# Avanindra Dikshit v. State of U.P. & Anr

- **Citation:** (2020) 1 ILRA 1877
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-22
- **Case number:** Service Single No. 35429 of 2019
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/avanindra-dikshit-v-state-of-u-p-anr-45676
- **Pages:** 6

## Headnote

and Appeal) Rules, 1999 - Rule 4 -
suspension order is violative of Rule 4 -
petitioner
wrongly
applied
the
Government Order while providing the
benefit of revised pay scale to the Class
III employees of the department-major
punishment may not be given subject to
the
findings
of
enquiry
officer-the
suspension order is not sustainable in the
eyes of law-mandamus writ is issued to
1 All. Avanindra Dikshit Vs. State of U.P. & Anr.
1879
reinstate the petitioner and pay him
salary. (Par 16)

The suspension order should not be exercised
in arbitrary manner and without any reasonable
ground or as 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 to carry out the orders of superior
authority are there or there is strong primafacie case against him, if proved, would
ordinarily result in major punishment. (Para 15)

Writ Petition allowed. (E-6)

List of cases cited: -

## Text

1878 INDIAN LAW REPORTS ALLAHABAD SERIES

109. Similarly in Mangal Prasad
Tamoli (dead) by Lrs. v. Narvadeshwar
Mishra (dead) by Lrs. & Ors., (2005) 3
SCC 422, this Court held that if an order
at the initial stage is bad in law, then all
further proceedings, consequent thereto,
will be non est and have to be necessarily
set aside.

110. In C. Albert Morris v. K.
Chandrasekaran & Ors, (2006) 1 SCC 228, this
Court held that a right in law exists only and only
when it has a lawful origin. (See also: Upen
Chandra Gogoi vs. State of Assam & Ors.,, (1998)
3 SCC 381; Satchidananda Misra v. State of
Orissa & Ors.,, (2004) 8 SCC 599; Regional
Manager, SBI v. Rakesh Kumar Tewari,, (2006) 1
SCC 530; and Ritesh Tewari & Anr. v. State of
U.P. & Ors., AIR 2010 SC 3823).

111. Thus, in view of the above,
we are of the considered opinion that the
orders impugned being a nullity, cannot be
sustained. As a consequence, subsequent
proceedings/ orders/ FIR/ investigation
stand automatically vitiated and are liable
to be declared non est."

26. In view of the aforesaid dictums
of the Hon'ble Apex Court considered in
re; Davinder Pal Singh Bhullar (supra), I
am of the considered opinion that since the
impugned office order dated 22.7.2019 is
nullity in the eyes of law, therefore, it
cannot be sustained, so its consequential
proceedings
i.e.
charge
sheet
dated
2.8.2019 stand automatically vitiated and
is liable to be declared non est in view of
the
legal
maxim
'SUBLATO
FUNDAMENTO CADIT OPUS'.

27. Accordingly, all the questions
have been answered in favour of the
petitioner.

28. A writ in the nature of certiorari
is issued quashing the office order dated
22.7.2019 passed by opposite party no.1,
which is contained in Annexure No.1 to
the writ petition and charge sheet dated
2.8.2019, which is contained in Annexure
No.2 to the writ petition.

29. A writ in the nature of mandamus
is issued commanding the opposite parties
to provide all consequential service
benefits, promotion, benefit of ACP etc.
with expedition, preferably within a period
of three months from the date of
production of certified copy of this order.

30. The writ petition is accordingly
allowed.
----------
(2020)1ILR 1877

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.01.2020

BEFORE
THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 35429 of 2019

Avanindra Dikshit ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Neel Kamal Mishra

Counsel for the Respondents:
C.S.C.

