# Ayodhya Rai and others v. State of U.P. and others

- **Citation:** (2007) 1 ILRA 168
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-05-29
- **Case number:** Civil Misc. Writ Petition No.54684 of 2005
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ayodhya-rai-and-others-v-state-of-u-p-and-others-40814
- **Pages:** 11

## Headnote

Sri D.P. Singh
Sri N. Misra
C.S.C.

(A)
U.P.
Primary
Agriculture
Credit
Cooperative Societies Centralized Service
Regulations-1976-Regulation
59
(f)
suspension of secretary working with
Primary
Societies-order
passed
by
District
Magistrate
working
as
Administrator-whether the suspension
1 All] Smt. Savitri Devi and others V. Chandra Dhar Mishra
169
order by the officer other than District
Administrative Committee is bad in law?
Held-'No'.
Held: Para 22

In view of the law laid down by the Full
Bench in Ram Chandra Pandey (Supra),
it cannot be held that the District
Administrative
Committee
is
not
competent to suspend a member of
centralized
service
without
prior
approval of the Assistant Registrar. On
the contrary the law is that the District
Administrative
Committee
is
fully
competent to suspend a member of
centralized service under the provision of
Rule 59(f). All the judgments, which lay
down any law contrary have been over
ruled in Ram Chandra Pandey (Supra).
Therefore, the first submission of the
learned counsel for the petitioner is
rejected.

(B)
U.P.
Primary
Agriculture
Credit
Cooperative Societies Centralized Service
Rules
1976-Rule-13
read
with
U.P.
Primary Agriculture Credit Cooperative
Societies Centralized Service Regulation
1978-Regu.-59
(f)-Prior
approvalsuspension
of
secretary
of
Primary
Cooperative Societies-by the Assistant
Administrative Committee on by the
officer authorized-without prior approval
of the Asstt. Registrar-whether can be
ground to challenge the validity of it?
held-'No'.

Held: Para 16

A cumulative reading of Rule I3 of 1976
Rules and Regulations 59 (1) (f) of 1978,
Regulations, makes it clear that the
power of suspension is to be exercised
by District Committee itself or any officer
authorised for the purpose. There is no
requirement of seeking prior approval
from the Assistant Registrar.
Case law discussed:
1991 (2) UPLBEC 1306, 1991 (2) UPLBEC1166, 1982 UPLBEC-611, 1997 (3) UPLBEC1747, 2001 (3) UPLBEC-2057, 1997 (3) ESC1833, 2004 (3) UPLBEC-2934, 2003 (1)
UPLBEC-780

## Text

168 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
supervisory jurisdiction of the High Court
under Article 227 of the Constitution also,
it has been held in Surya Dev Rai (supra)
that the jurisdiction was not available to
be exercised for indulging into reappreciation or evaluation of evidence or
correcting
the
errors
in
drawing
inferences like a Court of appeal. The
High Court has itself recorded in its
judgment that ''considering the evidence
on the record carefully' it was inclined not
to sustain the judgment of the Appellate
Court. On its own showing, the High
Court has acted like an appellate Court
which was not permissible for it to do
under Article 226 or Article 227 of the
Constitution."

18. To the same effect is the
decision of this Court in Smt. Dharamati
and others V.Special Judge/Additional
District Judge, Ghaziabad and others1999(1) ARC-324, wherein it has been
held that findings on bonafide need
recorded by the Courts below cannot be
interfered
with
under
supervisory
jurisdiction of writ by High Court unless
found irrational or unreasonable.

19. There is yet another aspect of the
case. Even if it is assumed that the need of
the tenants is pressing, the fact cannot be
overlooked that the release application
was filed by the landlord way back in
1997. Almost a decade has passed by the
petitioners have made no effort to search
out alternate accommodation. Recently,
this Court in Salim Khan V. IVth Adl.
District Judge, Jhansi and others-
2006(1) ARC-588 relying upon the
decision of Hon'ble the Apex Court in
Bhutada V. G.R. Mundada- A.I.R. 2003
SC-2713 held that the fact that tenants did
not show what efforts they made to search
alternate accommodation after filing of
release application was sufficient to tilt
the balance of hardship against them.

