Mazharul Haq vs State of U.P.and others

K. N. Singh, J.

This petition is directed against the order of the Disrict Magistrate, dated August 15, 1973, placing the petitioner under suspension. While the petitioner was posted as Supply Inspector in the office of the District Supply Officer, Basti, he was placed under suspension by the order of the District Magistrate dated August 15, 1973. No charge sheet was however served on him. He made an application on March 23, 1974 to the District Magistrate requesting him that the charge sheet, if any, be served on him so that he may submit his explanation. No chargesheet was served on him and no reply was given. He made another representation in May, 1974 to the Commissioner, Food and Civil Supplies Department, to the same effect but no reply was given to him and no chargesheet was served. He sent another representation on September 10, 1974, to the District Magistrate for increasing his subsistence allowance on account of the delay in the service of the chargesheet but even thereafter nothing was done in the matter. Ultimately, the petitioner filed this petition under Article 226 of the Constitution of India on March 6, 1975 challenging the validity of the suspension order.

Rule 49A of the Civil Services (Classification, Control and Appeal) Rules confers power on the appointing authority to suspend a government servant at any stage prior to or after framing of the charges if. on an objective consideration the authority concerned is of the view that a formal departmental enquiry under Rules 55 and 55A of the said rules was necessary. In such a case, it is not necessary to serve chargesheet along with the suspension order, the chargesheet may follow later on but the competent authority is, however, required to apply its mind to the question as to whether there was prima facie case against the government servant, whether the charges were serious which if proved may warrant dismissal or removal of the government servant and further if a formal departmental enquiry was contemplated. If the competent authority fails to apply his mind to these matters and if it does not consider these questions in an objective manner and if no enquiry is contemplated and the government servant placed under suspension for an indefinite period of time the order of suspension would be illegal. See State of U. P. v. Jai Singh Dikshit 1975 A.L.R. 64=1974 A.L.J.

In the instant case, the petitioner was placed under suspension on August 15, 1973. Till today, no chargesheet has been served on the petitioner although a period of two years has expired. There is no averment in the counteraffidavit filed on behalf of the respondent which may indicate that the District Magistrate, Basti, considered the allegations against the petitioner in an objective manner or that he suspended the petitioner at a stage when a formal Departmental enquiry was contemplated. There is further no averment in the counteraffidavit that the charges were so serious and grave which necessitated the petitioner''s immediate suspension. In fact the authority concerned who passed the impugned order of suspension has not filed his own affidavit. Instead the Supply Inspector of the District Supply Officer, Basti, has filed counteraffidavit on his behalf. The counteraffidavit does not indicate the nature of the complaint which was received by the District Magistrate or the result of preliminary enquiry if any, held before the issue of the suspension order and as such there is no material on record to indicate that the District Magistrate passed the impugned order after considering relevant factors as required by Rule 49A.

Learned Standing counsel made an effort to sustain the impugned order of suspension on the basis of the averments contained in paragraphs 9 and 18 of the counteraffidavit of Awadhesh Behari Malviya, Supply Inspector in the office of the District Supply Officer. The averments contained in paragraph 9 show that an enquiry was conducted in the matter by the Regional Food Controller, Gorakhpur, who had naturally taken some time before it was completed. However, no sooner than the enquiry report was received from the Regional Food Controller, Gorakhpur, a charge sheet dated March 31, 1975 was sought to be served but the petitioner made himself scarce from the headquarters, therefore, the chargesheet could not be served on him. The paragraph further states that a copy of the chargesheet is annexure I to that counteraffidavit. The allegations made in this paragraph are denied in the rejoinder affidavit. Further the averments made in paragraph 9 of the counteraffidavit are highly vague. The averments do not show that any formal enquiry was contemplated by the District Magistrate who passed the impugned order. Further the petitioner had made requests to the District Magistrate and other authorities for service of chargesheet but no charges were served on him. The allegation that copy of the chargesheet has been annexed to the counteraffidavit is false because there is no copy annexed. I am, therefore, not inclined to believe that the chargesheet was prepared on March 31, 1975 but the petitioner avoided its service.

In paragraph 19 of the counteraffidavit it has been asserted that on the report of the Regional Food Controller, Gorakhpur, the District Magistrate, Basti, came to the conclusion that there was a prima facie case made out against the petitioner. This satisfied the District Magistrate, Basti, issued the order of suspension. The enquiry report furnishes ample evidence in support of the charges against the petitioner. These allegations are not sufficient to sustain the order of suspension. The allegations contained in paragraph 9 of the counteraffidavit show that the enquiry held by the Regional Food Controller, Gorakhpur was held after the issue of the suspension order and not before that. Further the order of suspension on its very face indicates that the District Magistrate issued the order and placed the petitioner under suspension at the dictate of the State Government. He suspended the petitioner as he was directed to do by the Government under its order dated August 13, 1973. The District Magistrate did not apply his mind, instead he followed the order of the State Government and suspended the petitioner without complying with the requirement of Rule 49A. The respondents have failed to place any material before the Court to show that there was material before the District Magistrate and that he bona fide formed opinion that the petitioner''s suspension was necessary or that a formal departmental enquiry was contemplated against the petitioner. Whenever a government servant is suspended it is necessary to emphasise that he should be informed of the charges without any delay. Of course the authorities may take reasonable time to frame charges but the instant case is a classic example where chargesheet was not framed or served on the government servant under suspension for about a period of two years. This practice if not checked those who are responsible for it may cause grave injustice to the government servants which may affect the efficiency of public servants. The petitioner has been making repeated requests for the service of charges, no reply was given to him. During all this time he was not paid his full salary, instead he was paid only the subsistence allowance. The rule does not countenance such a situation. The order of suspension is clearly invalid.

In the circumstances the petition is allowed with costs and the order of the District Magistrate dated August 15, 1974, placing the petitioner under suspension is quashed. The petitioner is entitled to his full salary during the period he was illegally kept under suspension.