Basant Lal Singh vs State of U.P. and Others

The petitioner joined the services in the Department of Food and Civil Supplies, U.P. in the year 1976 on the post of Deputy Regional Marketing Officer. Later on the petitioner was promoted to the post of Deputy Regional Food Controller in the year 1982 and thereafter he was promoted as Chief Marketing Officer in the year 1988 and presently he is posted as such in the office of Food Commissioner, U.P. Lucknow.

The petitioner has been placed under suspension vide order dated 5th November 2007 apparently for failure in performing his supervisory duties properly in the matter of purchase of levy rice in Hardoi District in the year 2006-07 which purchase started from 1st October 2006 and continued till 30th June 2007.

It appears that on a news item being published about the purchase of sub-standard rice, inquiries were conducted but in none of the inquiries the petitioner was indicted.

Shorn of other details in a bid to take action against the officers who were responsible for purchase of sub-standard levy rice at Hardoi in the year 2006-07, the State Government directed for making preliminary enquiry to fix the liability on the erring officers/officials in the matter of purchase of the aforesaid rice.

These reports were produced by the learned State counsel which show that though various officers of the Region and Districts were found, prima-facie guilty in performance of their duties, their slackness, and connivance etc. in the purchase of sub-standard levy rice against whom action for suspension and drawing disciplinary proceedings was recommended but the petitioner was not indicted in any of these reports.

So far the petitioner who is stationed at Head-quarters, Lucknow, is the Chief Marketing Officer for the entire State of U.P. has the authority to suggest necessary tests and reports in case it is brought to his notice that the rice purchased, was not in accordance with the norms set up for the purpose.

Three reports which are relevant for the purpose, are; dated 20th August 2007, submitted by the Regional Food Controller, Lucknow, the other dated 1st October 2007 submitted by the Six Member Committee appointed by the Commissioner, Food and Civil Supplies, U.P. and the third report is also of the same date submitted by the Commissioner, Food and Civil Supplies Department to the State Government. The action was proposed to be taken against the then Regional Marketing Officer and the Regional Food Controller, Lucknow; also besides other officers who were found guilty.

In none of the reports including the report of Six Members Committee dated 1st October 2007 the petitioner was found guilty of any lapse on his part in the performance of his supervisory duty and for reaching this conclusion the Committee took into consideration the material available and the explanation submitted by the petitioner. The Committee observed that there appears to be no dereliction of duties or supervisory lapse on the part of the petitioner. It observed that so far the Chief Marketing Officer, Head-quarters i.e. petitioner is concerned he ensured full compliance of the directives issued by the State Government at the field level and had taken the required steps

The Commissioner, Food and Civil Supplies also reported on that very same date i.e. 1.10.2007, analysing the reports that no illegality or irregularity has been committed by the petitioner in the matter of purchase of sub-standard levy rice at Hardoi Depot.

Despite the aforesaid reports of various Enquiry Committees and also that of the Commissioner, Food and Civil Supplies, who is the Head of the Department, where the petitioner is working and despite the note prepared by the Special Secretary on 9th October 2007 that the Commissioner, Food and Civil Supplies has not found the petitioner guilty and that action be taken against the then Regional Food Controller and the then Regional Marketing Officer, the Principal Secretary in his comments/report dated 15th October 2007 persuaded by a letter issued by the commissioner, Lucknow Division, Lucknow dated 24th August 2007, made a recommendation for suspending the petitioner also.

It may be relevant to mention here that the Commissioner, Lucknow Division, Lucknow vide his letter dated 24th August 2007 instructed for suspending the petitioner also alongwith two other persons namely; Ram Raj Singh Yadav, and Radhey Shyam Mishra, the then Regional Food controller and the then Regional and Marketing Officer, and therefore, inspite of the fact that the petitioner was not found even prima-facie guilty in any of the inquiries and even by the Commissioner, the Head of the Department of Food and Civil supplies Department, the Principal Secretary, on the directive issued by the Commissioner, Lucknow Division, Lucknow made the recommendation for suspending the petitioner.

After the aforesaid recommendation of the Principal Secretary dated 15th October 2007 the matter was placed before the Minister concerned who on 20th October 2007 agreed for taking action for suspending Ram Raj Singh Yadav and Radhey Shyam Mishra but so far the petitioner was concerned, he directed that though the Commissioner, Lucknow Division, Lucknow has made a recommendation against him but the Commissioner, Food and Civil Supplies has not made any such recommendation nor the Enquiry Committee has made such a recommendation, therefore, an enquiry be got conducted by some High Level Officer in respect of his supervisory responsibilities and thereafter if necessary action may be taken against him.

