Heard learned Counsel for the petitioner and learned Counsel appearing on behalf of the State.
The petitioner has approached this Court challenging the suspension order dated 01.08.2018 passed by the opposite party no.3. The petitioner has further prayed for a direciton to the opposite parties to reinstate the petitioner and allow him to work on the post of Tehsildar in Yamuna Expressway Industrial Development Authority, Greater NOIDA, District Gaudam Budh Nagar and pay him salary and other admissible allowances regularly.
Submission of learned counsel for the petitioner is that in the year 1991, the petitioner was appointed on the post of Lekhpal. In March, 1997, the petitioner was promoted to the post of Kanoongo and thereafter in the year 2007 to the post of Nayab Tehsildar and was posted at Kairana, District Muzaffar Nagar. Learned Counsel has further submitted that the petitioner was sent on deputation in Yamuna Expressway Industrial Development Authority, Greater NOIDA, District Gautam Budh Nagar and again after considering the excellent work and conduct of the petitioner, he was promoted to the post of Tehsildar in the year 2017.
Learned Counsel for the petitioner has further submitted that on the basis of a complaint with regard to an incident of 2011, the petitioner was placed under suspension vide order dated 01.08.2018 by the opposite party no.3 and the charge-sheet dated 06.06.2019 was served upon the petitioner on 01.07.2019. The petitioner had submitted reply on 16.08.2019 denying all the allegations levelled in the charge-sheet.The inquiry report was submitted on 18.10.2019 but thereafter nothing has been done and, therefore, the continuous suspension is illegal in view of the judgment passed by the Hon'ble Supreme Court in (2015) 7 SCC 291 (Ajay Kumar Choudhary Vs. Union of India and another). He, therefore, prayed that the continuous suspension is illegal, it be quashed and the petitioner be reinstated in service.
Per contra, the learned appearing on behalf of the State has submitted that the petitioner was kept under suspension on the basis of the complaint and the evidence collected by the inquiry officer during inquiry.
I have heard learned Counsel for the parties and perused the record.
Admittedly, the petitioner was suspended on 01.08.2018 and thereafter the charge-sheet was served upon him on 01.07.2019 and reply to the same has also been submitted by the petitioner on 16.08.2019. The inquiry officer has submitted inquiry report on 18.10.2019 but thereafter nothing has been done and, therefore, the suspension beyond 90 days is unsustainable.
In Ajay Kumar Choudhary's case, Hon'ble Supreme Court category held that currency of suspension should not exceed beyond three months, if within this period the charge sheet is not served upon the delinquent officer and where memorandum of charge / charge sheet is served, a reasoned order must be passed for the extension of suspension. Thus, in view of the law laid down by the Hon'ble Supreme Court, the Government servant cannot continued under prolonged suspension without taking review on completion of 90 days.
In the case of Anshu Bharti vs. State of U.P. and others; 2009(1) AWC 691, it has held that 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; 2004 (3) UPLBEC 2934 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 colleagues and friends but by public at large too."
Disapproving unreasonable prolonged suspension, the Apex Court in Public Service Tribunal Bar Association Vs. State of U.P. & others; 2003 (1) UPLBEC 780 (SC) observed that 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 of India.
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.
In view of the discussions in the foregoing paras, the suspension order dated 01.08.2018 is set aside and this writ petition is allowed.
The respondent is directed to reinstate the petitioner within a period of four weeks from the date of receipt of a certified copy of this order. The respondent, however, is at liberty to proceed ahead with the disciplinary enquiry proceedings. The respondent is also granted liberty to post the petitioner in such department where he is not able to interfere with the enquiry proceedings by virtue of his official position.
Order Date :- 3.2.2021 akverma