Court No. - 37
Case :- WRIT - A No. - 6954 of 2018 Petitioner :- Nitin Kumar Respondent :- State Of U.P. And 02 Others Counsel for Petitioner :- Vijay Gautam Counsel for Respondent :- C.S.C.
Hon'ble Abhinava Upadhya,J.
Heard Sri Vijay Gautam, learned counsel for the petitioner and the learned Standing Counsel appearing for the State-respondents.
With the consent of the learned counsel for the parties, the writ petition is being finally disposed of at this stage.
By means of this writ petition the petitioner has challenged the order of suspension dated 9.8.2017.
Shri Gautam, learned counsel appearing for the petitioner submits that at the stage of preliminary enquiry the petitioner has been put under suspension. Such action has been held to be illegal by this Court in Writ Petition No. 67364 of 2013 (Sudhir Kumar Pandey, ASI (M) Vs. State of U.P. & others) decided on 10.12.2013 wherein this Court in paragraphs no. 4, 5, 6 and 7 has held as under:
"4. Learned Standing Counsel, however, pointed out that in the impugned order of suspension, in the very first paragraph, it has been stated that a departmental enquiry is contemplated and that being so, he contended that the order of suspension shows that it has been passed during a contemplated departmental proceeding. On the first flush, the argument appears attractive but on a deeper consideration, its fallacy becomes apparent. In the same order the disciplinary authority has endeavoured to show compliance of Rule 17 (1) (a) of U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as the "Rules, 1991") by mentioning that departmental enquiry is contemplated in the following charge and accordingly petitioner is placed under suspension, but simultaneously by an endorsement made at the bottom of order of suspension, he has directed another subordinate authority to hold a preliminary enquiry and submit enquiry report. Thus intention and the real state of affairs becomes apparent. When I asked justification for this direction of preliminary enquiry, learned Standing Counsel could not reply at all.
5. Under Rules, 1991, suspension is not one of the punishments prescribed therein. On the contrary, Rule 17 contemplates that suspension can be effected in a contemplated or pending departmental inquiry or during a criminal investigation, inquiry or trial or when an officer is in jail for a particular period of time. In the present case, none of these contingencies is available and, therefore, Rule 17 which authorises Competent Authority to place a police officer of subordinate rank under suspension, is not at all attracted.
6. Admittedly, from endorsement at the bottom of suspension order, it is evident that Circle Officer, Basti has been directed to hold a preliminary inquiry, meaning thereby, a preliminary inquiry has not been held so far which is now ordered and pending thereto, impugned order of suspension has been passed.
7. A Five Judges Bench of this Court in State of U.P. Vs. Jay Singh Dixit and others, 1975 ALR 64 has held that an order of suspension can be passed in a contemplated or pending departmental inquiry and it does not include contemplated or pending preliminary inquiry. Recently, a Full Bench of this Court in Rajveer Singh Vs. State of U.P. and others, 2010(10) ADJ 246 has also taken same view with some further clarification."
Considering the facts and circumstances of the case and also the aforesaid judgment relied upon by the learned counsel for the petitioner, in my view, suspension order dated 9.8.2017 cannot be sustained and it is hereby quashed with the liberty to the authorities to pass a fresh order in accordance with law.
The writ petition is, accordingly, allowed.
Order Date :- 27.2.2018 Sunil Kr. Gupta