D.K.Seth, J. - (1.) The petitioner has challenged the order of suspension dated 20th April, 1999 contained in Annexure-2 to the writ petition. Mr. R K. Mishra, learned counsel for the petitioner submits that this order of suspension has been issued without application of mind on the basis of the alleged report of Dinanath Sharma. He has pointed out from Annexure-1 which is a newspaper report that it was on the allegation that the petitioner was trying to sale some insecticides in the open market. According to Mr. Mishra, this was the basis on which the petitioner was suspended. He contends that there cannot be any order of suspension unless the charge-sheet is issued. For that purpose, he relies on the note appended below Rule 28 of the U. P. Nagar Mahapallka Sewa Nityamavali, 1962. He relies on the decision in the case of Sri Hari Prasad Sharma v. Municipal Board, Gangoh, 1973 (1) SLR 348, in support of his above contention. He also relied on the decision Nilakantha Mishra v. State of Orissa and others, 1974 (2) SLR 206, and contended that the order of suspension is in effect a punishment which cannot be inflicted without giving an opportunity.
(2.) I have heard the learned standing counsel and Mr. R. K. Mishra, learned counsel for the petitioner at length.
(3.) The reliance placed in the case of Hari Prasad Sharma (supra) shows that it was in view of Section 69A of the U. P. Municipalities Act, the charge-sheet is to precede the suspension order. Such a conclusion was arrived at in the said decision on the basis of Section 69A (1) which is apparent from paragraph 2 of the said Judgment which is quoted below : "The petitioner has challenged the suspension order. Section 69A of the Municipalities Act provides for suspension of officers. Subsection (1) of this section provides that: "If the President has reason to believe that the Executive Officer or the Secretary.......is corrupt, or has persistently failed in the discharge of his duties or is otherwise guilty of misconduct, he may frame charges against him and where he is satisfied that It is so necessary, he may, for reasons to be recorded, suspended him pending the completion of the enquiry......" A perusal of this provision shows very clearly that a charge-sheet has to precede the suspension order. It is only when the charge has been framed against an officer that the question of the suspension can arise. The standing counsel has relied upon sub-section (3) Rule 37 of the U. P. Palika (Centralised) Service Rules, 1966. That rule provides that in cases requiring immediate suspension of an officer of the Centralised Services the power of suspending such an officer shall be exercised by such authority as may be specified in this behalf by the Government, and in other cases requiring the suspension of an officer, reference shall be made to the Government". It may be stated here that the petitioner belongs to the Centralised Services. However, sub-rule (3) of Rule 37 has to be read subject to Section 69A of the Municipalities Act. If the statute provides that the suspension can be ordered only after a charge has been framed, the rule cannot override ; that provision and provide that the suspension order may be passed before the charges are framed. In fact. Rule 37 (3) does not provide that the suspension order may be passed before the charge is served. It only names the officer or the authority that may pass a suspension order.";