RAJ VEER SINGH Vs. STATE OF U P

JUDGEMENT

(1.) THIS Full Bench has been constituted on a reference made by a Division Bench vide its order dated 5th December, 2007 passed in this writ petition. The Division Bench has made reference for constituting a Larger Bench for consideration of following questions of law: (a) Whether a reference made by a Division Bench, which has not noticed a Constitution Bench judgment of this Court comprising of larger number of Judges, squarely applicable on the subject, was liable to be returned unanswered by the Full Bench only on the ground that Constitution Bench judgment has not been considered by the Division Bench while making the reference. (b) Whether the Full Bench in the case of Shahroj Anwar Khan (supra) is correct in recording in paragraph 21 that the word "inquiry' as contemplated under Rule 17(1 )(a) (Para materia to Rule 49-A of the CCA. Rules) will include a preliminary inquiry to be precise whether the word "inquiry' in the said Rules includes within its ambit preliminary inquiry inasmuch as the Constitution Bench of this Court in the case of State of U. P. v. Jai Singh Dixit (supra) has specifically held that the word "inquiry', under Rule 49-A of the C.C.A. Rules, necessarily refer to formal departmental inquiry referable to Rule 55 and 56-A of the CCA. Rules or Rules 6 and 7 of the U.P. Police Officer of Subordinate Ranks (Punishment and Appeal) Rules, 1991. (c) Whether, while directing preliminary inquiry, the power to suspend has to be exercised on objective consideration of material on record of each case and therefore it is for the State Government on a challenge being made to an order of suspension in contemplation of an inquiry to justify by such material on record that irrespective of preliminary inquiry the authority was satisfied that suspension was warranted in the facts of the case. (d) Whether an order of suspension, in contemplation of a vigilance inquiry, would be within four corners of Rule 49-A."

(2.) THE Division Bench in its referring order expressed its doubts over the correctness of a Full Bench judgment in the case of Shahroj Anwar Khan v. State of U.P. and another, 2007(5) ADJ 403 (FB), principally on the ground that the ratio of the Full Bench judgment in Shahroj Anwar Khan's case (supra) is not in accord with the five Judges Larger Bench of this Court in the case of State of U.P. v. Jai Singh Dixit/1975 AWC 243. THE Chief Justice in exercise of its power under Chapter V, Rule 6 of the Allahabad High Court Rules, 1952 constituted this Full Bench to decide whether the above questions (a) to (d) should be referred to a Larger Bench. THE order of the Chief Justice dated 12th May, 2008 is to the following effect:

(3.) THE relevant provisions regarding suspension of a government servant are necessary to be noted for considering the questions referred to. THE U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as the 1999 Rules) have been framed under proviso to Article 309 of the Constitution of India. Rule 4 of the said rules deals with suspension. Rule 4(1), which is relevant is quoted as below: