1: Short counter affidavit filed today may be taken on record.
2: Heard Sri S.K. Kalia, learned Senior Advocate assisted by Sri Sameer Kalia, learned counsel for the petitioner and to the learned Additional Chief Standing Counsel on behalf of the respondents.
3: Factual matrix of the case is that Government of India floated a scheme known as National Mission for Sustainable Agriculture (N.M.S.A.) for testing of soil health and distribution of soil health cards.
4: The respondent No.2 and Nodal Officer of N.M.S.A. circulated the guidelines of the Government of India amongst the various Regional Joint Directors, Deputy Directors as wells as the Assistant Directors of Agriculture to be followed for selection of firms instituting to carry out the work of soil health testing etc. 5: The entire process of selection of firms, institutions was to be undertaken by the officers posted at district level. The petitioner was posted as Joint Director of Agriculture (Research and Soil Survey) at the head office of the Agriculture Department on 1.7.2017.
6: In pursuance to the directions/ circular, the process of e-tendering for selection of firms to carry out the work of testing of soil health and uploading of date was completed in Meerut, Bareilly, Jhansi and Moradabad regions by the Regional Level Tender Committee by resorting to the process of tender and further the work orders had been issued by the concerned Assistant Directors of Agriculture.
7: On 26.9.2017, the respondent No.2 issued an order to all the Assistant Directors of Agriculture except the one posted at Bareilly, Meerut, Jhansi and Moradabad regions to the effect that the work of soil health testing may be taken from the firm selected through tender process in Meerut, Bareilly, Jhansi and Moradabad regions at the same rate on which they are doing the said work in their respective regions. It was clarified that the soil sample was required to be tested at the first phase positively on or before 31.10.2017.
8: The respondent No.2 again issued an order on 8.12.2017 to all the Regional Joint Directors, Deputy Directors as well as all Assistant Directors of the Department of Agriculture in the State of U.P. granting approval for taking work of testing of soil samples under N.M.S.A. on outsourcing basis for the second phase.
9: The Government of India issued guidelines on 22.1.2018 in respect of selection of firms on outsourcing basis under the aforesaid scheme. In compliance of the guidelines issued by the Government of India, the respondent No.2 issued a circular on 23.5.2018 to all the Regional Joint Directors, Deputy Directors as well as Assistant Directors of the Agriculture Department in the State of U.P. for implementation of the soil health card program under N.M.S.A. for the year 2018-19.
10: Under Clause 3.1.2 of the circular, it has clearly been stated that it is the responsibility of the concerned Assistant Directors and Joint Directors to conduct and get done the requisite e-tender process.
11: The petitioner under the direction of the respondent No.2, issued an order on 4.6.2018 to all the Deputy Directors as well as Assistant Directors of the Agriculture Department to the effect that in the region where process of e-tendering had not been completed, the same may be immediately stopped and further in the region where the process of e-tendering has been completed, the work orders may only be issued after taking approval from the head office.
12: In region Aligarh, prior to issuance of the order dated 4.6.2018, the process of e-tendering has been completed. The Assistant Director of Agriculture, Aligarh region forwarded the price quoted by the firms who had been found successful in the technical bid quoted by L-1 therein.
13: The petitioner put up the aforesaid file on 19.6.2018 relating to the e-tender process at Aligarh region before the respondent No.2, who accorded approval on 4.7.2018. Thereafter, the petitioner issued an order on 6.7.2018 to all the Deputy Directors as well as Assistant Directors stating therein that a decision has been taken at the level of head office cancelling the directions issued vide order dated 4.6.2018 with a further direction that the process of e-tendering may be re-initiated with a rider that the rates will be required to be approved at the level of the head office after the tender process is completed.
14: The respondent No.2 issued a notice to the petitioner on 6.9.2018 directing him to submit his explanation as to why the rates quoted by the firms in the tender process at Aligarh were not placed before him while seeking his approval with respect to the same.
15: The petitioner submitted his reply on 10.9.2018, explaining in detail that there had been no irregularities or lapses on his part and further the work of testing of soil health and distribution of soil health cards had progressed manifolds time since the time when he took the charge in question.
16: Additional Director (Seed and Farm) issued a letter on 12.9.2018 requiring the petitioner to submit such an information with respect to the tendering process of 2017-18 for selection of firms for carrying out soil testing under N.M.S.A.
17: In response to the letter dated 12.9.2018, the petitioner submitted required information to the Additional Director (Seed and Farm) on 13.9.2018.
18: The respondent No.1 passed an order on 16.11.2018 instituting enquiry in the matter and by same date order dated 16.11.2018, the petitioner has been placed under suspension.
