Ashok Kumar Singh vs State of U.P. and others Opposite parties

U.K. Dhaon and R.P. Yadav, JJ.—Heard Sri Raghvendra Singh, learned Counsel for the petitioner, learned Standing Counsel appearing for opposite party No. 1 and Ms. N. Srivastava, learned Counsel appearing for opposite party No. 2.

The petitioner, who is an Assistant Engineer in the U.P. Rural Housing Board, has approached this Court through this writ petition under Article 226 of the Constitution of India for quashing of the suspension order dated 6.7.2005 passed by the opposite party No. 1 as contained in Annexure No. 1 to the writ petition.

Undisputed facts, giving rise to this petition, may be briefly stated as follows :

"U.P. Rural Housing Board (for short the "Board") has been constituted under Section 3 of the U.P. Rural Housing Board Act, 1983 (hereinafter referred to as the Act), which consists of a Chairman and prescribed number of members Rural'' Housing Commissioner appointed under Section 10 of the Act, is an ex off member of the Board."

Section 11 of the Act, provides for appointment of officers and servants of the Board. Under Section 12 of the Act control over such employees of the Board is vested in the Rural Housing Commissioner, who has also been delegated by the Board with the powers of the appointment of the officers and servants of this Board in exercise of the powers under Section 13 of the Act.

The petitioner, who was initially appointed as Junior Engineer was subsequently promoted as Assistant Engineer. It is undisputed that the Rural Housing Commissioneris his Appointing Authority, who passed and issued orders for his appointment and promotion also.

It appears that there was a project for construction of houses in the rural areas of village Mahmoodpur Manova, Block Nindora, within the District Barabaiki sponsored by the Government of India under the scheme known as "Innovative Stream for Rural Housing and Habitat Development". Under the" said scheme, 120 houses were to be constructed which were entrusted to the petitioner as Assistant Engineer under the supervision of Shri S.K. Sharma, Executive Engineer. A sum of Rs. 10.00 lakhs was released for construction of those houses. However, there were a number of complaints with regard to poor quality of construction work and other irregularities allegedly committed by the petitioner and Shri S.K. Sharma, Executive Engineer. An enquiry was held against the petitioner and Shri S.K. Sharma, under the direction of the Chairman of the Board. C.D.O. of the district also submitted a report and Chairman of the Board requested for action, whereupon the State Government while initiating the disciplinary inquiry placed the petitioner under suspension by order dated 6.7.2005. "

The learned Counsel for the petitioner, has contended that the Appointing Authority of the petitioner was the Rural Housing Commissioner and so, the State Government which was the Appellate Authority could not have passed an order of suspension against the petitioner. In support of his contention, the referred to case of T.C. Gupta, Dy. Director of Horticulture, 1986 (4) LCD 7, in which a Division Bench of this Court held that "An employee can be suspended either by Appointing Authority or by an officer subordinate to the Appointing Authority to whom powers are delegated or by any other authority empowered by the Governor by general or special order. Delegation of power can be made by Appointing Authority in favour of an officer who is next below in rank to the Appointing Authority. Suspension order cannot be passed by any other authority". The other case referred to by the learned Counsel for the petitioner is that of Ram Narain Tewan v. The Joint General Manager (Admn. Personnel) and another, 1984 (2) LCD 298, wherein another Division Bench of this Court has held that suspension order passed by an authority higher in rank than the Appointing Authority and not so empowered is incompetent and void.

Learned Counsel has also alluded to the case of Bharat lal v. State of U.P. and others, 2005 (2) LBESR 6 (All), which lays down that when the statute confers power on a particular authority or person to perform certain functions, it cannot be exercised by any other person or authority and the suspension order passed by the Chairman/Hon''ble Minister, whereas the State Government or Managing Director only is the Competent Authority to pass suspension order. The suspension order passed by the Chairman without jurisdiction would be liable to be quashed.