The Minister of the Department was, thus, apparently not convinced with the proposed action of suspension of the petitioner and therefore, he directed that first an enquiry be conducted by some High Level Officer for finding out the supervisory lapse on the part of the petitioner and thereafter to take any action.

The record reveals that the aforesaid recommendation was placed before the Chief Minister who directed that the petitioner be also suspended alongwith Radhey Shyam Mishra, who was the then Regional Marketing Officer and departmental enquiry be initiated against him. Directive for initiating enquiry against the Ram Raj Singh Yadav, the then Regional Food Controller was also issued.

The record produced by the State Counsel about the enquiries, including the six members Committee, show that the petitioner was not indicted and was not found guilty of dereliction of duties or in supervision of his duties and rather the Commissioner, Food and Civil Supplies, the Head of the Department, gave his specific opinion, in this regard after seeing the record and the explanation of the petitioner but since the Commissioner, Lucknow Division, Lucknow in his letter dated 24th August 2007 has asked for an action against the petitioner also, therefore, a note to that effect was prepared by the Principal Secretary on 15th October 2007. The Minister of the Department, even then did not agree with the said recommendation nor with the directive issued by the Commissioner, Lucknow Division, Lucknow and directed that before taking any action against the petitioner, an enquiry be got conducted by some High Level Officer for finding out the supervisory lapse on the part of the petitioner but without undertaking the said exercise and without following the directive issued by the Minister concerned, it appears from the record that since the Chief Minister directed for suspension of the petitioner also, the petitioner has been suspended.

The record also reveals that there are no signatures of the Chief Minister or any of the noting nor there is any order of the Chief Minister in writing for suspending the petitioner alongwith other persons or for taking any action as noted by the Secretary to the Chief Minister in his report dated 1st November 2007. The note only says that Hon''ble the Chief Minister has issued the following direction, which are four in number including the one for suspending the petitioner.

The record also discloses a very curious and peculiar circumstance under which oral directive said to have been issued by the Chief Minister for suspending the petitioner has been recorded by the Secretary to the Chief Minister namely; there was some other noting over and above the note set up, but those directions or recommendations were wiped out by placing white fluid and then by making a cross over it the direction of the Chief Minister has been recorded below it.

This itself shows that there was some other recommendation may be in accordance with the view expressed by the Minister of the Department, who directed for suspending the two other officers, but not the petitioner and which apparently should be in favour of the petitioner therefore, the said recommendation was cleared of, by using/putting white fluid and below it the direction for suspending the petitioner was recorded. Even if the Chief Minister was not to agree with the view expressed or the directive issued by the Minister concerned, a different view could have been expressed and accordingly direction could have been issued, by giving some reasons for the same.

Also assuming that the petitioner could have been suspended on the oral directive issued by the Chief Minister, and the desire of the Chief Minister was to be honoured, if it is communicated by the Secretary to the Chief Minister, still for suspending the petitioner, it was necessary that some material had been brought before the Chief Minister as against the consistent and continuous recommendations made in favour of the petitioner by different Committees including the Commissioner, Food and Civil supplies and also by the Minister concerned, which could have persuaded the Chief Minister to issue such a directive.

The record does not show that after the last recommendation made by the Minister concerned on 20th October 2007, any inquiry was conducted so as to prima-faice find out supervisory lapse on the part of the petitioner, and to hold him, prima-facie guilty and obviously no additional material was collected nor became available to the State Government in between 20th October 2007 to 1st November 2007 so as to take a different view. The record also shows that except the directive issued by the Commissioner, Lucknow Division, Lucknow in his letter dated 24th August 2007, there was no material available on record so as to form an opinion on objective consideration for suspending the petitioner in contemplation of disciplinary enquiry.

May be, that an Officer/Government servant be placed under suspension in respect of any charge for which the Appointing Authority decides to hold a formal disciplinary proceeding but the basic requirement for passing the order of suspension is that there has to be some material, on objective consideration of which, the Appointing Authority forms his subjective opinion to hold a formal disciplinary proceeding and that too in a case where the charges are such which, if proved in the enquiry, may entail a major punishment to the delinquent. For every trivial matter and for every lapse in discharge of public functions, suspension is not a must, rather suspension should be resorted to, in terms of Rule 4 of U.P. Government Servant (Discipline and Appeal) Rules, 1999 only in cases where the charges are so grave that in case of they being proved after enquiry, may entail into a major penalty.