20. The concurrent findings of facts
recorded by the Court below do not suffer
from any illegality or infirmity requiring
interference by this Court under Article
226 of the Constitution.

21. For the reasons stated above, the
writ petition fails and is dismissed. The
petitioners
shall
vacate
the
accommodation, in dispute, within two
months from today, failing which, they
shall be evicted from the accommodation,
in dispute, by coercive process, in
accordance with law with the aid of local
Police. No order as to costs.
Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.05.2006

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.54684 of 2005

Ayodhya Rai and others ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri M.P. Gupta

Counsel for the Respondents:
Sri D.P. Singh
Sri N. Misra
C.S.C.

(A)
U.P.
Primary
Agriculture
Credit
Cooperative Societies Centralized Service
Regulations-1976-Regulation
59
(f)
suspension of secretary working with
Primary
Societies-order
passed
by
District
Magistrate
working
as
Administrator-whether the suspension
1 All] Smt. Savitri Devi and others V. Chandra Dhar Mishra
169
order by the officer other than District
Administrative Committee is bad in law?
Held-'No'.
Held: Para 22

In view of the law laid down by the Full
Bench in Ram Chandra Pandey (Supra),
it cannot be held that the District
Administrative
Committee
is
not
competent to suspend a member of
centralized
service
without
prior
approval of the Assistant Registrar. On
the contrary the law is that the District
Administrative
Committee
is
fully
competent to suspend a member of
centralized service under the provision of
Rule 59(f). All the judgments, which lay
down any law contrary have been over
ruled in Ram Chandra Pandey (Supra).
Therefore, the first submission of the
learned counsel for the petitioner is
rejected.

(B)
U.P.
Primary
Agriculture
Credit
Cooperative Societies Centralized Service
Rules
1976-Rule-13
read
with
U.P.
Primary Agriculture Credit Cooperative
Societies Centralized Service Regulation
1978-Regu.-59
(f)-Prior
approvalsuspension
of
secretary
of
Primary
Cooperative Societies-by the Assistant
Administrative Committee on by the
officer authorized-without prior approval
of the Asstt. Registrar-whether can be
ground to challenge the validity of it?
held-'No'.

Held: Para 16

A cumulative reading of Rule I3 of 1976
Rules and Regulations 59 (1) (f) of 1978,
Regulations, makes it clear that the
power of suspension is to be exercised
by District Committee itself or any officer
authorised for the purpose. There is no
requirement of seeking prior approval
from the Assistant Registrar.
Case law discussed:
1991 (2) UPLBEC 1306, 1991 (2) UPLBEC1166, 1982 UPLBEC-611, 1997 (3) UPLBEC1747, 2001 (3) UPLBEC-2057, 1997 (3) ESC1833, 2004 (3) UPLBEC-2934, 2003 (1)
UPLBEC-780

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. The petitioners eight in numbers
have approached this Court by means of
the present writ petition under Article 226
of the Constitution of India, assailing the
orders dated 13.1.2005 and 23.2.2005
placing the petitioners under suspension
in a contemplated enquiry.

2. All the petitioners are working as
Secretaries in various Primary Agriculture
Credit
Cooperative
Societies.
Their
service conditions are governed by the
U.P.
Primary
Agriculture
Credit
Cooperative
Societies,
Centralized
Service Rules, 1976 (hereinafter referred
to as 1976 Rules) and U.P. Primary
Agriculture Credit Cooperative Societies
Centralized Service Regulations, 1978
(hereinafter
referred
to
as
1978
Regulations). The petitioners claim that
they were not paid salary since November
2002 causing serious financial crisis and
difficulty to them for managing their
affairs
and
family
liabilities.
They
approached the higher authorities time
and again, but the same was not attended
at all. Thereafter, the Union of Secretaries
of
Primary
Agriculture
Credit
Cooperative Societies resolved to proceed
on strike w.e.f. 7th January 2005 to press
their demand including' payment of salary
and ultimately they went on strike. All the
petitioners claimed to be the office
bearers of their Union and it is averred
that the higher authorities got annoyed
from the petitioners strike which they had
resorted to press their demand with
respect to payment of salary, and in
furtherance of annoyance, the respondent
170 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
No. 4 issued a circular dated 11.1.2005
notifying that since the elections of
Cooperative Societies are to be held on
16th and 17th of January 2005, therefore,
all the Secretaries, In-charge, Directors,
and
other
employees
of
various
Cooperative Societies are to ensure their
presence for smooth conduct of election
and ensure working of the office on 15t\
16th and 17th January 2005.

