Manoj Kumar Rai vs State of U.P. and Others

Hon''ble Sudhir Agarwal, J.—Heard learned counsel for the petitioner and perused the record.

This writ petition is directed against the order of suspension dated 18.05.2011 in a contemplated departmental inquiry. It has been challenged on the grounds that it is arbitrary, ex parte, unjustified, in violation of fundamental rights guaranteed under Article 21 of the Constitution, collusive, mala fide etc.

It is not the case of petitioner that the authority who has passed impugned order of suspension was not competent to place him under suspension or that under the rules petitioner could not have been suspended or that it is in violation of any statutory provision. Though in the grounds a vague allegation of mala fide is also made but in the narration of facts necessary pleadings to substantiate the plea of mala fide is absent. Besides, nobody has been impleaded eo nomine though it is well established that in order to level plea of mala fide a person against whom mala fide is pleaded must be impleaded by name.

In State of Bihar and Another Vs. P.P. Sharma, IAS and Another, in para 55 of the judgment, the Apex Court held:

It is a settled law that the person against whom mala fides or bias was imputed should be impleaded eo nominee as a party respondent to the proceedings and given an opportunity to meet those allegations. In his/her absence no enquiry into those allegations would be made. Otherwise it itself is violative of the principles of natural justice as it amounts to condemning a person without an opportunity. Admittedly, both R.K. Singh and G.N. Sharma were not impleaded. On this ground alone the High Court should have stopped enquiry into the allegation of mala fides or bias alleged against them.

In AIR 1996 SC 326, J.N. Banavalikar Vs. Municipal Corporation of Delhi, in para 21 of the judgment, it has been held as under:

Further in the absence of impleadment of the..........the person who had allegedly passed mala fide order in order to favour such junior doctor, any contention of mala fide action in fact i.e. malice in fact should not be countenanced by the Court.

In All India State Bank Officers'' Federation and Others Vs. Union of India (UOI) and Others, the Hon''ble Apex Court has said where a person, who has passed the order and against whom the plea of mala fide has been taken has not been impleaded, the petitioner cannot be allowed to raise the allegations of mala fide. The relevant observation of the Apex Court relevant are reproduced as under:

The person against whom mala fides are alleged must be made a party to the proceeding. Board of Directors of the Bank sought to favour respondents 4 and 5 and, therefore, agreed to the proposal put before it. Neither the Chairman nor the Directors, who were present in the said meeting, have been impleaded as respondents. This being so the petitioners cannot be allowed to raise the allegations of mala fide, which allegations, in fact, are without merit.

In Federation of Railway Officers Association and Others Vs. Union of India (UOI), it has been held as under:

That allegations regarding mala fides cannot be vaguely made and it must be specified and clear. In this context, the concerned Minister who is stated to be involved in the formation of new Zone at Hazipur is not made a party who can meet the allegations.

In the circumstances, the plea of mala fide cannot be entertained by this Court in absence of any person impleaded as eo nomine.

Moreover, from the counter affidavit it is evident that petitioner was issued a charge sheet on 03.06.2011 and copy of counter affidavit was served upon counsel for petitioner on 26.09.2011 but no rejoinder affidavit has been filed till date. Learned counsel for the petitioner is also not able to tell, whether petitioner has submitted any reply to the charge sheet or not.

Be that as it may, since suspension in a contemplated or pending inquiry is not a punishment by itself but the incumbent cannot be kept under suspension for an indefinite period, disciplinary proceeding must conclude within a reasonable time. In case the delinquent employee is not cooperating, it is always open to competent authority to proceed and conclude inquiry, if necessary may be ex parte.

In the facts and circumstances of the case, the competent authority is directed to conclude the departmental proceeding against petitioner expeditiously, preferably within a period of four months from the date of production of a certified copy of this order.

With the aforesaid observations/directions, the writ petition is dismissed. No costs.