# Ashok Kumar Singh v. State of U.P. & Anr

- **Citation:** (2021) 8 ILRA 746
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-19
- **Case number:** Service Single No. 12120 of 2021
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-singh-v-state-of-u-p-anr-47302
- **Pages:** 8

## Headnote

A. Service Law - Suspension - U.P.
Government
Servant
(Discipline
and
Appeal) Rules, 1999- Rule 4 - The
disciplinary
authority
would
record
reasons
and
satisfaction
in
the
suspension order against an employee.
The respondents while passing the impugned
order of suspension have failed to record
reasons to arrive at conclusion of satisfaction
that the charges are serious enough to
impose major penalty. (Para 13, 14, 15)

There is no statement of fact that preliminary
inquiry was conducted against the petitioner
and thereafter the satisfaction was recorded.
(Para 23)

B. Mere recommendation cannot be
made a ground in passing the order. The
competent
authority
who
has
been
empowered to pass the order would
apply its own mind - In present case, the
order was passed without application of mind
and on the dictate of the Election Commission
and recommendation of the Commissioner.
Respondent No. 1 merely relied upon the
orders of the Election Commission and
Commissioner
Commercial
Tax
and
has
proceeded to pass the impugned order. (Para
16, 19, 20)
Writ petition allowed. (E-3)

Precedent followed:

## Text

746 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)08ILR A746
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.07.2021

BEFORE

THE HON'BLE IRSHAD ALI, J.

Service Single No. 12120 of 2021

Ashok Kumar Singh ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sameer Kalia, Srideep Chatterjee

Counsel for the Respondents:
C.S.C.

A. Service Law - Suspension - U.P.
Government
Servant
(Discipline
and
Appeal) Rules, 1999- Rule 4 - The
disciplinary
authority
would
record
reasons
and
satisfaction
in
the
suspension order against an employee.
The respondents while passing the impugned
order of suspension have failed to record
reasons to arrive at conclusion of satisfaction
that the charges are serious enough to
impose major penalty. (Para 13, 14, 15)

There is no statement of fact that preliminary
inquiry was conducted against the petitioner
and thereafter the satisfaction was recorded.
(Para 23)

B. Mere recommendation cannot be
made a ground in passing the order. The
competent
authority
who
has
been
empowered to pass the order would
apply its own mind - In present case, the
order was passed without application of mind
and on the dictate of the Election Commission
and recommendation of the Commissioner.
Respondent No. 1 merely relied upon the
orders of the Election Commission and
Commissioner
Commercial
Tax
and
has
proceeded to pass the impugned order. (Para
16, 19, 20)
Writ petition allowed. (E-3)

Precedent followed:

1. Dr. Arvind Kumar Ram, 2007 SCC online page
1390 (Para 6, 18)

2. U.O.I. & anr. Vs Ashok Kumar Aggarwal,
(2013) 16 SCC Page 147 (Para 7, 13)

Present
petition
challenges
order
of
suspension dated 21.05.2021, passed by
Additional Chief Secretary, Department of
State Tax.

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Shri S.K. Kalia, learned
Senior Advocate assisted by Shri Sameer
Kalia and Shri C.D. Chatterji, learned
Additional Chief Standing Counsel for the
State Shri Alok Sharma.

2. By means of the present writ
petition the petitioner is challenging an
order of suspension dated 21.5.2021 passed
by the respondent no.1 with the further
prayer for issuance of writ of mandamus
commanding respondents not to give effect
the impugned order dated 21.5.2021 with
the further prayer to allow the petitioner to
work and function on the post of Joint
Commissioner (SIB), Bulandshahar and
also pay him regular salary as and when the
same became due.

3. Brief facts of the case are as under
:-

"The
petitioner
was
initially
appointed
on
the
post
of
Assistant
Commissioner
Sales
Tax
under
the
respondent no.2 on 29.9.1998 after having
been selected for the said post by the U.P.
Public Service Commission. Subsequently,
on account of his excellent services, the
petitioner was promoted on the post of
8 All. Ashok Kumar Singh Vs. State of U.P. & Anr.
747
Deputy Commissioner in the year 2009 and
thereafter again in the year 2015, he was
promoted
on
the
post
of
Joint
Commissioner Commercial Tax which post
he presently holds.

In the month of July 2019 the
petitioner
was
transferred
from
the
Headquarters at Lucknow to District -
Bulandshahr wherein he joined and started
functioning
as
Joint
Commissioner,
Commercial Tax (SIB), Bulandshahr.

On 26.3.2021 The State Election
Commission notified the Three Level
Panchayat Elections - 2021 to be held in
the State of Uttar Pradesh. Prior to that on
25.3.2021, the District Election Officer
Bulandshahr/
District
Magistrate
appointed the petitioner as Returning
Officer
for
Development
Block-
Sikandrabad, District - Bulandshahr. On
being appointed so, the petitioner on
27.3.2021 issued public notice of election
scheduled for the post of Gram Pradhan,
Member
Gram
Panchayat,
Member
Kshetra Panchayat and lastly Member Zila
Panchayat.

Subsequently,
the
District
Election
Officer
(Panchayat)/
District
Magistrate
Bulandshahr
amended
its
earlier
order
dated
25.3.2021
and
appointed the petitioner as Returning
Officer for Development Block - Khurja in
place
of
Development
Block
-
Sikandarabad.

As
directed
by
the
District
Magistrate Bulandshahr the petitioner took
charge of the post of Returning Officer,
Development Block - Khurja and conducted
the entire election process starting from the
submission of nomination papers till the
counting of votes and declaration of results
(except for the Member Zila Panchayat), as
per the notified election schedule, with
utmost sincerity and transparency. The
polling of votes took place on 29.4.2021 at
all the polling booths of Development
Block - Khurja and during which no
untoward incident took place and the
polling was got conducted in a peaceful
and organized manner.

On 02.5.2021 at 08:00 AM the
counting of vote commenced under the
direction and supervision of the petitioner
at Jatiya Bal Vihar Inter College, Khurja
which is situated in the said development
block Khurja. At around 05:00 PM on
03.5.2021 the counting of votes got
concluded
under
the
control
and
supervision of the petitioner. Subsequently,
the petitioner declared the result of the
concerned
posts
of
Gram
Pradhan,
Member Gram Panchayat and Member
Kshetra Panchayat and also handed over
the prescribed certificate to the returned
candidates. After conclusion of counting of
votes at 05:00 PM and declaration of result
of the aforesaid 03 posts the petitioner and
the polling team secured all the necessary
documents
and
completed
all
the
formalities, which took some time and only
at around 06:30 PM the petitioner along
with his team proceeded to District
Headquarters. Before the petitioner could
reach the District Headquarters with his
team the Additional District Magistrate
(Administration)/ Deputy Election Officer
Panchayat, Bulandshahar contacted the
petitioner on his mobile no.7235001008
and directed the petitioner to return to the
place where the counting took place as
some dispute had to be resolved.

As per the directions of the
Deputy
Election
Officer
Panchayat/
Additional
District
Magistrate
(Administration) the petitioner reached the
place of counting where the Deputy District
Election Officer, Panchayat also reached,
whereafter the aforesaid officer apprised
the petitioner about the complaint of one
candidate for the post of Member Zila
748 INDIAN LAW REPORTS ALLAHABAD SERIES
Panchayat (Ward No.25) who made the
request for re-counting.

On the request made by the
candidate the petitioner required the other
counting staff to be present at the place of
counting and further directed the support
staff to call the other candidates of Ward
No.25 also till such time the support staff
and the other candidates were reaching the
place of counting, the petitioner along with
his team in the presence of the Deputy
Election Officer Panchayat/ Additional
District Magistrate (Administration) tried
to sort out the objections of the aforesaid
candidate and due to the efforts of the
Petitioner and Deputy Election Officer
Panchayat/ Additional District Magistrate
(Administration) and other district level
officer the objections of the candidate were
sorted out and upon which the said
candidate requested for declaration of the
result without insisting for re-counting of
votes.

The District level election officers
left with the required counting sheet to
enable them to declare the result. In all this
process of consideration/ removal of
complaint / objection of the candidate
(ward no.25) it took considerable time for
its resolution by the petitioner along with
other election authorities and as such, the
delay was caused which was neither
deliberate nor intentional and the entire
process was well within the knowledge of
the district level election authorities.

The Deputy Election Officer
(Panchayat)/
Additional
District
Magistrate (Administration) on 04.5.2021
appears to have submitted a letter to
District
Election
Officer
Panchayat/
District
Magistrate
stating
that
the
petitioner did not submit the counting sheet
to the Election Officer till 12:00 PM
despite the fact that the counting had
concluded about 05:00 PM due to which
certain candidates of Ward No.24, 25 and
26 had created a ruckus at the Collectorate
premises as well as place of counting in
Khurja citing that the result is being
manipulated and due to which there was
unrest at the said places.

On 04.5.2021 the said letter was
forwarded
to
the
State
Election
Commission by the District Election Officer
panchayat/ District Magistrate vide his
letter dated 04.5.2021. Thereafter, the State
Election Commission, on the basis of the
aforesaid letter of the District Magistrate
dated
04.5.2021
forwarded
a
recommendation to the respondent no.2 for
suspension and initiation of disciplinary
inquiry against the petitioner stating that
the petitioner had shown indifference and
had been negligent towards his duties while
functioning
as
Returning
Officer
of
Development Block- Khurja.

The respondent no.2 on 13.5.2021
on the basis of the aforesaid letter dated
12.5.2021 of the State Election Commission
forwarded
a
recommendation
to
the
respondent
no.1
for
suspension
and
initiation of disciplinary inquiry against the
petitioner. Thereafter in a most illegal and
arbitrary manner, the State Government
Issued the impugned order dated 21.5.2021
thereby
placing
the
petitioner
under
suspension and also initiating disciplinary
enquiry with respect to his role as
Returning Officer, Development Block -
Khurja."

4. Assailing the order of suspension,
learned Senior Advocate submits that
provisions of rule 4 of U.P. Government
Servant (Discipline and Appeal) Rules,
1999 prescribes that in case the charges
are serious enough to impose major
penalty, by recording satisfaction on the
charges, the order of suspension could be
passed.
8 All. Ashok Kumar Singh Vs. State of U.P. & Anr.
749

5. Here in the present case the charge
is that the petitioner has delayed in
declaration of result of the members of the
Zila Panchayat and on the said basis he has
been placed under suspension.

6. The submission is that the order is
arbitrary and contrary to the provisions
contained under Rule 4 of the Rule 1999. In
support of his submission he placed
reliance upon a judgment rendered in the
case of Dr. Arvind Kumar Ram reported in
2007 SCC online page 1390 and invited
attention towards para 15 of the judgment.

7. He next submits that the order of
suspension has been passed by the
respondent on the dictates of the Election
Commission
and
the
recommendation
made by the Commissioner Commercial
Tax,
U.P.,
Lucknow,
therefore,
the
impugned order vitiates in law due to non
application of mind while passing the
impugned order. In support of submission
he has placed reliance upon a judgment
reported in Union of India and Another vs.
Ashok Kumar Aggarwal 2013 (Vol.16)
SCC Page 147.

8. His last submission is that in the
order it has been recorded that the charges
levelled against the petitioner are proved.
In this regard submission is that no
preliminary inquiry was conducted against
the petitioner to arrive at the conclusion
that the charges levelled in the order of
suspension are proved, therefore, his
submission is that the order is bad in law
and cannot be sustained.

9. On the other hand, learned
Additional Chief Standing Counsel submits
that the petitioner has carelessly handled
the declaration of result and it is a serious
charge which can impose a major penalty
in initiation of disciplinary proceedings
against the petitioner.

