- (1.) HEARD Sri A. P. Tiwari for the petitioner and learned Standing Counsel for the respondents.
(2.) AS agreed by learned counsel for the parties, the writ petition is being heard and decided finally at this stage under the Rules of the Court since the issue raised by the petitioner is purely legal and, therefore, the learned Standing Counsel does not propose to file any counter affidavit, but has opposed the writ petition by making oral submissions. The petitioner is aggrieved by the order dated 3-11-2004 whereby the District Basic Education Officer Badaun has placed the pe titioner under suspension observing that she was found absent on inspection made on 2-11-2004 and her mother Smt. Panna Arya is working as Head Master of the said institu tion, and that she is being placed under sus pension. Learned Counsel for the petitioner sub mitted that despite more than three and half years have lapsed, but no departmental en quiry has been conducted against the peti tioner. It is only on 10-9- 2007, a charge-sheet has been given to the petitioner, which was replied on 11-9-2007, but even thereafter, nothing has proceeded further. Learned coun sel for the petitioner contended that the order of suspension is vitiated in law firstly since it does not disclose as to whether it has been passed in a contemplated departmental pro ceeding or a pending departmental proceed ing and further that continued suspension for almost four years without completing departmental enquiry renders the impugned order of suspension punitive and therefore is liable to be set aside.
(3.) LEARNED Standing Counsel, on the con trary, stated that from the order of suspension, it is evident that the petitioner used to remain absent and this constitute a miscon duct and, therefore, she has been rightly placed under suspension. It is also pointed out that charge sheet having issued on 10-9-2007, at the best, the authorities may be directed to complete departmental enquiry expeditiously. Having heard learned counsel for the parties and perusing the record, in my view, the writ petition deserves to be allowed. An order of suspension can be passed only when a departmental enquiry is contemplated or pending against the employee concerned. A perusal of the order of suspension impugned in this writ petition nowhere shows that an enquiry is in contemplation or pending war ranting suspension of the petitioner in the present case. The question whether such an order of suspension would be valid, came up for consideration before a Division Bench in Meera Tiwari (Smt.) v. Chief Medical Officer and others 2001 (3) UPLBEC 2057: 2001 All LJ 1662 wherein it was held as under: "3. From the said rule it appears that a Gov ernment Servant against whose conduct an in quiry is contemplated, or is proceeding may be placed under suspension pending the con clusion of the inquiry. The impugned order of suspension does not refer to any contem plated inquiry or the fact that any inquiry is pending. 4. In that view of the matter, we are of the view that the order of suspension is against the provisions of Rule 4 of the U. P. Govern ment Servant (Discipline and Appeal) Rules, 1999 and the same cannot be sustained. . . . . . . . . . ";