Learned Counsel appearing for the opposite parties has submitted that at the time when the impugned order of suspension was passed, the post of Rural Housing Commissioner was vacant, Shri Y.K. Bahal, Special Secretary of Rural Department, Government of U.P. was authorised to look after the routine work of the Rural Housing Commissioner as an additional charge till the regular posting was made to the vacant post of the Rural Housing Commissioner. Therefore, the State Government by virtue of powers under Section 61 of the Act, having control over the Board passed the impugned order which was within the competence of the State Government. In support of his argument, the learned Counsel has relied on the case of Director General, ESI and another v. T. Abdul Razak, (1996) 4 Supreme Court Cases 708, to justify the impugned order of suspension by the State Government.

We have considered the rival submissions made by the parties Counsel.

It is admitted by the learned Counsel for the parties that the Rural Housing Commissioner is the Appointing Authority of the petitioner. It is also admitted that the State Government is the Appellate Authority and that there are no rules framed by the State Government governing the service conditions of such employees of the Board. It is settled law that an authority competent to appoint has power to suspend the employee unless delegation is permissible and such delegation has legally been made.

In the case of Balvantrai Ratilal Patel v. State of Maharashtra, AIR 1968 Supreme Court 800, the Hon''ble Apex Court held that "the authority entitled to appoint the public servant is entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceedings, which may eventually result in a departmental enquiry against him".

In the case of Ram Narain Tiwari (supra), this Court held that an authority higher in rank than the Appointing Authority cannot pass the order of suspension and if such order of suspension is passed, the same would be incompetent and void. In the case of Bharat Lal (supra) another Division Bench of this Court held that it is only the Appointing Authority which can pass an order of suspension. So far as the law laid down in the case of Director General ESI v. 7. Abdul Razak (supra), is concerned, the Hon''ble Apex Court held that "the legal position is well settled that it is not necessary that the authority competent to impose the penalty must initiate the disciplinary proceedings and that the proceedings can be initiated by any superior authority who can be held to be the controlling authority who may be an officer subordinate to the Appointing Authority. SecState of M.P. v. Shardul Singh, (1993) 4 SCC 419, 108; P.V. Srinivasa Sastry v. Comptroller, (1993) 4 SCC 419 and Auditor General and Inspector General of Police v. Thavasiappan), (1996) 2 SCC 145]."

The initiation of disciplinary inquiry and passing of an order of suspension are two things. Disciplinary inquiry against a public servant can be initiated even by an authority higher to the Appointing Authority but so far as the order of suspension is concerned, that will have to be passed by the Appointing Authority or by the authority lower in rank which has been delegated with such power but not by any other authority.

In the present case, the power of Rural Housing Commissioner for appointment Was not delegated to any other authority and in such a situation suspension order could be passed only by the Appointing Authority i.e., the Rural Housing Commissioner.

The contention of the learned Counsel for the opposite parties that Shri Y.K. Bahal, who was Special Secretary, Rural Development Department, U.P. Shashan was entrusted with the powers of Rural Housing Commissioner only with a view to lookafter the routine work in addition to his own duties as Special Secretary and he was not exercising the fullfledged powers of the Rural Housing Commissioner, so it was the State Government which by virtue of controlling power under Section 61 of the Act, which permitted the applicability of Sections 83 and 92 of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1955 passed the impugned order cannot be accepted.

Section 61 of the Act reads as follows :

"Section 61. Applicability of certain provision of Uttar Pradesh Act 1 of 1966. The provision of Sections 83 and 92 of the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1955 shall mutatis mutandis apply to the Board constituted under this Act and to its members, officers and servants as they apply to the Avas Evam Vikas Parishad constituted under the first mentioned Act and to its members, officers and servants."

Section 83 of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 provides for exercise of powers and functions of local authority.

Section 92 of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 is quoted in extenso as follows :

"92. Control of the State Government over the Board and other local authorities. (1) The Board shall

(a) submit to the State Government such reports and returns in such forms and at such intervals as may be prescribed;

(b) furnish to the State Government such documents, returns, statements, estimates or other information regarding any matter under the control of the Board as may be directed by the State Government.

