RAJESH SINGH CHAUHAN,J. - (1.) Heard learned counsel for the parties.
(2.) This Court has passed order dated 13.9.2019 as under : "Heard Shri R. B. S. Rathaur, learned counsel for the petitioner. Supplementary affidavit filed by learned counsel for the petitioner is taken on record. Notices for opposite parties have been received by the office of learned C.S.C. By means of this petition, the petitioner has assailed the validity of suspension order dated 14.08.2019 passed by the Principal Chief Conservator of Forest and HOD which is impugned in the writ petition. The first and foremost ground to assail the impugned order of suspension is that the suspension order has been passed in contravention of Rule 4 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999, which categorically provided that a government servant, against whom an inquiry is contemplated or is proceeding, may be placed under suspension pending, the conclusion of the inquiry is the discretion of the Appointing Authority, meaning thereby it is a prerogative of Appointing Authority to place the incumbent under suspension. In the present case, the suspension order has been issued by the Appointing Authority but at the behest and dictate of the Principal Secretary of the Department, which is clearly visible vide letter dated 13.08.2019 which is contained as Annexure No. 7 in the writ petition, whereby the Appointing Authority has been directed to place the petitioner under suspension and in compliance of the said order dated 13.08.2019, the petitioner was placed under suspension on the next date. Therefore, it appears that the appointing authority has not invoked his own discretion. The learned counsel for the petitioner has also assailed the impugned suspension order saying that the allegation so levelled against the petitioner is misconceived and before levelling such allegation, no fact finding inquiry was conducted, inasmuch as had the proper fact finding inquiry being conducted to verify the charges/allegation, the petitioner would not have been placed under suspension. The matter requires consideration. List this petition on 20.09.2019 as fresh to enable the learned Addl. C.S.C. to seek complete instructions in the matter and he shall produce the relevant documents on said date to convince the court as to what are those material pursuant to which the petitioner has been placed under suspension and as to why the Appointing Authority has not invoked its own discretion as per Rule 4 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 and placed the petitioner under suspension under the dictate of the Principal Secretary of the Department." In compliance of the aforesaid order the learned Additional Chief Standing Counsel Sri Ran Vijay Singh has submitted on the basis of instructions that since the charges are serious against the petitioner and as soon as the allegations so levelled against the petitioner were brought into the notice of the State Government the State Government passed the order dated 13.8.2019 for conducting the departmental inquiry against the petitioner by placing him under suspension. Sri Ran Vijay Singh has, however, submitted that so far as the compliance of Rule 4 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 is concerned it is true that placing an employee under suspension is the discretion of the Appointing Authority and the order has been passed by the Appointing Authority but the direction of the State Government has been followed, therefore, if this Court finds the order of suspension unwarranted and violative of Rule 4 of Disciplinary Rules, 1999, opportunity may be granted to the Appointing Authority to pass appropriate orders strictly in accordance with law. He has further submitted that the Appointing Authority may conduct a fact finding inquiry in the matter or may direct to make inquiry in the issue by issuing the charge-sheet. The learned counsel for the petitioner has drawn attention of this Court towards one judgment and order dated 9.9.2019 passed by this Court in Service Single No. 23276 of 2019 : Salil Kumar Samaiya v. State of U.P. and others whereby the identical issue has been examined. In the said judgment this Court was of the view that since the suspension order has been passed by the Appointing Authority but at the behest of State Government who is not the Appointing Authority, therefore, it appeared that the Appointing Authority has not invoked its discretion while placing the said petitioner under suspension. The order dated 9.9.2019 is being reproduced for the convenience: "1. Heard learned counsel for the parties. 2. By means of this writ petition, the petitioner has impeached the validity of the order of suspension dated 30/31.07.2019 issued by the Director-cum-Chief Engineer, Rural Engineering Department, U.P., Lucknow on the ground that the said order has not been passed strictly in terms of Rule 4 of U.P. Government Servant (Discipline and Appeal) Rules, 1999 and the sole charge which has been levelled against the petitioner is misconceived.
