Hari Nath Sharma vs State of U.P. and Others

D.K. Seth, J.—The Petitioner challenges the order dated 5.9.1997 by which he has been suspended. The said order is contained in Annexure-1 to the writ petition.

Mr. K. R. Shirohi, learned Counsel for the Petitioner contends that the said order of suspension has not been issued in contemplation of an enquiry but by way of punishment solely on the basis of finding of guilt in preliminary enquiry. From the said order, it does not transpire that the disciplinary proceeding is contemplated against the Petitioner. He has also alleged mala fide against the Respondents. He has also alleged that even on merit no order of suspension could be issued against the Petitioner.

Mr. D. R. Chaudhry, learned Additional Chief Standing Counsel, on the other hand, contends that the order of suspension has been issued in contemplation of an enquiry. After a preliminary enquiry, the Petitioner was found guilty as such the authority had put the Petitioner under suspension. Charge-sheet and appointment of enquiry officer is to follow later on. According to him, it is too technical to interfere with the said order at this stage because the authority is empowered to issue an order of suspension in contemplation of pending enquiry.

I have heard learned Counsel for the Petitioner Shri K. R. Sirohi and learned Additional Chief Standing Counsel Shri D. R. Chaudhry.

It appears from the preamble of the impugned order that in a preliminary enquiry, the Petitioner was found guilty of certain charges in the result whereof he was placed under suspension with immediate effect. From the text of said expression, it does not appear that the Petitioner was placed under suspension either in contemplation of an enquiry or pending enquiry. On the other hand, it has been expressed that he was found guilty in the preliminary enquiry. As a result of such finding of guilt in preliminary enquiry, the Petitioner has been suspended. Nowhere from the impugned order it appears that the enquiry officer has been appointed or any charge-sheet was directed to be issued. In that view of the matter, it cannot be said that suspension is in contemplation of an enquiry or pending enquiry. On the basis of which, if appears, that the order of suspension is by way of penalty without holding any enquiry. In the absence of any indication of mind that enquiry is contemplated, it is not possible to hold otherwise. If it appears from the text of the order that enquiry is contemplated, in that event, this Court may not interfere. But in the text of the order if it does not indicate anywhere, even in its body, that the enquiry is being contemplated. Even the copies of the order have been sent to certain officers, there also nothing has been indicated that charge-sheet is to be issued or that enquiry officer has been appointed or that the order is issued in contemplation of an enquiry. In that view of the matter, I am unable to accept the contention of Mr. Chaudhry, learned Additional Chief Standing Counsel.

Mr. Chaudhry further contends that the order of suspension has been issued under Rule 17(1) (a) of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter called as the Rules). By reason of such order of suspension, it is presumed that enquiry is contemplated even if it is not so expressed in the order. Mere issuing an order under Rule 17 (1) (a) itself signifies contemplation of an enquiry. Inasmuch as according to him, Clause (a) (1) of Rule 17 is resorted to only when disciplinary proceeding is contemplated and not otherwise. Therefore, if the said provision is resorted to it is to be presumed that the enquiry is contemplated even it does not in so many words spell out the same in the order itself.

The said contention seems to be devoid of any merit for the simple reason that the order of suspension is issued in contemplation of preliminary enquiry. If no enquiry is contemplated and an order of suspension is issued in that event it cannot be an order of suspension within the meaning of Rule 17(1) (a). In the present case, nothing has been contemplated as it appears from the circumstances of the case as indicated above. On the other hand, suspension was sought to be issued as a result of finding of guilt on a preliminary enquiry. There cannot be any suspension on the basis of guilt on the preliminary enquiry. Only when on the basis of preliminary enquiry, an enquiry is contemplated, the delinquent can be put under suspension. Mere passing of an order under Rule 17 (1) (a) does not absolve the Respondents from indicating formation of opinion that the order has been passed in contemplation of an enquiry without indicating the same in the order itself. The close look to the order does not specify that even impliedly it is indicated that the enquiry is contemplated. The order of suspension can only be issued when an enquiry is contemplated and it is to be so indicated in the order itself--either expressly or by necessary implication. The said test having not been fulfilled, the contention of Mr. Chaudhry cannot be accepted.

Therefore, so far as the order it relates to the suspension contained in Annexure-1 is hereby quashed. However, this order will not prevent the Respondents to hold the enquiry and if it is so advised to pass fresh order of suspension if circumstances so warranted in accordance with law if the enquiry is proposed or contemplated or pending enquiry as the case may.

Unless there is an order of suspension passed afresh in accordance with law within fortnight, the order relating to posting of the Petitioner at the police line shall stand revoked after expiry of 15 days from the date of copy of this order is produced before the concerned Respondent.

The writ petition is thus disposed of. There will, however, be no order as to cost.