Hon'ble S.C. Chaurasia,J.
Heard learned counsel for the parties and perused the record.
Instant writ petition under Article 226 of the Constitution of India has been filed against the impugned order dated 9th February, 2011, whereby, the petitioner has been suspended in contemplation of the departmental enquiry. The reason assigned in the impugned order of suspension is that the petitioner has not filed any Counter Affidavit in the pending writ petition no. 48819/2008, Smt. Santosh Kumari Versus State of U.P. and others, inspite of directions issued by High court. On account of non-filing of the Counter Affidavit, this court in the said writ petition has imposed cost to the tune of Rs. 20,000/-
A specific pleading has been made that the letter of Chief Standing Counsel dated 2nd February, 2011, was served on the petitioner on 11th February, 2011, though the impugned order was passed on 9th February, 2011. Once, the letter dated 2nd February, 2011, itself was served on the petitioner on 11th February, 2011, then the respondent-Director, could not have passed the impugned order of suspension on 9.2.2011.
Repeatedly this court as well as Hon'ble Supreme court, from time to time, have held that power conferred on the authority to suspend a government employee should not be used as a punitive measure. Rule 4 of the U.P. Government Servant (Discipline and Appeal) Rules 1999, provides that a government employee may be suspended only in case the charges levelled against him/her are so serious that may culminate into major penalty.
For convenience, Rule 4 of the U.P. Government Servant (Discipline and Appeal) Rules 1999, is reproduced as under :-
"4. Suspension-(1) A Government Servant against whose conduct an inquiry is contemplated, or is proceeding may be placed under suspension pending the conclusion of the inquiry in the discretion of the Appointing Authority:
Provided that suspension should not be resorted to unless the allegations against the Government Servant are so serious that in the event of their being established may ordinarily warrant major penalty:
Provided further that concerned Head of the Department empowered by the Governor by an order in this behalf may place a Government Servant or class of Government Servants belonging to Group 'A' and 'B' posts under suspension under this rule:
Provided also that in the case of any Government Servant or class of Government Servant belonging to Group 'C' and 'D' posts, the Appointing Authority may delegate its power under this rule to the next lower authority.
(2) A Government Servant in respect of, or against whom an investigation inquiry or trial relating to a criminal charge, which is connected with his position as a Government Servant or which is likely to embarrass him in the discharge of his duties or which involves moral turpitude, is pending, may at the discretion of the appointing Authority or the Authority to whom the power of suspension has been delegated under these rules, be placed under suspension until termination of all proceedings relating to that charge.
(3)(a) A Government Servant shall be deemed to have been placed, or as the case may be, continued to be placed under suspension by an order of the Authority Competent to suspend, with effect from the date of his detention if he is detained in custody, whether the detention is on criminal charge or otherwise, for a period exceeding forty eight hours.
(b) The aforesaid Government Servant shall, after the release from the custody, inform in writing to the Competent Authority about his detention and may also make representation against the deemed suspension. The Competent Authority shall, after considering the representation in the light of the facts and circumstances of the case as well as the provisions contained in this rule, pass appropriate order continuing the deemed suspension from the date of release from custody or revoking or modifying it.
(4) Government Servant shall be deemed to have been placed or, as the case may be,continued to be placed under suspension by an order of the Authority Competent to suspend under these rules, with effect from the date of his conviction if in the event of a conviction for an offence he is sentenced to a term of imprisonment exceeding forty eight hours and is not forthwith dismissed or removed consequent to such conviction.
Explanation-A period of forty eight hours referred to in sub-rule(1) be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment shall be taken to account.
(5) Where a penalty of dismissal or removal from service imposed upon a Government Servant is set aside in appeal or on review under these rules or under rules rescinded by these rules and the case is remitted for further inquiry or action or with any other directions-
(a) If he was under suspension immediately before the penalty was awarded to him, the order of his suspension, shall subject to any such directions as aforesaid be deemed to have continued in force on and form the date of the original order of dismissal of removal;
(b) if he was not under suspension, he shall, if so directed by the appellate or Reviewing Authority, be deemed to have been placed under suspension by an order of the Appointing Authority on and from the date of the original order of dismissal or removal:
Provided that nothing in this sub-rule shall be construed as affecting the power of the Disciplinary Authority is a case where a penalty of dismissal or removal in service imposed upon a Government Servant is set aside in appeal or on review under these rules grounds other than the merits of the allegations which, the said penalty was imposed but the case is remitted for further inquiry or action or with any other directions to pass an order of suspension being further inquiry against him on those allegations so, however, that any such suspension shall not have retrospective effect.
(6)Where penalty of dismissal or removal from service imposed upon a Government Servant is set aside or declared or rendered void in consequence of or by a decision of a court of law and the Appointing Authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal of removal was originally imposed, whether the allegations remain in their original form or are clarified or their particulars better specified or any part thereof a minor nature omitted:
(a) If he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any direction of the Appointing Authority, be deemed to have continued in force on and from the date of the original order of dismissal or removal;
(b) if he was not under such suspension, he shall, if so directed by the Appointing Authority, be deemed to have been placed under suspension by an order of the Competent Authority and from the date of the original order of dismissal or removal.
(7) Where a Government Servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise) and any other disciplinary proceeding is concerned against him during the continuance of that suspension, the Authority Competent to place him under suspension, may for reasons to be recorded by him in writing, direct that the Government Servant shall continue to be under suspension till the termination of all or any of such proceedings.
