CONSTABLE J N RAI Vs. S S P

JUDGEMENT

(1.) By an order dated 20.04.1993 the petitioner was put under suspension on the ground that disciplinary proceeding was contemplated against him. From the said order, it apperas that the order of suspension was issued in exercise of the powers under rule 17 (1) (a) (b) of the U.P.Police Officers of Subordinate Ranks Punishment and Appeal Rules 1991. Except mentioning about lodging of a first information report under section 147, 148,323,304 IPC, no further details have been mentioned. In the said order of suspension it was directed that a preliminary enquiry be compled. Subsequently preliminary enquiry was held, in which it was found that at the relevant point of time the petitioner was on duty and therefore, the question of keeping him under suspension should be reconsidered and the suspension be revoked. But the said suggestion was disagreed to by one R.S. Lal, A.S.I. (m), on the basis thereof, another report was submitted by A.P.O. on 25th May 1993 suggesting that the order of suspension should not be recalled since it might have an impact or affect on the pending enquiry. This suggestion was accepted by the Superintendent of Police on 26th May, 1993. In this background the order of suspension has since been challenged in this writ petition.

(2.) Smt. Poonam Srivastava, learned counsel for the petitioner contends that rule 17 (1) (a) prescribes suspension in contemplation of enquiry but till date no departmental disciplinary proceedings have yet been initiated against the petitioner, and as such the order of suspension appears to have been passed wholly without application of mind. In as much as the power under rule 17 (1) (a) can be exercised only when a departmental enquiry is contemplated. Since no departmental enquiry has been initiated , it cannot be said that there was any departmental enquity in contemplation, and therefore there cannot be any suspension under clause (a). The order of suspension having been passed under clause (a), is wholly without application of mind. She next contends that the alleged investigation in respect of the case mentioned in the order of suspension, was allegedly initiated on the compLalnt of a private person. Unless there is specific indication in the order or there are sufficient material to indicate that it satisfies the test of clause (b) of rule 17 (1), no order under clause (b) could be passed. She points out the nothing has been indicated as to how the alleged lodging of first information report in respect of the alleged offence, had involved the petitioner in his official capacity and as to how it would embarrass in discharge of his duty. Then again, she points out that till date neither the petitioner had ever been called on to appear in any investigation or in trial nor he has been summoned to appear in any proceedings though it is alleged in the counter-affidavit that chargesheet has been submitted, therefore, there was no justification for continuing the order of suspension. At the same time, there is no material which could satisfy the test Lald down in clause (b) of rule 17 (1). She also relies on two decisions of the Apex Court in support of her contention. On these grounds, she prays that the order of suspension should be quashed, having regard to the facts and circumstances of the case.

(3.) Mr. K.R. Singh, learned Standing Counsel, on the other hand contends that it is not necessary that there must be sufficient material for passing an order of suspension. The order of suspension is passed at the discretion of the disciplinary authority. If there is discretion vested in an officer, unless it is shown that the same has been exercised malafide, there is no scope for this court to interfere with such exercise of discretion. Nothing has been brought to the notice of the Court to indicate that the discretion has been exercised malafide. Any report or suggestion by a sub ordinate officer is not binding on the disciplinary authority. It is always open to the disciplinary authority to exercise his discretion dispite such report when he is of the view that the order of suspension should continue. Such view is reflected in the order passed by the disciplinary authority on 26th may 1993 as it appears from annexure-4 to the writ petition. The question as to whether there was application of mind or not, has to be decided on the basis of the order of suspension. Further materials cannot be looked into for this purpose. On these ground, he submits that the writ petition is liable to be dismissed.