A. U.P. Government Servant (Discipline
and Appeal) Rules, 1999 - Rule 4 -
suspension order is violative of Rule 4 -
petitioner
wrongly
applied
the
Government Order while providing the
benefit of revised pay scale to the Class
III employees of the department-major
punishment may not be given subject to
the
findings
of
enquiry
officer-the
suspension order is not sustainable in the
eyes of law-mandamus writ is issued to
1 All. Avanindra Dikshit Vs. State of U.P. & Anr.
1879
reinstate the petitioner and pay him
salary. (Par 16)

The suspension order should not be exercised
in arbitrary manner and without any reasonable
ground or as 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 to carry out the orders of superior
authority are there or there is strong primafacie case against him, if proved, would
ordinarily result in major punishment. (Para 15)

Writ Petition allowed. (E-6)

List of cases cited: -

1. St. of Orissa Vs. Bimal Kumar Mohanty 1994
(4) SCC 126

2. Punjab National Bank Vs. D.M. Amarnath
(2006) 10 SCC 162

3. Union of India & Anr. Vs. Ashok Kumar
Aggarwal, para 21 and 22

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Upendra Nath Mishra,
learned Senior Advocate assisted by Sri
Neel Kamal Mishra, learned counsel for
the petitioner and Sri Ran Vijay Singh,
learned Additional Chief Standing Counsel
for the State-respondents.

2. The order under challenge is the
suspension order dated 10.12.2019 passed
by
the
Additional
Chief
Secretary,
Department of Finance (Lekha Parikchha),
Anubhag-1, Civil Secretariat, Lucknow,
which is contained as Annexure no. 1 to
the writ petition.

3. By means of aforesaid suspension
order the petitioner has been placed under
suspension on the allegation that by
wrongly indicating the Government Order
dated 24.12.2009 instead of Government
Order dated 7.9.2009 the employees of the
department has illegally been given the
benefit of pay fixation. However, the chargesheet dated 31.12.2019 has been issued
against the petitioner containing three charges
which has been framed by breaking the sole
allegation of wrong fixation of revised pay
scale
of
Class-III
employees
of
the
Cooperative Societies and Panchayat into
three charges. The three charges are (i) wrong
fixation of pay of Senior Assistants of the
Department due to issuance of alleged illegal
order dated 25.6.2017 by the petitioner, (ii)
issuance of an irregular correction order dated
29.3.2019 by the petitioner and (iii) the
alleged excess payment of arrears due to pay
fixation thereby causing huge loss to the
State-Exchequer.

4. The aforesaid charge-sheet has
been assailed by the petitioner by filing
Service Single No. 299/2020 wherein the
counter affidavit has been called to the
effect as to whether charge-sheet dated
28.12.2019 is dated 31.12.2019 when the
inquiry officer has made signature on the
said charge sheet on 28.12.2019 as it is
said to have been prepared by the
disciplinary authority on 28.12.2019. No
interim protection restraining to conduct
the departmental inquiry has been passed.
As a matter of fact this Court is of the
view that since the charge-sheet has been
issued containing some charges, veracity
of the charges may not be examined and
those charges may be proved or disproved
during the course of the departmental
inquiry strictly in accordance with law.

5. So far as the suspension order
dated 10.12.2019 is concerned the Court is
appreciating the validity of the suspension
order as under.
1880 INDIAN LAW REPORTS ALLAHABAD SERIES

6. This Court is conscious that if the
allegations of the suspension order and the
charge-sheet are appreciated, the inquiry
officer / disciplinary authority would have
nothing to inquire during the course of the
departmental inquiry inasmuch as the
allegations
so
levelled
against
the
petitioner must be proved on the basis of
preponderance of the probabilities for
which the relevant material and evidences
are led and examined by the inquiry
officer. Therefore, the validity of the
suspension order shall be tested on the
settled principles as to whether the
suspension order is sustainable in the eyes
of law.

7. Learned counsel for the petitioner
has submitted with vehemence that the
impugned suspension order is violative of
Rule 4 of the U.P. Government Servant
(Discipline and Appeal) Rules, 1999. For
the brevity Rule 4(1) is being reproduced
herein 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
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 to
the next lower authority."

8. A bare perusal of the aforesaid
Rule
4
clearly
mandates
that
the
suspension order can be issued only when
the charges against an employee are very
serious entailing the major punishment i.e.
dismissal, removal or reduction in rank. In
other words in case the charges are not so
serious and grave entailing the major
punishment, the recourse of suspension
order should be avoided.

