dixit and failed to handover possession of the house to her within appropriate time. The allegations are that the petitioners did not discharge his duties properly and caused huge loss to the Parishad and tarnished its image by his reckless style of working.
A departmental enquiry is initiated against the petitioner onthe said allegations.
Learned counsel for the petitioner has restricted his arguments to challenge to the suspension order only. It is contended that the house in question was in unauthorized occupation for the last approximately 20 years, inasmuch as, it was allotted to Smt. Nirmala Dixit wife of Sri Sharad Chandra Dixit on 6.7.1985.
The said allottee filed a Writ Petition No. 12435 of 1985 challenging the fixation of allotment money which was revised, thereafter. Another Writ Petition No. 2553 of 1988 was filed by her challenging the refixation amount which was stayed on 2.1.1988 and vide order dated 29.8.1990, the allottee was directed to pay Rs. 1000/- per month till disposal of the said writ petition. The said writ petition was finally disposed of with the direction to the allottee to approach the civil court for the relief sought therein.
A Civil Suit No. 2704 of 1990 (Smt. Nirmala Dixit vs. Avas Vikash Parishad and others) was filed by Smt. Smt. Nirmala Dixit. In the meantime, a Scheme (One Time Settlement) was introduced in the department and she applied pursuant to the same. A demand notice dated 5.12.2002 was issued, which was challenged in Writ Petition No. 40395 of 2004, dismissed on 24.3.2011. After a lapse of five years, the said allottee again applied for 'One Time Settlement', pursuant to which, the property department Awas Evam Vikas Parishad had issued a demand notice dated 31.3.2016. The demanded money was deposited by the allottee on 29.4.2016 and 19.5.2016. A letter dated 18.11.2016 was issued by the said department asking her to withdraw the civil suit. After withdrawal, a sale deed dated 22.2.2018 was executed in favour of the allottee by the Property Manager.
A communication dated 23.4.2018 was then issued by the Property Manager asking the petitioner to provide physical possession of the house in question to the said allottee. After receiving the same, the Assistant Engineer, Nirman Khand, Awas Vikas made necessary enquiry and it was found that one Manoj Prajapati and Manudding have illegally encroached the said house. The Assistant Engineer, wrote a letter on 23.5.2018 to the Station House Officer, Police Station Shahpur, Gorakhpur to evict the unauthorized occupants. Taking into account the said report, the petitioner being the Executive Engineer directed the Junior Engineer to take police help for ejectment of the unauthorized occupants. Two such communications were sent by the petitioner on 4.7.2018 and 6.8.2018 and the letter dated 23.8.2018 of the Junior Engineer requesting the Station House Officer to provide police force for ejectment of unauthorized occupants are on record. The petitioner also wrote to the Additional District Magistrate (City) on 26.9.2018 requesting to take necessary steps for removal of illegal encroachment. The petitioner had approached to the Additional District Magistrate (City) on 14.12.2018 and the District Magistrate, Gorakhpur on 6.6.2019 in writing seeking their help to remove encroachments. After best efforts made by the petitioner putting pressure on the District Administration, the encroachment had been removed and unauthorized occupants vacated the house, information in this regard was sent to the allottee on 10.6.2019 and vacant possession of the house in question was handed over to her on 17.6.2019.
The submission is that there is no dispute about the above facts. However, in the meantime, Sri Sharad Chandra Dixit husband of the allottee filed an application under Section 156(3) Cr.P.C in the month of April, 2019 in the court of Special Judge (Anti Corruption Act), Court No. 3, Gorakhpur, praying for lodging of the first information report against Sri Ajay Chauhan (Commissioner, Avas Evam Vikas Parishad, Lucknow), the petitioner herein, Sri R.P. Tiwari (Property Executive Officer, Avas Evam Vikas Parishad, Gorakhpur) and Sri Sant Ram Mishra (Junior Engineer). An order dated 9.5.2019 was passed by the court concerned giving direction to the Station House Officer, Police Station Shahpur to register and investigate the allegations against the aforesaid persons.
Faced with the said circumstance, the Commissioner, Avas Evam Vikas Parishad without conducting any proper enquiry or giving opportunity of hearing to the petitioner had suspended him, treating the allegations made in the complaint as true.