19: Submission of learned Senior Advocate is that as per Rule 4 of U.P. Government Servant (Discipline and Appeal) Rules, 1999, suspension should not be resorted to unless charges are so serious that in the event of their being established, warrant imposition of major penalty as defined under Rule 4(1) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999.
20: He next submitted that the entire exercise starting from issuance of scheme for selection of firms through tender till the issuance of work orders, was to be conducted by the respondent No.2 as well as the officer posted at the regional level offices and no role was ascribed to the petitioner with respect to the same. He further submitted that the petitioner had only limited role to examine as to whether the rates which were found to be L-1 by the Regional Level Committee are in consonance with the rates approved by the respondent No.2 on 4.7.2018 or not. He has committed no wrongs and has approved the same on the basis of approved rate by the respondent No.2. He next submitted that even if it is assumed for the sake of argument that the petitioner has committed irregularity, even then the charge is not so serious which would entail major punishment, thus, the impugned order is patently illegal and in violation of Rule 4 of U.P. Government Servant (Discipline and Appeal) Rules, 1999.
21: Learned Senior Advocate further submitted that even if the allegations which form part of the impugned are treated to be true, at the most it can be said that the petitioner is guilty of supervisory lapse and as such, the same in no manner could warrant imposition of major penalty, thus, his submission is that order is illegal and arbitrary. His next submission is that there is no case that the petitioner has approved the financial bid which cannot be termed to be inappropriate as he has only received the financial bid forwarded to the headquarter for its approval and after examining the rates, has approved the rates quoted by L-1 after finding them in accordance with maximum rates prescribed by the Government of India by comparing it with the rates already approved by the respondent No.2 himself.
22: Learned Additional Chief Standing Counsel has filed counter affidavit and also produced the record.
23: In the counter affidavit, the allegations levelled in the impugned order have been supported by making statement of fact.
24: The main allegation against the petitioner is that the power of approval vests with the headquarter and the Director is the head of the headquarter. Thus, the approval granted by the petitioner to the rate proposed by the Aligarh region is illegal and amounts to usurp the power of the Director of the headquarter.
25: It has further been pointed out that the firm whose L-1 was approved, on a complaint, enquiry was conducted and found that illegal and fabricated experience certificate and documents were submitted by the firm and taking into consideration the said fact, enquiry has been initiated against the petitioner.
26: Learned Additional Chief Standing Counsel further pointed out that in the matter, charge-sheet has already been sent to the petitioner at his residential address through speed post, which has been brought on record in the supplementary short counter affidavit as Annexure-6 to the writ petition. Submission of learned Additional Chief Standing Counsel is that the petitioner is not entitled to get relief from this Court. Disciplinary proceeding is going on against the petitioner, at best he may participate in the enquiry and wait for the decision of the disciplinary authority.
27: After having heard the rival contentions of the learned counsel for the parties, I perused the material on record of the writ petition and counter affidavit filed by the learned Additional Chief Standing Counsel.
28: To resolve the controversy, the provision governing to initiate disciplinary proceeding by placing a government employee, is necessary to be taken into consideration. The provision of U.P. Government Servant (Discipline and Appeal) Rules, 1999 governs the initiation of disciplinary proceeding. Rule 4 thereof is relevant to be considered in the present case, which is being quoted below:
"4. Suspension. - (1) A Government servant against whose conduct an inquiry is contemplated, or is proceeding may be placed under suspension pending the conclusion of the inquiry in the discretion of the appointing authority : Provided that suspension should not be resorted to unless the allegations against the Government servant are so serious that in the event of their being established may ordinarily warrant major penalty : Provided further that concerned Head of the Department empowered by the Governor by an order in this behalf may place a Government servant or class of Government servants belonging to Group 'A' and 'B' posts under suspension under this rule : Provided also that in the case of any Government servant or class of Government servants belonging to Group 'C' and 'D' posts, the appointing authority may delegate its power under this rule to the next lower authority.
(2) A Government servant in respect of, or against whom an investigation, inquiry or trial relating to a criminal charge, which is connected with his position as a Government servant or which is likely to embarrass him in the discharge of his duties or which involves moral turpitude, is pending, may at the discretion of the appointing authority or the authority to whom the power of suspension has been delegated under these rules, be placed under suspension until the termination of all proceedings relating to that charge.
(3) (a) A Government servant shall be deemed to have been placed or, as the case may be, continued to be placed under suspension by an order of the authority competent to suspend, with effect from the date of his detention, if he is detained in custody, whether the detention is on criminal charge or otherwise, for a period exceeding forty-eight hours.