3. The Government declared strike
illegal under Section 3 (]) of Maintenance
of Essential Service Act, 1966. The
Assistant District Registrar Cooperative
Societies, Ghazipur, also issued notice
dated 11.1.2005 to the petitioners stating
that they have withdrawn salary directly
from Cash book in the month of October
and November 2004, although the salary
could have been received from the
Management's Expense Account after
sanction of salary bill by the Chairman,
but in an illegal manner it was withdrawn
from the funds of the Cooperative
Societies. Consequently, the petitioners
were directed to refund and deposit the
entire amount in bank within a period of
three days from the date of the receipt of
letter dated 11.1.2005 and to ensure
receipt
of
salary
only
from
the
management's Expense Account. It also
said that in case of non-deposit of the
amount, illegally withdrawn by the
petitioners, action in accordance with
Rules
shall
be
taken
against
the
petitioners

4. It is, further stated by the
petitioners that they had drawn salary
after preparing pay bills and after having
resolutions passed by the concerned
Committee of Management. There was no
irregularity on the part of the petitioners
in withdrawal of the aforesaid amount
towards their salary and hence there was
no occasion for the petitioners to refund
the aforesaid amount. The petitioners
submitted their reply vide representation
dated 25.1.2005 explaining the aforesaid
facts to the District Assistant Registrar,
Cooperative Societies, Ghazipur.

5. However, by means of the
impugned orders dated 13.1.2005 and
23.2.2005 all the petitioners have been
placed under suspension therefore, the
present writ petition has been filed.

6. A counter affidavit has been filed
on behalf of respondent Nos. 2 and 3
wherein it has been stated that prior to the
11th Amendment of 1976 Rules, published
on 4th June 2003, the Secretary of the
Primary Agriculture Credit Cooperative
Society was entitled to draw salary from
the
bank
but
under
the
aforesaid
amendment, it was provided that the
salary shall be paid by the Society where
such Secretary is posted. By 12th
Amendment of 1976 Rules, published on
30th June 2004, it has also been provided
that the post of Secretary of Primary
Agriculture Cooperative Credit Societies
is not transferable. In order to make
provision for payment of salary to the
Secretary each Primary Society has to
maintain a separate account under the
head of "Prabandh Evam Vikas Nidhi" in
each District Cooperative Bank and a
prescribed amount would be deposited by
the concerned Society in the aforesaid
account towards margin money for
managerial expenditure. The Secretary of
the said Society is liable to be paid his
salary from the aforesaid account only
and that too by depositing his salary
cheque in the concerned branch of the
District Cooperative Bank. Under no
circumstance a Secretary is entitled or
1 All] Ayodhya Rai and others V. State of U.P. and others
171
permitted to withdraw salary directly
from the funds of the society and to adjust
the same towards his wages. In the
present case, all the petitioners resorted to
this illegal and unauthorized procedure by
withdrawing their salary in cash directly
from the funds of the Society itself, which
was not permissible, and therefore, they
were required to deposit the aforesaid
amount. Since the petitioners defied and
disobeyed the orders of the superior
authority and also were guilty of wrongful
withdrawal and retention of Society
funds,
hence,
in
contemplation
of
disciplinary enquiry, the petitioners have
been placed under suspension by the
District Administrative Committee i.e.
District Magistrate, Ghazipur, who was
holding the office of the Administrator of
the Society and therefore, was entitled to
discharge functions of the committee of
the Management of the Society.

7. It is also stated that since the State
Government declared strike illegal, the
petitioners were bound to report for duty
and since they did not submit their
joining,
the
District
Administrative
Committee
resolved
on
19.2.2005
(Annexure No. CA-2), to place the
petitioners under suspension and pursuant
thereto, the suspension order has been
communicated to the petitioners by the
Secretary of the Committee. The order of
suspension was issued after approval of
the District Magistrate who is the
Administrator
of
the
Society
and
therefore, there is no error in the order
impugned in the writ petition.

