Allahabad High Court
Radhey Shyam Srivastava Son Of Sri P.N. ... vs State Of U.P. Through Secretary Its ... on 4 December, 2007
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
JUDGMENT
Rafat Alam and Sudhir Agarwal, JJ.
1. Heard learned Counsel for the parties. The learned Counsel for the parties agree that considering the legal issues raised in this writ petition it may be heard and decided finally at this stage. The learned Counsel for respondents also states that he does not prop se to file counter affidavit, though opposed the writ petition by making oral submission, and, therefore, the writ petition has been heard and is being disposed of finally at this stage under the Rules of the Court.
2. The petitioner being aggrieved by the order dated 12.09.2007 passed by the Vice-Chairman, Kanpur Development Authority placing him under suspension, has come to this Court under Article 226 of the Constitution of India, seeking a writ of certiorari for quashing the aforesaid order of suspension.
3. Sri C.L. Pandey, learned Senior Advocate assisted by Sri Manoj Kumar appearing for the petitioner has contended that under Rule 4 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as the "1999 Rules"), which is also applicable to the petitioner who is a member of a centralised service, an employee can be placed under suspension if a disciplinary inquiry is in contemplation or is pending or in respect to a criminal charge an inquiry, investigation or trial is pending. He submits that from the impugned order it is evident that none of the aforesaid conditions are existing, and on the contrary the order shows that on certain allegations the petitioner has been suspended, meaning thereby that it is by way of punishment. He further submits that the impugned order of suspension nowhere shows that it has been passed either in contemplation of disciplinary proceedings or pendency of such proceedings and, therefore, the impugned order is illegal having not been passed on any of the grounds on which it could have been passed.
4. On the contrary, Sri M.C. Tripathi, learned Counsel appearing for respondents No. 2 to 4 submits that as per instructions received by him, the chargesheet is under preparation and the impugned order of suspension has been passed in contemplation of disciplinary proceedings, though it is not mentioned in the impugned order of suspension. He further submits that the instructions received by him be taken so as to validate the impugned order of suspension and it should be deemed that the same has been passed in contemplation of disciplinary proceedings.
5. Learned Counsel for the parties have not disputed that a member of centralised service of Development Authority can be placed under suspension under Rule 4(1) of 1999 Rules which reads as under:
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 Servant or class of Government Servants belonging to Group "A' and "B' posts under suspension under this rule:
Provided also that in the case of any 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.
6. A perusal of Rule 4(1) shows that a government servant can be placed under suspension against whose conduct an inquiry is contemplated or is proceeding. A perusal of the entire order of suspension impugned in this writ petition nowhere shows that an inquiry was in contemplation or pending warranting suspension of the petitioner in the present case. Suspension order has been passed without mentioning as to whether the incumbent is being placed under suspension in contemplation of disciplinary proceedings or pendency thereof. The question whether such an order of suspension would be valid, came up for consideration before a Division Bench of this Court in Meera Tiwari (Smt.) v. The Chief Medical Officer and Ors. (2001) 3 UPLBEC 2057, in which one of us (Hon'ble S.R. Alam, J.) was a member, and it was held as under:
3. From the said rule it appears that a Government Servant against whose conduct an inquiry is contemplated, or is proceeding may be placed under suspension pending the conclusion of the inquiry. The impugned order of suspension does not refer to any contemplated inquiry or the fad that any inquiry is pending.
4. In that view of the matter, we are of the view that the order of suspension is against the provisions of Rule 4 of the U.P. Government Servant (Discipline & Appeal Rules, 1999 and the same cannot be sustained....
7. The order of suspension impugned in this writ petition also suffers from the same illegality and, therefore, in our view it cannot be sustained in view of the law laid down in the case of Meera Tiwari (Supra).
8. So far as the contention of learned Counsel for the respondents that as per instructions charge sheet is under preparation and, therefore, it should be deemed that the impugned order of suspension was in contemplation of disciplinary proceedings, is concerned, suffice it to mention that the validity of an order has to be judged for the reasons, if any, contained in the order itself and not for any material which may be supplied by way of an affidavit or after receiving instructions etc. The order otherwise invalid cannot be validated by lurnishing reasons in the shape of affidavit or otherwise. In Commissioner of Police, Bombay v. Govardhan Das Bhanji , the Apex Court held as under:
...We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
9. The Apex Court in the case of Mohinder Singh Gill v. Chief Election Commissioner has laid down that the reasons cannot be supplemented and held as under:
When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to the court on account of a challenge, get validated by additional ground later brought out.
10. The dictum laid down in Govardhan Das Bhanji (supra) has been followed in a catena of cases recently in Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai and Ors. ; Bangalore Development authority and Ors. v. R. Hanumaih and Ors. ; Bahadur Singh Lakhubhai Gohil v. Jagdish Bhai Kumalia and Ors. ; K.K. Bhalla v. State of M.P. And Ors. ; R.S. Garg v. State of U.P. and Ors. and Ashoka Smokeless Coal India Pvt. Ltd. and Ors. v. Union of India and Ors. .
11. Thus, the law is well settled that an order has to be tested on its own without taking the aid of any affidavit or other material as if it is supplementing the reasons for validating the executive order.
12. There is another legal principle which is applicable in such case. When a power is required to be exercised in a particular manner, the same has to be exercised in that manner only or not at all. In Kothamasu Kanakarathamma and Ors. v. State of A.P. and Ors. the Apex Court held that "wherever jurisdiction is given by a statute and such jurisdiction is only given upon certain specified terms contained therein it is a universal principle that those terms should be complied with, in order to create and raise the jurisdiction, and if they are not complied with the jurisdiction does not arise...."
13. The aforesaid law has been followed recently in Hotel and Restaurant Association and Ors. v. Star India Pvt. Ltd. and Ors. . A similar dispute came up for consideration before this Court by another Division Bench in Special Appeal No. 180 of 2007 Hari Shankar Misra v. State of U.P. and Ors. decided on 27.2.2007 wherein one of us (Hon'ble S. Rafat Alam, J.) was a member and following the law laid down in Meera Tiwari (supra) and Mohinder Singh Gill (supra), the order of suspension was set aside therein, since it was nowhere mentioned in that case also that the order of suspension was passed either in contemplation of disciplinary proceedings or ' pendency thereof.
14. This Bench has also taken a similar view following Meera Tiwari (supra) in Dr. Pradeep Pandey v. State of U.P. and Ors. writ petition No. 58427 of 2007 decided on 3.12.2007. In view of the aforesaid discussion, the impugned order of suspension dated 12th of September 2007 cannot sustain. In the result, the writ petition succeeds and is hereby allowed. The order dated 12th of September 2007 impugned in this petition is quashed. However, it is made clear that the respondents shall be at liberty to pass a fresh order, if they so decide in respect to suspension of petitioner, in accordance with law. No order as to costs.