The submission is that the respondent no. 2 has acted in a vindictive manner in passing the suspension order merely for the fact that the first information report was directed to be lodged against him also. No proper enquiry had been done before suspension and moreover, the petitioner cannot be held responsible for unauthorized occupation of the house in question or delay in handing over possession to the allottee. The submission is that the allottee herself was litigating with the Avas Evam Vikas Parishad since 1985 till April, 2018 and the Property Manager was contesting the matter on behalf of Parishad. When the petitioner took over charge of the office of Executive Engineer, the file of the allotment of the house in question was in the office of the Property Manager. The petitioner was not aware as to what was actually going on. At the best for any illegal occupation or neglect in maintenance of the house in question, the Property Manager can be held responsible, inasmuch as, the allottee was accommodated after 33 years. As soon as the matter came in the jurisdiction of the petitioner, he made his best efforts and got removed the unauthorized occupation within the period of two months. It is admitted that the petitioner was posted as Executive Engineer, in Nirman Khand, UPAVP, Gorakhpur only in the year 2015.
The submission, thus, is that the suspension order is guided by irrelevant considerations and is an outcome of legal malice. No opportunity of hearing, whatsoever, has been granted to the petitioner in the course of preliminary enquiry before recording prima facie satisfaction of alleged wrong committed by the petitioner.
Learned Senior Advocate appearing for the respondents, however, vehemently argued that the petitioner while being posted as Executive Engineer was directly responsible for the maintenance and upkeep of the house in question and also to handover possession to the allottee within short time. After execution of the sale deed on 27.2.2018, the possession was handed over by the petitioner only on 17.6.2019, that too when the application for lodging first information report was filed by the husband of the allottee against officials of the Parishad including the Housing Commissioner on 29.5.2019. The time of around 16 months taken by the petitioner in handing over possession to the allottee has resulted in maligning the image and repute of the Avas Evam Vikas Parishad. The petitioner is guilty of deliberate collusive inaction in allowing the house in dispute being occupied by unauthorized occupants and further in not removing the illegal encroachment. From 27.2.2018 upto the date of handing over possession of the house in question i.e. 17.6.2019, the house in question was under the supervision of the petitioner.
As to the stand of the petitioner that he was not provided opportunity of hearing during the course of preliminary enquiry, no submission could be made by the learned Senior Advocate appearing for the respondents.
To analyze the said submissions, pertinent is to note that though allotment of the house in question was made in the year 1985 but the sale deed was executed only on 27.2.2018 for the reason that the allottee did not deposit the allotment money. The allotment at the same time was not cancelled. The reason for keeping the allotment alive for such a long time is not known nor any enquiry has been conducted in this regard.
The preliminary enquiry report and the stand of the respondents in the short counter affidavit are based on the fact that after execution of the sale deed in the year 2018, it was the responsibility of the petitioner to get the encroachment removed and hand over possession to the allottee. There is no enquiry as to how and when encroachment took place and who is responsible for the same. The time taken in removal of encroachment though is one year but in prima facie opinion of the Court, the petitioner cannot be held solely responsible for delay in handing over possession to the allottee.
The arguments of learned Senior Advocate for the respondents that the house in question was under direct control and supervision of the petitioner since after 8.8.2015 when he was posted in District Gorakhpur is not substantiated from any material on record and contrary to stand in the short counter affidavit.
Prima facie, it appears that the record pertaining to the house in question were lying in the property department as it was dealing with the allottee who was litigating over the quantum of allotment money. The file was handed over to the petitioner being the Executive Engineer only with the letter dated 23.4.2018 written by the Property Manager for handing over physical possession of the house in question.
It further appears from the record that the preliminary enquiry and the suspension order both are result of the first information report lodged against the officers of Awas Evam Vikas Parishad including the Housing Commissioner, pursuant to an order under Section 156(3) of the Code of Criminal Procedure.
From the preliminary enquiry report, it is evident that no opportunity of hearing had been granted to the petitioner.
Noticing the said facts, this Court is of the considered opinion that the suspension order is not result of any independent enquiry being conducted by the Housing Commissioner, Awas Evam Vikas Parishad, Lucknow.
It is settled law that the suspension is not a punishment and it is completely within the domain of the disciplinary authority to place an employee under suspension in contemplation of or pending inquiry. It is ordinarily not open to the court to interfere in case of suspension as the disciplinary authority also has inherent power to review its order. The scope of interference in the matter of suspension is limited to the extent of it being mala fide and without there being even a prima facie evidence on record connecting the employee with the misconduct in question.
The object and purpose of suspension is to keep the delinquent out of the mischief range, to complete the disciplinary proceedings unhindered. Suspension is a measure in the aid of disciplinary proceedings so that the delinquent may not gain custody or may not take any advantage of his position. At that stage, it is not desirable that the court to find out as to which version is true. The court cannot act as an appellate forum de hors the powers of judicial review. However, these principles of limitation on the power of judicial review under Section 226 of the Constitution of India are not of universal application. Rather each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society.
