Petitioner Counsel :- S.K. Mishra Respondent Counsel :- C.S.C.
Hon'ble Krishna Murari, J.
Heard learned counsel for the petitioner, learned Standing Counsel appearing for the State-respondents and SriKhurshed Alam appearing on behalf of newly added respondent no. 3.
In view of the facts and circumstances of the case and with the consent of the learned counsel for the parties, this writ petition is being finally disposed of without calling for a counter affidavit.
The petitioner, who is a Head Constable in Provincial Armed Constabulary posted at 26th Battalion PAC, Gorakhpur, has approached this Court challenging the order dated 13.07.2012 passed by the respondent no. 2 placing him under suspension in contemplation of disciplinary proceedings. The charge against the petitioner is that he has contracted another marriage during the life time of his first wife without obtaining permission of the Government and thus, has committed offence of bigamy.
It is submitted by the learned counsel for the petitioner that second marriage was performed after divorcing first wife, namely, respondent no. 3, in accordance with Muslim Law. He further pointed out that notary affidavit was also signed by the petitioner and the respondent no. 3 on 02.09.2009 attested by two witnesses clearly mentioning therein that they have divorced out of their sweet-will and amount of 'Mehar' has also been paid.
Sri Khurshed Alam, learned counsel appearing for the respondent no. 3, on the basis of instruction, has denied the factum of divorce and also the notary affidavit.
Learned Standing Counsel submitted that since the petitioner has been placed under suspension in contemplation of departmental enquiry, there is no justifiable reason to interfere with with the same.
I have considered the arguments advanced by the learned counsel for the parties and perused the record.
The fact that the petitioner has contracted second marriage is not in dispute. The only dispute is whether the second marriage has been contracted by the petitioner after giving divorce to the respondent no. 3, his first wife, or during the subsistence of the first marriage. This is purely a question of fact depending upon the evidence which is not liable to be considered by this Court at this stage. It is for the petitioner to put up his defence before the inquiry officer in the disciplinary proceedings who will consider the same.
Still, however, a question arises whether in such facts and circumstances, the order placing the petitioner under suspension can be said to be justified. Suspension is normally resorted to when offence is serious in nature and there is likelihood of delinquent tampering with the evidence if he is allowed to continue to retain his official capacity.
Looking into the nature of charge and facts and circumstances of the case, there does not appear any reasonable apprehension that the petitioner may tamper with evidence or may have any influence on the enquiry proceedings.
Under Section 17 of the U. P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules, 1991, a Police Officer against whose conduct an enquiry is contemplated or is proceeding, can be placed under suspension during the conclusion of the enquiry. Section 17 (b) reads as under :
"A Police Officer in respect or or against whom an investigation, enquiry or trial relating to a criminal charge is pending may at the discretion of the appointing authority under whom he is serving be placed under suspension, until the termination of all proceedings relating to that charge, if the charge is connected with his position as a Police Officer or is likely to embarrass him in the discharge of his duties or involves moral turpitude. If the prosecution is instituted by a private person on complaint, the appointing authority may decide whether the circumstances of the case justify the suspension of the accused."
In the present case, the proceedings have been initiated against the petitioner on a complaint made by the respondent no. 3. Thus, in view of the provisions of Section 17 (b), it was incumbent upon the appointing authority to have recorded justifiable reasons for placing the petitioner under suspension. A perusal of the impugned order does not go to show that any such reason has been recorded to justify the suspension order.
In view of the aforesaid facts and discussions, the impugned suspension order is not liable to be sustained and is hereby quashed. The writ petition stands allowed.
However, it shall be open to the respondents authorities to continue the disciplinary proceedings against the petitioner and conclude the same expeditiously, preferably, within a period of two months from the date of presentation of a certified copy of this order before him subject to cooperation rendered by the petitioner.