(8) Any suspension ordered or deemed to have been ordered to have continued in force under this rule shall continue to remain in force until it is modified or revoked by the Competent Authority.
(9) A Government Servant placed under suspension or deemed to have been placed under suspension under this rule shall be entitled to subsistence allowance in accordance with the provisions of Fundamental Rule 53 of the Financial Hand Book, Volume II, Parts II to IV."
In a case reported in 2010(28)LCD 1248, Dhirendra Kumar Rai Versus State of U.P., the Division Bench of this court has considered various pronouncements of this court as well as of Hon'ble Supreme Court with regard to power of the State government to place a government employee under suspension. In the case of Dhirendra Kumar Rai (Supra), the Division Bench of this court, while interpreting Rule 4 of the U.P. Government Servant (Discipline and Appeal) Rules 1999, has observed as under :-
"98. Hon'ble Supreme Court in a case reported in AIR 1959 SC 1342, The Management of Hotel Imperial, New Delhi and others V. Hotel Workers' Union, has held that power to suspend is the creature of statute or contract and decision be taken keeping in view the letter and spirit of statute.
99. In a case reported in 1974 ALJ 92, State of U.P. v. Jai Singh Dixit (Alld.) a Special Bench of Allahabad High Court consisting of five Hon'ble Judges while interpreting the provisions contained in U.P. Punishment and Appeal Rules and power to State Government to suspend a government servant held that "the power of suspension arise when on an objective consideration the appointing authority is of the view that a formal disciplinary inquiry is expected or is proceeding". It has further been held that suspension should not be resorted to unless the allegations against the Government servant are so serious that in the event of their being established, they may ordinarily be expected to warrant his dismissal, removal or reduction. Meaning thereby suspension may be resorted to only in case there is serious misconduct on the part of government servant which may culminate into major penalty after due enquiry.
100. A Division Bench of Allahabad High Court in case reported in 1997 (31) ALR 605, Ram Dular Tripathi v. 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 the service which may ultimately affect the working of the government. The principle opined 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 government 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 punishment 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."
101. Hon'ble the Supreme Court in the case of State of Orissa v. Bimal Kumar Mohanty reported in 1994(4) SCC 126, has ruled that order of suspension should not be passed as an administrative routine in the mechanical manner. It should be on consideration of gravity of alleged misconduct or the nature of allegations imputed to a delinquent employee. In the case of A. Radha Krishna Moorthy (supra), their lordships of Hon'ble Supreme Court has ruled that disciplinary proceedings should not be initiated on vague charges. The charge should be clear and specific according to service rules and not of general nature. In the case of K. Sunkhendar Reddy (supra), the Hon'ble Supreme Court deprecated the practice of passing selective orders of suspension.
On earlier date, we were pointed out by learned Standing Counsel that allegations levelled against the petitioner are correct. Statement given in response to instruction received is not correct. A government employee should not be suspended for trivial charges. According to pleadings on record, it appears that the letter with regard to filing of counter affidavit was received on a later date.
Today, during the course of hearing, an office memorandum dated 23rd February, 2011, has been placed before this court by learned Additional Chief Standing Counsel, pointing out that the order of suspension has been cancelled providing continuity of service to the petitioner. At the face of record, the Appointing Authority while passing the order of suspension has not applied his mind to the material available on record as well as towards Rule 4 of the U.P. Government Servant (Discipline and Appeal) Rules 1999. Such action on the part of the opposite parties, seems to be not correct and reprehensible.
The fundamental right conferred by Article 21 with regard to dignity and quality of life of an individual is also available to a government servant. Any action taken by the State Government hastily, without application of mind, or for extraneous reasons or consideration affecting the dignity and quality of life of a government servant, will have demoralizing effect and the government servant will not be able to discharge his/her obligation independently, in accordance to law, to serve the country. Suspension is not a punishment, but, the order of suspension passed on unfounded ground for extraneous reasons or without application of mind, causes mental pain and agony to a government employee and also lowers his/her status in public eyes. Accordingly, the government or state authority, should not use the power of suspension without application of mind in a routine manner.
There should not be compromise with the dignity of a government employee on one or other pretext and make him/her viable to autocratic rule and compel them to succumb with the unlawful order. The power to suspend a government employee cannot be used as a punitive measure while taking recourse of suspension. The State authority must apply their mind to the material available on record and keeping in view the letter and spirit of Rule 4 U.P. Government Servant (Discipline and Appeal) Rules 1999.
In case the order of suspension is passed on unfounded grounds and without application of mind and for extraneous reasons and consideration, the government employee has got right to claim damages by filing a suit or may approach appropriate forum. In appropriate cases, this court may also impose exemplary costs, in case, the power is abused by an officer of the government.
The Chief Secretary, Government of U.P., Lucknow, is directed to look into the matter and inform all the authorities of the State by issuing a circular not to use the power of suspension as punitive measure, without application of mind. Recourse of suspension should be taken cautiously with full application of mind only in the event that the charges are so serious that they may warrant the major penalty.
Registry shall send the copy of this order to the Chief Secretary, Government of U.P., Lucknow.
The Director, Bal Vikas Sewa Evam Pustahar, U.P. Lucknow, is directed to remain cautious in future while dealing with the career of employees. His action is deprecated.
The petitioner shall be restored in service at his present place of posting with full back wages.
Subject to aforesaid directions, the writ petition is disposed of finally.
Order Date :- 25.2.2011 AKS