(2) The State Government may give the Board such directions as in its opinion are necessary or expedient for carrying out the purposes of this Act and it shall thereupon be the duty of the Board to comply with such directions.

(3) Without prejudice to other provisions of this Act and notwithstanding anything contained in any other law for the time being in force, the State Government may give any local authority such directions as in its opinion are necessary or expedient for enabling the Board to carry out the purposes of this Act; and thereupon it shall be the duty of the local authority to comply with such directions."

This section does not authorise the State Government to pass an order of suspension. The powers of Appointing Authority did not vest in the State Government. The powers of Appointing Authority were delegated by the Board under Section 13 of the Act to the Rural Housing Commissioner and those powers could not be further delegated nor it has been pleaded that such a delegation was in favour of State Government.

Further, the Hon''ble Supreme Court in the case of Director General ESI (supra) has held that "the law is well settled that in accordance with the maxim delegates non protest delegate, a statutory power must be exercised only by the body or officer in whom it has been confided, unless subdelegation of the power is authorised by express words or necessary implication. See Halsbury''s Laws of England, 4th Edn., Vol. 1, Para 32, p. 34; Craies on Statute Law, 7th Edn. P. 316, Barium Chemicals Ltd. Company Law Board, SCR at p. 330 and Sahni Silk Mills (P) Ltd v. ESI Corp. SCC at pp. 350351]."

By virtue of the powers of Controlling Authority under Section 92 of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965, the State Government has the power to control over the Board or local authorities as specified in the said section. By no stretch of imagination, it can be said that this section in any way empowers the State Government to passan order of suspension.

We do not find any substance in the contention of the learned Counsel for the opposite parties that Shri Y.K. Bahal, having additional charge of Rural Housing Commissioner was not competent to pass an order of suspension. It can also not be held that he had been directed to look after the routine affairs only till the regular appointment to the vacant post of the Rural Housing Commissioner was made. It would appear from the order Annexure No. CA8 that by the order dated 6th June, 2005, Shri Y.K. Bahal, was directed to perform duties and functions of the Rural Housing Commissioner in addition to his own duty as Special Secretary, Rural Development Department, Government of U:P. He took over charge of the post in the forenoon of 7th of June, 2005 and continued as such till Ms. Sandhya Tomar took over charge of the said post in the afternoon of 15th July, 2005. Shri Y.K. Bahal, as Rural Housing Commissioner in addition to his duty as Special Secretary was not caretaker or empowered to look after the routine work only. He was having fullfledged powers of the Rural Housing Commissioner which he had been discharging as well, as is evident from the order dated 9.6.2005 placed in connected Writ Petition No. 1174 (S/B) of 2005. This plea seems to be an after thought and taken only to justify an order which has been passed by an authority not competent to pass it and therefore, the impugned order is bad in the eye of law. Rural Housing Commissioner was already there and even if he would have not been there, the State Government being the Appellate Authority could not have passed suspension order although it had the powers to initiate the disciplinary inquiry.

It is a settled proposition of law that when statute confers powers on a particular authority or person to perform certain functions, it cannot be exercised by any other person or authority (See Bharat lal v. State of U.P.). In Ramana v. LA. Authority of India, AIR 1979 SC 1628, the Hon''ble Supreme Court held "It is a well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be Judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them".

For the reasons afore stated, we are of the opinion that the impugned order of suspension dated 6.7.2005 (Annexure1) has been passed by an authority not competent to pass the same and therefore, it is bad in law and liable to be quashed.

In view of the above, we do not consider it necessary to enter into the merits of the allegations levelled against the petitioner. Parties'' Counsel also did not address the Court on merits of the matter.

In the result, the writ petition is allowed. The impugned order of suspension dated 6.7.2005 (Annexure1) is hereby quashed. However, it would be open to the competent authority to pass appropriate orders afresh if so legally permissible.