Court No. - 6
Case :- WRIT - A No. - 4947 of 2020 Petitioner :- Reevan Singh Respondent :- State Of U P And 4 Others Counsel for Petitioner :- Vibhu Rai,Abhinav Gaur,Anoop Trivedi (Senior Adv.) Counsel for Respondent :- C.S.C.
Hon'ble Pankaj Bhatia,J.
1. Sri Anoop Trivedi, Senior Adv. appearing on behalf of the petitioner is not pressing writ insofar as it challenges the chargesheet by means of an amendment application.
2. The present writ petition has been filed challenging the suspension order dated 30.4.2020 whereby the petitioner was placed under suspension pending an enquiry.
3. The suspension order is being challenged on the following grounds; firstly, it is argued that suspension order is continuing since 30.4.2020 and the same is contrary to the judgment of the Supreme Court in the case of Ajay Kumar Choudhary Vs. Union of India through its Secretary & another in Civil Appeal No. 1912 of 2015 arising out of SLP (C) No. 31761 of 2013. It is further argued that the suspension is a malafide order and in support of the said argument, Sri Anoop Trivedi, Senior Advocate, assisted by Sri Vibhu Rai, counsel for the petitioner argues that malafide instances leading to the passing of the suspension order are duly recorded in the order of this Court dated 8.7.2020, which is being quoted hereinbelow:
"Heard Shri Anoop Trivedi, learned Senior Advocate assisted by Shri Vibhu Rai, learned counsel for the petitioner and Shri M.C. Chaturvedi, learned Additional Advocate General assisted by Shri Vineet Pandey, learned Chief Standing Counsel and Shri Sanjay Kumar Singh, learned Additional Chief Standing Counsel for the State respondents.
By means of present writ petition, the petitioner has challenged the impugned order dated 30.04.2020 passed by Director General, Jail Administration and Reform Services/respondent no.2, whereby, the services of petitioner has been suspended.
It appears that earlier the petitioner has been suspended by order dated 03.11.2017. The said order was subjected to challenge in Writ A no.58220/2017 (Reevan Singh vs. State of U.P. and others). The Division Bench of this Court has proceeded to interfere in the impugned suspension order vide order dated 19.12.2017. The aforesaid order is extracted as under:-
"Heard Sri Anoop Trivedi, learned counsel for the petitioner and learned Standing Counsel appearing for the respondents No. 1 and 2.
The petitioner, who is a Jailor, was put under suspension on 03.11.2017 by an order passed by the Upper Mahanirichak (Prashashan) Karagar Prashashan Evam Sudhar Sewanyein, Uttar Pradesh, Lucknow.
The aforesaid order was stayed by this court vide order dated 16.11.2017 passed in Writ Petition No.54072 of 2017, Reevan Singh Vs. State of U.P. and 6 others with liberty to the Competent Authority to pass a fresh order if necessary.
In the wake of the above order of the High Court, the petitioner has again been suspended by the order dated 23.11.2017 in contemplation of a departmental enquiry, this time by the Mahanideshak Karagar Prashashan Evam Sudhar Sewanyein, Uttar Pradesh, Lucknow.
In challenging the above order, the submission of Sri Anoop Trivedi, learned counsel for the petitioner is that the aforesaid order is tainted with mala fides and that the petitioner has been singled out and subjected to departmental proceedings whereas all other Officers either junior to the petitioner or senior, who were equally responsible have been left out.
The other submission is that the respondent No.4 the Administrative Officer had put a note to the effect that in a store attached to the hospital of the jail certain incriminating material was found and therefore, it is in the fitness of things that the petitioner be suspended in contemplation of an enquiry and that the Jailor of district jail Bareilly be allowed to officiate as Jailor of the district jail Lalitpur where the petitioner is posted.
Thus, the order of suspension has been passed on the report of a petty Officer of the rank much below that of the petitioner and that actually the order of suspension has been passed for not obliging the State/Central Minister, who had sought a certain favour through the District Magistrate and the S.S.P.
The averments to this effect are very specific and are contained in paragraphs No.19 to 37.
Lastly, it has been submitted that the authority passing the order of suspension has not applied its independent mind and recorded its satisfaction that the allegations levelled against the petitioner are of such a serious nature that they would entail imposition of the major punishment.
