VINAI PAL Vs. STATE OF U P

JUDGEMENT

(1.) G. P. Mathur, J. The petitioner seeks quashing of an order dated February 10, 1995 passed by the Superintending Engineering Minor Irriga tion Bareilly, by which he has been placed under suspension.

(2.) THE petitioner Vinaipal Rastogi is a Junior Engineer in the Minor Irrigation, Department and at the relevant time he was posted in Jalilpur Block in the district of Bijnor. THE State Government had introduced a scheme for providing the facility of free boring of tubewells for parsons belonging to weaker section of Society. One Sheo Charan resident of Jalilpur Block gave an application to S. P. Vigilance, Bareilly, on February 6, 1995 complaining that petitioner was demanding bribe for supplying pipes and reflex valve etc. THE S. P. Vigilance passed an order on the same day directing to Dy. S. P. to lay a trap. THEreafter on February 8, 1995 the petitioner was caught red handed in his office while accepting a bribe of Rs. 500 from Sheo Charan. THE Deputy S. P. Vigilance, then lodged a first information report on the basis of which a case under Section 7/13 (2) read with Section 13 (l) (d), Prevention of Corruption Act was registered against the petitioner. It was thereafter that the Superintending Engineer Bareilly Circle, passed the impugned order on February 10, 1995 placing the peti tioner under suspension.

(3.) SECTION 16 of the General Clauses Act lays down that the power of the Government to appoint includes the power of suspension. In Pradyat Kumar Base v. Chief Justice Calcutta High Court, AIR 1956 SC 285 (para 9) it was held by a Constitution Bench that there is an inherent power in the Government to suspend an employee on a charge of misconduct. This question was examined in considerable detail by another Constitution Bench in R. P. Kapoor v. Union of India, AIR 1964 SC 787, wherein para 11 the court held as follows : "the general principle therefore is that an employer can suspend an employee pending an enquiry into his conduct and the only question that can arise on such suspension will relate to the payment during the period of such suspension. . . . . . . . . . . . . . . . These general principles in our opinion apply with equal force in a case where the Government is the employer and a public servant is the employee with this modification that in view of the peculiar structural hierarchy of Government, the employer in the case of Government, must be held to be the authority which has the power to appoint a public servant. On general principles, therefore the authority entitled to appoint a public servant would be entitled to suspend him pending a depart mental enquiry into his conduct or pending a criminal proceed ing, which may eventually result in a departmental enquiry against him. This general principle is illustrated by the provi sion in SECTION 16 of the General Clauses Act No. X of 1897, which lay down that where any Central Act or Regulation gives power of appointment that includes the power to suspend or dismiss unless a different intention appears. Though this provision does not directly apply in the present case, it is in consonance with the general law of master and servant. " 6 Same view has been reiterated in Government of India v. Tarak Nath Ghose, AIR 1971 SC 823 (para 8) and in B. R. Patel v. State of Maharashtra, AIR 1968 SC 800. Therefore, the law is well settled that on general principles the Government, like any other employer, would have a right to suspend a public servant in one of two ways viz. , pending depart mental inquiry or pending criminal proceedings. 7. Rules relating to various services make provision regarding the circumstances in which a Government servant may be placed under suspen sion and also regarding payment of subsistence allowance. If the Rules provide that a Government servant against whom an investigation, inquiry or trial relating to a criminal charge is pending may be placed under suspension then such an order of the appointing authority passed against a Government servant against whom an FIR has been lodged and investigation is pending is perfectly valid. This question has been considered in D. D. Suri v. A K. Barren, AIR 1976 SC 1069. In this case at FIX. under Sec tion 5 (2), Prevention of Corruption Act, 1947, had been lodged against the appellant D. D. Suri who was member of the Indian Administrative Service and a search warrant was issued and thereafter he was placid under suspension under Rule 7 (3) of the Ail India Service (Discipline an I Appeal) Rules, 1955 which is a verbatim copy of sub-rule (1-A) of Rule 49 A of the Civil Service (Classification, Control and Appeal) Rules. In para 9 the Court observed as follows : "under the sub-rule aforesaid it is clear that the member of the service can be placed under