SUDHIR AGARWAL, J. - (1.) THIS matter is pending for last two years, but despite time having been granted to the respondents, no counter affidavit has been filed. The question raised by the learned counsel for the petitioner is purely legal, therefore, as agreed by learned counsel for the parties, the matter is being heard and decided finally at this stage under the Rules of the Court.
(2.) THE submission is that lacking control over the family by one cannot constitute any misconduct at all so as to warrant the disciplinary proceedings including suspension and any instruction or action by the higher authorities in this regard would also not amount to a matter relating to service of the concerned employee attracting any disciplinary proceedings. In the case in hand, the impugned order of suspension dated 5.10.2008 has been passed by Sri S.K. Bhagat, Senior Superintendent of Police, Moradabad placing the petitioner under suspension in a contemplated enquiry on the following allegations: @Hindi@ Under his instructions, the Reserve Police Inspector, Moradabad has also passed an order on 4.10.2008 directing the petitioner to vacate the official accommodation no. G 1-25 within two hours otherwise disciplinary proceedings shall be taken against him. Learned counsel for the petitioner submit that the allegation, as contained in the impugned order of suspension, by no stretch imagination amount to misconduct warranting any disciplinary proceedings and, therefore, the impugned order of suspension is wholly without jurisdiction. Learned Standing Counsel despite of his best efforts could not show anything as to how one can be said to be guilty of a misconduct warranting disciplinary proceeding, if he has failed to exercise effective control over his family.
(3.) HAVING heard learned counsels for the parties, in my view also the order of suspension impugned in this petition is nothing but a mockery of disciplinary power conferred upon the higher police authorities and in particular in the prsent case as exercised by Senior Superntendent of Police, Moradabad and it appears that the authority concerned do not understand as to how and in what manner he can exercise such a power. Suspension in a contemplated or pending enquiry though ex facie is not a punishment but if such a power is exercised in such a flimsy and irrational manner, it amounts to misuse of power on the part of the disciplinary authority. The term "misconduct" is no more res integra having been considered in a catena of decisions.;