Doodh Nath Saroj vs State of U.P. and Others

Sudhir Agarwal, J.—Heard Sri Vinod Kumar Mishra, learned Counsel holding brief of Sri Vijay Gautam, appearing for the Petitioner, learned Standing Counsel and perused the record.

Writ petition is directed against the suspension order dated 24th September, 2009 passed by Superintendent of Police, Kaushambi placing the Petitioner under suspension in contemplated departmental enquiry.

However, from the impugned order of suspension it appears that Petitioner was placed under suspension even when a preliminary enquiry was contemplated since it direct Circle Officer, Sirathu to hold a preliminary enquiry and to submit report within seven days.

Learned Counsel for the Petitioner submits that in any case till date Petitioner has not been issued any charge sheet and therefore it is evident that impugned order of suspension is wholly illegal, inasmuch as, a prolonged suspension without initiating departmental enquiry is impermissible. Relying on full bench decision in Rajveer Singh v. State of U.P. and Ors. (2011) 1 UPLBEC 18 as also in Shahroj Anwar Khan v. State of U.P. and Anr. 2007 (2) UPLBEC 1582, he submits that in this case, suspension in a contemplation of preliminary enquiry is wholly illegal.

Without looking into other aspects of the matter, it is suffice to mention that since no charge sheet has been issued to the Petitioner for the last almost one and a half years from the date of suspension, it is evident that Respondents have passed the impugned order of suspension in utmost haste without having any enquiry contemplated or pending under the rules.

The order of suspension pending in a contemplated inquiry by itself is not punitive but in case the disciplinary proceedings are delayed, it may render an order of suspension punitive with the passage of time. Whether such a prolonged suspension can be held valid and justified and whether the Respondents can be allowed to keep an employee under suspension for an indefinite period! The answer is an emphatic No.

In fact this question is no more res integra. In Smt. Anshu Bharti Vs. State of U.P. and Basic Shiksha Parishad, this Court has observed:

...The prolonged suspension of the Petitioner is clearly unjust and unwarranted. The question deals with the prolonged agony and mental torture of a suspended employee where inquiry either has not commenced or proceed with snail pace. Though suspension in a contemplated or pending inquiry is not a punishment but this is a different angle of the matter, which is equally important and needs careful consideration. A suspension during contemplation of departmental inquiry or pendency thereof by itself is not a punishment if resorted to by the competent authority to enquire into the allegations levelled against the employee giving him an opportunity of participation to find out whether the allegations are correct or not with due diligence and within a reasonable time. In case, allegations are not found correct, the employee is reinstated without any loss towards salary, etc., and in case the charges are proved, the disciplinary authority passes such order as provided under law. However, keeping an employee under suspension, either without holding any enquiry, or in a prolonged enquiry is unreasonable. It is neither just nor in larger public interest. A prolonged suspension by itself is penal. Similarly an order of suspension at the initial stage may be valid fulfilling all the requirements of law but may become penal or unlawful with the passage of time, if the disciplinary inquiry is unreasonably prolonged or no inquiry is initiated at all without there being any fault or obstruction on the part of the delinquent employee. No person can be kept under suspension for indefinite period since during the period of suspension he is not paid full salary. He is also denied the enjoyment of status and therefore admittedly it has some adverse effect in respect of his status, life style and reputation in society. A person under suspension is looked with suspicion in the society by the persons with whom he meets in his normal discharge of function.

A Division Bench of this Court in Gajendra Singh v. High Court of Judicature at Allahabad 2004 (3) UPLBEC 2934 observed as under:

We need not forget that when a Government officer is placed under suspension, he is looked with suspicious eyes not only by his collogues and friends but by public at large too.

Disapproving unreasonable prolonged suspension, the Apex Court in Public Service Tribunal Bar Association v. State of U.P. and Ors. 2003 (1) UPLBEC 780 (SC) observed as under:

If a suspension continues for indefinite period or the order of suspension passed is malafide, then it would be open to the employee to challenge the same by approaching the High Court under Article 226 of the Constitution....(Para 26)

The statutory power conferred upon the disciplinary authority to keep an employee under suspension during contemplated or pending disciplinary enquiry cannot thus be interpreted in a manner so as to confer an arbitrary, unguided an absolute power to keep an employee under suspension without enquiry for unlimited period or by prolonging enquiry unreasonably, particularly when the delinquent employee is not responsible for such delay. Therefore, I am clearly of the opinion that a suspension, if prolonged unreasonably without holding any enquiry or by prolonging the enquiry itself, is penal in nature and cannot be sustained.

The view I have taken is supported from another judgment of this Court in Ayodhya Rai and Ors. v. State of U.P. and Ors. 2006 (3) ESC 1755.

The writ petition therefore is allowed. The impugned order of suspension dated 24th September, 2009 (Annexure 1 to the writ petition) is hereby quashed.

However, this order shall not preclude the Respondents from continuing with the enquiry, if any, in respect to the charges on which suspension order has been passed.