ALLAHABAD HIGHCOURT, SUSPENSION : तीन माह से ज्यादा नहीं हो सकता निलंबन, तीन माह में नहीं दिया आरोप पत्र तो निलम्बन स्वत: समाप्त
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Court No. - 23
Court No. - 23
Case :- SERVICE SINGLE No. - 10276 of 2019
Petitioner :- Ram Ratan
Respondent :- State Of U.P.Thru.Addl.Chief Secy.,Sectt. Admin. Deptt. &Ors
Counsel for Petitioner :- Suresh Chandra Yadava,Purshottam Chaurasia
Counsel for Respondent :- C.S.C.
Respondent :- State Of U.P.Thru.Addl.Chief Secy.,Sectt. Admin. Deptt. &Ors
Counsel for Petitioner :- Suresh Chandra Yadava,Purshottam Chaurasia
Counsel for Respondent :- C.S.C.
Hon'ble Rajesh Singh Chauhan,J.
Heard Sri S.C. Yadav, learned counsel for the petitioner and Sri Ran Vijay Singh, learned Additional Chief Standing Counsel for the State-respondents.
This Court has passed order dated 11.4.2019 as under:
"Heard Sri S.C. Yadav, learned counsel for the petitioner.
Notices on behalf of opposite parties have been accepted by the office of the learned Chief Standing Counsel.
By means of this writ petition, the petitioner has assailed the office order dated 04.12.2018, passed by the Additional Chief Secretary, Secretariat Administration Department, Government of U.P., Civil Secretariat, Lucknow placing the petitioner under suspension.
Learned counsel for the petitioner has submitted that the aforesaid suspension order shows that since the petitioner is prima-facie held guilty for the charges levelled against him, therefore, he is being place under suspension. The suspension order has not been issued on the basis of pending departmental enquiry or in contemplation of departmental enquiry, rather, it is a plain and simple suspension order.
This is a trite law that the suspension order can only be issued either pending departmental enquiry or in contemplation of departmental enquiry.
In the present suspension order, since the petitioner has been held guilty prima-facie and no enquiry has been contemplated to that effect, therefore, it appears that this suspension order is punitive in nature.
As per learned counsel for the petitioner, neither any enquiry has been initiated against the petitioner with effect from 04.12.2018 nor any charge-sheet has been given to him, whereas the Hon'ble Apex Court in catena of judgments has held that if the person is placed under suspension and the department/ authority is of the view that the allegation should be investigated/ inquired an appropriate Enquiry Officer should be appointed atonce and the charge-sheet should be issued with expedition but in the instant case no lawful exercise has been carried out by the Competent Authority, therefore, this suspension order does not appear to be a suspension order in the eyes of law.
Learned Additional Chief Standing Counsel prays for and is granted 24 hours time to seek complete instructions in the matter, as aforesaid.
List/ put up this petition tomorrow i.e. 12.04.2019 as fresh in the additional cause list."
In compliance of the aforesaid order Sri Ran Vijay Singh, Additional Chief Standing Counsel has submitted that the charge-sheet has been prepared on 11.4.2019 and the inquiry officer has also been appointed on 11.4.2019. He has produced the copy of instructions dated 11.4.2019 preferred by one Sri Rajiv Srivastava, Joint Secretary of the Department addressed to Chief Standing Counsel of this Court enclosing therewith the copy of the charge-sheet dated 11.4.2019 as well asan order dated 11.4.2019 appointing one Sri Pawan Kumar Gangwar, Special Secretary, Sugar Industries and Cane Development as inquiry officer. The photocopy of both the aforesaid orders dated 11.4.2019 has been provided to the learned counsel for the petitioner. The instructions dated 11.4.2019 are taken on record.
Sri S.C. Yadav has submitted that receiving of these aforesaid orders whereby the inquiry officer has been appointed and charge-sheet has been prepared may not be treated as service of charge-sheet for the reason that as and when the charge-sheet would be served on the petitioner, he shall be provided all relied upon documents and copy of the other evidences and since those documents have not been enclosed with this order, therefore,this may be treated as only information that the inquiry officer has been appointed and the charge-sheet has been prepared.