suspension if against him an investi gation, inquiry or trial relating to criminal charges is pending. The expressions 'investigation', 'inquiry' or 'trial' are well known in the realm of the criminal law under the Code of Criminal Procedure. In the instant case when a first information report was filed against the appellant and steps were taken for obtain ing a search warrant for the search of his house, investigation within the meaning of Rule 7 (3) became pending on and from November 24, 1967. The suspension order, therefore, made on November 28, 196' was well within the ambit of the power of the Government under the said provision of law. " 8. This question was again examined in Director General and Inspec tor General of Police v. AT. Ratnagiri, AIR 1990 SC 1157, with reference to Rule 13 of the A. P. Civil Services (CCA) Rules, 1963 which reads as follows :- "13 (1) A member of service may be placed under suspension from service pending investigation or enquiry into grave charges, where such suspension is necessary in public interest: Provided that where a member of a service has been suspended by an authority other than the Government and the investigation has not been completed and the action proposed to be taken in regard to him has not been completed within a period of six months of the date of suspension, the fact shall be reported to the Government, for such orders as they may deem fit. 13 (2) to 13 (4) ** ** ** 13 (5 ). An order of suspension made or deemed to have been made under this rule may, at any time, be revoked by the authority which made or is deemed to have been made the order or by any authority to which that authority is subordinate. " It was held that after an F. I. R. is lodged, the investigation commences and therefore, the order of suspension cannot be said to be beyond the scope of Rule 13 (1) of the Rules. In Government of A. P. v. A. Sivaraman, AIR 1990 SC 1157, while considering the scope of the same Rule it was observed that Rule provides for suspending civil servant and further requires a report to be made to the Government giving out reasons for not completing the investigation or inquiry within six months, it would be for the Government to review the case but it does not mean that the suspension beyond six months becomes automatically invalid or non est. These autho rities show that if there is a Rule to the effect that a Government servant against whom investigation is pending regarding a criminal charge may be placed under suspension then the order of suspension will continue till it is revoked. 9. Regarding the submission of the learned counsel that no reasons have been mentioned in the impugned order it may be noticed that sub-rule (1-A) of Rule 49-A of the Rules no-where lays down that any reasons have to be given by the appointing authority for placing a Government servant under suspension. It gives a discretion to the appointing authority to pass a suspension order if the conditions mentioned in the Rule are satisfied. Of course, the discretion has to be fairly exercised on the basis of material on record and cannot be arbitrary but no reasons are required to be given. Rule 3 of All India Services (Punishment and Appeal) Rules, 1969 provides that if having regard to the circumstances in any case and where articles of charge have been drawn up, the nature of charges, the Government is staged that it is necessary or desirable to place under suspen sion (emphasis supplied) a member of the service, against whom disciplinary proceedings are contemplated or are pending, an order may be passed placing him under suspension. Repelling a similar contention in State of Haryana v. Han Ram Yadav, AIR 1994 SC 1262 the court held that the mere fact that the impugned order does not contain a recital that Governor was satisfied that it is either necessary or desirable to place the employee under suspen sion did not render the suspension order invalid. 10. The question when an order of suspension passed by a competent authority can be interfered with under Article 226 of the Constitution has recently been considered by the apex court in U. P. Rajya Krishi Utpadan Mandi Parishad v. Sanjiv Rajan, JT 1993 (2) SC 550. In this case the first respondent (in CA No. 1488 of 1993), had himself reported the embezzle ment of funds. He was suspended on May 3, 1991 but the order was stayed by the Director but subsequently he was charge-sheeted and a suspension order was served. This order was quashed by the High Court. In appeal the Supreme Court set aside the order of the High Court with the following observations : "whether the employees should or should not continue in their office during the period of inquiry is a matter to be assessed by the concerned authority and ordinarily, the Court should not interfere with the