Raj Veer Singh vs State of U.P

B.S. Chauhan, J.—This matter has been placed before us by way of an order of the Hon''ble Chief Justice nominating the Bench.

Petitioner is employed as Assistant Director (Toxicology) Forensic Science Laboratory, Agra. In a ''telecast by television news channel ''Star News'' under the caption ''Kanoon Ke Killer'' the Petitioner was shown as stating that he can temper the forensic report on payment of illegal gratification. The Petitioner was initially restrained from discharging his duties vide order dated 18.08.2007 passed by the Joint Director, Vidhi Vigyan Prayogshala Uttar Pradesh, Agra. Feeling aggrieved by the order so passed, the Petitioner filed Writ Petition No. 40102 of 2007. This Court required the Standing Counsel to file a counter affidavit.

While the first petition was still pending before this Court, the State Government has passed the impugned order dated 18.09.2002 placing the Petitioner under suspension. The order records that from the preliminary report of the Director, Vidhi Vigyan Prayogshala dated 20.08.2007 prima facie Petitioner is found to be involved in corruption and therefore it is in the public interest that work may not be taken from such an officer and, for taking appropriate proceedings against the Petitioner, an inquiry through vigilance department is contemplated. Accordingly, the Petitioner is being placed under suspension.

This order of the State Government is being questioned by means of the present writ petition on the plea that from order impugned it is apparently clear that an inquiry from the vigilance department is contemplated for taking appropriate action against the Petitioner. Counsel for the Petitioner submits that such vigilance inquiry, as recorded in the impugned order, is not provided for under Rule 49A of the U.P. Civil Services (Classification, Control and Appeal) Rules (hereinafter referred to as "CCA. Rules). Therefore, the suspension of the Petitioner is contrary to the aforesaid statutory provision and illegal. Reference has been made to the Constitution Bench (Five Judges) judgment of this Court in the case of State of U.P. v. Jai Singh Dixit 1975 A.L.R. 64.

Counsel for the Petitioner clarifies that the inquiry referred to in Rule 49-A of the CCA. Rules is a formal departmental inquiry and not a fact finding inquiry which usually proceeds the formal inquiry. An inquiry by the vigilance department can be material for the purposes of taking criminal action against the Petitioner but the same is totally foreign to the concept of departmental inquiry as contemplated by Rule 49-A of the CCA. Rules and, therefore, in contemplation of an inquiry by vigilance department, the State Government is not justified in exercising the power u/s 49A of the CCA. Rules to suspend the Petitioner.

Standing Counsel on behalf of the State Respondent, with reference to the Full Bench (Three Judges) judgment of this Court in the case of Shahroj Anwar Khan Vs. State of U.P. and Another, , contends that the authorities have the power to direct a fact finding inquiry/preliminary inquiry and may resort to suspension while initiating such a fact finding/preliminary investigation. It is, therefore, submitted that the contemplation of a vigilance inquiry against the Petitioner, as recorded in the impugned order, would not in any way restrict the competence of the State Government to keep the officer under suspension. It is further submitted that the rule does not prohibit passing of suspension order during the pendency of the fact finding/preliminary inquiry. The inquiry contemplated to be conducted by the vigilance department in the facts of the case stands at par with the preliminary inquiry/fact finding inquiry.

In rejoinder Sri Shashi Nandan Senior Advocate, assisted by Sri Udayan Nandan Advocate, raised following issues of law with regards to the Full Bench judgment of this Court in the case of Shahroj Anwar Khan (supra):

(a) that the Division Bench, which had made the reference in the case of Shahroj Anwar Khan and which has resulted in the judgment of the Full Bench of this Court reported in Shahroj Anwar Khan Vs. State of U.P. and Another, , had not even noticed the Constitution Bench(Five Judges) judgment of this Court in the case of State of U.P. v. Jai Singh Dixit. There being a Constitution Bench judgment of this Court on the subject squarely applicable, not noticed in the referring order, the Full Bench should have returned the reference unanswered after recording that the Division Bench was not justified in making the reference in ignorance of the Constitution Bench judgment of this Court.

(b) The Full Bench of this Court could not have diluted the law laid down by the Constitution Bench in the case of State of U.P. v. Jai Singh Dixit while answering the reference as made in the case of Shahroj Anwar Khan.