I find substance on this submission of Sri Yadav, therefore, receiving of these documents / orders dated 11.4.2019 shall not be treated as service of these documents on the petitioner and it can be only be understood as an information that charge-sheet has been prepared and Enquiry Officer has been appointed that too after the intervention of this Court vide order dated 11.4.2019. However, this gesture of the authority concerned may not be appreciated for the simple reason that if this Court had not intervened in this issue seeking explanation from the authority, the charge-sheet would have not be issued and Enquiry Officer would also have not been appointed for some more time and the person would have been under suspension without contemplation of any enquiry to that effect. I think this gesture of the authority shows that he has taken the settled procedure on the point for granted.
Sri S.C. Yadav has drawn attention of this Court towards the dictum of Hon'ble Apex Court in re: Ajay Kumar Chaudhary vs. Union of India and others reported in (2015) 7 SCC 291 whereof para 11,12 and 21 are being reproduced herein below:
"11. Suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration. If it is for an indeterminate period or if its renewal is not based on sound reasoning contemporaneously available on the record, this would render it punitive in nature. Departmental/disciplinary proceedings invariably commence with delay, are plagued with procrastination prior and post the drawing up of the Memorandum of Charges, and eventually culminate after even longer delay.
12. Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be. The suspended person suffering the ignominy of insinuations, the scorn of society and the derision of his Department, has to endure this excruciation even before he is formally charged with some misdemeanour, indiscretion or offence. His torment is his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisition or inquiry to come to its culmination, that is to determine his innocence or iniquity. Much too often this has now become an accompaniment to retirement. Indubitably the sophist will nimbly counter that our Constitution does not explicitly guarantee either the right to a speedy trial even to the incarcerated, or assume the presumption of innocence to the accused. But we must remember that both these factors are legal ground norms, are inextricable tenets of common law jurisprudence, antedating even the Magna Carta of 1215, which assures that - "We will sell to no man, we will not deny or defer to any man either justice or right." In similar vein the Sixth Amendment to the Constitution of the United States of America guarantees that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial.
21. 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."(Emphasis added)
In view of the aforesaid dictum of Hon'ble Apex Court wherein the Hon'ble Apex Court has held that the currency of suspension order should not extend beyond three months and if within this period the memorandum of charges or charge-sheet is not served on the delinquent employee or person, the suspension order would loose its efficacy.
In the present case admittedly suspension order has been issued on 4.12.2018 and the charge-sheet has been prepared on 11.4.2019 when this Court has sought specific query on the specific point on 11.4.2019 itself i.e. after more than four months from the date of suspension order.
Considering the facts and circumstances fo the issue in question and also considering the dictum of Hon'ble Apex Court in re: Ajay Kumar Chaudhary (supra) this Court has got no other option except to quash the suspension order dated 4.12.2018, which is contained as Annexure no. 1 to the writ petition.
It would be necessary to indicate in this order that the aforesaid order is being passed only on account of irresponsible order being passed by the competent authority on 4.12.2018 (Annexure no. 1 to the writ petition) wherein neither the departmental inquiry was contemplated nor initiated while issuing suspension order. Further, even more than four months period has lapsed but no charge-sheet has been issued to the petitioner and the charge-sheet has been prepared on 11.4.2019 and enquiry office has been appointed on 11.4.2019 only after intervention of this Court vide order dated 11.4.2019, as discussed above.
It appears that while passing the office order dated 4.12.2018, the suspension order, the authority concerned have not cared the legal proposition / provisions on the issue and just placed the petitioner under suspension as if it is a punishment order. This Court takes strong exception out of aforesaid inaction on the part of the authority concerned who has passed the order dated 4.12.2018.
Therefore, a writ in the nature of certiorari is issued quashing the suspension order dated 4.12.2018 passed by the Additional Chief Secretary, Secretariat Administration Department, Government of Uttar Pradesh, Civil Secretariat, Lucknow, Annexure no. 1 to the writ petition.
