R.C. Yadav vs State of U.P. and Others

S.K. Sen, C.J.—Heard Shri Someshwari Prasad Srivastava, learned senior counsel appearing on behalf of appellant. Shri Sabhajeet Yadav, learned standing counsel appearing on behalf of the respondents.

This special appeal is directed against the order passed by the learned single Judge dated 1.2.2002 in writ petition, which was filed challenging the suspension order wherein the learned single Judge has held that the inquiry proceeding contemplated shall be concluded within four months and in the event, the proceeding cannot be concluded in spite of the co-operation of the writ petitioner, it will be open to the writ petitioner to apply for revocation of the suspension order.

Learned senior counsel has argued before us that contemplated inquiry means inquiry must have been initiated and in support of his contention, he has relied upon the judgment and decision of a Division Bench of this Court in the case of State of U. P. and Ors. v. Rajendra Shanker Nigam and Ors. 1974 CAN 263, and has laid strong emphasis on the portion of the Judgment, which reads as under :

"The expression "an inquiry is contemplated" refers to the formal disciplinary inquiry held under Rule 55 of the Rules."

Relying upon the said decision, learned counsel has submitted that the learned single Judge should have quashed the impugned order of suspension and should not have directed the inquiry to be concluded. He has also submitted before us that the order of the learned single Judge directing inquiry to be completed is without jurisdiction and as such the order passed by the learned single Judge should be set aside.

It is well-settled that unless an inquiry is contemplated or an inquiry is pending, suspension order cannot be passed. However, in the instant case the impugned order itself shows that the inquiry is under contemplation in respect of the charges mentioned in the order. The judgment and decision relied upon by the learned senior counsel, in our view, does not really assist him in this connection, we may take note of the relevant portion of the aforesaid judgment wherein a Division Bench of this Court took note and quoted with approval another Division Bench judgment of this Court in the case of S. C. Kharbanda v. State of U. P.. Para 14 of the judgment reads as under :

" 14. The material and relevant expression in Rule 49A is "an in quiry is contemplated or is pro- ceeding". The term "contemplated" is not a term of art. It has been used in its plain ordinary meaning. The Shorter Oxford Dictionary, Volume I at page 380 defines the word ''contemplated'' to mean have in view, to expect, to take into ac count as a contingency. It indicates a stage where an inquiry into the conduct of a Government servant is imminently expected with a view to impose some pun ishment upon him. On receipt of complaints against the conduct of a Government servant the competent authority sets in motion an informal inquiry to certify the correctness of the allegations or to collect material with a view to hold a disciplinary inquiry so that if the alleged misconduct is established suitable punishment be awarded. The inquiry which will result in imposition of punishment can be said to be expected or contemplated. When the Government sets in motion its machinery for investigating the alleged complaints so that it may hold a formal inquiry more properly the formal inquiry is clearly contemplated, and the power to suspend comes into play. In S. C. Kharbanda v. State of U. P., a Division Bench observed :

"The mere fact that a preliminary enquiry has been admittedly instituted is proof positive of the fact that the departmental enquiry is contemplated. Were it otherwise, the authorities would decline to undertake the preliminary enquiry."

According to this decision, the power to suspend will accrue when an informal inquiry has been instituted.".

In our view, it is also necessary to take note of paragraph 16 of the judgment relied upon by the learned senior counsel. It reads as under :

"16. The order of suspension passed against Shri R.S. Nigam the respondent in Special Appeal No. 114 of 1973 only mentions that the Government has received serious complaints of corruption from which doubt about his honesty and integrity has arisen. The existence of such serious complaints is, to our mind, not relevant and material for the purposes of the Note. If the Government desired that it was not feasible to retain the charged officer at his post, it was open to it to pass an order of suspension in the exercise of its inherent power. The only difference would have been that the officer would have been entitled to full pay and allowance. Since no circumstances making out a case of emergency or of exceptional circumstances have been even attempted to be established, we deem it unnecessary to express a concluded opinion upon this aspect of this case."

It is clear from the said judgment that mere existence of complaint of corrupt in is not sufficient or relevant. However, in the instant case, not only the complaints have been looked into but a preliminary inquiry was also conducted and on the basis of the preliminary report, the department has already contemplated full-fledged inquiry. Under such circumstances, in our view, the decision does not really come in aid of the learned counsel for the appellant.

In our view, the learned single Judge has also given sufficient opportunity to the appellant. Since the learned single Judge in the order has provided that in the event in spite of the co-operation of the appellant -writ petitioner, the inquiry is not completed it is open for him also to make an application for cancellation of inquiry under such circumstances, we do not find any merit in the special appeal.

The special appeal being without any merit fails and is dismissed.