JUDGMENT D.K. Seth, J.
1. By an order dated 20.4.1993. the petitioner was put under suspension on the ground that disciplinary proceeding was contemplated against him. From the said order, it appears that the order of suspension was issued in exercise of the powers under Rule 17 (1) (a), (b) of the U. P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules. 1991. Except mentioning about lodging of a first information report under Sections 147, 148, 323 and 304, I.P.C.. no further details have been mentioned. In the said order of suspension, it was directed that a preliminary enquiry be completed.
Subsequently preliminary enquiry was held, in which it was found that at the relevant point of time, the petitioner was on duty and, therefore, the question of keeping him under suspension should be reconsidered and the suspension be revoked. But the said suggestion was disagreed to by one R. S. Lal. A.S.I. (M), on the basis thereof, another report was submitted by A.P.O. on 25th May, 1993, suggesting that the order of suspension should not be recalled since it might have an impact or affect on the pending enquiry. This suggestion was accepted by the Superintendent of Police on 26th May, 1993. In this background, the order of suspension has since been challenged in this writ petition.
2. Smt. Poonam Srivastava, learned counsel for the petitioner contends that Rule 17 (1) (a) prescribes suspension in contemplation of enquiry but till date no departmental disciplinary proceedings have yet been initiated against the petitioner, and as such the order of suspension appears to have been passed wholly without application of mind. Inasmuch as the power under Rule 17 (1) (a) can be exercised only when a departmental enquiry is contemplated. Since no departmental enquiry has been initiated, it cannot be said that there was any departmental enquiry in contemplation, and therefore there cannot be any suspension under clause (a). The order of suspension having been passed under clause fa), is wholly without application of mind. She next contends that the alleged investigation in respect of the case mentioned in the order of suspension, was allegedly initiated on the complaint of a private person. Unless there is specific indication in the order or there are sufficient material to indicate that it satisfies the test of clause (b) of Rule 17 (1). no order under clause (b) could be passed. She points out that nothing has been indicated as to how the alleged lodging of first information report in respect of the alleged offence, had involved the petitioner in his official capacity and as to how it would embarrass in discharge of his duty. Then again, she points out that till date neither the petitioner had ever been called on to appear in any investigation or in trial nor he has been summoned to appear in any proceedings though it is alleged in the counter-affidavit that charge-sheet has been submitted, therefore, there was no justification for continuing the order of suspension. At the same time, there is no material which could satisfy the test laid down in clause (b) of Rule 17 (1). She also relies on two decisions of the Apex Court in support of her contention. On these grounds, she prays that the order of suspension should be quashed, having regard to the facts and circumstances of the case.
3. Mr. K. R. Singh, learned standing counsel, on the other hand contends that it is not necessary that there must be sufficient material for" passing an order of suspension. The order of suspension is passed at the discretion of the disciplinary authority. If there is discretion vested in an officer, unless it is shown that the same has been exercised mala fide. there is no scope for this Court to interfere with such exercise of discretion. Nothing has been brought to the notice of the Court to indicate that the discretion has been exercised mala Jide. Any report or suggestion by a subordinate officer is not binding on the disciplinary authority. It is always open to the disciplinary authority to exercise his discretion despite such report when he is of the view that the order of suspension should continue. Such view is reflected in the order passed by the disciplinary authority on 26th May, 1993 as it appears from Annexure-4 to the writ petition. The question as to whether there was application of mind or not, has to be decided on the basis of the order of suspension. Further materials cannot be looked into for this purpose. On these grounds, he submits that the writ petition is liable to be dismissed.
4. I have heard both the learned counsels at length.
5. The fact remains that no departmental enquiry has yet been Initiated against the petitioner. There is nothing indicated in the order of suspension as to on which ground the disciplinary/departmental proceeding is contemplated. No further material has been disclosed to substantiate formation of the opinion that disciplinary proceeding is contemplated. The absence of any further material in this regard goes to show that there was no disciplinary proceeding contemplated against the petitioner. The power under clause (a) of Rule 17 (1) of the aforesaid rules appears to have been exercised without any application of mind. If any disciplinary/departmental proceeding was in contemplation against the petitioner, in that event, since 1993 after lapse of five years, the same ought to have been concluded or charge-sheet could have been issued initiating departmental proceeding against the petitioner. Since no where it has been contended in the counter-affidavit that a disciplinary proceeding has been initiated against him or any charge-sheet has been issued, the contention of Smt. Poonam Srivastava seems to be of substance that the order of suspension passed under clause (a) of Rule 17 (1) appears to have been passed without any application of mind and as such cannot be sustained.