8. The respondents have also stated
that under Regulations 59 (g) of 1978
Regulations,
the
petitioners
have
a
statutory remedy of appeal, which has not
been availed by them; therefore, this writ
petition is liable to be dismissed. It is, also
stated that in respect to the petitioners
Nos. 3 and 7, charge sheet has already
been issued and in respect to other
petitioners, it is in process.

9. No rejoinder affidavit has been
filed by the petitioners nor any request
was made for time to file rejoinder
affidavit. The learned counsel for the
petitioners urged that since the matter is
pending since long and the petitioners are
under suspension, the Hon'ble Court may
hear the matter finally at the time of
admission itself. The learned counsel for
the respondents has no objection to the
aforesaid request, and therefore, with the
consent of the parties, the writ petition is
finally heard and is being decided under
the Rules of the Court at the admission
stage.

10. The learned counsel for the
petitioners
advanced
the
following
submissions:-

(i) Under Rule 14 (V), the Member
Secretary
of
the
District
Administrative Committee has power
to place a Member of Centralized
Service under suspension with the
prior
concurrence
of
Assistant
Registrar. It is, submitted that the
impugned order of suspension having
been issued by the Member Secretary
of the District Committee but there is
no prior concurrence of Assistant
Registrar before issuance of the
impugned order of suspension, and
therefore, the same is illegal and
without jurisdiction.
(ii) The orders of suspension nowhere
mentions that the same has been
issued either in a contemplated
disciplinary enquiry or in a pending
172 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
enquiry, and therefore, the order of
suspension is vitiated in law. Unless
there
is a
disciplinary enquiry
contemplated
or
pending,
the
petitioners could not have been
suspended. Reliance has been placed
on the judgments of this Court in
Mewa Ram Bharti Vs. District
Administrative Committee and ors
1991 (2) UPLBEC 1306, and Abdul
Rauf Vs. District Administrative
Committee
and
ors
1991
(2)
UPLBEC 1166;
(iii) The orders of suspension have been
passed on 13.1.2005 and 23.1.2005
but except the petitioner Nos. 3 and
7, in respect to other petitioners, no
charge sheet has been issued and this
shows that the impugned orders of
suspension are arbitrary and penal in
nature;
(iv) The disciplinary enquiry is required
to be completed within a period of
six months under law but since even
charge sheet has not been issued,
there is no occasion to complete the
disciplinary
enquiry
within
six
months itself by respect to the
petitioner Nos. 3 and 7 also, the
disciplinary proceedings have not
been completed so far, therefore, the
continuance of suspension for such a
long time is illegal and arbitrary.

11. The learned counsel for the
respondents however refuted all these
contentions and submitted that suspension
of the petitioners needs no interference.

12. Heard learned counsel for the
parties and perused the record.
Rule 13 of 1976 Rules confers power
upon the District Committee to exercise
control and supervision over the members
of the district and to perform such other
duties and functions, as may be entrusted
by the Authority or Regional Committee.

13. In the present case, the power of
suspension has been exercised by the
District Magistrate in his capacity as
Administrator
of
the
Society
and
therefore, he was entitled to discharge all
functions which the Society or Committee
of Management could have performed,
and the Secretary has only communicated
the said decision to the petitioners. The
contention of the petitioners that the
Secretary has suspended them is therefore
incorrect and contrary to the record. This
is evident from the suspension order
itself. The relevant extract showing that
the
Member
Secretary
has
only
communicated the order of the District
Magistrate of placing the petitioners
under suspension is reproduced from one
of the suspension order as under: -

";r% ftyk lgk;d fucU/kd lg0l0m0iz0 xkthiqj
dh izFke n`"V;k fjiksVZ fnukad 12&1&2005 ds vk/kkj ij
Jh v;ks/;k jk; lfpo] lk0 lgdkjh lfefr gqlsuiqj
fo0[k0 lnj }kjk fnukad 6&1&2005 dh lfefr ds
fuokZpu gsrq ernkrk lwph u fn;s tkus ds dkj.k ukekadu
dk;Z lEiUu u gksus dk rF; izdk'k esa vk;k gS ftls m0iz0
lgdkjh lfefr fu;ekoyh 1968 ds fu;e la0 398 1⁄461⁄2
ds vUrxZr ernkrk lwph rS;kj djus esa foQy jgus dks
vijk/k ekurs gq;s ftykf/kdkjh@egksn; ds xkthiqj ds i=kad
1455@6&lg0@vf/k0@04&05 fnukad 12&1&2005 }kjk
Jh v;ks/;k jk; mDr dks lsok ls fuyfEcr djus dk funsZ'k
izkIr gSA"

14. Regulations, 1978 have been
framed by the State Cadre Authority
under Rule 7 of 1976, Rules with the prior
approval of the Registrar.

