Dr. Paras Nath Singh vs State of U.P. and Others

Sudhir Agarwal, J.—Heard Sri Adarsh Bhushan holding brief of Sri Ashok Khare, learned Counsel for the Petitioner, learned Standing Counsel for Respondents No. 1 to 3 and Sri A.K. Malviya for Respondent No. 4 and perused the record.

The writ petition directed against the order dated 25th May, 2009 issued by the Manager, Mahavir Inter College, Malikpura, Ghazipur (hereinafter referred to as "College") pursuant to the resolution dated 24th May, 2009 passed by the Committee of Management of the College placing the Petitioner under suspension.

It is admitted by the learned Counsel for the Respondent-Committee of Management that till date disciplinary proceedings have not been finalized since no final order has been passed in respect to the Petitioner.

Learned Counsel for the Petitioner, on the contrary, submits that the impugned order of suspension is malicious and therefore deserves to be quashed.

Without going into the question whether the impugned order of suspension has been passed on account of mala fide, suffice it to mention that order of suspension was passed more than two and a half years back and the disciplinary proceedings have not culminated in final order.

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 resintegra. 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.

In view of the above discussion, and the exposition of law, the writ petition is allowed. The impugned order of suspension dated 25th May, 2009 (Annexure 18 to the writ petition) is hereby set aside.

However, this order shall not preclude the Committee of Management to proceed with the departmental enquiry against the Petitioner and pass final order in accordance with law.