orders of suspension unless they are passed mala fide and without there being even a prima facie evidence on record connecting the employees with the case, before the preliminary report was received, the Director was impressed by the 1st respondent-employee's representation. However after the report, it was noticed that the employee could not be innocent. Since this is the conclusion arrived at by the management on the basis of the material in their possession, no conclusion to the contrary could be drawn by the court at the interlocutory stage and without going through the entire evidence on record. In the circumstances, there was no justi fication for the High Court to revoke the order of suspension. " This view has been reiterated in State of Orissa v. D. K. Mohanty, JT 1994 (2) SCSI. 11. The petitioner has been placed under suspension as he was caught red handed while taking bribe and a criminal case is under investi gation against him consequently upon lodging of an F. 1. R. The charge levelled against the petitioner is very serious: It can not be said that there is no prima facie evidence to connect him with misconduct in question. There is no allegation of mala fide. The impugned order of suspension recites that the petitioner who is a Junior Engineer in the Minor Irrigation Department and is posted in Block Jalilpur, district Bijuor was arrested by a team of U. P. Vigilance Establishment, Bareilly, on 8-2-1995 while accept ing a bribe of Rs. 500 from Sheo Charan Jatav and that a case being crime No. 81 of 1995 under SECTION 7/13 (2) read with SECTION 13 (1 ) (d) Prevention of Corruption Act, 1988 had been registered against him. This shows that Respondent No. 2 applied his mind to the facts of the case and thereafter passed the suspension order. In this view of the matter applying the principles laid down by the Supreme Court, there is no ground for interference with the impugned order of suspension, 12. Learned counsel on the basis of some documents filed along with the supplementary affidavit sought to urge that the complainant Sheo Charan had in fact never applied for a free boring and as such there was no question of the petitioner demanding any bribe from him. In my opinion this question cannot be examined here. The fact remains that au F. I. R. had been lodged against the petitioner and the matter is under investigation. It is for the criminal court, which is a court of fact, to find out whether the petitioner had accepted any bribe or not. In the present proceedings under Article 226 of the Constitution, this has to judge the validity of the impugned suspension order on the material which existed before respondent No. 1 and it is not possible to hold an inquiry regarding the incident alleged to have taken place on 8-2- i 995 which is being investi gated by Police Authorities. This can only be done by the criminal court where the petitioner may be tried after submission of the charge-sheet against him. 13. With profound respects I am unable to follow the view taken in Brijesh Bahadur Singh, (supra) that reasons have to be recorded while pass ing an order of suspension as the same is not in consonance with the law declared by Supreme Court. If the conditions necessary for exercised of power under the relevant Service Rules are satisfied the order of suspension passed by the competent authority would be perfectly valid and it cannot be assailed on the ground that reasons have not been mentioned. Of course the order has to be passed after application of mind to the facts and circumstances of the case and not in a casual or mechanical manner. 14. The learned Judge has also observed that criminal trial takes a long time, therefore, it is not proper to keep an employee under suspension indefinitely and that he should be given a chance to correct and amend him self during the pendency of the case. It is well settled that it is always open to the appointing authority to review the suspension order and revoke the same if either the disciplinary proceedings or the criminal case is un usually delayed for no fault of the employee concerned. However, this can not be a ground to quash the suspension order at the threshold. If in spite of long delay in conclusion of the proceedings, the Government does not accept the prayer of an employee to revoke the suspension order, it is always open to him to approach this court. Whether an employee should be given a chance to correct and amend himself can be considered only at the stage of awarding punishment after the conclusion of departmental proceedings. It has no relevance while passing an order of suspension. 15. For the reasons discussed above, I am of the opinion that there is no merit in this writ petition which is dismissed summarily at the admis sion stage. Petition dismissed. .