It is also not necessary that before passing an order of suspension in respect of any charge, there necessarily has to be a preliminary enquiry and it is also not necessary that if a Government servant is exonerated in the preliminary enquiry, the State Government does not have a right to suspend him but power to suspend would essentially require the existence of some relevant material, on the basis of which the Appointing Authority may reach to the conclusion, that it is a fit case for suspension as well as for holding formal disciplinary enquiry. It is also possible that on the same material in which the Government servant has not been found guilty in preliminary enquiry, the Appointing Authority/State Government may on assessment of its own, comes to a different conclusion and feels satisfied, about his misconduct, and therefore, decides to hold formal disciplinary enquiry or to suspend the Government servant. But this can be done only by the State Government/Appointing Authority, after applying its mind to the material on record and not merely on some directive issued e.g. In the instant case one issued by the Commissioner, Lucknow Division, Lucknow, for suspending the petitioner.

In the case in hand where repeated enquiries do not indict the petitioner and the record also does not show that there was any material which was considered by the State Government for passing an order of suspension nor any such material has been placed before the Court except the charge sheet which has been issued and served during the pendency of the writ petition and which again makes the same charge of supervisory lapse.

A Government servant can not be suspended merely on the wish or desire of the Minister or the Chief Minister, unless, of course, there exists material for passing such an order. Though the right of the Appointing Authority, may be the State Government, is absolute in initiating disciplinary proceedings against any Government servant and for which he can be placed under suspension also but it is equally the right of the Government servant to know the reason for such action and also the material on the basis of which such order has been passed, so that he may approach the Court, in case he feels aggrieved. The orders so passed by the State Government/Appointing Authority are open to judicial review which also enjoin upon the State Government the responsibility to act in accordance with law and to follow the procedure as is mandated under the concerned Service Rules. Any deviation, will attract the breach of Article 14.

The extent of the interference or the supervision which the Commissioner, Lucknow Division, Lucknow has, over the Department of Food and Civil Supplies and consequently upon the employees working in the said Department in so far as it relates for taking disciplinary action against them has also not been stated by the State Government, and may be, that the Commissioner, Lucknow Division, Lucknow being a responsible Officer of the Division, has some role to play in seeing that the State Schemes are properly and genuinely implemented and any person who is at fault, can be subjected to strict disciplinary action for which he can make some necessary recommendation also but even in the presence of such recommendation it is the Appointing Authority namely; the State Government who would have to be satisfied on the objective consideration of the material before him and may also, if necessary, enquire into the matter by taking into account all the relevant facts and circumstances before passing any order for holding formal enquiry or placing the employee under suspension.

If the State Government feels satisfied that the recommendation made, need be accepted it has the legal obligation to first see the material on the basis of which the recommendation has been made and then to proceed with the matter irrespective of the fact that whether any preliminary enquiry is conducted or not, as the power to suspend still vests with the Appointing Authority.

In the instant case, repeated inquires were conducted and the petitioner was not found, prima-facie guilty of the charge of supervisory lapse. The three reports including Six Members Committee report and that of the report of the Commissioner, Food and Civil Supplies, categorically opined that no action be taken against the petitioner for the involvement of the petitioner in the purchase of sub-standard rice. Even the Minister concerned did not agree with the recommendation of the Principal Secretary, which was solely based on the directive of the Commissioner, Lucknow Division, Lucknow dated 24th August 2007.

Thus, the State has failed to establish and prove that there was any material available with the State Government for suspending the petitioner nor any independent decision was taken by the State Government but for, accepting the directive of the Commissioner, Lucknow Division, Lucknow.

We, are therefore, satisfied from the perusal of the record and the pleadings of the parties that the petitioner has been suspended without application of mind by the State Government only because of the directive of the Commissioner, Lucknow Division, Lucknow dated 24th August 2007 for suspending the petitioner though no additional material was placed before the Chief Minister for the purpose, nor has been placed before the Court.

We, therefore, quash the suspension order dated 5th November 2007, contained in Annexure No. 1 to the writ petition but the enquiry against the petitioner shall continue and shall be concluded expeditiously.

Before parting, we may clarify that the observation made by us are only relevant for determining the validity of the suspension order and have nothing to do and are not be taken into account, in the disciplinary enquiry, which has to be conducted in accordance with law.

The writ petition is allowed. No order as to costs.