(3.) This Court has passed the order dated 30.08.2019 as under:- "Heard Sri P.K. Srivastava, learned counsel for the petitioner and notices for the opposite parties have been received by the office of learned CSC. The case set forth by the learned counsel for the petitioner is that the petitioner, who is serving on the post of Junior Engineer, has been placed under suspension vide order dated 30.7.2019 passed by the Director-cum- Chief Engineer, Rural Engineering Department, U.P. Lucknow. The aforesaid suspension order has been passed pursuant to the direction being issued by the State Government and the order to that effect has been enclosed as Annexure No.1 to the writ petition, which has been issued on 12.7.2019 by the Special Secretary, Department of Rural Engineering Anubhag-2, Lucknow addressing to the appointing/ disciplinary authority i.e. Director-cum-Chief Engineer, Rural Engineering Department, U.P. Lucknow. Learned counsel for the petitioner has assailed the suspension order on couple of grounds; firstly, the suspension order has been issued at the behest of the authority of the State Government, which is not disciplinary/ appointing authority of the petitioner inasmuch as the disciplinary/ appointing authority of the petitioner is Director-cum- Chief Engineer, who has passed the suspension order. Learned counsel for the petitioner has referred Rule 4 (1) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 (for short "Rules, 1999"), which categorically provides that a Government servant against whose conduct an enquiry is contemplated, or is proceeding may be placed under suspension pending the conclusion of enquiry in the discretion of appointing authority. Therefore, in the present case, it appears that the suspension order has been issued at the behest of the authority, who is not the appointing authority of the petitioner, therefore, the suspension order is in violation of Rule 4 of the Rules, 1999. Learned counsel for the petitioner has drawn attention of this Court towards the dictum of the Hon'ble Apex Court in re; Anirudhsinhji Karansinhji Jadeja and another v. State of Gujarat, AIR 1995 SC 2390, wherein the Hon'ble Apex Court, vide para-11 of the order, has categorically observed that if a statutory authority has been vested with jurisdiction, he has to exercise it according to its own discretion. If the discretion is exercised under the direction or in compliance with some higher authority's instruction, then it will be a case of failure to exercise discretion altogether. Secondly, the allegation so levelled in the suspension order is relating to one Sri Devesh Singh, who is said to have alleged against the petitioner that the petitioner has usurped a sum of Rs.1,20,000/- in the name of providing him any suitable appointment under the State Government. Learned counsel for the petitioner has submitted that the petitioner has already filed a suit/ criminal case against Sri Devesh Singh and his family for the fact that Sri Devesh Singh and his family has cheated the petitioner in the name of Insurance Policy and the said suit/ criminal case is still pending. As per learned counsel for the petitioner, having malafide intention and ulterior motive, Sri Devesh Singh has moved false complaint against the petitioner and the State Government has directed the appointing authority to place the petitioner under suspension for the said allegation without conducting any fact finding enquiry to that effect. Not only the above, even the disciplinary authority has not only followed the direction of the State Government regarding allegation but also has not conducted any fact finding enquiry so as to ascertain as to how this cheating was committed by the petitioner. It appears that the suspension order has been passed only on the dictate of the authority of the State Government. Learned counsel for the petitioner has also assailed the suspension order on the ground that the petitioner is presently serving at Jhansi, his enquiry officer is Superintending Engineer, Rural Engineering Department at Kanpur and he has been attached at Balia, therefore, the suspension order is not a simple suspension order but by means of suspension order, the petitioner has been harassed for no cogent reasons. On being confronted from learned Addl. Chief Standing Counsel as to why this suspension order has been passed in violation of Rule 4 of the Rules, 1999 and what are the material/ subjective satisfaction of the disciplinary authority placing the petitioner under suspension and why the petitioner has been attached at Balia, learned Addl. Chief Standing Counsel has prayed that he may be granted one week's time to seek complete instructions in the matter. Time prayed for is granted. List this petition on 9th September, 2019 as fresh. In the meantime, attachment order of the petitioner at Balia is stayed. On the next date, learned Addl. Chief Standing Counsel shall produce the relevant record." 4. In compliance of the aforesaid order, the learned Additional Chief Standing Counsel has produced the entire records before the Court to show the material pursuant to which the petitioner was placed under suspension. 5. I have perused the original record as well as the material available on record. 6. Since the criminal case being filed by the petitioner against Sri Devesh Singh which is pending before the learned criminal court, therefore, if any finding is given by this Court, it would affect the criminal proceeding being pending. I have noted that the criminal court has issued non-bailable warrant against Sri Devesh Singh and as per learned counsel for the petitioner Sri Devesh Singh has yet not appeared before the Court. Further, it is a case where the civil suit is also pending between the parties i.e. the present petitioner and Sri Devesh Singh and others, therefore, any finding of this Court would definitely affect the civil proceeding also. However perusal of the preliminary inquiry report, prima-facie does not reveal that the petitioner has usurped a sum of Rs.1,20,000/- from Sri Devesh Singh in the name of providing him any suitable appointment under the State Government. 