Since the charge-sheet has already been prepared against the petitioner and inquiry officer has also been appointed, therefore, the competent authority / disciplinary authority may conduct and conclude the departmental inquiry to its logical end but strictly in accordance with law following principles of natural justice. It is also expected that the departmental inquiry against the petitioner, if it is so required shall be concluded with expedition and any appropriate order would be passed by the disciplinary authority, if so required with promptness.
The petitioner is directed to cooperate in the departmental inquiry properly, inasmuch as, no departmental inquiry may be conducted and concluded to its logical end, if the incumbent / employee does not cooperate with the departmental proceedings.
Therefore, in view of the above the writ petition is allowed.
No order as to costs.
Before parting with, this Court wants that the concern of the Court, as expressed herein above by this order, be brought into the kind notice of the Chief Secretary, State of U.P., Lucknow. Therefore, the Senior Registrar of this Court shall send a copy of this order within three days to the Chief Secretary, State of U.P., Lucknow for information and necessary orders to be passed directing all the authorities of the State of U.P. to follow the necessary provisions of law when any suspension order is passed against any officer / official of the State.
Order Date :- 12.4.2019
Om
[Rajesh Singh Chauhan, J.]
Heard Sri S.C. Yadav, learned counsel for the petitioner and Sri Ran Vijay Singh, learned Additional Chief Standing Counsel for the State-respondents.
This Court has passed order dated 11.4.2019 as under:
"Heard Sri S.C. Yadav, learned counsel for the petitioner.
Notices on behalf of opposite parties have been accepted by the office of the learned Chief Standing Counsel.
By means of this writ petition, the petitioner has assailed the office order dated 04.12.2018, passed by the Additional Chief Secretary, Secretariat Administration Department, Government of U.P., Civil Secretariat, Lucknow placing the petitioner under suspension.
Learned counsel for the petitioner has submitted that the aforesaid suspension order shows that since the petitioner is prima-facie held guilty for the charges levelled against him, therefore, he is being place under suspension. The suspension order has not been issued on the basis of pending departmental enquiry or in contemplation of departmental enquiry, rather, it is a plain and simple suspension order.
This is a trite law that the suspension order can only be issued either pending departmental enquiry or in contemplation of departmental enquiry.
In the present suspension order, since the petitioner has been held guilty prima-facie and no enquiry has been contemplated to that effect, therefore, it appears that this suspension order is punitive in nature.
As per learned counsel for the petitioner, neither any enquiry has been initiated against the petitioner with effect from 04.12.2018 nor any charge-sheet has been given to him, whereas the Hon'ble Apex Court in catena of judgments has held that if the person is placed under suspension and the department/ authority is of the view that the allegation should be investigated/ inquired an appropriate Enquiry Officer should be appointed atonce and the charge-sheet should be issued with expedition but in the instant case no lawful exercise has been carried out by the Competent Authority, therefore, this suspension order does not appear to be a suspension order in the eyes of law.
Learned Additional Chief Standing Counsel prays for and is granted 24 hours time to seek complete instructions in the matter, as aforesaid.
List/ put up this petition tomorrow i.e. 12.04.2019 as fresh in the additional cause list."
In compliance of the aforesaid order Sri Ran Vijay Singh, Additional Chief Standing Counsel has submitted that the charge-sheet has been prepared on 11.4.2019 and the inquiry officer has also been appointed on 11.4.2019. He has produced the copy of instructions dated 11.4.2019 preferred by one Sri Rajiv Srivastava, Joint Secretary of the Department addressed to Chief Standing Counsel of this Court enclosing therewith the copy of the charge-sheet dated 11.4.2019 as well asan order dated 11.4.2019 appointing one Sri Pawan Kumar Gangwar, Special Secretary, Sugar Industries and Cane Development as inquiry officer. The photocopy of both the aforesaid orders dated 11.4.2019 has been provided to the learned counsel for the petitioner. The instructions dated 11.4.2019 are taken on record.