6. So far as the order of suspension under clause (b) of Rule 17 (1) is concerned, it appears that the order of suspension was issued on the basis of lodging of a first information report in respect of the alleged offence. No doubt, it has been pointed out in the counter-affidavit that a charge-sheet has been submitted in connection with the said case, but at the same time nothing has been disclosed therein as to how initiation of the said criminal proceeding against the petitioner involves any kind of his moral turpitude or it is likely to embarrass him in discharge of his duties or how it is connected with the petitioner's position as a police officer. No material is forthcoming before this Court to substantiate any of these conditions as contemplated in clause (b) of Rule 17 (1) of the aforesaid rules. Admittedly, the disciplinary authority has discretion to place a person under suspension under clause (b) provided either of these three conditions are satisfied, namely :
(i) The charges are connected with the person in his position as a police officer, or
(ii) It is likely to embarrass him in discharge of his duties, or
(iii) It involves moral turpitude.
7. When any of these conditions are satisfied, then certainly such discretion is to be exercised by the disciplinary authority provided there are justifiable reasons to suspend if such complaints are initiated by private person.
Admittedly, the complaint was lodged by a private person. Nothing has been disclosed to show that the disciplinary authority had applied its mind to Justify the suspension since the complaint was initiated on the accusations of a private person. Unless there is sufficient material to show that the disciplinary authority had applied its mind and had justifiable reasons to suspend a person, the order of suspension cannot be sustained.
In the present case nothing has been disclosed to show as to how the suspension of the petitioner is justified. Only reason that has been disclosed in the note or endorsement dated 26th May, 1993, is that it might effect the criminal case. The suspension or reinstatement can never affect proceedings of a criminal case. Success of a criminal case depends on the materials on record brought in evidence and not on the conduct of the disciplinary authority in putting a person under suspension or initiating deparlmental proceeding or enquiry against him. An order of suspension is issued in course of a disciplinary proceeding departmentally. It is altogether an independent action and the same has nothing to do with the criminal prosecution. Criminal prosecution in no way is concerned with the departmental disciplinary proceeding. Therefore, the justification that has been sought to be advanced seems to be unfounded. For the aforesaid reasons, the order of suspension cannot be sustained.
8. Smt. Poonam Srivastava had relied on the decision in the case of P. J. Sundarrajan v. Unit Trust of India, 1993 (22) ALR 141. The said decision is a very short one the text whereof is quoted below :
"Heard parties. We have perused the records. We are of the view that the departmental enquiry should be stayed till the trial which is staled to be pending in the Court of the Chief Metropolitan Magistrate, Madras is completed. The enquiry shall accordingly stand stayed. However, it will be open to the respondents to proceed with the enquiry, if they so choose after the trial court has rendered its judgment, whether or not any appeal is taken from that judgment to a higher court. We are told that the trial has been pending since May, 1989 and many witnesses have already been examined. Accordingly, we expect the trial court to complete the trial within three months from the date of receipt of a copy of this judgment.
In the circumstances, the appeal is disposed of with no order as to costs."
Tills judgment has no relevance so far as the present point is concerned. In the said case, a view was expressed that departmental enquiry should remain stayed when criminal trial is pending. It does not deal with the question of suspension or with Rule 17 (1) (a) or 17 (1) (b) of the Rules. Thus, reliance on this judgment is wholly misplaced.
9. Another decision relied on by the learned counsel for the petitioner is the decision in the case of Kusheshwar Dubey v. Bharat Coking Coal Ltd. and others, AIR 1988 SC 2118. In which the Apex Court had laid down as follows :
"6. The view expressed in the three cases of this Court seem to support the position that while there could be no legal bar for simultaneous proceedings being taken, yet there may be cases where it would be appropriate to defer disciplinary proceeding awaiting disposal of the criminal case. In the latter class of cases it would be open to the delinquent employee to seek such an order of stay or injunction from the Court. Whether in the facts and circumstances of a particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the Court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial. As we have already stated that it is neither possible nor advisable to evolve a hard and fast, straight-Jacket formula valid for alt cases and of general application without regard to the particularities of the individual situation. For the disposal of the present case, we do not think it necessary to say anything more, particularly when we do not intend to lay down any general guideline.
7. In the instant case, the criminal action and the disciplinary proceedings are grounded upon the same set of facts. We arc of the view that the disciplinary proceedings should have been stayed and the High Court was riot right in interfering with the trial court's order of injunction which had been affirmed in appeal."
10. A reading of the above decision shows that this case also has no relevance so far as the present question is concerned. In the said case, it was held that where criminal case is pending, it would be appropriate to defer the disciplinary proceeding awaiting disposal of the criminal case, and in such cases it would be open to the delinquent employee to seek an order of stay or injunction from the Court. Whether in the facts and circumstances of a particular case there should or should not be such simultaneous proceedings would then receive judicial consideration and the Court will decide in the given circumstances of a particular case as to whether the disciplinary proceeding should be Interdicted, pending criminal trial. In the said case, the Apex Court was of the view that the disciplinary proceedings should have been stayed. Thus, reliance on this decision also does not help the learned counsel for the petitioner.
11. In the facts and circumstances of the case as Indicated before, this writ petition succeeds and is hereby allowed. The impugned order of suspension dated 20.4.1993 contained in Annexure-1 to the writ petition is quashed. However, this order will not prohibit the respondents to pass appropriate order, if circumstances so warrant, provided there are sufficient reasons and justification therefor and it is so permitted in law. There will be no order as to costs.