10. His last submission is that the
submission advanced by the learned Senior
Advocate that there is no application of
mind, is incorrect. In fact, the competent
authority after taking into consideration the
recommendation
of
the
Election
Commission
and
Commissioner
Commercial Tax has passed the order of
suspension. The same does not suffer from
any infirmity or illegality and is a just and
valid order.

11. I have considered the submission
advanced by the learned counsel for the
parties, perused the judgment relied upon
and the material brought along with the
writ petition and the counter affidavit and
rejoinder affidavit.

12. To resolve the controversy
involved in the present writ petition, the
provisions contained under Rule 4 of U.P.
Government
Servant
(Discipline
and
appeal) Rules 1999 are quoted below :-

"4.
Suspension.
-
(1)
A
Government servant against whose conduct
an
inquiry
is
contemplated,
or
is
proceeding
may
be
placed
under
suspension pending the conclusion of the
inquiry in the discretion of the appointing
authority :

Provided that suspension should
not be resorted to unless the allegations
against the Government servant are so
serious that in the event of their being
established may ordinarily warrant major
penalty :

Provided further that concerned
Head of the Department empowered by the
Governor by an order in this behalf may
place a Government servant or class of
750 INDIAN LAW REPORTS ALLAHABAD SERIES
Government servants belonging to Group
'A' and 'B' posts under suspension under
this rule :

Provided also that in the case
of any Government servant or class of
Government
servants
belonging
to
Group 'C' and 'D' posts, the appointing
authority may delegate its power under
this rule tgoing through the verdict of
the Hon'ble Supreme Courto the next
lower authority.

(2) A Government servant in
respect
of,
or
against
whom
an
investigation, inquiry or trial relating to a
criminal charge, which is connected with
his position as a Government servant or
which is likely to embarrass him in the
discharge of his duties or which involves
moral turpitude, is pending, may at the
discretion of the appointing authority or the
authority to whom the power of suspension
has been delegated under these rules, be
placed
under
suspension
until
the
termination of all proceedings relating to
that charge.

(3) (a) A Government servant
shall be deemed to have been placed or, as
the case may be, continued to be placed
under suspension by an order of the
authority competent to suspend, with effect
from the date of his detention, if he is
detained in custody, whether the detention
is on criminal charge or otherwise, for a
period exceeding forty-eight hours.

(b) The aforesaid Government
servant shall, after the release from the
custody, inform in writing to the competent
authority about his detention and may also
make representation against the deemed
suspension. The competent authority shall
after considering the representation in the
light of the facts and circumstances of the
case as well as the provision contained in
this rule, pass appropriate order continuing
the deemed suspension from, the date of
release from custody or revoking or
modifying it.

(4) Government servant shall be
deemed to have been placed, or as the case
may be, continued to be placed under
suspension by an order of the authority
competent to suspend under these rules,
with effect from the date of his conviction if
in the event of a conviction for an offence
he is sentenced to a term of imprisonment
exceeding forty-eight hours and is not
forthwith dismissed or removed consequent
to such conviction.

Explanation. - The period of
forty-eight hours referred to in sub-rule will
be computed from the commencement of the
imprisonment after the conviction and for
this
purpose,
intermittent
periods
of
imprisonment, if any, shall be taken to
account.

(5) Where a penalty of dismissal
or removal from service imposed upon a
Government servant is set aside in appeal
or on review under these rules or under
rules rescinded by these rules and the case
is remitted for further inquiry or action or
with any other directions :

(a) if he was under suspension
immediately
before
the
penalty
was
awarded to him, the order of his suspension
shall, subject to any such directions as
aforesaid, be deemed to have continued in
force on and from the date of the original
order of dismissal of removal;

(b)
if
he
was
not
under
suspension, he shall, if so directed by the
appellate
or
reviewing
authority,
be
deemed to have been placed under
suspension by an order of the appointing
authority on and from the date of the
original order of dismissal or removal:

Provided that nothing in this subrule shall be construed as affecting the
power of the disciplinary authority in a
case where a penalty of dismissal or
8 All. Ashok Kumar Singh Vs. State of U.P. & Anr.
751
removal in service imposed upon a
Government servant is set aside in appeal
or on review under these rules on grounds
other than the merits of the allegations
which, the said penalty was imposed but
the case is remitted for further inquiry or
action or with any other directions to pass
an order of suspension pending further
inquiry against him on those allegations so,
however, that any such suspension shall not
have retrospective effect.