15. Regulations 59 (f) confers power
upon the District Committee or any other
Officer authorized for the purpose to
place a member of Centralized Service
other than one who is on deputation, to
1 All] Ayodhya Rai and others V. State of U.P. and others
173
place him under suspension, in certain
circumstances,
prescribed
thereunder:
Regulations 59 1(a) and (f) is produced as
under:-

59. Disciplinary proceedings:--

(1) (a). "The disciplinary proceedings
against a member shall be conducted by
the Inquiring Officer referred to in clause
(b) below with due observance of the
principles of natural justice for which it
shall be necessary that;
.............................................................

(f). A member other than one referred to
in clause (e) above may be placed under
suspension by the District Committee or
any other officer authorized for the
purpose in the following circumstances;
(i) then the said authority is satisfied that
a prima facie case exists, which is likely
to result in the removal, dismissal or
reduction in rank of the member.
(ii). when an Inquiry into his conduct is
immediately contemplated or is pending
and his further continuance on his post is
considered detrimental to the interest of
the society or the authority;
(iii). when a complaint against him of any
criminal
offence
is
under
police
investigation for which he has been
arrested or he is undergoing trial in a
court of law for an offence under the
Indian Penal Code, U.P. Co-operative
Societies Act, 1965 or any other Act or
charges have been proved against him by
a Criminal Court:
Provided that during suspension the
member shall be entitled to a subsistence
allowance equal to one third of his pay:
Provided further that a member who
is under suspension on the date of coming
into force of these regulations shall
continue to draw such proportion of his
pay and such allowance as he was
allowed to draw for the period of
suspension:
Provided also that no payment of the
subsistence allowance shall he made
unless the member has furnished a
certificate and the authority passing the
order of suspension is satisfied that the
member was not engaged in any other
employment,
business,
profession
or
vocation
and
had
not
earned
remuneration therefore during the period
of his suspension;
(iv). If the period of suspension extends
beyond six months for no fault of the
member
concerned,
the
subsistence
allowance shall be increased to half of his
pay.
(v) when a member is reinstated the
authority
competent
to
order
the
reinstatement shall make specific order
regarding pay and allowances to he paid
for the period of suspension and whether
or not the said period shall be treated as
a period spent on duty:
Provided that where the authority
passing the order of reinstatement is of
the opinion that the member has been
fully exonerated or the suspension was
wholly unjustified, the member shall be
given the full pay and allowance to which
he would have been entitled, had he not
been suspended."

16. A cumulative reading of Rule I3
of 1976 Rules and Regulations 59 (1) (f)
of 1978, Regulations, makes it clear that
the power of suspension is to be exercised
by District Committee itself or any officer
authorised for the purpose. There is no
requirement of seeking prior approval
from the Assistant Registrar.

17. The learned counsel for the
petitioners has placed reliance in support
174 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
of his submission that the District
Administrative Committee could not have
exercised
the
power
of
suspension
without prior concurrence of the Assistant
Registrar
upon
a
Division
Bench
judgment of this Court in the case of
Giriwar Prasad Tripathi Vs. District
Assistant
Registrar
Cooperative
Societies and ors, 1982 UPLBEC 611.
Rule 13 (3) of 1997 Rules empowers a
Chairman to suspend a member of
centralized service with prior concurrence
of Assistant Registrar. Rule 14 empowers
the Member Secretary of the District
Administrative Committee to suspend a
member of centralized service. However,
Regulation 59 of 1978 Regulations
empowers the District Administrative
Committee or any other officer authorized
for the purpose to suspend a member in
certain circumstance. Exfacie all the
provisions travel on different fields. In
Giriwar Prasad Tripathi (supra), this
Court noticed the aforesaid position as
apparent from the following observations
in para 3 of the judgment:

"Such different intention will be
clearly
inferred
from
the
specific
provision.,· contained in Rules 13 and 14
where he power of suspension in one case
has been given to the Chairman to be
exercised with the prior concurrence of
the Assistant Registrar and in the other
case, the Member Secretary will also
exercise the power subject to the same
condition of concurrence of the Assistant
Registrar. All these provision; indicate a
different intention and therefore, it cannot
be said that the appointing authority
could still exercise the powers of
suspension even in the face of specific
provisions in different terms in the same
rules,
namely,
rules
13
and
14."
(emphasis added).

18. Again this Court noticed
difference
In
power
of
District
Administrative
Committee
under
Regulation 59 (f) in para 4 of the
judgment:-

"Moreover,
the
power
under
regulation 59 (f) is to be exercised by the
District
Committee
only
in
certain
circumstances, one of them being where
the authority is satisfied that a prima
facie case exists which is likely to result in
the removal, dismissal or reduction in
rank of member, and secondly, whether
an
enquiry
into
the
conduct
is
immediately contemplated or is pending."

19. Case of Giriwar Prasad
Tripathi (supra) was decided on the
basis of the language of suspension order
showing
that
the
circumstances
contemplated under Regulation 59(f) were
not satisfied and therefore, the suspension
order could not have been justified under
Regulation 59 (f).

20. However, the matter does not
rest here. It appears that the aforesaid
provisions were interpreted by this Court
in different manner in various cases
resulting
In
conflicting
decisions.
Noticing this situation the matter was
referred by a Division Bench in Ram
Chandra
Pandey
Vs.
District
Administrative Committee and others-
(I997) 3 UPLBEC 1747, to consider the
entire issue by a larger bench in order to
resolve the issue of power of suspension
and the procedure of suspension under the
aforesaid provisions. Consequently, the
Full Bench considered the following
questions in Ram Chandra Pandey
(Supra).
1 All] Ayodhya Rai and others V. State of U.P. and others
175
(i) "whether prior concurrence of the
Assistant Registrar is a condition
precedent for suspending a member
of the centralized service even if the
order of suspension has been passed
by a Member Secretary of the
District Committee, who himself is
the Assistant Registrar?

(ii) whether the District Committee can
suspend a member of the centralized
service?

(iii) whether
Member
Secretary
of
District
Committee,
while
suspending
a
member
of
the
centralized service, can appoint an
inquiry officer to hold inquiry into
the conduct the Member and to
.submit his report?

(iv) Whether the impugned orders of
suspension are illegal and without
jurisdiction? "

21. After analyzing the relevant
provisions and relevant case laws, the Full
Bench answered the aforesaid questions
in para 16 of the judgment in Ram
Chandra Pandey (Supra), which is
reproduced as under-

"Our
answer
to
the
questions
referred to the before are as under
(i) "The Member Secretary can suspend
a member of the centralized service
under Regulation 59 (1)(f)(i) in the
absence of a decision of he District
Committee.
Similarly,
he
can
suspend a member under Regulation
59 (1)(f)(iii) without any decision of
the
District
Committee.
But
a
member of the service cannot be
suspended by the Member Secretary
under Regulation 59 (1)(f)(ii) in the
absence of a decision by the District
Committee
contemplating
or
initiating disciplinary inquiry. The
decisions of this Court taking the
view contrary to what is contained in
this judgment stand over-ruled.

(ii) When the District Assistant Registrar
is himself a Member Secretary of the
District Committee, he can suspend a
member of the centralized service
without any concurrence of Assistant
Registrar. In such a case the
provisions
requiring
the
prior
concurrence
of
the
Assistant
Registrar stand dispensed with.

(iii) The District Committee is fully
competent to suspend a member of
the centralized service.

(iv) The
Member
Secretary
cannot
appoint an inquiry officer to conduct
the disciplinary proceedings in the
absence of decision of the District
Committee
initiating
or
contemplating
the
disciplinary
proceedings.

