Uttarakhand High Court
WPSS/574/2024 on 12 April, 2024
Author: Pankaj Purohit
Bench: Pankaj Purohit
Office Notes, reports,
orders or proceedings
SL.
Date or directions and COURT'S OR JUDGES'S ORDERS
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Registrar's order with
Signatures
WPSS No.574 of 2024
Hon'ble Pankaj Purohit, J.
Mr. Sandeep Kothari, learned counsel for the petitioner.
2. Mr. Pradeep Hairiya, learned Standing Counsel for the State.
3. The petitioner has challenged the order dated 22.03.2024, whereby the petitioner was placed under suspension in contemplation of some inquiry and a charge-sheet issued on the same date i.e. 22.03.2024 has also been challenged in the present writ petition.
4. It is the case of the petitioner that petitioner is an Excise Inspector and posted at Bhikiyasen, District Almora. He has been placed under suspension due to lodging of an FIR under Section 134 of the Representation of the People Act, 1951 and due to the absence from the General Election Duty.
5. It is argued by learned counsel for the petitioner that neither in the suspension order nor in the charge- sheet it has been stated that as to when he remained absent. So far as FIR lodged under Section 134 of the Representation of People Act, 1951 is concerned, it is argued by learned counsel for the petitioner that the said Section is not applicable to the present set of case.
6. Section 134 of the Representation of People Act, 1951 is quoted herein below:-
"134. Breaches of official duty in connection with elections.--2
(1)If any person to whom this section applies is without reasonable cause guilty of any act or omission in breach of his official duty, he shall be punishable with fine which may extend to five hundred rupees.
(1A)An offence punishable under sub-section (1) shall be cognizable.
(2)No suit or other legal proceedings shall lie against any such person for damages in respect of any such act or omission as aforesaid.
(3)The persons to whom this section applies are the 4**** district election officers, returning officers, assistant returning officers, presiding officers, polling officers and any other person appointed to perform any duty in connection with 6**** the receipt of nominations or withdrawal of candidatures, or the recording or counting of votes at an election; and the expression "official duty" shall for the purposes of this section be construed accordingly, but shall not include duties imposed otherwise than by or under this Act."
7. From perusal of the Section 134 of the Representation of People Act, 1951, I am of the opinion that this will not attract in the case of the petitioner particularly when he is not one of the officers enumerated in sub-section (3) of Section 134 of Representation of People Act, 1951 appointed to perform any duty in connection with the receipt of nominations or withdrawal of candidatures or recording or counting of votes at an election. Thus it cannot be said that the petitioner is in breach of "official duty."
8. Learned counsel for the respondent/State was directed to seek instructions as to what exactly the infraction which has been imputed against the petitioner as both the suspension order and charge-sheet was silent and as to when petitioner actually remained absent from his duties.
9. Today, the instructions have been passed on to this Court wherein some call details have been extracted and from that it is argued that the petitioner did not 3 attend the phone call on his mobile number (8218954364). An attempt has been made to show that petitioner did not attend the phone call made by the District Excise Officer. The instructions are taken on record.
10. From the instructions, it is not clear that the message is are of which date, rather the date 18.03.2024 is written against Monday, that too is hand written but the message which are shown below Monday sent on Monday. It is also not clear from the WhatsApp chat that the petitioner remained absent from his duty as alleged by the learned State Counsel during course of argument.
11. It is also the contention of learned counsel for the petitioner that even if the charges which have been leveled against the petitioner would not attract major penalty against him, therefore, suspension cannot be resorted in such a routine manner. He referred Rule 4(1) of the Uttarakhand Government Servants (Discipline & Appeal) Rules, 2003.
12. This Court finds force in the submission made by learned counsel for the petitioner.
13. Having considered the averment made by learned counsel for the parties, the suspension order dated 22.03.2024, passed by respondent no.1 is hereby stayed.
14. Learned State Counsel prays for and is granted four weeks' time to file counter affidavit.
15. Thereafter, two weeks' time is granted to the petitioner to file rejoinder affidavit.
16. List on 14.06.2024.
417. Stay application (IA No.1/2024) stands disposed of accordingly.
(Pankaj Purohit, J.) 12.04.2024 AK