(c) In view of the Constitution Bench judgment of this Court in the case of State of U.P. v. Jai Singh Dixit, the question referred and as answered was specifically recorded in the operative portion of the order of the Constitution Bench. No Court has expressed any doubt in respect of the law so laid down, therefore, the reference giving rise to the Full Bench judgment itself was incompetent, (d) The answer given by the Full Bench to the question referred in the case of Shahroj Anwar Khan (supra) is virtually in conflict with the opinion of the Constitution Bench in the case of State of U.P. v. Jai Singh Dixit.

It is, therefore, submitted that the Full Bench judgment of this Court in the case of Shahroj Anwar Khan does not lay down good law and is based on non-consideration of the exact answer given by the Constitution Bench of this Court with regards to meaning to be attached word ''inquiry'' as contained in Rule 49-A of the CCA. Rules.

We have heard counsel for the parties and have gone through the records of the writ petition.

Before adverting to the legal issue raised on behalf of the present Petitioner, it would be worthwhile to reproduce the following paragraphs of the judgment of the Constitution Bench in the case of State of U.P. v. Jai Singh Dixit:

The question for consideration now in what is meant by the Words ''inquiry'' and ''contemplated'' used in Rule 49-A and Rule 1-A?

The word ''inquiry'' has also been used in Rules 55 and 55-A of the C. C.A. Rules. Rules 55 and 55-A relate to formal departmental inquiry where major punishment of dismissal removal or reduction can be imposed. Such an inquiry is invariably preceded by framing of charges. It is of significance that in the other rules governing cases in which major punishment can be awarded the word ''inquiry'' has been omitted and the rules merely provide for the award of punishment. It is true that most of the minor punishment shall be awarded after some inquiry, but when the rule-making authority intentionally avoided making a reference to this term in the other rules and used the word ''inquiry'' in Rule 49-A and also Rules 55 and 55-A the underlying intention was that the inquiry contemplated by Rule 49-A is the one held under Rules 55 and 55-A. It must, therefore, be held that the power under Rule 49-A can be exercised only in those cases where one of the major punishment dismissal, removal or reduction shall ordinarily be imposed.

The inquiry contemplated by Rule 49-A cannot have reference to an informal preliminary inquiry or a fact finding inquiry preceding the actual disciplinary proceeding, otherwise it shall be permissible to suspend a Government servant pending such informal inquiry, but not after charges have been framed and regular departmental proceeding is pending. This shall lead to an anomalous situation. We are, therefore, of opinion that the ''inquiry'' contemplated by Rule 49-A and Rule 1A has reference to the formal departmental inquiry and not to any informal preliminary or fat finding inquiry preceding the initiation of the formal disciplinary proceeding.

To put it in brief a departmental inquiry is contemplated when on objective consideration of the material, the appointing authority considered the case as one which would lead to a departmental inquiry, irrespective of whether any preliminary inquiry, summary or detailed has or has not been made or if made is not complete. There can therefore be suspension pending inquiry even before a final decision is taken to initiate the disciplinary proceeding, i.e. even before the framing the charge and the communication thereof to the Government servant.

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Naturally, it shall depend upon the fact and circumstances of each case whether, prior to the framing of the charge and communication thereof to the Government servant it can be said that a departmental inquiry is expected.

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In case the matter is considered in the manner already suggested by us above, there shall always be objective satisfaction of the appointing authority before the Government servant can be suspended pending inquiry. To suspend a Government servant on receipt of complaints containing allegation of dishonesty or of misconduct, without the appointing, authority being satisfied that the allegation made has any substance which would latter justify taking disciplinary proceeding shall be one subjective consideration and has to be disapproved by the courts of law. But where there exist circumstances to satisfy the appointing authority that the allegations made have substance suspension pending inquiry shall be on objective consideration and not subjective. It is a different thing that the appointing authority may like to have the matter investigated or further investigated so that the total material may come on the record and a proper departmental inquiry can be held.

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After the repeal of the Note the position is that Rule 49-A as well as Rule 1-A conferred discretionary power to place an officer under suspension when an inquiry is contemplated or is proceeding. The power has not been confined on the appointing authority to his subjective satisfaction. It is exercisable only if on an objective consideration the appointing authority takes the view that an Inquiry is contemplated or is proceeding. This position being based on an objective consideration is open to judicial review.

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We all agree that the inquiry that is meant in this rule a formal departmental inquiry and not a fact finding preliminary inquiry which usually proceeds the formal inquiry.