9. In the present case the charges
mentioned in the impugned suspension
order are not serious enough, prima-facie,
which in the event of being proved, would
warrant imposition of any major penalty.

10. Notably, the petitioner has been
placed under suspension on the allegations
that petitioner has allegedly issued wrong
directions in his letter dated 26.5.2017 and
29.3.2019,
whereby
subordinate
authorities were directed to apply the
provisions of G.O. dated 22.3.2013 read
with G.O. dated 24.12.2009 and fitment
table contained in G.O. dated 7.9.2009.
However, the respondent-authorities are of
the opinion that pay revision of Class-III
employees i.e. Senior Assistants working
in the department should have been made
only as per provisions of para 11 of
Government Order dated 8.12.2008 and
not as per Government Order dated
7.9.2009 and 24.12.2009. Therefore, the
said authorities have observed that the
benefit of pay revision to such employees
of the department should have been made
only as per para 11 of the Government
1 All. Avanindra Dikshit Vs. State of U.P. & Anr.
1881
Order dated 8.12.2008 read with fitment
table
of
G.O.
dated
11.12.2008.
Accordingly, the petitioner has been
charged for having committed misconduct
as per Rule 3 of the Conduct Rules, 1956
for not applying the aforesaid Government
Order dated 8.12.2008 and 11.12.2008.

11. While doing so, it appears,
prima-facie, the State-respondents have
not
noticed
that
the
provisions
of
Government Order dated 8.12.2008 were
amended by the subsequent Government
Order dated 24.12.2009 and similarly the
provisions of fitment table applicable on
the Pay-Band of Rs. 5200-20200 (relevant
for the issue in question) were also
amended by the fitment table issued
through the subsequent Government Order
dated 7.9.2009. However, the petitioner
appears to have applied, prima-facie, both
the aforementioned amended Government
Orders daed 24.12.2009 and 7.9.2009. It
appears that petitioner in a bonafide
manner has applied those government
orders which, as per him, were applicable
at that point of time. There may be some
confusion to that effect on the part of the
petitioner but there is no allegation in the
suspension order or charge-sheet to the
effect that petitioner having any ulterior
motive or malafide intention has applied
the Government Orders dated 24.12.2009
and
7.9.2009
instead
of
8.12.2008.
Therefore, for any bonafide confusion
having cogent explanation to that effect
the petitioner should have not been placed
under suspension. If there was no bonafide
confusion on the part of the petitioner as
aforesaid,
the
explanation
from
the
petitioner could have been called and
necessary orders against those employees
who have received the benefit of revised
pay scale could have been issued. During
the course of argument it has been noted
that the notices of recovery against all the
employees who have got benefit of pay
revision
have
been
issued
seeking
explanation
from
those
employees,
therefore, if those employees could not
justify the benefit so availed by them
would be liable for recovery proceedings
and in that case, prima-facie, no loss
would be caused to the State-Exchequer.

12. Learned Additional C.S.C. has
submitted with vehemence that since there
is no case of the petitioner that the
impugned suspension order is an outcome
of malafide nor it is without jurisdictional
order, therefore, such suspension order
should not be interfered. In support of
aforesaid argument Sri Ran Vijay Singh
has placed reliance on the judgment of
Hon'ble Apex Court in re: (1) State of
Orissa vs. Bimal Kumar Mohanty -1994
(4) SCC 126; and (2) Punjab National
Bank vs. D.M. Amarnath -(2006) 10 SCC
162 by submitting that if the suspension
order
has
been
passed
pending
departmental inquiry it should not be
interfered with.

13. Sri Ran Vijay Singh has also
placed reliance on some judgments of
Hon'ble Apex Court by submitting that
normally the constitutional courts should
not interfere with the show cause notice or
charge-sheet, therefore, the charge-sheet
issued against the petitioner may not be
interfered. Since the subject matter of the
present writ petition is suspension order
not the charge-sheet, therefore, those case
laws are not applicable in the present
issue.

