Heard Ms. Madhumita Bose, learned counsel for the petitoiner as well as learned Standing counsel for the State.
Petitioner has challenged the impugned suspension order dated 19.2.2012 passed by the Commissioner, Entertainment Tax, U.P.
Time was granted to learned counsel for the State to seek further instructions.
In addition to his earlier submission he has vehemently argued once again. He says that the Tax Inspector is vested with the duty of checking and stopping the evasion of entertainment tax. The very nature of his duty requires him to be vigilant, efficient and available for stopping the tax evasion.In the present case the petitioner has faulted in his duty for which his post has been created. He further says that the tax evasion has been found on the basis of inspection. The details of which have been given in paragraphs No.s 5 and 6 of the impugned order. He contents that the act of the petitioner comes under the dereliction of duty which is a misconduct, hence, the petitioner can very well be suspended. Action has been taken against the cinema owner also.
Ms. Madhumita Bose has forcefully argued that in view of Rule-4 of U.P. Government Servants (Discipline and Appeal) Rules, 1999, the charge is not such which, if proved, would entail major penalty. She asserts that in the present situation, suspension can not be resorted to. She argues that there is only one charge in which it has been alleged that petitioner's personal control has been found to be loose.
She has relied upon a case law (Dhirendra Kumar Rai Vs. State of U.P.-Writ Petition No.768(S/B) of 2008, decided on July 16, 2010). In paragraph 84 of the judgment a fine distinction between the negligence, carelessness and dereliction of duty has been given. Para 84 is quoted as follows:-
"84. In the case of State of Punjab Vs. Ex. Constable Ram Singh (1992) 4 SCC 54, Hon'ble Supreme Court held that the word misconduct though not capable of precise definition as reflection receives its connotation from the context, the delinquency in its effect on the discipline and the nature of duty. It may involve moral turpitude, it must be improper or wrong behaviour, unlawful behaviour, willful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. its ambit has to be construed with reference to the subject matter and context where in the terms occurs; regard being had to the scope of the statute and public purpose it seeks to serve."
It is clear that the petitioner has been suspended on the ground of loose supervision. The word has been used in Hindi as "Shithil Niyantran". In addition to this charge, the dereliction of duty has also been mentioned. It is interesting to note that "Shithil Niyantran" has been used in the first place and dereliction of duty as a follow up to this charge. It appears that the word dereliction of duty has been super-imposed after the words "Shithil Niyantran" has been used in the first instance. If read properly, it will mean that the first charge against the petitioner is lack of supervision. 'Loose Supervision' is a very wide term which is capable of numerous interpretations and connotations. No doubt loose supervision can result into loss to the State exchequer but loose supervision will not necessarily mean a grave misconduct. Loss can be recovered for which suspension will not be necessary. In the present case, the opposite parties have come to the conclusion that there is dereliction of duty on the ground that the petitioner had loose supervision. They have also come to the conclusion that there is connivance of the petitioner with the cinema owner without any preliminary inquiry. It is very strange that neither any statement has been recorded nor any inquiry has been made from any person yet a finding of connivance has been imported into the order to make it look, a grave charge. There is no matterial available before the authorities to connect the cinema owner's attempt to evade tax with the conduct of the petitioner.
The Court has observed that the suspension order does not start with the allegations or narration of facts. It starts with justification of the suspension order. The suspending authority has first tried to fulfill the requirements of law for suspension and then charges have been narrated. The decision, that a major penalty can be awarded comes in the first few lines of the order while the inspection report and the charge comes in the later part. The narration of facts are mostly against the cinema owner and not against the petitioner. It appears, that, it is more a case for suspending the licnece of the cinema owner than the suspension order of the petitioner.
Ms. Madhumita Bose has strongly argued that the decision to suspend the petitioner was taken earlier and the reason was sorted out later. She has pointed out that the petitioner was on election duty. Several documents by the Election Officer have been annexed showing that the petitioner was assigned the job of videography on 16.5.2012 till 4.7.2012. During this period he was required to move along the constituency and collect evidence for violation of code of conduct. She asserts that in such a situation, his absence from the scene can easily be explained. She argues that in case, inspection was made and certain deficiencies were found, the petitioner should have been asked to explain his conduct in the first place. A show cause should have been given to him and a preliminary inquiry should have been conducted prior to placing him under suspension. Later, if matterial was found against him to justify the major penalty, suspension could have been resorted to.
In paragraph 100 of the judgment, their Lordships have explained the first proviso to Rule-49 of 1990 Rules, which is as follows:-
"100. A Division Bench of Allahabad High Court in a case reported in 1997 (31) ALR 605, Ram Dular Tripathi Vs. State of U.P. and others while interpreting Rule 49-A (1) of the Civil Services (CCA Rules) deprecated the suspension of government servant on flimsy ground observing that such suspension will have adverse affect on teh servcie which may ultimately affect the working of the government. The principle opened by Hon'ble Five Judges of this court in the case of Jai Singh Dixit (supra) has been reiterated and followed.
Their Lordship of Allahabad High Court in the case of Ram Dular Tripathi (supra) further held that mere lack of efficiency or skill does not ipso facto constitute misconduct and call for suspension for a governmetn servant. To reproduce relevant portion from the judgment of Ram Dular Tripathi (supra) which is as under:-
"A Government servant can be suspended only if his conduct is such so as to warrant the inquiry under Rule 55 where one of the three major punishments can be imposed. Mere lack of efficiency/ skill or failure to attain the highest standards in discharge of duty would not ipso facto constitute misconduct. The suspension of the Government servant on such a ground cannot be sustained."
Considering all the facts and circumstances the Court is of the firm opinion that the matterial available before the opposite parties was not sufficient enough for them to infer that a major penalty can be imposed upon the petitioner at that moment.
Suspension is not a tool to tighten the screws of a wayward mind. It is not a whip to streamline the unruly horses. It can not be used as a threat, a deterrent or an offshoot of an officer's anger. Suspension, though, technically not a punishment still has a great impact on a employees' life. It is not a legal punishment but definitely a social indictment. Realities of life can not be wished away by showing law. If a person is suspended, he is looked down upon, by the society in general. It affects the prestige of the family and morale of the children. Social status is a valuable asset. It can not be taken away without there being a great and justifiable cause. Censure entry, warning and other minor penalties are also available in case of negligence or carelessness. Sometimes in case of dereliction of duty a warning can be sufficient. Using of high dose of punishment for small offence often boomerangs. Instead of disciplining the employee, it brings in, a sense of revolt and lack of confidence in the system, which becomes counterproductive. The legislature has been conscious of this fact and this is the reason that suspension has been permitted only in case of grave charges. Suspension should not be used as a means of administration.
The Court is of the opinion that the present case did not warrant suspension at the present stage.
Accordingly, the impugned suspension order dated 19.6.2012 passed by the opposite party No.2 (as contained in Annexure No.1 to the writ petition) against the petitioner shall remain stayed.
The opposite parties are at liberty to conduct any inquiry against the petitioner, if they so choose.
It is made clear that these observations have been made for passing the present order today. If any inquiry is instituted, the Inquiry Officer shall not be influenced by the observations made in this case and shall proceed in accordance with law independently after application of mind.
Learned Standing counsel may file counter affidavit within four weeks. Rejoinder affidavit may be filed within a week thereafter. List after expiry of the said period.
Order Date :- 6.7.2012 RKM.