(v) The impugned orders of suspension
are illegal and cannot he sustained "

22. In view of the law laid down by
the Full Bench in Ram Chandra Pandey
(Supra), it cannot be held that the District
Administrative
Committee
is
not
competent to suspend a member of
centralized service without prior approval
of the Assistant Registrar. On the contrary
the law is that the District Administrative
Committee is fully competent to suspend
a member of centralized service under the
provision
of
Rule
59(f).
All
the
judgments, which lay down any law
176 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
contrary have been over ruled in Ram
Chandra Pandey (Supra). Therefore, the
first submission of the learned counsel for
the petitioner is rejected.

23. The next contention of learned
counsel for the petitioner is that the
impugned suspension is vitiated in law
since it does not mention either the
factum of contemplation of disciplinary
proceeding or its pendency. In support of
the above submission, reliance has also
been placed on a Division Bench
judgment in Mira Tiwari Vs The Chief
Medical Officer & others- 2001 (3)
UPLBEC
2057.
After
careful
consideration of the aforesaid submission,
I do not find any force in the said
contention.

A perusal of suspension orders show
that the Assistant District Cooperative
Officer, Ghazipur, has been appointed as
Enquiry Officer and he has been directed
to complete enquiry and submit his report
within thirty days. Therefore, a reading of
the entire order makes it clear that the
suspension of the petitioners has been
resorted
to
in
contemplation
of
a
departmental
enquiry.
There
is
no
requirement of law that in a particular
manner the competent authority should
mention in the order of suspension that an
employee is being suspended in a
contemplated enquiry or pending enquiry.
If the reading of the entire order discloses
that
a
disciplinary
enquiry
is
contemplated or pending that would be a
sufficient-compliance of law and there is
no charm in having the order of
suspension worded in a particular manner.
It cannot be argued if the suspension
order does not mention specifically in so
may words that the employee is being
placed under suspension in contemplation
of disciplinary enquiry or pendency
thereof, it would be bad. The Court does
not subscribe to idea that unless the order
of suspension clearly mention about
contemplation or pendency of inquiry, the
same would be vitiated in law. In my
opinion if it is possible to infer from the
perusal of the entire order of suspension
that the same has been passed either in
contemplation of the inquiry or its
pendency it would not be vitiated. It is
only in a case where by no means the
order of suspension discloses as to
whether
it
has
been
passed
in
contemplation of inquiry or pendency
thereof, only in such limited cases, it may
be argued that the suspension order is bad.
The Division Bench in Meera Tiwari
(Supra)
found
that
the
order
of
suspension
does
not
refer
to
any
contemplated inquiry or pendency of
inquiry. In this view of the matter it is
held that the suspension order is vitiated
in law. However, in the case in hand, the
recital
in the
order of suspension
directing. the Inquiry officer to complete
disciplinary proceeding show that it has
been
issued
in
contemplation
of
disciplinary proceeding. In this view of
the matter I am clearly of the view that
the impugned order suspension is not
assailable on the aforesaid ground. The
judgments of this Court in Mewa Ram
Bharti (Supra) and Abdul Rauf (Supra)
also lend no support to the petitioner
having of no assistance on the aforesaid
question. The controversy involved and
the issues decided in the those cases are
different. On the other hand, in Hari
Nath Sharma Vs. State of U.P. &
others-1997 (3) ESC 1833, this Court
while considering a similar question
observed:-
1 All] Ayodhya Rai and others V. State of U.P. and others
177

"The close look to the order
does not specify that even impliedly it is
indicated that the inquiry is contemplated
The order of suspension can only be
issued when an inquiry is contemplated
and it is to be so indicated in the order
itself either expressly or by necessary
implication."

Therefore, the second submission in
view of the aforesaid discussion has no
force and rejected.

