MAZHARUL HAQ Vs. STATE OF U P

JUDGEMENT

(1.) THIS petition is directed against the order of the Disrict Magistrate, dated August 15, 1973, placing the petitioner under suspension. While the petitioner was posted as Supply Inspec tor in the office of the District Supply Officer, Basti, he was placed un der suspension by the order of the District Magistrate dated August 15, 1973. No charge sheet was however served on him. He made an application on March 23, 1974 to the District Magistrate requesting him that the charge sheet, if any, be served on him so that he may submit his explanation. No charge-sheet was served on him and no reply was given. He made another representation in May, 1974 to the Commissioner, Food and Civil Supplies Department, to the same effect but no reply was given to him and no charge-sheet was served. He sent another representation on September 10, 1974, to the District Magistrate for increasing his subsistence allowance on account of the delay in the service of the charge-sheet but even thereafter nothing was done in the matter. Ultimately, the petitioner filed this petition under Article 226 of the Constitution of India on March 6, 1975 chal lenging the validity of the suspension order.

(2.) RULE 49-A of the Civil Services (Classification, Control and Ap peal) Rules confers power on the appointing authority to suspend a government servant at any stage prior to or after framing of the charges if. on an objective consideration the authority concerned is of the view that a formal departmental enquiry under Rules 55 and 55-A of the said rules was necessary. In such a case, it is not necessary to serve charge-sheet along with the suspension order, the charge-sheet may follow later on but the competent authority is, however, required to apply its mind to the question as to whether there was prima facie case against the government servant, whether the charges were serious which if proved may warrant dismissal or removal of the government servant and further if a formal departmental enquiry was contemplated. If the competent authority fails to apply his mind to these matters and if it does not consider these questions in an ob jective manner and if no enquiry is contemplated and the government servant placed under suspension for an indefinite period of time the order of suspension would be illegal. See State of U. P. v. Jai Singh Dikshit 1975 A.L.R. 64=1974 A.L.J.

(3.) LEARNED Standing counsel made an effort to sustain the impugn ed order of suspension on the basis of the averments contained in paragraphs 9 and 18 of the counter-affidavit of Awadhesh Behari Malviya, Supply Inspector in the office of the District Supply Officer. The averments contained in paragraph 9 show that an enquiry was conducted in the matter by the Regional Food Controller, Gorakhpur, who had naturally taken some time before it was completed. How ever, no sooner than the enquiry report was received from the Re gional Food Controller, Gorakhpur, a charge sheet dated March 31, 1975 was sought to be served but the petitioner made himself scarce from the headquarters, therefore, the charge-sheet could not be serv ed on him. The paragraph further states that a copy of the charge-sheet is annexure I to that counter-affidavit. The allegations made in this paragraph are denied in the rejoinder affidavit. Further the averments made in paragraph 9 of the counter-affidavit are highly vague. The averments do not show that any formal enquiry was con templated by the District Magistrate who passed the impugned order. Further the petitioner had made requests to the District Magistrate and other authorities for service of charge-sheet but no charges were served on him. The allegation that copy of the charge-sheet has been annexed to the counter-affidavit is false because there is no copy an nexed. I am, therefore, not inclined to believe that the charge-sheet was prepared on March 31, 1975 but the petitioner avoided its service.