# Chandra Boss v. State of U.P. and Ors 224 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2014) 1 ILRA 223
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-12-17
- **Case number:** Civil Misc. Writ Petition No. 66759 of 2013
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-boss-v-state-of-u-p-and-ors-224-indian-law-reports-allahabad-series-42907
- **Pages:** 7

## Headnote

Rules, 1999-Rule 4(i)- Suspension-without
application of own independent mind-at
behest of minister-mandatory requirement
under Rule 4(i)-completely goby authority
totally surrender its statutory function-at
command of minister-not entitled to remain
on said posts-which requiring independent
decision-order quashed-with cost of Rs.
25000/-.

Held: Para-15
In the present case, respondent no.1 has
admitted this fact that he did not apply his
mind to any one or the other aspect and
simply towed the line as drawn by Minister
concerned i.e. he surrendered to the
command of Minister and simply complied
the same without any application of mind
on his part. The mandatory requirement of
Rule 4 of Rules, 1999 has completely been
given a go bye by respondent no.1, before
passing impugned order of suspension. In
the present case, Minister obviously was
not competent to place petitioner under
suspension. His direction could have been
taken into consideration but the law
nowhere give it status of a statutory
command with which respondent no.1 was
under an obligation to follow. On the
contrary respondent no.1 himself was
under an obligation to apply his own mind
looking
into
the
entire
facts
and
circumstances,
to
find
out
whether
requisites of statute justify an order of
suspension. Unfortunately, that has not
been done, as admitted by respondent no.1
himself that he has not looked into all these
aspects while passing impugned order of
suspension.

Case Law discussed:
2006(3) ESC 1755; 2004(3) UPLBEC 2934;
2003(1) UPLBEC 780(S.C.).

## Text

1 All] Chandra Boss Vs. State of U.P. and Ors.
223
petitioner's claim for fire arm licence and
have rejected his application in a most
arbitrary
manner.
The
two
orders,
therefore, cannot sustain."

3. The court held that a licence can be
granted for right to life and liberty which
includes within its ambit right of security and
safety of a person being a fundamental right.
The petitioner was entitled to get a fire arms
for the purpose of personal safety and
security. The court also held that the orders
passed by the District Magistrate was based
on surmises and conjectures.

4. Inspite of this direction, the
District Magistrate again rejected the
application vide an order dated 6.1.2012
holding that the petitioner does not have
any threat to his life. The petitioner being
aggrieved, filed an appeal which was
allowed and the matter was remanded.
The District Magistrate again by the
impugned order dated 29.8.2013 has
passed an order mechanically on the same
ground namely that there is no threat of
the life. The petitioner being aggrieved
has now filed the present writ petition.

5. This court entertained the writ
petition and did not relegate the petitioner to
file an appeal as the court was of the opinion
that the petitioner was unnecessarily being
harassed and was being made to run from
one authority to the other. The court finds
that the observations made by the writ court
in its judgment dated 11.10.2011 has not
been adhered to by the District Magistrate.
The District Magistrate was bound by such
observations and could not ignore such
observations. By ignoring such observations
the District Magistrate became guilty of
contempt of the court.

6. In the instant case, the District
Magistrate has mechanically, without any
application of mind and without considering
the observations of the writ court has again
passed an order rejecting the petitioner's
application for grant of an arms licence
solely on the ground that there was no
perception of threat to the life of the
petitioner. Such reasoning adopted by the
respondent is patently erroneous and against
the provisions of Section 14 of the Arms Act.
Even otherwise, the court finds that sufficient
reasons have come on record to indicate the
fear of the petitioner of his life where his real
brother was murdered by some assailants,
and that, by itself, is a sufficient ground. It is
not necessary that the petitioner should
intimate the District Magistrate the name of
the persons against whom he has a threat. It
is sufficient for the petitioner to indicate the
reasons.

7. In the light of the aforesaid, the
impugned order is quashed. Writ petition
is allowed on payment of cost of Rs.
20,000/- which the District Magistrate
will pay to the petitioner within two
weeks from the date of production of a
certified copy of the order. The matter is
remitted to the District Magistrate to redecide the petitioner's application in the
light of the observations made in the
judgment dated 11.10.2012 and the
observations made in this judgment
within four weeks.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 66759 of 2013

Chandra Boss... Petitioner
Versus
State of U.P. and Ors.... Respondents
224 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri Yogendra Sahai Saxena

Counsel for the Respondents:
C.S.C.