The third and fourth issues can be
dealt with together. The questions deal
with the prolonged agony and mental
torture of an employee under suspension
where inquiry either has not commened or
proceeding with snail pace. This is a
different angle of the matter, which is
equally important and needs careful
consideration.
A
suspension
during
contemplation of departmental inquiry or
pendency thereof by itself is not a
punishment but is resorted to by the
competent authority to enquire into the
allegations levelled against the employee
giving him an opportunity of participation
to find out whether the allegations are
correct or not. In case, allegations are not
found correct, the employee is reinstated
without any loss towards salary, etc., and
in case the charges are proved, the
disciplinary authority passes such order as
provided under law. However, keeping an
employee
under
suspension,
either
without holding any enquiry, or by
prolonging the enquiry is unreasonable
and is neither just nor in larger public
interest. A prolonged suspension by itself
is penal. Similarly an order of suspension
at the initial stage may be valid fulfilling
all the requirements of law but may
become penal or unlawful with the
passage of time, if the disciplinary inquiry
is unreasonably prolonged or no inquiry is
initiated at all without there being any
fault or obstruction on the part of the
delinquent employee. No person can be
kept under suspension for indefinite
period since during the period of
suspension he is not paid full salary. He is
also denied the enjoyment of status and
therefore admittedly it has some adverse
adverse effect in respect of his status, life
style and reputation in Society. A person
under suspension is looked with suspicion
in the
Society by the persons with whom he
meets in his normal discharge of function.

A Division Bench of this Court in
Gajendra Singh Vs. High Court of
Judicature at Allahabad- 2004 (3)
UPLBEC 2934 also observed as under..

"We need not forget that when a
Government officer is placed under
suspension, he is looked with suspicious
eyes not only by his collogues and friends
but by public at large too."

Disapproving
unreasonable
prolonged
suspension, the Apex Court has also
observed in Public Service Tribunal Bar
Association Vs. State of U.P. & others-
2003 (1) UPLBEC 780 (S.C.) as under

"if
a
suspension
continues
for
indefinite
period
or
the
order
of
suspension passed is malafide, then it
would be open to the employee to
challenge the same by approaching the
High Court under Article 226 of the
Constitution... ... ... ... (Para 26).

The statutory power conferred upon
the disciplinary authority to keep an
employee
under
suspension
during
contemplation or pending disciplinary
178 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
enquiry cannot thus be interpreted in a
manner so as to confer an arbitrary,
unguided and absolute power to keep an
employee
under
suspension
without
enquiry for unlimited period or by
prolonging
enquiry
unreason8bly,
particularly
when
the
delinquent
employee is not responsible for such
delay. Therefore, I am clearly of the
opinion that a suspension, if prolonged
unreasonably without holding any enquiry
or by prolonging the enquiry itself, is
penal in nature and cannot be sustained.

In the case, in hand, counter affidavit
has been filed by the respondents on 25-92005 wherein it is admitted that charge
sheet has been issued only in respect to
the petitioner Nos. 3 and 7 on 17.5.2005
and 5.9.2005 respectively, but in respect
to all other petitioners even the charge
sheet has not been issued till the date of
swearing
of
the
counter
affidavit,
although all the petitioners were already
under suspension for the last 6-7 months
till that time. The learned counsel for the
petitioners has stated that there is no
further progress in the matter, and it could
not be controverted by the counsel for the
respondents. In these circumstances, since
more than a year has already elapsed, it
cannot be said that continuance of
petitioners under suspension is reasonable
and valid. Even the allegations contained
in the order of suspension prima facie: do
not construe such serious misconduct
which if proved may attract a major
penalty. However, without expressing any
final opinion on this aspect, I am of the
considered opinion that the impugned
order of suspension cannot be allowed to
continue indefinitely, and therefore is
liable to be set aside. In the result the writ
petition is allowed. The impugned orders
of
suspension
dated
13.1.2005 and
23.2.2005 are quashed. The petitioner is
entitled for reinstatement in service.
However, the question of arrears of salary
for the period of suspension shall be
decided by the competent authority after
conclusion of inquiry and in accordance
with relevant rules.

It is, however, provided that the
respondents are at liberty to continue with
the disciplinary proceedings, if any,
against the petitioners and this order will
not come in their way to conclude
disciplinary proceedings and to pass such
final orders as permissible in law. It is
also made clear that any observation made
hereinabove shall not be treated to be an
expression of opinion on the merit of the
charges or in respect to the disciplinary
proceedings, if any, pending against the
petitioners.

No order as to costs.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.05.2006

BEFORE
THE HON'BLE S.RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 25849 of 2006

Sarvesh Kumar Singh

...Petitioner
Versus
The State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri D.K. Singh

Counsel for the Respondents:
C.S.C.

Constitution of India, Art. 226-Service
Law-Ad-hoc appointment-as Lecturer in