Court No. - 6
Case :- WRIT - A No. - 7587 of 2021 Petitioner :- Ramesh Chand Respondent :- State of U.P. and Another Counsel for Petitioner :- Sanjay Kumar Singh Kushwaha,Kailash Singh Kushwaha Counsel for Respondent :- C.S.C.
Hon'ble Pankaj Bhatia,J.
Heard learned counsel for the petitioner and learned Standing Counsel for the State- respondents.
Instructions filed today, are taken on record.
The present petition has been filed challenging the suspension order dated 30.6.2021, passed by respondent no. 1, whereby the services of the petitioner has been suspended on the ground that on the basis of letter dated 04.08.2020 relating to investigation, the petitioner was found to be involved in a case under Section 7 of the Prevention of Corruption Act, 1988 read with Section 120-B of Indian Penal Code, 1860. It further records that in terms of the said letter dated 04.08.2021, the charge was found to be established and sanction for prosecution has been applied.
The facts giving rise in this petition are that the petitioner was appointed as District Minority Welfare Officer in the year 2009 and continued to work on the said post since his appointment. It is on record that a First Information Report was lodged on 28.11.2018 under section 7 of Prevention of Corruption Act, 1988 at Police Station Cantt., District Varanasi. In the said FIR, one Sunil Kumar was named as a sole accused. In pursuance of the said FIR, registered as Case Crime No. 1336 of 2018, investigations commenced which culminated in filing the charge- sheet on 06.01.2019 against the said Sunil Kumar. It is further stated that a statement of the petitioner was also recorded on 24.1.2019 and, in pursuance of the said statement, supplementary case diary was filed to the effect that no evidence was available as against the petitioner herein. It is further borne out from the records that an application was filed on 11.9.2019 purporting to be under section 173(8) Cr.P.C. requesting for further investigation, however, it is informed at the Bar that no orders have been passed on the said application till date. Based upon the said FIR and the charge sheet, and, on the basis of letter dated 04.08.2020, written by Additional Superintendent of Police Anti-Corruption, Varanasi, the impugned suspension order was passed on 30.6.2021 recording that in view of the letter dated 04.08.2020 sent by the Additional Superintendent of Police, Anti-Corruption, Varanasi to the effect that a request for sanction for prosecuting the petitioner, has been moved and in pursuance of the said request, on the basis of opinion given by the Law Department, investigation was carried out in Case Crime No. 1336 of 2018 under section 7 of the Prevention of Corruption Act and the witnesses were examined and, on the basis of such investigation, prima facie, case for prosecuting the petitioner, was made out and on that basis, a prima facie recording was made that the case against the petitioner is very serious and, thus, warrants suspension and, accordingly, the petitioner was placed under suspension on 30.6.2021.
The contention of counsel for the petitioner is that the petitioner was neither named in the FIR in Case Crime No. 1336 of 2018 nor in the charge- sheet filed in the said case against Sunil Kumar on 06.05.2019 and, on the contrary, in the supplementary case diary, it was found that no evidence is available to prosecute the petitioner herein. Thus, in sum and substance, the argument is that on the date of passing of the suspension order i.e. on 30.5.2021, no case was pending in criminal court against the petitioner warranting any action much less his suspension. He further argues that in terms of the provisions of the Discipline and Appeal Rules 1968, it is incumbent that suspension should be resorted only when a prima facie case is made out which can lead to levy of major penalty, which according to the counsel for the petitioner is missing in the case.
This Court, vide order dated 06.08.2021, had called upon the Standing Counsel to produce a copy of the letter dated 04.08.2020. The order passed by this Court on 06.08.2021 is quoted here-in-below:
"The Standing Counsel accepts notice on behalf of respondents.
The Standing Counsel shall produce a copy of the letter dated 04.8.2020 referred to in the letter dated 30.6.2021 (Annexure-13 of the writ petition). The Standing Counsel shall also inform as any other charge-sheet has been filed in the Case Crime No. 1336 of 2018 under section 7 of Prevention of Corruption Act, 1988, Police Station Cantt, District Varanasi subsequent to the filing of closure.
As prayed, put up this matter, as fresh, on 13.8.2021."
In terms of the said directions, the letter dated 04.08.2020 has been produced today.
The Standing Counsel, based upon the said letter, argues that an investigation was carried out by the Anti-Corruption Bureau and it was recorded in the letter dated 04.08.2020 that prima facie case for prosecution of the petitioner was made out and sanction for prosecuting the petitioner was also sought. He has produced before this Court a copy of the sanction for prosecution granted on 23.7.2021 whereby sanction for prosecution has been granted. Thus, on the basis of the said documents, Standing Counsel argues that the order of suspension was justified and the writ petition was liable to be dismissed.
It is well settled that the order passed in exercise of administrative or quasi-judicial powers has to be justified on the basis of the material contained in the said order and cannot be justified by supplementary writ with documents subsequent to the passing of the said order. (Mohinder Singh Gill & Anr vs The Chief Election, 1978 AIR 851) A perusal of the suspension order (impugned herein) makes it clear that the said order has been passed solely on the basis of communication dated 04.08.2020 whereby it was informed that prima facie case for prosecuting the petitioner was found by the Anti-Corruption Bureau. The common ground in between the parties is that in the Case Crime No. 1336 of 2018, neither the petitioner was named nor any charge-sheet was filed against the petitioner in the said case crime number at least till 30.6.2021, the counsel for the petitioner at this stage states that till date no charge-sheet has been filed against the petitioner.
Perusal of Rule 4 of the Disciplinary and Appeal Rules, 1989 makes it clear that prior to passing of the suspension order, it is mandatory for the Suspending Authority to form an opinion that charges exist against the person who is placed under suspension and the charges, are so grievous so as to impose a major penalty in the event of such charges being established.
The suspension order is based upon a communication which cannot lead to decipher that any case was pending against the petitioner as on the date of said suspension. It is also stated at the bar that no charge-sheet has been served to the petitioner till date.
In view of the fact that on the date of suspension, no case was pending against the petitioner in any court of law and there was no material before the authority concerned to form any opinion much less a definite opinion to come to a conclusion, that the charges if established will lead to levy of major penalty against the petitioner, as such, the suspension order cannot be sustained and is, accordingly, quashed, this order may not be interpreted to mean that the respondents cannot take any further action in accordance with Rules applicable against the petitioner.
The writ petition stands allowed in terms of the said direction.
Copy of the order downloaded from the official website of this Court shall be treated as certified copy of this order.
Order Date :- 13.8.2021 Puspendra