U.P. Govt. Servant(Discipline and Appeal)
Rules, 1999-Rule 4(i)- Suspension-without
application of own independent mind-at
behest of minister-mandatory requirement
under Rule 4(i)-completely goby authority
totally surrender its statutory function-at
command of minister-not entitled to remain
on said posts-which requiring independent
decision-order quashed-with cost of Rs.
25000/-.

Held: Para-15
In the present case, respondent no.1 has
admitted this fact that he did not apply his
mind to any one or the other aspect and
simply towed the line as drawn by Minister
concerned i.e. he surrendered to the
command of Minister and simply complied
the same without any application of mind
on his part. The mandatory requirement of
Rule 4 of Rules, 1999 has completely been
given a go bye by respondent no.1, before
passing impugned order of suspension. In
the present case, Minister obviously was
not competent to place petitioner under
suspension. His direction could have been
taken into consideration but the law
nowhere give it status of a statutory
command with which respondent no.1 was
under an obligation to follow. On the
contrary respondent no.1 himself was
under an obligation to apply his own mind
looking
into
the
entire
facts
and
circumstances,
to
find
out
whether
requisites of statute justify an order of
suspension. Unfortunately, that has not
been done, as admitted by respondent no.1
himself that he has not looked into all these
aspects while passing impugned order of
suspension.

Case Law discussed:
2006(3) ESC 1755; 2004(3) UPLBEC 2934;
2003(1) UPLBEC 780(S.C.).

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

1. With the consent of learned
counsel for the parties, I have proceeded
to decide the writ petition finally under
the Rules of the Court on the basis of
record available with this Court i.e. writ
petition and affidavit of respondent no.1.

2. This writ petition is directed
against
order
of
suspension
dated
27.8.2013 passed by Director General,
Vikas Dal Evam Yuva Kalyan, U.P. at
Lucknow, respondent no.1.

3. Sri Y.S.Saxena, learned counsel for
the petitioner contended that the impugned
order has been passed without any
application of mind in a most arbitrary and
illegal manner, inasmuch as, the immediate
superior officers of petitioner did not relieve
him to participate in the meeting convened
by respondent at Lucknow on the ground
that there was an official function at
Badaun, which was to be presided by Chief
Minister
himself
and
petitioner
was
assigned
duty
in
the
said
official
programme at Badaun and this fact was also
reported by immediate superior officers to
the respondent no.1 yet respondent no.1 has
taken absence of petitioner at Lucknow to
be a deliberate, intentional defiance and act
of indiscipline, as a result whereof,
impugned order of suspension has been
passed though petitioner was not at all
responsible for such absence as he was
already assigned official duty at Badaun by
superior officer, who did not relieve him
and, therefore, impugned order is patently
illegal, showing non application of mind on
the part of respondent no.1.

4. Looking to the record, which,
prima facie, substantiated the contention
advanced on behalf of petitioner, this
Court required respondent no.1 vide order
dated 6.12.2013 to file an affidavit of his
1 All] Chandra Boss Vs. State of U.P. and Ors.
225
own to show as to how he found
petitioner guilty of any act or omission
constituting misconduct when petitioner
was not relieved by superior officer.

5. Pursuant to the said order of this
Court dated 6.12.2013 Sri Ram Singh,
holding the office of Director General,
Vikas Dal Evam Yuva Kalyan, U.P.
Lucknow has filed affidavit sworn on
17.12.2013. In para 6 thereof, he has
categorically
stated
that
order
of
suspension was passed by him at the
dictates of concerned Minister, who took
petitioner's absence as a serious act of
misconduct showing dereliction of duty,
indiscipline, defiance and disobedience of
orders
of
higher
authorities
and
negligence and lack of devotion in
discharge
of
official
duties.
Since
Minister
concerned
has
directed
respondent no.1 to suspend petitioner,
therefore, he (petitioner) was placed under
suspension. In para 8, respondent no.1 has
again categorically said that he has simply
complied with orders of Hon'ble Minister.
Since power of suspension is vested in
him, and, therefore, he has passed the
order but it is nothing but mere
compliance orders of Hon'ble Minister,
who presided the meeting held on
26.8.2013 at Lucknow. He has further
stated that reason for absence of petitioner
was not available in the office of
respondent no.1 till the date of meeting
when
substitute
of
petitioner,
who
attended the meeting, informed him. He
has placed on record, Chief Development
Officer, Badaun's letter dated 24.8.2013
giving information that it is not possible
to relieve petitioner so as to attend
meeting on 26.8.2013 at Lucknow since
petitioner has been assigned duty in
Laptop distribution programme to be
conducted from 20.8.2013 to 27.8.2013
and this letter was received in the office
of Director on 3.9.2013.