Lastly this Court may also reproduce the answer given to the question of law, which was referred to the Constitution Bench, which is being quoted below:

D.S. Mathur, C.J.

In view of the majority opinions, the answer to the question of law involved is as below:

Suspension pending inquiry under Rule 49-A of the U.P. Civil Service (Classification Control and Appeal) Rules or Rule I-A of the U.P. Punishment and Appeal Rules can be ordered to any stage prior to or after the framing of charges. When on objective consideration the authority concerned is of the view that a formal departmental inquiry under Rule 55 and 55-A of the CCA. Rules or Rules 5 and 6-A of the U.P. Punishment and Appeal Rules is expected or-such an inquiry is proceeding. At what stage the power under the above rules can be exercised shall always depend on the facts and circumstances of each case."

In view of the aforesaid conclusion arrived at by the Constitution Bench, two aspects of the matter are apparently clear. The word ''inquiry'', as used in Rule 49-A, means a formal departmental inquiry under Rule 55 and 55-A of the CCA. Rules or Rules 5 and 6-A of the U.P. Punishment and Appeal Rules. Therefore, suspension in contemplation of inquiry in terms of Rule 49-A of the CCA. Rules would necessarily mean that (a) material on record would lead to formal departmental inquiry under Rules 55 and 55-A of the CCA. Rules or Rules 5 or 6-A of the U.P. Punishment and Appeal Rules and (b) At what stage the power under above Rule 49-A of the CCA. Rules is to be exercised shall always to be dependent on the facts and circumstances of each case.

The Full Bench in the case of Shahroj Anwar Khan (supra) has, however, in paragraph 21 of the said judgment, held as follows:

In view of what is stated above, it is clear that the phrase ''when an inquiry is contemplated'' will have to be read as meaning that an inquiry is under consideration or is thought of or is proposed. It cannot mean that a decision to hold an inquiry is arrived at. After that decision is arrived at, undoubtedly, a full-fledged departmental inquiry follows. Therefore, the phrase ''an inquiry is contemplated'' will cover an earlier stage. It will certainly cover a stage when even a preliminary inquiry is under consideration. A preliminary inquiry cannot be excluded from the term ''inquiry'' as covered under this clause. That would place a fetter on the powers of the administration. As noted earlier, the authorities may be confronted with various situations and they ought to have the freedom to deal with those situations. It will be for them to decide what steps they ought to take. The authorities may, undoubtedly, initiate a preliminary inquiry, or may even be required to resort to suspension while initiating a preliminary investigation. It cannot be said that the authorities will hold the preliminary investigation or inquiry for quite sometime, allow the officer concerned, about whom there are serious grievances, to function in the meanwhile and thereafter will decide to suspend. Such restriction is not contemplated under the Rules.

And, therefore, proceeded to answer the question referred in paragraph 22, which reads as follows:

In the circumstances, we answer the two questions, referred to for our determination as follows:

(1) Rule 17(1) (a) of the U.P. Police Officer of Subordinate Ranks (Punishment and Appeal) Rules, 1991, does not prohibit passing of a suspension order during the pendency of a preliminary inquiry.

(2) The Division Bench judgment rendered in Kripa Shanker Prasad (supra), does not lay down the correct law.

In our opinion the conclusion arrived at by the Full Bench, to the effect that preliminary inquiry cannot be excluded from the term inquiry as covered under Rule 17(l)(a) of the U.P. Police Officer of Subordinate Ranks (Punishment and Appeal) Rules, 1991, is not in accordance with the Constitution Bench judgment of this Court wherein it has been specifically held that the word ''inquiry'' referred to in Rule 49-A of the CCA. Rules means a formal departmental inquiry contemplated by Rules 55 and 55-A of the CCA. Rules. It may also be recorded that the Full Bench of this Court has specifically held that at what stage the power of suspension can be exercised shall always depend on the facts and circumstances of each case.

The said conclusion of the Constitution Bench of this Court stands practically nullified in view of the answer given by the Full Bench in the case of Shahroj Anwar Khan (supra), wherein it has been held that suspension can be directed during the pendency of a preliminary inquiry without recording further that such suspension has to be based on objective consideration of the material on record by the appointing authority for arriving at a satisfaction that the same would lead to a formal departmental inquiry.

