LAWS(ALL)-2000-8-130

M B YADAV Vs. STATE OF U P

Decided On August 28, 2000
M.B.YADAV Appellant
V/S
STATE OF UTTAR PRADESH Respondents

JUDGEMENT

(1.) Heard Sri Jagannath Singh appearing for the petitioner and Sri K. S. Kushwaha Standing Counsel representing the respondents.

(2.) The petitioner herein is aggrieved by the suspension order dated 12-6-2000 (Annexure 6 to the petition). The suspension of the petitioner has been ordered in exercise of power under Rule 17 of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 (in short the 'Rules'). The indictment against the petitioner is that he absented from duty from 16-5-2000 sans prior sanction of leave permission. Copy of the impugned order of suspension was endorsed to Sri Vijai Prakash, Asstt. Police Superintendent, Agra attended with the direction to submit preliminary enquiry report within a week. It was canvassed on behalf of the petitioner on the last date that the Sr. Supdt. of Police was not justified in placing the petitioner under suspension without awaiting the preliminary enquiry report. In fact, it has been submitted by the learned Counsel that the fact that the preliminary enquiry was ordered would indicate that the disciplinary authority had, on the date the impugned order was passed, no material before it to satisfy itself as to whether a prima facie case as made out for placing the petitioner under suspension. In aid of the above contention, reliance was placed on a decision of this Court in Vijai Shanker and Ors. v. Senior Supdt. of Police, Gorakhpur, (1996) 2 UPLBEC 1426, wherein it was quintessential held that in normal course the disciplinary authority should await the result of preliminary enquiry before exercising power of suspension, Sri K.S. Kushwaha, Standing Counsel who was required to obtain instructions as to what was the underlying purpose of directing 'preliminary enquiry in the matter after placing the petitioner under suspension has submitted that preliminary enquiry was ordered only with a view to enabling the disciplinary authority to decide as to whether it would be a case of a major penalty or the minor one so as to adopt the requisite procedure in conducting the departmental proceeding. There is substance in this submission. I would appear that according to Rule 14(1) of the Rules, the procedure to be followed in a case where major penalty can be imposed was one as laid own in Appendix I while the procedure in regard to cases where minor punishment can be imposed is one prescribed in Sub-Rule (2) of Rule 14 according to which the police officers may be informed in writing of the action proposed to be taken against him and of the imputation of act or omission on which it is proposed to be taken and given a reasonable opportunity of making such representation as he may wish to make against the proposal. No regular enquiry as comprehended by Sub-Rule (1) of Rule 14 read with Appendix I is undertaken in case involving misconduct which warrants imposition of minor penalty, Sri K.S. Kushwaha has rightly propounded that the preliminary enquiry in case of a police officer is ordered while placing such officer under suspension merely for the purpose of ascertaining as to whether it is a case of inflicting major penalty or minor penalty so as to enable the disciplinary authority to follow the relevant course of enquiry true, according to the G.O. No. 820/43-2-14-2(83)/83 dated 28-2-1983. Administrative Reform Anubhag (2) and the G.O. No. 7/2/77-Karmik 1 dated 28-2-77, the punishing authority can adopt the appropriate course, keeping in view the gravity of the misconduct alleged, even without a preliminary enquiry, but mere fact that a preliminary enquiry has been ordered by the punishing authority while placing the delinquent under suspension would not by itself vitiate the suspension order.

(3.) However, pursuant to the direction given by the Court the Standing Counsel has produced copy of the report dated August 16, 2000 of the preliminary enquiry conducted by Sri Vijai Prakash, Asstt. Superintendent of Police thereby recommending a censure entry against the petitioner in the fact situation of the case. Though, it is for the disciplinary authority to accept the report and follow the course prescribed by Sub-Rule (2) of Rule 14 or to reject the same and follow the procedure of enquiry in Appendix I of the Rules but at the moment on the basis of the report of preliminary enquiry conducted by Sri Vijai Prakash, the Asstt. Supdt. of Police, I am persuaded to the view that it would be just and proper if the petitioner is allowed in part and the Senior Supdt. of Police be called upon to revoke the suspension order and reinstate the petitioner in the service without prejudice to the disciplinary enquiry which may be conducted and be taken to some logical conclusion in accordance with law.