(6) Where penalty of dismissal or
removal from service imposed upon a
Government servant is set aside or
declared or rendered void in consequence
of or by a decision of a Court of law and
the
appointing
authority,
on
a
consideration of the circumstances of the
case, decides to hold a further inquiry
against him on the allegations on which the
penalty of dismissal or removal was
originally imposed, whether the allegations
remain in their original form or are
clarified
or
their
particulars
better
specified or any part thereof a minor nature
omitted :

(a) if he was under suspension
immediately
before
the
penalty
was
awarded to him, the order of his suspension
shall, subject to any direction of the
appointing authority, ho deemed to have
continued in force on and from the date of
the original order of dismissal or removal;

(b) if he was not under such
suspension, he shall, if so directed by the
appointing authority, be deemed to have
been placed under suspension by an order
of the competent authority on and from the
date of the original order of dismissal or
removal.

(7) Where a Government servant
is suspended or is deemed to have been
suspended (whether in connection with any
disciplinary proceeding or otherwise) and
any other disciplinary proceeding is
commenced
against
him
during
the
continuance
of
that
suspension,
the
authority competent to place him under
suspension may, for reasons to be recorded
by him in writing, direct that the
Government servant shall continue to be
under suspension till the termination of all
or any of such proceedings.

(8) Any suspension ordered or
deemed to have been ordered or to have
continued in force under this rule shall
continue to remain in force until it is
modified or revoked by the competent
authority.

(9) A Government servant placed
under suspension or deemed to have been
placed under suspension under this rule
shall be entitled to subsistence allowance
in accordance with the provisions of
Fundamental Rule 53 of the Financial
Hand Book, Volume 11, Parts II to IV."

13. On its perusal it is evident that the
disciplinary authority could have recorded
its satisfaction while passing the order of
suspension against an employee of the
State Government. On perusal of the
impugned order it is evident that the order
does not contain satisfaction to arrive at the
conclusion that the charges levelled against
the petitioner is sufficient to impose major
penalty. I have also perused the paragraph
21 and 22 of the judgment in the case of
Ashok Agarwal (supra) which is being
quoted below :-

"21. The power of suspension
should not be exercised in an arbitrary
manner and without any reasonable ground
or
as
vindictive
misuse
of
power.
Suspension should be made only in a case
where there is a strong prima-facie case
against the delinquent employee and the
allegations
involving
moral
turpitude,
grave misconduct or indiscipline or refusal
752 INDIAN LAW REPORTS ALLAHABAD SERIES
to carry out the orders of superior
authority are there, or there is a strong
prima-facie case against him, if proved,
would ordinarily result in reduction in
rank, removal or dismissal from service.
The authority should also take into
account all the available material as to
whether in a given case, it is advisable to
allow the delinquent to continue to
perform his duties in the office or his
retention in office is likely to hamper or
frustrate the inquiry.

22. In view of the above, the law
on the issue can be summarised to the
effect that suspension order can be passed
by the competent authority considering the
gravity of alleged misconduct, i.e. serious
act of omission or commission and the
nature of evidence available. It cannot be
actuated by mala fide, arbitrariness, or for
ulterior purpose. Effect on public interest
due to the employee's continuation in office
is also a relevant and determining factor.
The fact of each case have to be taken into
consideration as no formula of universal
application can be laid down in this regard.
However, suspension order should be
passed only where there is a strong prima
facie case against the delinquent, and if the
charges stand proved, would ordinarily
warrant imposition of major punishment
i.e., removal or dismissal from service or
reduction in rank etc."

14. On perusal of the aforesaid
provisions, it is evident that the disciplinary
authority
would
record
reasons
and
satisfaction in the suspension order against
an employee.