14. However, Sri Upendra Nath
Mishra, learned Senior Advocate has
placed reliance of the judgment of Hon'ble
Apex Court in re: Union of India and
1882 INDIAN LAW REPORTS ALLAHABAD SERIES
another vs. Ashok Kumar Aggarwal
placing reliance on para 21 and 22 of the
aforesaid judgment which are being
reproduced herein 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 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 the 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 facts 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."

15. As per the Hon'ble Apex Court
the suspension order should not be
exercised in arbitrary manner and without
any reasonable ground or as 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
to carry out the orders of superior
authority are there or there is strong primafacie case against him, if proved, would
ordinarily result in major punishment. The
Hon'ble Apex Court has cautioned that
while issuing the suspension order the
aforesaid facts should be considered by the
authority
concerned
carefully.
The
aforesaid observation of the Hon'ble Apex
Court makes it abundantly clear that the
authority competent who passed the
suspension order must take care of the
gravity of the seriousness of the charges
and he must have strong satisfaction,
prima-facie, that in case the charges are
proved the delinquent employee would
have to face major punishmet.

16. In the present case the sole
allegation against the petitioner is that he
has wrongly applied the Government
Order while providing the benefit of
revised
pay
scale
to
the
Class-III
employees of the department. It has also
been noted that the necessary orders
seeking explanation from the employees
who have received the benefit of revised
pay scale, have been issued for recovery
and if those employees could not justify
the benefit received by them, necessary
orders of recovery may likely to be issued
and in that case there would be no loss to
1 All. Avanindra Dikshit Vs. State of U.P. & Anr.
1883
the State Exchequer. Further, there is no
allegation against the petitioner to the effect that
while applying the government orders which as
per the State-respondent are not applicable in the
issue in question, the petitioner was having any
ulterior motive or malafide intention, therefore, at
the best the petitioner could have been asked as to
how he has applied wrong government orders
and after considering the reply of the petitioner
appropriate decision may be taken strictly in
accordance with law during the course of the
departmental inquiry but for this allegation, I
think the major punishment may not be awarded
to the petitioner subject to the findings of enquiry
officer. It is clarified here that this observation
shall not affect the departmental proceedings in
any manner whatsoever and the inquiry officer
shall not only conduct and conclude the
departmental inquiry strictly in accordance with
law while affording opportunity of hearing to the
petitioner but shall not be influenced from any
finding being given herein above. However, on
the material available on records and the
arguments so advanced by the learned counsel
for the parties, I am of the considered opinion that
in view of dictum of Hon'ble Apex Court in re:
Ashok Kumar Aggarwal (supra) the impugned
suspension order is not sustainable in the eyes of
law and prima facie appears to be violative of
Rule 4 of the Rules of 1999 besides being
unwarranted and uncalled for in view of the facts
and circumstances of the issue in question.

17. Accordingly, the suspension
order dated 10.12.2019 passed by the
Additional Chief Secretary, Department of
Finance (Lekha Parikchha), Anubhag-1,
Civil Secretariat, Lucknow which is
contained as Annexure no. 1 to the writ
petition, is hereby quashed.

18. A writ in the nature of
mandamus is issued commanding the
opposite parties to reinstate the petitioner
and pay him salary and other emoluments
regularly with promptness, preferably
within a period of 15 days from the date of
production of certified copy of the order of
this Court.

19. It is made clear that the
departmental inquiry against the petitioner
may be conducted and concluded, if it is so
warranted but strictly in accordance with law.

20. In the result the writ petition
succeeds and accordingly Allowed.

21. No order as to costs.
----------
(2020)1ILR 1882

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.01.2020

BEFORE
THE HON'BLE ABDUL MOIN, J.

Service Single No. 36210 of 2019

Ravi Kant Tiwari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Kaushlendra Tewari

Counsel for the Respondents:
I.P. Singh, Gyendra Kumar Srivastava, Kshitij
Misra

A. Service - Usurpation of 'Public Office' -
Sanjay Gandhi Post-Graduate Institute of
Medical Sciences, First Regulation, 2011
- Maintainability of writ of quo-warranto
would depend on whether office in
question is a 'Public Office' and the
person is holding it without any legal
authority.

A 'Public Office' is the right, authority and duty
created and conferred by law, by which an
individual is vested with some portion of the