Learned Standing Counsel on the basis of the instructions received submits that the order impugned is signed by the Mahanideshak Karagar Prashashan Evam Sudhar Sewanyein, Uttar Pradesh, Lucknow. The order has been passed with the approval of the Principal Secretary. A disciplinary enquiry has already been instituted against the petitioner and that it will be completed very easily.
There is no reply to the argument that the order of suspension has been passed on the basis of the note put up by respondent No.4 and that the authority passing the order has not recorded its satisfaction regarding the seriousness of the charges which may warrant imposition of major penalty.
The allegations of mala fide have to be replied by respondents No.4, 5 and 6.
In view of the aforesaid facts and circumstances, we direct the respondents No.1, 2 and 3 to file counter affidavit within a period of one month from today. Two weeks thereafter are allowed to the petitioner for filing rejoinder affidavit.
Issue notice to the respondents No.4, 5 and 6. They may also file their reply within two weeks on the receipt of the notice.
Let the petition be listed for admission/final disposal after six weeks along with the record of Writ Petition No.54072 of 2017.
Until further orders of this court, the operation of the impugned order dated 23.11.2017 shall remain in abeyance and it will be open for the Disciplinary Authority to proceed and complete the enquiry in accordance with law without being affected by the pendency of this petition."
In the said proceeding, the charge-sheet was submitted on 04.12.2017 and the same was again subjected to challenge in Writ A no.16313/2018 (Reevan Singh vs. State of U.P. and others) and the Division Bench of this Court has intervened in the matter staying the charge-sheet dated 04.12.2017. For ready reference the order dated 18.08.2018 is extracted as under:-
"Heard Shri Anoop Trivedi, learned counsel for the petitioner and learned Standing Counsel for the respondents.
The petitioner in the writ petition is seeking quashing of the chargesheet dated 4.12.2017 (Annexure- 12 to the writ petition) issued by V.P. Tripathi, Deputy Inspector General of Prisons, Kanpur Region and approved by the Inspector General of Police, Jail Administration and Reforms Services, P.K. Mishra.
The contention of the petitioner is that the Appointing Authority of the petitioner is now Director General of Prisons, Jail Administration and Reforms Services, who is required to be an officer of the Indian Administrative Service and confirmed in the Senior time scale of pay of that service. In Annexure- 1 to the short counter affidavit also, the respondents have placed on record a notification of 30.05.2000, which mentions that the designation of the Inspector General of Prisons has been changed to the Director General of Prisons/Jail Administration and Reforms Services.
This Court wanted to know from the Standing Counsel as to whether the chargesheet has been approved by the Director General of Prisons as per the requirements of Rule 7(ii) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999, and today again he wants time to seek further instructions.
It has also been pointed out that earlier when the petitioner was placed under suspension vide suspension order dated 3.11.2017 passed by the Upper Mahanirikshak (Prashashan), Karagar Prashashan Evam Sudhar Sewanyein, the same was challenged before this Court and this Court had been pleased to stay the operation of the order dated 3.11.2017 with liberty to the Mahanideshak Karagar Prashashan Evam Sudhar Sewanyein to pass a fresh order, if necessary, vide its order dated 16.11.2017 in Writ Petition No. 54072 of 2017, Reevan Singh Vs. State of U.P. and 6 others and, thereafter, a fresh order of suspension was passed by the Director General of Prisons on 23.11.2017 (Annexure- 10 to the writ petition).
For reasons aforesaid, respondents may therefore file their counter affidavit within two weeks.
List on 06.09.2018.
Till the next date of listing, further proceedings in respect of the chargesheet dated 04.12.2017 shall remain stayed."
The plight of the petitioner has not ended and he has been transferred from District Lalitpur to District Moradabad, wherein, he has joined. Thereafter again in short span of time, he has again been transferred from district Moradabad to District Gyanpur at Bhadohi. The said order has been challenged by petitioner by preferring Writ Petition no.26245/2018 (Reevan Singh vs. State of U.P. and others), which was disposed of vide order dated 19.12.2018. For ready reference, the order dated 19.12.2018 is extracted as under:-
"Heard Sri Anoop Trivedi learned counsel for the petitioner and the learned Standing Counsel.
This petition has challenged an order dated 28 November 2018 pursuant to which the petitioner was transferred from District Jail Moradabad to District Jail Gyanpur.
Bearing in mind the submissions advanced on the first date of the petitioner being a highly decorated officer and facing a grave and serious threat to his life if posted in the eastern part of the State, the Court had called upon the learned Standing Counsel to obtain instructions. Learned Standing Counsel has produced instructions which are taken on record and marked as 'X' for the purposes of identification.
