S.R.Singh - (1.) SUBJECT matter of impugnment in the present petition is the order dated 24-3-1994 whereby the petitioner has been placed under suspension by the respondent no. 1. It would transpire from a perusal of the impugned order that it began with some complaint which the Chief Development Officer had received about the petitioner having committed irregularities in I R.D. Scheme and a report was called for from Sri S. N. Tiwari, District Economics and Statistics Officer. However, before any report could be submitted by Sri Tiwari, the respondent no. I passed the impugned order placing the petitioner under suspension and appointed one Sri Raja Ram Yadav, District Economics and Statistics Officer-II, Sonbbadra as the Enquiry Officer.
(2.) INITIALLY, the petition was taken up on 12-4-1994. The learned counsel appearing for the petitioner did not seem to be prepared with the case as the perfunctory manner in which he proceeded with assailing the impugned order indicated. I dismissed the writ petition and dictated a short order of dismissal. Later on, I was pursuaded into not signing the order of dismissal and consequently, the master was deferred to a next date with a view to enabling the counsel to came prepared with the case. That is how the matter is up for consideration today. It may be observed that since the arguments advanced by the learned counsel appearing for the petitioner did not involve any disputed question of fact) the standing counsel proposed not to file any counter affidavit and agreed to the writ petition being disposed of finally at this stage after reckoning with the submissions made by him. Learned counsel for the petitioner has assailed the impugned order on three grounds : (1) that no disciplinary enquiry was proceeding against the petitioner nor any such enquiry was 'contemplated' within the meaning of rule 49 A of the U. P. Civil Services (Classification, Control and Appeal) Rules, (in short the 'CCA Rules') (iii) that the impugned order is vitiated due to non-application of mind; and (iii) that the respondent no. 1 was not competent to place the petitioner under suspension. Learned Standing Counsel refuted the submissions afore-stated and urged that in view of the fact that Raja Ram Yadav has been appointed as Enquiry Officer, it should be taken that the 'enquiry' is at least in contemplation within the meaning of rule 49-A of the CCA. rules, which provides for suspension of a Government Servant against whose conduct an 'enquiry' is contemplated 'or' is proceeding' or in respect of or against whom an investigation, enquiry or trial relating to a criminal charge is pending. The material part of the rule reads as below :- "49-A (1) A Government Servant against whose conduct an enquiry is contemplated or is proceeding may be placed under suspension pending the conclusion of the enquiry in the discretion of the appointing authority ; Provided that in the case of any Government Servant or class of Government servant not belonging to a State Service, the appointing authority may delegate its power under this sub rule to the next lower authority : (i-A) A Government Servant in respect of or against whom an investigation, enquiry or trial relating to a criminal charge is pending may, at the discretion of the appointing authority under whom he is serving, be placed under suspension until the termination of alt proceedings relating to that charge, if the charge is connected with his duties or involved moral turpitude.'* The power to suspend a Government Servant vested in the appointing authority, both under sub-rule and sub-rule (1-A) is discretionary, as would be evident from the expression" may be placed under suspension...... in the discretion of the appointing authority" occurring in sub rule (1) and the expression "may, at the discretion of the appointing authority........be placed under suspension" occurring in sub-rule (i-A). But what is essential as a pre-requisite condition for exercise of discretion under sub-rule (1) is that an enquiry in respect of the conduct of the concerned Government Servant must either be in contemplation or It must be in progress, The stage of exercising discretion to place a Government Servant under suspension comes only when an enquiry in respect of his conduct is either 'contemplated' or 'is proceeding I.e. the power to suspend a Government servant may be exercised either before actual commencement of the 'enquiry' or at any time during the course of 'enquiry'.
(3.) THE term 'enquiry' has not been defined in the rules, but as per majority view in State of U P. v. Jai Singh Dixit, 1974 ALJ 862, the term 'enquiry contemplated by rale 49-A has reference to "the formal departmental enquiry and not to any informal preliminary or fact finding enquiry preceding the initiation of the formal disciplinary proceeding" as observed by D. S. Mathur, CJ, and the power of suspension under rule 49-A is available "in relation to an enquiry under Rule 55 or Rule 55-A held with a view to impose the major punishments of dismissal, removal or reduction in rank.' as observed by Satish Chandra, J. as he then was. A reading of Rules 55 and 55-A of the U.P.C.C.A. Rules would indicate that a formal departmental enquiry in the context of these rules is invariably preceded by framing of charges. Such being the purport and import of the term 'enquiry' occurring in Rule 49-A, I am of the view that in the instant case no enquiry was 'proceeding' within the meaning of Rule 49-A. Mere appointment of enquiry officer does not mean that the enquiry' is proceeding' in respect of the conduct of the Government Servant within the meaning of the rules. But the appointment of an enquiry officer with a view to make an enquiry in respect of the conduct of the petitioner certainly attracted the other eventuality i.e. the 'enquiry is contemplated as comprehended by Rule 49-A (1) of the CCA. Rules. When the appointing authority appointed an enquiry officer to make an enquiry in respect of the conduct of the petitioner it cannot be said an enquiry was not contemplated within the meaning of Rule 49-A (1) of the CCA Rules, As held by the Majority in Jai Singh Dixit's case (supra) the petitioner could be placed under suspension even before the framing of the charges and communication thereof to the petitioner". In this view of the matter, the submission that an enquiry into the conduct of the petitioner was not even 'contemplated' cannot be countenanced and, therefore, the first submission made by the learned counsel for the petitioner falls to the ground being devoid of merits, The minority view taken by K. B. Asthana, J. (as he then was) no doubt supports the petitioner but the court is bound to follow the majority view.;