6. Sri Ram Singh, the officer
concerned, when enquired that he being
the competent authority to place petitioner
under
suspension,
when
received
information about reason of petitioner for
his absence to participate in the meeting
at Lucknow disclosed by his substitute,
who came to attend the meeting at
Lucknow then what was the occasion to
hold
petitioner
guilty
of
deliberate
defiance in not attending the meeting
when he was not relieved by his superior
officer, he said that since a direction was
issued by the Minister, he was not in a
position to take any other view except of
mere compliance of the said direction and
that is how order of suspension was
passed by him and this fact he has stated
in his affidavit also.

7. Interestingly, stand taken by
respondent no.1 shows two things very
clear:

a. The impugned order of suspension
has been passed by competent appointing
authority
but
without
independent
application of mind on his part but it is
simply at the dictates of concerned
Minister and without looking into the fact
whether suspension of petitioner was
justified in the facts and circumstances of
the case or not.

b. It is also evident that reason of
petitioner's absence and his incapability of
attending meeting at Lucknow became
known to respondent no.1 on 26.8.2013
when meeting took place at Lucknow
since petitioner's substitute, who attended
the
meeting,
disclosed
reason
for
petitioner's
absence
yet
Minister
226 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned took an arrogant stand and
respondent showing meek surrender,
forgot
statutory
requirement
of
application of his own mind before
passing
the
impugned
order
of
suspension, and acting on the dictates,
issued the impugned order of suspension.

8. Apparently, in the above facts, it
cannot be doubted that impugned order of
suspension
cannot
sustain.
Learned
Standing Counsel also find it very
difficult to sustain the same by submitting
any substantial argument particularly in
view of requirement of statute which
provides the conditions which are to be
considered before an order of suspension
is passed by a competent authority.

9. Rule 4(1) of U.P. Government
Servant (Discipline and Appeal) Rules,
1999 (hereinafter referred to as "Rules,
1999"),
which
confers
power
of
suspension upon authority, relevant in this
case, reads as under:

"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."

10. An order of suspension is not to
be passed in a routine manner as a regular
course of business and without any
application of mind.

11. Though an order of suspension
in a contemplated or pending enquiry per
se is not a punishment but it cannot be
disputed that it visits certain civil
consequences
upon
concerned
Government servant. During the period of
suspension, he is not paid full salary and
allowances. It also cannot be doubted that
it attaches civil stigma upon him vis a vis
a society in which he lives and persons
with whom he interacts. This Court has
considered this aspect in Ayodhya Rai
and others Vs. State of U.P. and others
2006(3) ESC 1755 wherein the Court
held:

"The
questions
deal
with
the
prolonged agony and mental torture of an
employee under suspension where inquiry
either has not commended or proceed
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
1 All] Chandra Boss Vs. State of U.P. and Ors.
227
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 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."

12. 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."

13. 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 mala fide, 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).

14. The rule framing authority is
also aware of all these facts and that is
why it has not given an unbridled power
of suspension to the Appointing Authority
but in the rules, which have now been
framed afresh in 1999, it has been
specifically provided that appointing
authority shall apply its mind to the fact
that
act
or
omission
constituting
misconduct,
in
respect
whereto
a
departmental enquiry should be held, is of
such grave nature that in case charge(s)
is/are
proved,
major
penalty
upon
concerned Government servant can be
imposed. Therefore, it is not every act or
omission constituting misconduct, which
would justify suspension but when
charge(s) are so serious so as to result, if
prove, in major penalty only then he can
be placed under suspension and not
otherwise.

