Allahabad High Court
Akshay Kumar vs State Of U.P. And 3 Others on 8 July, 2022
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 33 Case :- WRIT - A No. - 7267 of 2022 Petitioner :- Akshay Kumar Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Dhirendra Kumar Singh Rathor Counsel for Respondent :- C.S.C. Hon'ble Mrs. Sangeeta Chandra,J.
Heard learned counsel for the petitioner Sri Dhirendra Kumar Singh Rathor, learned counsel for the petitioner and Sri Ashish Kumar Nagvanshi, learned Standing Counsel.
This petition has been filed challenging the order dated 07.04.2022 passed by the Incharge District Panchayat Raj Officer, Sambhal, suspending the petitioner in contemplation of disciplinary proceedings after approval granted on the same date by the District Magistrate Sambhal.
It is the case of the petitioner that the petitioner is working as Gram Panchayat Adhikari at Block Junavai in District Sambhal and was allotted Rs.17,46,000/- for construction of Panchayat Bhawan. The allegation made against the petitioner is that he had spent only Rs.13,34,933/- and the work of the Panchayat Bhawan was not completed and construction had been done up to DPC level and boundary wall of the Panchayat Bhawan was constructed alone and several other similar charges. The petitioner has not been issued charge sheet. He is challenging the suspension order on the ground that it is against the U.P. Government Servant (Discipline and Appeal) Rules, 1969 and against his own service Rules i.e. U.P. Panchayat Raj Service Rules, 1979 where in Rule 3(a) the Appointing Authority has been defined as the DPRO. In the case of the petitioner however the Incharge DPRO one Zahid Hussain, who has also been arrayed as respondent no.4 in his personal capacity, has passed the impugned order.
It has been argued by learned counsel for the petitioner that earlier this Court had interfered in a similar order passed against one Surendra Singh, Gram Panchayat Adhikari in Writ-A No.14037 of 2020, wherein it had been argued that the suspension order having been passed only by Incharge/ Assistant District Panchayat Raj Officer (Technical) and not by the Appointing Authority i.e. the DPRO, the same was vitiated in view of the observations made by the Full Bench of this Court in Ram Chandra Pandey Vs. District Administrative Committee, 1998 (1) ACJ 283.
This Court in its order dated 16.03.2021 had directed the Principal Secretary of the Department to file his personal affidavit in the matter indicating as to whether the Assistant District Panchayat Raj Officer (Technical) is competent to pass a suspension order against a Gram Panchayat Adhikari. In pursuance of such order passed by this Court, the then Principal Secretary Sri Manoj Kumar Singh had filed his personal affidavit in the case of Surendra Singh and had stated that the officiating District Panchayat Raj Officer, Sambhal, has not obtained the prior approval of the competent authority that is the District Magistrate and had passed the suspension order which was prima facie against the law and the same had been revoked.
Learned counsel for the petitioner has submitted that in another writ petition filed by Indresh Kumar, Gram Vikas Adhikari, posted in District Sambhal, he had challenged his suspension order dated 18.02.2020 on the ground that the Assistant District Panchayat Raj Officer (Technical) had only been given temporary charge of District Panchayat Raj Officer Sambhal. This Court stayed the suspension order by referring to order passed by this Court on 16.03.2021 in the case of Surendra Singh (supra).
It has been submitted by learned counsel for the petitioner that despite orders by this Court in two petitions with reference to the same Assistant District Panchayat Raj Officer, Sambhal, he continues to pass illegal orders without jurisdiction suspending officers of whom he is not the Appointing Authority.
Learned counsel for the petitioner has argued that this Court had passed a detailed order on 16.08.2022 directing the learned Standing Counsel to seek instructions in the matter and to apprise the Court as to under which authority in law the respondent no.4 had passed the order impugned and as to whether prior approval had been given by the competent authority.
This Court had also directed the respondents to file their counter affidavit on 27.05.2022, which has not yet been filed and therefore the suspension order should be stayed by this Court.
