ARYA VIR SAXENA Vs. STATE OF U P

JUDGEMENT

(1.) THIS petition is directed against the order of suspension passed by the State Government and the order of the Tribunal passed on a reference under Section 5 of the U.P. Public Services (Tribunals) Act. The contention of the learned counsel for the petitioner is that the State Government had no power to pass the suspension order against the petition because on the date of the order neither any enquiry against his conduct was contemplated nor was pending. The suspension order was passed on November 20, 1974. Before the Tribunal it was asserted on behalf of the respondents that the preliminary enquiry was still concluded, charge-sheet could not till then be served on the petitioner. Accepting the defence the Tribunal dismissed the claim of the petitioner holding that the disciplinary proceedings were in contemplated. The position remains the same even today. Rule 49-A(1) of the Civil Services (Classification, Control and Appeal) Rules provides: "A Government servant against whose conduct and enquiry is contemplated, or is proceedings may be placed under suspension pending the conclusion of the enquiry in the discretion of the appointing authority." There are various stages in the conduct of disciplinary proceedings against an employee. The first stage is of suspicion, the second is of enquiry to find out of the suspicion has any basis: after the fact finding enquiry ends, and the suspicion is, prima facie, founded to be not without basis, the stage comes for contemplating actual disciplinary proceedings. 'Contemplation is a stage in the mental process leading to a particular stage which according to Webster's Third International Dictionary is' the act of intention or considering a future event'. The disciplinary enquiry is initiated by giving a charge-sheet to the employee. When the process necessary to take the matter out of the pale or pure suspicion is finished the stage of contemplating the giving of the charge sheet arrives. The processing of events may take no time or a long time, but the processing is essential for the charge of contemplation has not been reached. No disciplinary proceeding can be contemplated unless the authority has completed the preliminary fact enquiry and come to the prima facie conclusion that the suspicion has a foundation. The fact that suspension was lasted for more than three years without the charge-sheet being served is by itself sufficient to prove that disciplinary enquiry was not in contemplation on the date the suspension order was passed. The order passed by the State Government suspending the petitioner from his services was thus without any authority of law. The Tribunals has wrongly interpreted section 49-A of the Civil Services (Classification, Control and Appeal) Rules, and has thereby caused a failure of justice in the case. Learned Chief Standing Counsel contended that we should not quash the suspension order but only the order passed by the Tribunal refusing the relief to the petitioner. We do not find merit in this contention because the petitioner is entitled to approach this Court under Article 226 of the Constitution if he has an alternative remedy this Court will not exercise the jurisdiction. In the present case, the petitioner has 'exhausted the alternative remedy which was available to him under the U.P. Public Services (Tribunals) Act, and there is thus now no bar to this Courts' quashing his suspension order. Further, as a period of more than three years has passed since the order of suspension was passed, we think it would be inexpedient to remand the case to the Tribunal as this will only delay the giving the relief to the petitioner. In the result, the petition is allowed, let a writ in the nature of certiorari issue to quash the order Annexure 2 to Appendix II to the Writ petition dated November 29, 1976 suspending the petitioner from service. To avoid any complication, the order of the Tribunal is also quashed. Costs on parties.