(b) The aforesaid Government servant shall, after the release from the custody, inform in writing to the competent authority about his detention and may also make representation against the deemed suspension. The competent authority shall after considering the representation in the light of the facts and circumstances of the case as well as the provision contained in this rule, pass appropriate order continuing the deemed suspension from, the date of release from custody or revoking or modifying it.
(4) Government servant shall be deemed to have been placed, or as the case may be, continued to be placed under suspension by an order of the authority competent to suspend under these rules, with effect from the date of his conviction if in the event of a conviction for an offence he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed consequent to such conviction. Explanation. - The period of forty-eight hours referred to in sub-rule will be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken to account.
(5) Where a penalty of dismissal or removal from service imposed upon a Government servant is set aside in appeal or on review under these rules or under rules rescinded by these rules and the case is remitted for further inquiry or action or with any other directions:
(a) if he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any such directions as aforesaid, be deemed to have continued in force on and from the date of the original order of dismissal of removal;
(b) if he was not under suspension, he shall, if so directed by the appellate or reviewing authority, be deemed to have been placed under suspension by an order of the appointing authority on and from the date of the original order of dismissal or removal:
Provided that nothing in this sub-rule shall be construed as affecting the power of the disciplinary authority in a case where a penalty of dismissal or removal in service imposed upon a Government servant is set aside in appeal or on review under these rules on grounds other than the merits of the allegations which, the said penalty was imposed but the case is remitted for further inquiry or action or with any other directions to pass an order of suspension pending further inquiry against him on those allegations so, however, that any such suspension shall not have retrospective effect.
(6) Where penalty of dismissal or removal from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of law and the appointing authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal or removal was originally imposed, whether the allegations remain in their original form or are clarified or their particulars better specified or any part thereof a minor nature omitted :
(a) if he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any direction of the appointing authority, ho deemed to have continued in force on and from the date of the original order of dismissal or removal;
(b) if he was not under such suspension, he shall, if so directed by the appointing authority, be deemed to have been placed under suspension by an order of the competent authority on and from the date of the original order of dismissal or removal.
(7) Where a Government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise) and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Government servant shall continue to be under suspension till the termination of all or any of such proceedings.
(8) Any suspension ordered or deemed to have been ordered or to have continued in force under this rule shall continue to remain in force until it is modified or revoked by the competent authority.
(9) A Government servant placed under suspension or deemed to have been placed under suspension under this rule shall be entitled to subsistence allowance in accordance with the provisions of Fundamental Rule 53 of the Financial Hand Book, Volume 11, Parts II to IV."
29: On perusal of the proviso of Rule 4, it is evident on the face of it that suspension should not be resorted to unless charges are so serious that in the event of their being established, warrant imposition of major penalty as defined under Rule 4(1) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999.
30: On perusal of the material on record, it is established that there is no allegation against the petitioner that he has embezzled certain amount of the department. It is also not the case of the respondents that certain financial irregularity has been done to embezzle the amount. The only allegation against the petitioner is that he approved the rate submitted by the Aligarh region in regard to the invited tender to the proposed firm by the regional office. For this, the respondent No.2, Director of Agriculture was empowered to grant approval to the proposal submitted by the regional office, thus, the only allegation is that he has usurped the power of the Director in grant of approval to the proposal submitted by the Aligarh region.
31: On perusal of the material on record, the Court is of the opinion that on the allegations levelled, the petitioner is not liable to be imposed major penalty then the disciplinary enquiry could have been completed without placing the petitioner under suspension.
32: On further perusal of the impugned order, it is well established that there is no substantial satisfaction recorded in initiating the disciplinary proceeding by placing the petitioner under suspension that the charges are so serious enough to impose major penalty.
33: Although suspension is not a punishment, it is a temporary deprivation from the work to complete free and fair enquiry in regard to the charges levelled against the employee but if a government employee is placed under suspension, his reputation in the Society becomes doubtful, thus, the authorities should take care that in case the charges against an employee are so serious to impose major penalty, then the employee should be placed under suspension.
34: Neither in the counter affidavit nor in the record produced before this Court, there is any allegation against the petitioner, which is so serious in nature which amounts to impose major penalty to the petitioner.
35: In view of the above, this Court finds that the impugned order of suspension being contrary to Rule 4 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999, is not sustainable in law, therefore, it is hereby set aside.
36: The writ petition succeeds and is allowed.
37: It is expected from the respondents that the disciplinary proceeding initiated against the petitioner shall be concluded and the disciplinary authority shall pass final order in the matter within a period of 3 months from the date of production of certified copy of this order.
Order Date :- 31.1.2019 Gautam