Learned counsel for the petitioner having placed reliance upon the judgment of the Full Bench of this Court in the case of Ram Chandra Pandey and others Vs. District Administrative Committee and others, reported in 1998 (I) ACJ 283, this Court has carefully perused the judgement passed by the Full Bench.
The Full Bench has placed reliance upon observations made by the Supreme Court in R.P. Kapoor Vs. Union of India, AIR 1964 787, where the Supreme Court has observed "On general principles, therefore, the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental inquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental inquiry against him.... but what amount should be paid to the public servant during such suspension will depend on the provisions of the statute or rule in that connection."
The Full Bench noted that the same view had been reiterated by the Supreme Court in Balwantrai Ratilal Patel Vs. State of Maharashtra, AIR 1968 SC 800; V.P. Gindroniya Vs. State of M.P.; AIR 1970 SC 1494 and Government of India Vs. Tarak Nath Ghosh, AIR 1971 SC 823.
The Full Bench thereafter had considered the Rules applicable to the writ petitioner Ram Chandra Pandey who was an employee of District Administrative Committee and governed by the U.P. Primary Agricultural Co-operative Credit Societies Centralized Service Rules 1976. Under the Rules of 1976, Rule 14 gave the power to the Member/ Secretary of the District Committee to suspend employees as he was responsible for overall supervision of the working of District Administrative Committee. However, Rule 14 sub-clause (5) stated that such power had to be exercised with the prior concurrence of the Assistant Registrar. The Full Bench observed that a Member of Centralized Service could be suspended only with the prior concurrence of the Assistant Registrar.
In the case before the Full Bench, the power had been exercised by the Member Secretary himself without prior concurrence of the Assistant Registrar.
It had also been observed by the Full Bench that District Administrative Committee is fully competent to suspend a member of the Centralised Service and it overruled all earlier decisions taking a view contrary to what was said in Ram Chandra Pandey (supra).
This Court has also perused Rule 4 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999, which relates to suspension of Government Servants and the relevant extract of which is quoted hereinbelow:-
"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."
The third proviso to sub Rule (1) says that in the case of 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.
It is settled law that suspension is not a punishment and therefore shall not be governed by the conditions mentioned under Article 311 of the Constitution which require that no order of punishment can be passed against a Government Servant by any officer below the rank of the Appointing Authority. Suspension of an employee is usually resorted to in case disciplinary enquiry is contemplated or is pending to facilitate fair and expeditious disposal of such enquiry.
This power of suspension has been considered to be a power i.e. inherent in an Appointing Authority has has been held by Hon'ble Supreme Court in the case of R.P. Kapoor Vs. Union of India (supra), where the question was whether a Government servant could be suspended at all in contemplation or in pursuance of a disciplinary proceedings or during pendency of criminal proceedings as the power of suspension had not been given specifically under the Rules to the Governor of State of Punjab, as the writ petitioner was earlier a member of the I.C.S. In the case of the petitioner, instructions have been recieved by the learned Standing Counsel which have been placed before this Court. These have been signed by the District Magistrate Sambhal, Chief Development Officer Sambhal, and the (In charge) District Panchayat Raj Officer Sambhal, running into 18 pages which enclose all material on the basis of which suspension order was passed. Such instructions mention clearly that as the Government Order No.813/38-1-2021-790-2021 dated 19.03.2021, had provided that before any disciplinary proceedings are initiated against Gram Panchayat Adhikari or his suspension, a prior approval shall be taken by the District Panchayat Raj Officer/ In charge Panchayat Raj Officer from the current District Magistrate by sending the proposal first to the Chief Development Officer who shall forward it to the concerned District Magistrate. The Government Order referred to in the instructions has also been enclosed which perhaps had been issued after this Court had directed the Principal Secretary to file his personal affidavit in the case of Surendra Singh (supra).
In the case of the petitioner, the suspension order clearly mentioned that it was being issued with the prior approval of the District Magistrate.
This Court finds no good ground to show interference in the suspension order.
The petition being devoid of merits is dismissed.
Order Date :- 8.7.2022 Rahul