Ram Bihari Srivastava vs State of U.P. and Others

Hon''ble Sudhir Agarwal, J.—Writ petition is directed against the order of suspension dated 7.12.2011. Learned Counsel for petitioner could not show that the impugned order of suspension is contrary to any statutory provision or has been passed by an authority not competent to pass such an order. However, he contended that impugned order of suspension does not show that it has been passed in a pending or contemplated departmental enquiry relying on the judgment of this Court in Smt. Meera Tiwari Vs. Chief Medical Officer and others, .

However, I find no substance in the submission. Second para of the impugned order of suspension clearly mentions that act/allegations need to be enquired against the petitioner. It is a strong matter of enquiry against him. It shows that the departmental enquiry is contemplated.

It is further contended that the impugned order has been passed due to mala fide of Executive Engineer against whom petitioner has made a complaint. However, no person eo nomine has been impleaded in the present case. It is well settled that the plea of mala fide shall not be entertained by Court unless the person against whom allegation of mala fide is made is impleaded eo nomine.

In State of Bihar and Another Vs. P.P. Sharma, IAS and Another, 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, , in para 23, 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 result, writ petition lacks merit. Dismissed.