HASHMATULLAH Vs. U.P.S.R.T.C.

JUDGEMENT

(1.) BY this petition the petitioner has sought the relief of issuance of writ of certiorari or writ, order or direction in the nature of writ of certiorari quashing the order of suspension dated 16.10.93 contained in annexure -1, to the writ petition. The petitioner has further prayed for a writ, order or direction in the nature of mandamus commanding the opposite parties to allow the petitioner to work and discharge his duties on the post of Driver in the Corporation and to pay him his full and regular salary and other allowances each and every month as and when the same falls due. The petitioner's case is that the petitioner was initially appointed on the post of Driver in the month of February 1962 in the U.P. Roadways when it was under the control of State of Uttar Pradesh by an order passed by Assistant General Manager and since then he has been continuously discharging the duties of the post of Driver. According to petitioner vide order dated 7.10.70 the petitioner had crossed the efficiency bar and his services were regularized on the post of Driver in erstwhile U.P. Government Roadways Corporation by an order passed by the Assistant General Manager, U.P. Government Roadways, Lucknow. The petitioner has further averred that since after creation of the U.P. State Road Transport Corporation on July 1, 1972 the petitioner's services were transferred to the Corporation and his past services on the post of Driver were also counted. According to the petitioner the opposite -party No. 2 to the writ petition namely, the Regional Manager of the Lucknow Region of the U.P. State Road Transport Corporation, by an order dated 16.10.93 (mistakenly typed as 13.10.93) suspended the petitioner from the post of Driver. A perusal of annexure -1 per se shows that order of suspension is dated October 16, 1993 and so the mistake of the date mentioned in the petition is rectified and the petitioner is allowed to correct the same and so in this order the correct date is being mentioned. Thus according to the petitioner the opposite -party No. 2 had suspended the petitioner's services by order dated 16.10.93. The petitioner has challenged the order of suspension to be illegal and without jurisdiction as well as to be one to have been passed in an arbitrary manner. In paragraph 15 of the writ petition it has been alleged that it is the established principle of law that a government employee can be placed under suspension only when prima facie at the first instance the charge on which he is placed under suspension is of such a grave nature that if the charge is ultimately established during departmental enquiry then ordinarily it shall entail imposition of punishment such as dismissal, removal or reduction in rank and that resort to such power has got to be taken only in cases where the charges of such a nature as has been mentioned above. The petitioner has further submitted in the writ petition that as suspension is against this well settled principle of law and is the result of non application of mind, it is arbitrary in nature and, as such, is violative of Article 14 of the Constitution of India. Notice of this petition on behalf of opposite -parties 1, 2 and 3 has been accepted by Shri Neerad Kumar, an Advocate of this Court and on behalf of opposite -parties the counter -affidavit has been filed. In paragraph 2 of the counter -affidavit it has been averred by the opposite -parties that the petitioner has been rightly and lawfully suspended by the person competent to pass suspension order in respect of the employees like the petitioner. It has further been stated that the authority who passed the suspension order has been clearly delegated the power by the Board of Directors and, as such, suspension order dated 16.10.1993 is neither illegal nor without jurisdiction. It has been mentioned in paragraph 8 that the petitioner had been suspended by order dated 16.10.93 as he was prima facie guilty of the charges mentioned in the suspension order and that a charge sheet has been served on the petitioner on 16.10.93 and the petitioner has been required to file his reply by or before October 24, 1993. In paragraph 10 of the counter -affidavit it has been stated that the misconduct of the petitioner is of extremely serious nature and charges are grave. In paragraph 17 it has been stated that presently opposite -party No. 2 is the appointing authority of the petitioner and order of suspension passed by him is well within his competence. In paragraph 23 again it has been stated that the petitioner has been suspended on the charges of serious and grave nature and this court should not interfere with the suspension order in view of the law laid down by the Supreme Court and this Court. It has been stated in paragraph 26 that the petitioner has got no case to approach this court and to file the petition as he has merely been stopped from performing his usual work and the duties of a Driver pending enquiry into the serious charges and misconduct and that the petition is liable to be dismissed. The petitioner's learned counsel submitted that the matter may be heard and disposed of finally, to which the learned counsel for the opposite -parties has no objection.

(2.) I have heard Shri Anil Kumar, learned counsel for the petitioner as well as Sri Neerad Kumar, learned Standing Counsel for the Corporation i.e. opposite -parties 1 to 3. Sri Anil Kumar, in support of his petition submitted that the order of suspension is illegal, bad and without jurisdiction for the reason that opposite -party No. 2 is not the appointing authority of the petitioner, as such, he could not pass the order of suspension and that only administrative powers have been delegated by me opposite -parties vide authorization meeting dated 20 -12 -86 and there is difference between administrative powers and disciplinary powers. The second submission of Shri Anil Kumar is that in view of the provision of Rule 67 of the U.P. State Road Transport Corporation Employees (Other than Officers) Service Regulations, 1981, the opposite -party No. 2, even for a moment it be taken without conceding that opposite -party No. 2 had been appointing authority by delegation the opposite -party No. 2 could not pass the suspension order in view of second proviso to Regulation 67(1) of the Regulations of 1981 as it clearly mentions that suspension shall not be resorted to except in the condition mentioned therein and unless that condition is shown to have existed at the time the order was passed, the bar against the exercise of power to suspend would continue and would not be lifted and when there was a bar to power to suspend it could not be exercised. Shri Neerad Kumar has disputed both these contentions. He has submitted that there was delegation of power and that the charges were grave. He has taken me through certain allegations made in the counter -affidavit as well as he has taken me through order of suspension. I have considered the contentions of the learned counsel for the parties and have gone through the record and now I proceed to examine the above respective contentions.

(3.) REGULATION 67(1) provides the power or authority or jurisdiction to appointing authority to pass an order of suspension pending enquiry against an employee if an enquiry against the conduct of an employee is contemplated or if the enquiry proceeding in respect of the conduct of an employee is proceeding and pending. Existence of authority or jurisdiction is one thing while exercise of that power or authority is a distinct thing. A power can be exercised only on the existence of the relevant condition provided by the provisions conferring or vesting a power or jurisdiction on an authority quasi -judicial, judicial or administrative. If the law i.e. Act or Rules which confers a power to do certain thing or right to exercise certain authority and along with that it specifies certain manner or conditions or certain instrumentality through which that power has got to be exercised then ordinarily the implication is that exercise of that power otherwise than in the manner or otherwise than in the conditions prescribed or otherwise by persons specified is barred and that power shall be exercised only in that manner specified or by person specified or in conditions specified. (See Nazir Ahmad v. King Emperor : AIR 1936 PC 253, State of U.P. v. Singhara Singh : AIR 1964 SC 358, A.K. Roy v. State of Punjab : 1986 (4) SCC 326 (Paras. 10 & 11) : AIR 1986 SC 2160 and Rajsoni v. AIR Officer incharge, 1990 (4) SCC 261.