Hon'ble Ashok Bhushan, J. - (1.) THIS Full Bench has been constituted on a reference made by a Division Bench vide its order dated 5th December, 2007 passed in this writ petition. The Division Bench has made reference for constituting a Larger Bench for consideration of following questions of law: (a) Whether a reference made by a Division Bench, which has not noticed a Constitution Bench judgment of this Court comprising of larger number of Judges, squarely applicable on the subject, was liable to be returned unanswered by the Full Bench only on the ground that Constitution Bench judgment has not been considered by the Division Bench while making the reference. (b) Whether the Full Bench in the case of Shahroj Anwar Khan (supra) is correct in recording in paragraph 21 that the word "inquiry' as contemplated under Rule 17(1 )(a) (Para materia to Rule 49-A of the CCA. Rules) will include a preliminary inquiry to be precise whether the word "inquiry' in the said Rules includes within its ambit preliminary inquiry inasmuch as the Constitution Bench of this Court in the case of State of U. P. v. Jai Singh Dixit (supra) has specifically held that the word "inquiry', under Rule 49-A of the C.C.A. Rules, necessarily refer to formal departmental inquiry referable to Rule 55 and 56-A of the CCA. Rules or Rules 6 and 7 of the U.P. Police Officer of Subordinate Ranks (Punishment and Appeal) Rules, 1991. (c) Whether, while directing preliminary inquiry, the power to suspend has to be exercised on objective consideration of material on record of each case and therefore it is for the State Government on a challenge being made to an order of suspension in contemplation of an inquiry to justify by such material on record that irrespective of preliminary inquiry the authority was satisfied that suspension was warranted in the facts of the case. (d) Whether an order of suspension, in contemplation of a vigilance inquiry, would be within four corners of Rule 49-A."
(2.) THE Division Bench in its referring order expressed its doubts over the correctness of a Full Bench judgment in the case of Shahroj Anwar Khan v. State of U.P. and another, 2007(5) ADJ 403 (FB), principally on the ground that the ratio of the Full Bench judgment in Shahroj Anwar Khan's case (supra) is not in accord with the five Judges Larger Bench of this Court in the case of State of U.P. v. Jai Singh Dixit/1975 AWC 243. THE Chief Justice in exercise of its power under Chapter V, Rule 6 of the Allahabad High Court Rules, 1952 constituted this Full Bench to decide whether the above questions (a) to (d) should be referred to a Larger Bench. THE order of the Chief Justice dated 12th May, 2008 is to the following effect: "I nominate Hon'ble Ashok Bhushan, J., Hon'ble Arun Tandon, J. and Hon'ble Vikram Nath, J for deciding whether the above issues (a) to (d) should be referred to a Larger Bench." THE Larger Bench was again reconstituted on 10th August, 2010 nominating Hon'be A.P. Sahi, J. in place of Hon'ble Vikram Nath, J. Brief facts of the case giving rise to reference by Division Bench dated 5th December, 2007 are as under; the writ petitioner Raj Veer Singh is employed as Assistant Director (Toxicology), Forensic Science Laboratory, Agra. In a telecast by television news channel "Star News" on 9th August, 2007 under the caption "Kanoon Ke Killer", the petitioner was shown as stating that he can tamper forensic report on receiving illegal gratification. The Joint Director, Vidhi Vigyan Prayogshala passed an order on 18th August, 2007 restraining the petitioner from discharging his duties, which order was challenged by the petitioner by means of Writ Petition No. 40102 of 2007 in which the Court called for a counter affidavit but did not grant any interim order. On 10th August, 2007 Additional Inspector General of Police passed an order directing the Director, Vidhi Vigyan Prayogshala to conduct a preliminary inquiry with regard to employees and officers who are claimed to be involved in demanding bribe including Raj Veer Singh. A preliminary inquiry report dated 20th August, 2007 was submitted holding the petitioner prima facie involved in the corruption. After receiving the preliminary inquiry report, the State Government passed an order on 18th September, 2007 placing the petitioner under suspension. The State Government in the order stated that in the programme shown by television channel "Star News" under the heading "Kanoon Ke Killer" the conduct of the officer is highly objectionable and against the dignity of the office. In the preliminary inquiry report submitted by Superintendent of Police and Director, Vidhi Vigyan Prayogshala dated 20th August, 2007 petitioner's prima facie involvement in corruption had been found proved, hence for taking necessary action inquiry by Vigilance Establishment Cell has also been proposed for which order was separately issued. The order dated 18th September, 2007 suspending the petitioner was challenged in the writ petition on the ground that only inquiry from vigilance department is contemplated, hence the suspension is contrary to Rule 4 of the U.P. Government Servants (Discipline and Appeal) Rules, 1999 (hereinafter referred to as the 1999 Rules). Reliance was placed on the Larger Bench judgment of five Judges in the case of State of U.P. v. Jai Singh Dixit (supra). Learned Standing Counsel appearing on behalf of the State had placed reliance on the Full Bench judgment in Shahroj Anwar Khan's case (supra) contending that authorities have power to direct a fact finding inquiry or a preliminary inquiry and also resort to suspension while initiating such fact finding/preliminary inquiry. It was contended that proposal to hold a vigilance inquiry would, in no manner, restrict the competence of the State Government to keep the officer under suspension. Considering the above submissions of the learned counsel for the parties in the writ petition, above four questions have been referred to by the Division Bench doubting the correctness of the Full Bench in Shahroj Anwar Khan's case (supra). As is apparent from the order of Chief Justice dated 12th May, 2008, this Bench has been constituted to decide as to whether questions (a) to (d) should be referred to a Larger Bench. Thus this reference is to be answered in terms of the reference as made by the Chief Justice.
(3.) THE relevant provisions regarding suspension of a government servant are necessary to be noted for considering the questions referred to. THE U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as the 1999 Rules) have been framed under proviso to Article 309 of the Constitution of India. Rule 4 of the said rules deals with suspension. Rule 4(1), which is relevant is quoted as below: "4. Suspension.-(1) A Government Servant against whose conduct an inquiry is contemplated or is proceeding may be placed under suspending pending the conclusion of the inquiry in the discretion of the Appointing Authority: Provided that suspension should not be resorted to unless the allegations against the Government Servant are so serious that in the event of their being established may ordinarily warrant major penalty; Provided further that concerned Head of the Department empowered by the Governor by an order in this behalf may place a Government Servant or class of Government Servants belongings to Group "A' and "B' posts under suspension under this rule; Provided also that in the case of any Government Servant or class of Government Servants belonging to Group "C and "D' posts, the Appointing Authority may delegate its power under this rule to the next lower authority." Prior to the 1999 Rules, the suspension of Government servant was regulated by Rule49-A of the U.P. Civil Services (Classification, Control and Appeal) Rules, 1930 (hereinafter referred to as the C.C.A. Rules). The material part of Rule 49-A of the C.C.A. Rules was as follows: "49-A. A Government servant against whose conduct an inquiry is contemplated, or is proceeding, may be placed under suspension pending the conclusion of the inquiry in the discretion of the appointing authority: Provided that in the case of any Government servant or class of Government servants, not belonging to a State service the appointing authority may delegate its power under this rule to the next lower authority. N.B. As a rule, suspension should not be recorded to unless the allegations against the Government servant are so serious that in the event of their being established, they may ordinarily be expected to warrant his dismissal, removal or reduction. Suspension, where deemed necessary, should, as far as possible, immediately precede the framing of charges and their communication to the Government servant charged." ;