7. To the contrary, it appears that some amount has been paid by the petitioner to the family members of Sri Devesh Singh but since this is a subject matter of criminal and civil proceedings, therefore, I refrain myself to give any finding thereon. The factum of cheating etc. cannot be established during departmental proceedings and it is domain of competent criminal court to establish the factum of cheating if any against erring person. 8. So far as the arguments of learned counsel for the petitioner that suspension order has not been passed by the Appointing Authority but the same has been passed at the behest of the State Government, no satisfactory reply could be given by the State-respondents as to how any suspension order could have been passed by the authority who is not the appointing authority. This is trite law that the suspension order can be passed only by the Appointing Authority and it is statutory prescription under Rule 4 (1) of U.P. Government Servant (Discipline and Appeal) Rules, 1999 (here-in-after referred to as the "Rules, 1999"), therefore, in both counts the suspension order which has been passed at the behest of the State Government appears to be unwarranted. 9. The Hon'ble Supreme Court in re: The Purtabpore Co., Ltd. v. Cane Commissioner of Bihar and others reported in 1969 (1) SCC 308 has held that the power can be exercised by the authority with whom the power is vested not by any other authority whether superior or inferior. Relevant paras-12 and 13 of the aforesaid judgment are being reproduced here-in-below:- "12. The executive officers entrusted with statutory discretions may in some cases be obliged to take into account considerations of public policy and in some context the policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but this will not absolve them from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for them to be given binding instructions by a superior. 13. In Commissioner of Police, Bombay v. Gordhandas Bhanji, this Court struck down the order purported to have been passed by the Commissioner of Police in the exercise of his powers under the Bombay Police Act and the rules made thereunder as the order in question was in fact that of the Government. The rule laid down in that decision governs the question under consideration. This Court reiterated that rule in State of Punjab v. Hari Kishan Sharma. There this Court held that the State Government was not justified in assuming jurisdiction which had been conferred on the licensing authority by Section 5 (1) and (2) of the Punjab Cinemas (Regulation) Act. For the reasons mentioned above we hold that the impugned orders are liable to be struck down as they were not made by the prescribed authority." 10. The Hon'ble Supreme Court in re: Anirudhsinhji Karansinjji Jadeja and another v. State of Gujarat reported in AIR 1995 SC 2390 has held the same and followed the settled principles of law and vide para-11, the following has been observed:- "11.The case against the appellants originally was registered on 19th March, 1995 under the Arms Act. The DSP did not give any prior approval on his own to record any information about the commission of an offence under TADA. On the contrary, he made a report to the Additional Chief Secretary and asked for permission to proceed under TADA. Why? Was it because he was reluctant to exercise jurisdiction vested in him by the provision of Section 20A (1)? This is a case of power conferred upon one authority being really exercised by another. If a statutory authority has been vested with jurisdiction, he has to exercise it according to its own discretion. If the discretion is exercised under the direction or in compliance with some higher authority's instruction, then it will be a case of failure to exercise discretion altogether. In other words, the discretion vested in the DSP in this case by Section 20A (1) was not exercised by the DSP at all." 11. Considering the rival submissions of learned counsel for the parties and perusing the relevant material available on record as well as the original records, I am of the considered view that the suspension order dated 30.07.2019 has been passed by the Director/Chief Engineer, Rural Engineering Department, Government of U.P., Lucknow but the said suspension order has been passed pursuant to the direction being issued by the State Government inasmuch as vide order dated 12.07.2019, which is contained as Annexure No.1 to the writ petition, the Special Secretary, Department of Rural Engineering, Government of U.P., Lucknow has directed the Director and Chief Engineer i.e. the Appointing Authority to suspend the petitioner and initiate the departmental proceedings against him under Rule 7 of the Rules, 1999. Prima-facie, the Appointing Authority has not invoked its discretion rather followed the direction of the State Government placing the petitioner under suspension. So far as the sole charge levelled against the petitioner regarding usurping a sum of Rs.1,20,000/- from Sri Devesh Singh in the name of providing the government employment is concerned, it may be the subject matter before the competent criminal/ civil court and the factum of cheating may not be established through the departmental proceedings. 12. It is needless to say that if the factum of cheating is established against the petitioner by the competent criminal/ civil courts, the Disciplinary Authority may pass any appropriate order strictly in accordance with law but at this stage it appears that the suspension order is unwarranted. 13. Accordingly, the suspension order dated 30.07.2019/31.07.2019 issued by the Director and Chief Engineer, Rural Engineering Department, Government of U.P., Lucknow, is hereby quashed. 14. It is needless to say that appropriate order may be passed by the department at appropriate stage but strictly in accordance with law. 15. The writ petition is, therefore, allowed. 16. No order as to costs." 3. I have perused the judgment and order dated 9.9.2019 in re: Salil Kumar Samaiya (supra) wherein vide para 9 and 10 of the judgment the dictums of Hon'ble Apex Court has been considered which covers the present controversy.;