Kunwar Amrinder Singh vs High Court of Uttarakhand & others

Rajiv Sharma, ACJ.

With the consent of parties, the writ petition is decided at the admission stage itself.

Heard learned Counsel for the parties.

Petitioner was appointed as Civil Judge (J.D.)/ Judicial Magistrate Ist Class in the State of Uttarakhand. He joined his duties on 23.09.2003. He

was promoted in the H.J.S. Cadre in the year 2011. He was posted as Ist Additional District Judge, Haridwar on 20.04.2017.

A complaint was lodged against the petitioner on 19.3.2018 for the incidents which had happened on 31.01.2018 and 02.02.2018.

However, the District Judge, Haridwar has taken the notice of the same belatedly. In case, such serious incidents have happened on 31.01.2018

and 2.02.2018, it should have been brought to the notice of the Higher Authorities by the complainant immediately instead of filing the complaint on

19.03.2018.

The Preliminary Inquiry was conducted by the District Judge, Haridwar. It is not discernable from the material placed on record that the petitioner

was associated during the course of preliminary inquiry conducted by the District Judge, Haridwar.

Petitioner was placed under suspension vide impugned order dated 22.04.2018.

We are surprised to note that in the suspension order dated 22.04.2018, it is stated that the petitioner was placed under suspension with immediate

effect, in exercise of the powers conferred under the Constitution of India and all other powers enabling it in this behalf.

Learned counsel appearing for the High Court could not point out any Article of the Constitution which enabled the High Court to put the petitioner

under suspension.

It was desirable atleast from the High Court to specify the Act or Rule position while putting the petitioner under suspension. We are not dilating

further on this issue.

We have gone through the contents of office memorandum dated 22.04.2018.

The Uttarakhand Government Servants (Discipline and Appeal) Rules, 2003 were amended by “The Uttarakhand Government Servants

(Discipline and Appeal) (Amendment) Rules, 2010â€, vide notification dated 28.05.2010. These Rules of 2010 are applicable qua the petitioner.

Petitioner was put under suspension under the Rules of 2010. Sub-Rule 1 of Rule 4 of Rules of 2010 reads as under:-

“3. In the principal rules for sub rule (1) of rule 4 the following sub rule shall be substituted, namely:-

“(1) A government servant against whose conduct an enquiry is contemplated, or is proceeding, may be placed under suspension pending the

conclusion of the enquiry at the discretion of the appointing authority. It will be clearly mentioned in the suspension order that the charges against the

concerned government servant are so serious that in the event of these being established, major penalty would be inflicted.â€​

Learned counsel for the respondents has vehemently argued that the High Court has a power to put an employee under suspension. There is no

quarrel with this proposition. However, the larger question involved is whether sub-rule (1) of Rule 4, as amended in the year 2010, has been complied

with or not, while putting the petitioner under suspension. Though, the suspension is not a penalty, but it has civil/evil consequences for an employee.

According to the plain language of sub-Rule (1) of Rule 4, a government servant against whose conduct an enquiry is contemplated, or is

proceeding, can be placed under suspension pending the conclusion of the enquiry at the discretion of the appointing authority. However, it is to be

clearly mentioned in the suspension order itself that the charges against the Government Servant are so serious that in the event of these being

established, major penalty may entail. Since the expression “willâ€​ is employed, it is imperative and mandatory in nature.

In the impugned order, it is not at all mentioned that the charges levelled against the petitioner were serious and in the event of these being

established, major penalty would be inflicted upon the petitioner.

Accordingly, the writ petition is allowed. The impugned suspension order dated 22.04.2018 is quashed and set aside. Petitioner shall be posted

back at the same place where he was serving at the time of issuance of suspension order. He shall also be paid arrears of the salary etc.

Pending application, if any, also stands disposed of accordingly.

However, before parting with the judgment, we make it clear that we have not expressed any view on the charges framed against the petitioner.