Sri S.C. Yadav has submitted that receiving of these aforesaid orders whereby the inquiry officer has been appointed and charge-sheet has been prepared may not be treated as service of charge-sheet for the reason that as and when the charge-sheet would be served on the petitioner, he shall be provided all relied upon documents and copy of the other evidences and since those documents have not been enclosed with this order, therefore,this may be treated as only information that the inquiry officer has been appointed and the charge-sheet has been prepared.
I find substance on this submission of Sri Yadav, therefore, receiving of these documents / orders dated 11.4.2019 shall not be treated as service of these documents on the petitioner and it can be only be understood as an information that charge-sheet has been prepared and Enquiry Officer has been appointed that too after the intervention of this Court vide order dated 11.4.2019. However, this gesture of the authority concerned may not be appreciated for the simple reason that if this Court had not intervened in this issue seeking explanation from the authority, the charge-sheet would have not be issued and Enquiry Officer would also have not been appointed for some more time and the person would have been under suspension without contemplation of any enquiry to that effect. I think this gesture of the authority shows that he has taken the settled procedure on the point for granted.
Sri S.C. Yadav has drawn attention of this Court towards the dictum of Hon'ble Apex Court in re: Ajay Kumar Chaudhary vs. Union of India and others reported in (2015) 7 SCC 291 whereof para 11,12 and 21 are being reproduced herein below:
"11. Suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration. If it is for an indeterminate period or if its renewal is not based on sound reasoning contemporaneously available on the record, this would render it punitive in nature. Departmental/disciplinary proceedings invariably commence with delay, are plagued with procrastination prior and post the drawing up of the Memorandum of Charges, and eventually culminate after even longer delay.
12. Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be. The suspended person suffering the ignominy of insinuations, the scorn of society and the derision of his Department, has to endure this excruciation even before he is formally charged with some misdemeanour, indiscretion or offence. His torment is his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisition or inquiry to come to its culmination, that is to determine his innocence or iniquity. Much too often this has now become an accompaniment to retirement. Indubitably the sophist will nimbly counter that our Constitution does not explicitly guarantee either the right to a speedy trial even to the incarcerated, or assume the presumption of innocence to the accused. But we must remember that both these factors are legal ground norms, are inextricable tenets of common law jurisprudence, antedating even the Magna Carta of 1215, which assures that - "We will sell to no man, we will not deny or defer to any man either justice or right." In similar vein the Sixth Amendment to the Constitution of the United States of America guarantees that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial.
21. 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."(Emphasis added)
In view of the aforesaid dictum of Hon'ble Apex Court wherein the Hon'ble Apex Court has held that the currency of suspension order should not extend beyond three months and if within this period the memorandum of charges or charge-sheet is not served on the delinquent employee or person, the suspension order would loose its efficacy.
In the present case admittedly suspension order has been issued on 4.12.2018 and the charge-sheet has been prepared on 11.4.2019 when this Court has sought specific query on the specific point on 11.4.2019 itself i.e. after more than four months from the date of suspension order.
Considering the facts and circumstances fo the issue in question and also considering the dictum of Hon'ble Apex Court in re: Ajay Kumar Chaudhary (supra) this Court has got no other option except to quash the suspension order dated 4.12.2018, which is contained as Annexure no. 1 to the writ petition.
It would be necessary to indicate in this order that the aforesaid order is being passed only on account of irresponsible order being passed by the competent authority on 4.12.2018 (Annexure no. 1 to the writ petition) wherein neither the departmental inquiry was contemplated nor initiated while issuing suspension order. Further, even more than four months period has lapsed but no charge-sheet has been issued to the petitioner and the charge-sheet has been prepared on 11.4.2019 and enquiry office has been appointed on 11.4.2019 only after intervention of this Court vide order dated 11.4.2019, as discussed above.