From pargraph-3 of the instructions, it appears that the petitioner and the third respondent who was his immediate superior at District Jail Moradabad had an altercation in which it is alleged that the petitioner indulged in acts of gross indiscipline. It is with respect to this incident and the opinion formed by the third respondent that the continuance of the petitioner at District Jail Moradabad would be clearly deleterious to the security and discipline of the District Jail, that it was recommended that the petitioner be transferred.
From the instructions it further appears that when the matter reached the level of the State Government, on an overall consideration of the aforesaid facts, a decision was taken by it to transfer both the petitioner as well as the third respondent.
Sri Trivedi learned counsel has sought to assail the order of transfer alleging mala fide against the third respondent. However, from the pleadings taken in paragraph 28 to 30 and paragraph 54 which were specifically alluded to, the Court finds that the allegations as levelled against the third respondent do not establish a case of mala fide. The mere fact that official accommodation was not made available or that salary for certain days was stopped, does not convince this Court to enter any finding with regard to mala fides against the third respondent. The Court, however, deems it appropriate to notice the following additional submissions-
Sri Trivedi learned counsel, referring to the material placed on the record including various internal reports drawn up by the respondents themselves as well as the affidavit filed before the Supreme Court, has contended that a serious threat perception exists in case the petitioner is posted at Gyanpur and in the eastern part of the State. Referring specifically to the affidavit filed on behalf of the State before the Supreme Court, it was contended that the Government itself had conveyed to the Court that the transfer of the petitioner from Sobhadra to Moradabad was affected on account of security reasons.
These aspects would, in the considered view of the Court, merit consideration by the first respondent. Accordingly and while refusing to interfere with the order of transfer in exercise of powers conferred by Article 226 of the Constitution, this Court leaves it open to the petitioner to approach the first respondent and bring to his attention the relevant material on the basis of which he seeks modification of his posting at Gyanpur or any other place in the eastern part of the State. The Court further directs that in case such a representation is made, the same shall be duly attended to by the first respondent and disposed of in accordance with law and bearing in mind the issue of threat, as has been highlighted, in its proper perspective and take a decision in respect thereof within a month therefrom.
Present petition shall stand disposed of in the above terms."
It appears that in spite of aforesaid detailed order, the Authority has not considered the claim of the petitioner for transfer and again passed the order dated 08.02.2019 reiterating the same facts and he continued to be placed at district Gyanpur at Bhadohi. The said order was subjected to challenge by the petitioner by preferring Writ A no.5368/2019 (Reevan Singh vs. State of U.P. and others). The learned Single Judge of this Court has intervened in the matter and interim order dated 09.04.2019. The order dated 09.04.2019 is extracted as under:-
"Heard learned counsel for the petitioner and learned Chief Standing Counsel.
The instant writ petition is directed against the order dated 8 February 2019 passed by the first respondent-Principal Secretary (Jail Administration and Reform Services), Lucknow thereby, rejecting the representation of the petitioner against the transfer order transferring the petitioner from District Jail, Moradabad to District Jail, Gyanpur, Bhadohi.
Petitioner is a highly decorated officer and there is serious threat to his life by the mafia of the region. Consequently, petitioner has sought posting outside the eastern part of the State of Uttar Pradesh. Petitioner came to be transferred by order dated 28 November 2018, which was subject matter of challenge in Writ Petition No. 26245 of 2018. This Court disposed of the writ petition by order dated 19 December 2018, directing the petitioner to seek modification of his posting to a place other than eastern part of the State. Pursuant thereof, the impugned order came to be passed.
It is urged by the learned counsel for the petitioner that the first respondent upon noting the rival submissions running into several pages, in one paragraph taking note of the report dated 21 March 2019, submitted by the Superintendent of Police, District Bhadohi, that there is no threat perception, accordingly, the representation came to be dismissed. It is urged that the plea of the petitioner of consistent threat to his life as recorded by the various officials since 2014, has not been considered. It is placed on record that the District Magistrate, Mirzapur, in communication dated 30 December 2014 addressed to the first respondent had categorically noted therein that there is serious threat to the life of the petitioner. This has been reiterated by the Committee headed by the District Judge in report dated 28 January 2015. Similar is the report of the Local Intelligence Unit. A report in the same light has been also submitted by the Additional Inspector General (Jail Administration and Reform Services), Uttar Pradesh vide report dated 6 February 2017. Attention of this Court has also been drawn to the counter affidavit filed by the State before the Supreme Court, wherein, a specific stand was taken that the petitioner was transferred due to security reason. Further, it is noted in the reports that more than 28 officers have been killed by the Mafia of the eastern U.P. primarily of District Varanasi, Bhadohi, Jaunpur, Ghazipur etc.