We are conscious of the limitations prescribed for referring a matter to a larger Bench and as such it would be appropriate to refer to the law on this issue. The procedure provided for making a reference is contained in Rule 6 of Chapter V of the Allahabad High Court Rules and the Hon''ble Chief Justice on such a reference in exercise of the powers vested in him under the second proviso to Rule 2 of the same chapter may constitute an appropriate Bench as may be required for answering the reference. This Court in a Full Bench decision in the case of Rana Pratap Singh v. State of U.P. and Ors. following a Full Bench decision of the Punjab and Haryana High Court, reported in AIR 1984 P & H 113 held as follows:

It would follow as a settled principle that the law specifically laid down by the Full Bench is binding upon the High Court within which it is rendered and any and every veiled doubt with regard thereto does not justify the reconsideration thereof by a larger Bench and thus put the law in a ferment afresh. The ratios of the Full Benches are and should be rested on surer foundations and are not to be blown away by every side wind. It is only within the narrowest field that a judgment of a larger Bench can be questioned for reconsideration. One of the obvious reasons is, where it is unequivocally manifest that its ratio has been impliedly overruled or whittled down by a subsequent judgment of the superior Court or a larger Bench of the same Court. Secondly, where it can be held with certainly that a co-equal Bench has laid down the law directly contrary to the same, and, thirdly, where it can be conclusively said that the judgment of the larger Bench was rendered per incuriam by altogether failing to take notice of a clear-cut statutory provision or an earlier binding precedent. It is normally within these constricted parameters that a similar Bench may suggest a reconsideration of the earlier view and not otherwise. However, it is best in these matters to be neither dogmatic nor exhaustive yet the aforesaid categories are admittedly the well accepted ones in which an otherwise binding precedent may be suggested for reconsideration.

The Full Bench further held as follows in para 18 of the judgment:

Implicit, thus, in the disregard by a single Judge or a Division Bench of a binding judicial precedent of a larger Bench or seeking to doubt its correctness for reasons and in circumstances other than those spelt out in Pritam Kaur''s case (supra) is what cannot but be treated as going counter to the discipline of law so essential to abide by, for any efficient system of law to function, if not it virtually smacking of judicial impropriety. In other words, it is only within the narrow compass of the rule as stated by the Full Bench in Pritam Kaur''s case that reconsideration of a judgment of a larger Bench can be sought and as has been so expressively put there, such judgments are not "to be blown away by every side wind.

In the instant case, as pointed out herein above that the Full Bench decision in Shahroj Anwar Khan''s case, the ratio of the earlier 5- Judges Bench appears to have been set at naught and hence keeping in view the norms of judicial discipline we find it necessary to refer this issue for an authoritative pronouncement.

For the reasons recorded above, we have doubt about the correctness of the law laid down by the Full Bench judgment of this Court in the case of Shahroj Anwar Khan (supra) and therefore direct that the papers of the present writ petition be placed before the Hon''ble the Chief Justice for constituting a Larger Bench for consideration of the following questions of law:

(a) Whether a reference made by a Division Bench, which has not noticed a Constitution Bench judgment of this Court comprising of larger number of Judges, squarely applicable on the subject, was liable to be returned unanswered by the Full Bench only on the ground that Constitution Bench judgment has not been considered by the Division Bench while making the reference.

(b) Whether the Full Bench in the case of Shahroj Answar Khan (supra) is correct in recording in paragraph 21 that the word ''inquiry'' as contemplated under Rule 17(1)(a) (para materia to Rule 49-A of the CCA. Rules) will include a preliminary inquiry to be precise whether the word ''inquiry'' in the said Rules includes within its ambit preliminary inquiry inasmuch as the Constitution Bench of this Court in the case of State of U.P. Jai Singh Dixit (supra) has specifically held that the word ''inquiry'', under Rule 49-A of the CCA. Rules, necessarily refer to formal departmental inquiry referable to Rule 55 and 56-A of the CCA. Rules or Rules 6 and 7 of the U.P. Police Officer of Subordinate Ranks (Punishment and Appeal) Rules, 1991.

(c) Whether, while directing preliminary inquiry, the power to suspend has to be exercised on objective consideration of material on record of each case and therefore it is for the State Government on a challenge being made to an order of suspension in contemplation of an inquiry to justify by such material on record that irrespective of preliminary inquiry the authority was satisfied that suspension was warranted in the facts of the case.

(d) Whether an order of suspension, in contemplation of a vigilance inquiry, would be within four corners of Rule 49-A.