It appears that while passing the office order dated 4.12.2018, the suspension order, the authority concerned have not cared the legal proposition / provisions on the issue and just placed the petitioner under suspension as if it is a punishment order. This Court takes strong exception out of aforesaid inaction on the part of the authority concerned who has passed the order dated 4.12.2018.
Therefore, a writ in the nature of certiorari is issued quashing the suspension order dated 4.12.2018 passed by the Additional Chief Secretary, Secretariat Administration Department, Government of Uttar Pradesh, Civil Secretariat, Lucknow, Annexure no. 1 to the writ petition.
Since the charge-sheet has already been prepared against the petitioner and inquiry officer has also been appointed, therefore, the competent authority / disciplinary authority may conduct and conclude the departmental inquiry to its logical end but strictly in accordance with law following principles of natural justice. It is also expected that the departmental inquiry against the petitioner, if it is so required shall be concluded with expedition and any appropriate order would be passed by the disciplinary authority, if so required with promptness.
The petitioner is directed to cooperate in the departmental inquiry properly, inasmuch as, no departmental inquiry may be conducted and concluded to its logical end, if the incumbent / employee does not cooperate with the departmental proceedings.
Therefore, in view of the above the writ petition is allowed.
No order as to costs.
Before parting with, this Court wants that the concern of the Court, as expressed herein above by this order, be brought into the kind notice of the Chief Secretary, State of U.P., Lucknow. Therefore, the Senior Registrar of this Court shall send a copy of this order within three days to the Chief Secretary, State of U.P., Lucknow for information and necessary orders to be passed directing all the authorities of the State of U.P. to follow the necessary provisions of law when any suspension order is passed against any officer / official of the State.
Order Date :- 12.4.2019
Om
[Rajesh Singh Chauhan, J.]
लखनऊ : हाई कोर्ट ने सरकारी कर्मचारियों के खिलाफ निलंबन आदेश के संबंध में नियमों को स्पष्ट करते हुए कहा है कि ऐसा आदेश तीन महीने से अधिक बरकरार नहीं रखा जा सकता है।
कोर्ट ने यह भी कहा कि इस अवधि के दौरान यदि कर्मचारी को आरोपपत्र नहीं दिया गया तो निलंबन का आदेश स्वतः समाप्त हो जाएगा। अदालत ने मुख्य सचिव से कहा है कि वह सभी विभागों को निर्देश जारी करें कि निलंबन आदेश पारित करते समय आवश्यक प्रावधानों का ध्यान रखा जाए। कोर्ट ने यह आदेश रामरतन की ओर से दाखिल याचिका पर दिया। इसमें कहा गया था कि सचिवालय प्रशासन विभाग में कार्यरत याची पर लगे कतिपय आरोपों के बाद विभाग ने उसे प्रथम दृष्टया दोषी मानते हुए 4 दिसंबर 2018 को निलंबित कर दिया था। याची की दलील थी कि चार माह से अधिक समय बीत जाने के बावजूद न तो उसे आरोपपत्र दिया गया और न ही विभागीय जांच शुरू की गई।
कोर्ट ने यह भी कहा कि इस अवधि के दौरान यदि कर्मचारी को आरोपपत्र नहीं दिया गया तो निलंबन का आदेश स्वतः समाप्त हो जाएगा। अदालत ने मुख्य सचिव से कहा है कि वह सभी विभागों को निर्देश जारी करें कि निलंबन आदेश पारित करते समय आवश्यक प्रावधानों का ध्यान रखा जाए। कोर्ट ने यह आदेश रामरतन की ओर से दाखिल याचिका पर दिया। इसमें कहा गया था कि सचिवालय प्रशासन विभाग में कार्यरत याची पर लगे कतिपय आरोपों के बाद विभाग ने उसे प्रथम दृष्टया दोषी मानते हुए 4 दिसंबर 2018 को निलंबित कर दिया था। याची की दलील थी कि चार माह से अधिक समय बीत जाने के बावजूद न तो उसे आरोपपत्र दिया गया और न ही विभागीय जांच शुरू की गई।
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