Reference be made to the observations of the Apex Court in Jayrajbhai Jayantibhai Patel vs. Anilbhai Nathubhai Patel and others reported in 2006 (8) SCC 200, extracted as follows:-
"Though judicial restraint, albeit self-recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. In other words, when a court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decision-making process and not the decision."
It is trite in law that the power of suspension cannot be exercised without any reasonable ground or as vindictive misuse of power in an arbitrary manner. Suspension should be made only in a case where there is a strong prima facie case against the delinquent employee and the allegations involving moral turpitude, grave misconduct or indiscipline or refusal to carry out the orders of superior authority are there, or there is a strong prima facie case against the delinquent employee, if proved, would ordinarily result in reduction in rank, removal or dismissal from service. The authority should also take into account all the available material to form a satisfaction that in a given case, it is not advisable to allow the delinquent to continue to perform his duties in the office or his retention in office is likely to hamper or frustrate the inquiry.
The suspension order accentuated by mala fide, arbitrariness, or for ulterior motive falls within the meaning of vindictive misuse of power.
Reference may be made to the judgment of the Apex Court in Union of India and another vs. Ashok Kumar Aggarwal reported in 2013 (16) SCC 147.
In the light of the said principles, when the facts of the present case are put to scrutiny, it is found that the disciplinary authority has not acted in a bona fide manner in suspending the petitioner on the allegations of dereliction of duty on his part in not removing unauthorized occupation, which was continuing for the past approximately 33 years. There is nothing in the preliminary enquiry report to indicate that the petitioner was aware of the illegal encroachment since 2015 when he took charge to the post of the Executive Engineer in the District Gorakhpur. Prima facie, it appears that the matter was brought to the notice of the petitioner after the sale deed was executed by the property department in the year 2018 with the letter dated 23.4.2018.
As is evident from the record, the suspension order is a result of first information report lodged against the Housing Commissioner as the preliminary enquiry had been conducted in hurry in a cursory manner after the order dated 9.5.2019 was passed by the Additional District and Session Judge/Special Judge (Prevention of Corruption Act), Court No. 3, Gorakhpur on the application of husband of the allottee under Section 156(3) Cr.P.C. in Criminal Case No. 212 of 2019. The Housing Commissioner while accepting the preliminary enquiry has completely ignored the fact that the allottee did not deposit the allotment money for a period of 33 years and the sale deed was executed in her favour in 'One Time Settlement' entered in the year 2016, to which the petitioner does not appear to be party.
For the above discussion, this Court reaches at an irresistible conclusion that the suspension is vindictive and is a result of misuse of power on the part of the Housing Commissioner, U.P. Awas Evam Vikas Parishad, being annoyed by the fact of lodging of the first information report against him. The decision making process resulting in the suspension of the petitioner suffers from legal malice, as bare minimum requirement of providing opportunity to the petitioner during the course of preliminary enquiry has not been fulfilled.
Consequently, this Court, though, does not propose to interfere in the disciplinary enquiry initiated against the petitioner, but found it fit and proper, in the peculiar facts and circumstances of the instant case, to hold that the suspension order dated 18.6.2019 being a result of mala fide exercise of power on the part of the Housing Commissioner, U.P. Awas Evem Vikas Parishad cannot be sustained.
The petitioner cannot be kept out of service at the whims and fancies of respondent no. 2.
At the same time, it is made clear that the observations made by this court hereinabove are only to examine the merits of the suspension order and, in no way, would affect the disciplinary enquiry, which has to be conducted independelty to find out truth of the allegations levelled against the petitioner.
In any case, the enquiry officer shall submit his report on the evidence lead before him independently and the disciplinary authority is to take a decision on merits soon after receipt of the enquiry report, strictly, following the procedure for conduct of disciplinary proceeding.
In any case, the petitioner is under obligation to participate in the disciplinary enquiry which has to be brought to its logical end, as expeditiously as possible, preferably, within a period of three months form the date of submission of certified copy of this order, provided the petitioner cooperates.
It is further made clear that the petitioner shall not have access to the records pertaining to the disciplinary enquiry lying in his office and any other office and the same has to be seized by the enquiry officer, immediately. It is, however, open for the petitioner to get copy of the documents or inspect the record of enquiry under the direction of the enquiry officer.
With the above observations and directions, the writ petition is disposed of.
Order Date :- 6.8.2019 Brijesh