- (1.) H. L. Gokhale, C. J. The following questions are referred for the determination of this Bench : (1) Whether Rule 17 (1) (a) of the U. P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 prohibits passing of a suspension order during the pendency of preliminary enquiry. (2) Whether the Division Bench judgment rendered in Kripa Shanker Prasad & Ors. v. State of U. P. & Ors. , reported in 2004 (1) UPBEC 124, lays down the correct law.
(2.) INASMUCH as the reference refers to Rule 17 (1) (a), we may quote the said Rule, which reads as follows : "17 (1) (a ). A Police Officer 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 or by any other authority not below the rank of the Superintendent of Police, authorized by him in this behalf. " The short facts leading to this reference are as follows. The appellant is a Sub-Inspector in the Civil Police. The appellant has been suspended by an order dated 9-2-2007. He challenged the suspension order. The order contains some serious allegations against the appellant. The order stated that a preliminary inquiry will be held, but in the meanwhile, the appellant was being suspended. The learned Judge has dismissed the writ petition by his order dated 27-2-2007, considering the nature of the charges. This order has led to the appellant filing the special appeal to challenge the order of the learned Single Judge. Mr. Suneet Kumar learned Counsel for the appellant submits that the order of the learned Single Judge is contrary to the view taken by a Division Bench of this Court in Kripa Shanker Prasad & Ors. v. State of U. P. & Ors. , reported in 2004 (1) UPLBEC 124. There the Division Bench had taken the view that a suspension order could not be passed during the pendency of preliminary inquiry (see para 13 of that judgment ).
(3.) THE Division Bench in Kripa Shanker Prasad's case (supra) has placed reliance on an earlier judgment of a learned Single Judge of this Court, in which Rule 17 of the same Rules, was under consideration, i. e. , Hari Nath Sharma v. State of U. P. & Ors. , reported in 1998 (1) LBESR 844 (All) : 1997 (3) ESC 1833. THE Division Bench has also referred to the judgment of the apex Court in Champaklal Chimanlal Shah v. THE Union of India, reported in AIR 1964 SC 1854; THE Government of India, Ministry of Home Affairs & Ors. v. Tarak Nath Ghosh, reported in AIR 1971 SC 823 and Narayan Dattatraya Ramteerathkhar v. State of Maharashtra & Ors. , reported in AIR 1997 SC 2148. THE Division Bench had allowed the appeal accepting the contention of the appellant that the suspension cannot be ordered during the pendency of preliminary inquiry. The referring Court was of the view that the opinion taken by the Division Bench in Kripa Shanker Prasad (supra) required a reconsideration and hence, this reference has been made to this larger Bench.;