15. In view of the above, I am of the
considered opinion that the respondents
while passing the impugned order of
suspension has failed to record reasons to
arrive at conclusion of satisfaction that the
charges are serious enough to impose major
penalty.

16. In regard to the second
submission of Shri Kalia, learned Senior
Advocate that the order was passed without
application of mind and on the dictate of
the
Election
Commission
and
recommendation of the Commissioner I
examined the material on record.

17. On examination of the letter of the
election commission dated 12.5.2021 it is
evident that it is a clear cut dictate to take
decision to place the petitioner under
suspension.

18. I have also perused the letter of
the Commissioner dated 13.5.2021 who
also
by
recording
the
story
has
recommended
to
pass
the
order
of
suspension against the petitioner, therefore,
the submission advanced by the learned
Senior Advocate appears to have some
substance in the matter. In this regard the
ingredients and finding returned is also
relevant for consideration as has been laid
down in the case of Dr. Arvind Kumar
Ram (supra), para 15 of which is being
quoted below :-

"15. Rule 4 (1) and the first
proviso, in our opinion, should be read
strictly and the appointing authority should
exercise its discretion after calling for the
record and after applying its mind. Otherwise
the exercise of discretion would lead to
arbitrariness and would result in injustice
and unfairness to the Government Servant.
The intention of the rule being that
suspension should be an exception, it must be
followed strictly. The first proviso being a
restriction on exercise of power of the
appointing
authority,
it
requires
the
subordinate
authority
to
make
8 All. Sanjay Kumar Shukla & Ors.Vs. State of U.P. & Ors.
753
recommendation
an
a
fair
and
just
consideration of material on record. Even if
the subordinate authority fails to discharge
its duty it does not absolve the appointing
authority from discharging its obligation by
calling for the records and consider
objectively if the allegations were so serious
that it would result in imposition of major
penalty/ unless allegations were such that
there could be no doubt about the
applicability of the proviso. Even in such
cases, the rule; of fair play must be read as
requiring the appointing authority to record
its own reasons. Otherwise it would be
surrendering
his
discretion
to
the
recommendation of the subordinate authority.
Such action would be arbitrary and contrary
to the letter and spirit of the rule."

19. On examination of the ratio laid
down in para 15, it is evident that mere
recommendation cannot be made a ground in
passing the order. The competent authority
who has been empowered to pass the order
would apply its own mind.

20. On perusal of the recommendation
of the Election Commission as well as the
Commissioner Commercial Tax, it is
evident that the respondent no.1 merely
relied upon the orders of the Election
Commission
and
Commissioner
Commercial Tax and has proceeded to pass
the impugned order.

21. Thus, in the opinion of the Court,
the order impugned cannot be sustained.

22. I have also perused the statement
of fact made in para 38 of the writ petition
in regard to recording of finding that the
charges are proved and the submission in
this regard that without holding preliminary
inquiry
against
an
employee
this
satisfaction cannot be recorded.

23. The statement of fact made in para
38 of the writ petition has been replied in
para 32 of the counter affidavit wherein on
perusal it is reflected that there is no
statement of fact that preliminary inquiry
was conducted against the petitioner and
thereafter the satisfaction was recorded.
Therefore, the submission advanced by the
learned Senior Advocate in this regard
appears to be correct.

24. In view of the reasons assigned
above, the impugned order cannot be
sustained and it is hereby set-aside.

25. Writ petition succeeds and is
allowed.

26. Respondents are directed to
permit the petitioner to allow to work on
the post of Joint Commissioner (SIB),
Bulandshahar and pay him regular salary
month by month as and when became due.

27. It is, however, made clear that the
disciplinary proceedings pending against
the petitioner shall go on and shall be
completed within three months from the
date of production of certified copy of this
order.
----------

(2021)08ILR A753
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.07.2021

BEFORE

THE HON'BLE IRSHAD ALI, J.

Service Single No. 12394 of 2020

Sanjay Kumar Shukla & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents