Vijay Prakash Tiwari vs State of U.P. and Others

Sudhir Agarwal, J.—Heard Sri O.P. Tiwari, Advocate, holding brief of Sri Ramesh Upadhyaya, learned Counsel for petitioner, learned Standing Counsel for respondents and perused the record. This writ petition shows extraordinary state of affairs on the part of respondents inasmuch a Class IV employee was suspended on 8.5.1992 and this writ petition was filed in 2010 complaining that no enquiry has been completed at all and for the last 18 years petitioner has been kept illegally and unauthorizedly under suspension. This Court on 15.3.2010 granted two weeks'' time to learned Standing Counsel to seek instructions in the matter and to find out whether suspension is still continuing or not.

Learned Standing Counsel stated that as per the instructions received by him on 27.5.2010, the suspension order is still continuing and enquiry has not been concluded. This is totally arbitrary and illegal exercise of power on the part of respondents.

The order of suspension in a pending or contemplated inquiry by itself is not a punishment but in case it is prolonged without initiation or completion of inquiry, it may become punitive with the passage of time. Whether such a prolonged suspension can be held valid and justified and whether the respondents can be allowed to keep an employee under suspension for an indefinite period is the moot question need to be answered in this case. The answer is an emphatic No.

This question has already been answered by this Court in Smt. Anshu Bharti Vs. State of U.P. and Basic Shiksha Parishad, this Court has observed as under:

.....The prolonged suspension of the petitioner is clearly unjust and unwarranted. The question deals with the prolonged agony and mental torture of a suspended employee where inquiry either has not commenced or proceed with snail pace. Though suspension in a contemplated or pending inquiry is not a punishment but this is a different angle of the matter, which is equally important and needs careful consideration. A suspension during contemplation of departmental inquiry or pendency thereof by itself is not a punishment if resorted to by the competent authority to enquire into the allegations levelled against the employee giving him an opportunity of participation to find out whether the allegations are correct or not with due diligence and within a reasonable time. In case, allegations are not found correct, the employee is reinstated without any loss towards salary, etc., and in case the charges are proved, the disciplinary authority passes such order as provided under law. However, keeping an employee under suspension, either without holding any enquiry, or in a prolonged enquiry is unreasonable. It is neither just nor in larger public interest. A prolonged suspension by itself is penal. Similarly an order of suspension at the initial stage may be valid fulfilling all the requirements of law but may become penal or unlawful with the passage of time, if the disciplinary inquiry is unreasonably prolonged or no inquiry is initiated at all without there being any fault or obstruction on the part of the delinquent employee. No person can be kept under suspension for indefinite period since during the period of suspension he is not paid full salary. He is also denied the enjoyment of status and therefore admittedly it has some adverse effect in respect of his status, life style and reputation in society. A person under suspension is looked with suspicion in the society by the persons with whom he meets in his normal discharge of function.

A Division Bench of this Court in Gajendra Singh Vs. High Court of Judicature at Allahabad, , observed as under:

We need not forget that when a Government officer is placed under suspension, he is looked with suspicious eyes not only by his collogues and friends but by public at large too.

Disapproving unreasonable prolonged suspension, the Apex Court in Public Services Tribunal Bar Association Vs. State of U.P. and Another, , observed as under:

If a suspension continues for indefinite period or the order of suspension passed is malafide, then it would be open to the employee to challenge the same by approaching the High Court under Article 226 of the Constitution........................(Para 26)

The statutory power conferred upon the disciplinary authority to keep an employee under suspension during contemplated or pending disciplinary enquiry cannot thus be interpreted in a manner so as to confer an arbitrary, unguided an absolute power to keep an employee under suspension without enquiry for unlimited period or by prolonging enquiry unreasonably, particularly when the delinquent employee is not responsible for such delay. Therefore, I am clearly of the opinion that a suspension, if prolonged unreasonably without holding any enquiry or by prolonging the enquiry itself, is penal in nature and cannot be sustained.

The view I have taken is supported from another Judgment of this Court in Ayodhya Rai and Others Vs. State of U.P. and Others, .

The above dictum is applicable in the case in hand in entirety. Besides, in the present case, keeping the petitioner under suspension for more than two decade is not only arbitrary and wholly illegal exercise of power, but it shows an criminal intent on the part of respondents in wasting public exchequer by keeping a person under suspension for two decades and more and pay him subsistence allowance and not to take any work for such a long time on the pretext of pendency of an enquiry which has not seen the light of the day for the last more than two decades. Such a prolonged suspension, in my view, speaks volume and it appears that respondents after suspending petitioner forgot it and a Class IV employee in the result has suffered for this entire period. It is in these peculiar facts and circumstances, in my view, not only the order of suspension is unsustainable and petitioner is entitled to relief, but this writ petition deserves to be allowed with exemplary cost against the respondents.

In view of above, impugned suspension order cannot sustain.

Writ petition is allowed. Impugned order of suspension dated 8.5.1992 (Annexure 1 to writ petition) is hereby quashed.

Petitioner shall be entitled to all consequential benefits with cost of Rs. 25,000/- against respondents 2 and 3. At the first instance, the cost shall be paid by respondent No. 1, but it shall be at liberty to recover the same from the concerned officer(s) who is/are found responsible for such extraordinary delay in the enquiry and keeping the petitioner continued under suspension for the last almost two decades.