It is further urged that the petitioner is being subjected to harassment being a bright officer and this Court on earlier two occasions had stayed the suspension order and thereafter, the disciplinary proceedings initiated against the petitioner, has been stayed by this Court in Writ A No.16313 of 2018.
Learned counsel for the respondents prays for and is granted ten days' time to file counter affidavit. The report of the Superintendent of Police, Bhadohi to be placed on record.
Put up this matter on 22 April 2019, as fresh.
Till the next date of listing, effect and operation of the impugned order dated 8 February 2019 and the transfer order transferring the petitioner to District Jail, Gyanpur Bhadohi, shall be kept in abeyance."
Thereafter the order impugned has been passed suspending the services of the petitioner and as such, the petitioner is before this Court with the aforesaid relief.
Shri Anoop Trivedi, learned Senior Counsel submits that vague and evasive charges have been levelled against the petitioner. He further submits that petitioner is a bright officer and as per the record, this Court earlier on two occasions have stayed the suspension order and the disciplinary proceeding against the petitioner was also stayed vide order dated 18.08.2018 passed by this Court and admittedly all the aforesaid writ petitions are pending consideration. While passing the order impugned, the Authority has not recorded any objective satisfaction, which is mandatory under the proviso to Rule 4 of U.P. Government Servant (Discipline and Appeal) Rules 1999 and as such, the order impugned has been passed with malafide intention and the same cannot sustain in the eyes of law.
On the other hand, Shri M.C. Chaturvedi, learned Additional Advocate General assisted by Shri Vineet Pandey, learned Chief Standing Counsel and Shri Sanjay Kumar Singh, learned Additional Chief Standing Counsel has vehemently opposed the writ petition and submits that the charges are serious in nature and on the said charges, the major punishment can be inflicted upon the petitioner. Even the charge-sheet has been filed in the matter and after valid consideration, the services of the petitioner has been suspended.
The matter requires consideration.
All the respondents are accorded a week's time to file counter affidavit. The petitioner will have three days thereafter to file rejoinder affidavit.
Put up this matter again in Additional Cause List on 27.07.2020. Till the next date of listing, no coercive action shall be taken against the petitioner.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing."
4. He further argues that even the said suspension order does not record any prima facie satisfaction to the effect that the charges, if established, could lead to a major punishment against the petitioner. He, thus, argues that that the suspension is contrary to Rule 4 of the UP Government Servant (Discipline and Appeal) Rules, 1999. It is on record that subsequent to the said suspension order, a chargesheet has also been served upon the petitioner on 20.6.2020 containing one article of charge. Counsel for the petitioner at this instance argues that the said chargesheed has been served upon the petitioner on 17.12.2020.
5. A perusal of the chargesheet shows that only one charge was levelled against the petitioner which is also the basis of the suspension order. The enquiry as initiated by virtue of the chargesheet has not been concluded, which fact has not been disputed by the counsel for the respondents Sri Vinit Pandey, learned Chief Standing Counsel-4.
6. The suspension order, without going into other arguments as raised by Sri Anoop Trivedi, Senior Advocate, is liable to be set aside in the light of the judgment of the Supreme Court in the case of Ajay Kumar Choudhary Vs. Union of India through its Secretary (supra) wherein the Supreme Court had issued the following directions:
"14. We, therefore, direct that the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of Charges/Chargesheet is not served on the delinquent officer/employee; if the Memorandum of Charges/Chargesheet is served a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the concerned person to any Department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognize that previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us."
7. A perusal of the suspension order, prima facie, on its perusal, does not justify the suspension for so long and there is no order extending the suspension order on any justifiable ground.
8. In view thereof, the suspension order dated 30.4.2020 passed by Director General, Jail Administration and Reform Services/Respondent No. 2 is set aside with liberty to the respondents to conclude the disciplinary proceedings initiated by virtue of the chargesheet dated 20.6.2020 in accordance with law.
9. The writ petition stands allowed.
10. Copy of the order downloaded from the official website of this Court shall be treated as certified copy of the order.
Order Date :- 22.9.2021 vinay