15. In the present case, respondent
no.1 has admitted this fact that he did not
apply his mind to any one or the other
aspect and simply towed the line as drawn
by Minister concerned i.e. he surrendered
to the command of Minister and simply
complied
the
same
without
any
application of mind on his part. The
mandatory requirement of Rule 4 of
Rules, 1999 has completely been given a
go bye by respondent no.1, before passing
228 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned order of suspension. In the
present case, Minister obviously was not
competent
to
place
petitioner
under
suspension. His direction could have been
taken into consideration but the law
nowhere give it status of a statutory
command with which respondent no.1 was
under an obligation to follow. On the
contrary respondent no.1 himself was under
an obligation to apply his own mind looking
into the entire facts and circumstances, to
find out whether requisites of statute justify
an order of suspension. Unfortunately, that
has not been done, as admitted by
respondent no.1 himself that he has not
looked into all these aspects while passing
impugned order of suspension.

16.

Then
comes
the
very
circumstances in which it is alleged that
petitioner has defied orders of Director to
attend meeting at Lucknow. Admittedly,
District
Magistrate
and
Chief
Development Officer at Badaun have
assigned certain official duties which
were to be performed by petitioner during
the period of 20th August, 2013 to 27th
August, 2013. The said duties related to
official programme of distribution of
Laptops and the same programme was to
be presided by Chief Minister also.
Taking this responsibility upon himself,
Chief Development Officer wrote a letter
to Director stating that petitioner has not
been relieved by him. This reason of
petitioner's absence in the meeting held on
26.8.2013 at Lucknow also came to the
notice of respondent no.1, as told by
petitioner's substitute, who attended the
said meeting at Lucknow. This fact is also
admitted by respondent no.1 in his
affidavit in para 7 where he has said that
till petitioner's substitute gave reason for
his
absence
in
the
meeting,
no
information was available in his office.

17. If information earlier was not
available, admittedly, it came to his notice
on 26.8.2013 itself when petitioner's
substitute informed him in the course of
meeting. If that be so, it was incumbent
upon respondent no.1, if he has any doubt,
to get it verified from District Level
Officers at Badaun but respondent no.1
did not find it necessary for the reason
that compliance of Minister's direction, he
sought, was his foremost duty, instead of
observing rule of law. It is really
unfortunate that a senior bureaucrat, part
of
executive
wing
in
the
State
Government, instead of taking rule of law
as his primary responsibility, thought
otherwise and proceeded to worship
political boss's command instead of
statutory obligation, provided in law. The
constitutional scheme read with statutory
rules contemplate a serious onerous duty
upon respondent no.1 while passing
orders which have civil consequences.
Law
require
that
authority,
when
exercising statutory power, shall observe
requirement of law stringently, strictly
and in the letter of words and spirit, but
respondent no.1, instead, prefer to follow
the command of political executive, who
himself has no role to play in the case in
hand. The respondent no.1 forget his own
statutory duty and thought it proper to
follow political executive's command
blindly, unintelligently, mechanically and
by surrendering to his own independent
statutory obligation.

18. I find it appropriate to notice at
this stage that statement of Ram Singh,
Director, present in the Court pursuant to
this Court's order dated 6.12.2013 that in
the meeting held on 26.8.2013, Gopal
Ram, Vyayam Prashikshak, who attended
the meeting in place of petitioner, was not
fully prepared with the facts and figures
1 All] Sheo Murat Yadav & Anr. Vs. Debts Recovery Appellate Tribunal & Ors.
229
so
as
to
give
correct
information
regarding progress in District Badaun and
thereupon
Minister
concerned
felt
annoyed
and
decided
that
officer
concerned i.e. petitioner, who has sent
Gopal Ram, without proper briefing must
be placed under suspension and it is in
furtherance thereof and complying the
said decision of Minister concerned,
impugned order of suspension was passed
by him (Sri Ram Singh, Director). This
statement fortify what I have already
discussed above.

19. When enquired Sri Ram Singh,
respondent no.1 said that he has nothing
further to say in the matter since what
actually has been done by him he has said
in his affidavit.

20. In my view, the way and the
manner in which Sri Ram Singh, Director
has functioned in discharge of his
statutory duties, has shown very candidly
that at least he is not a person fit to hold
such responsible office since he is
amenable to surrender his statutory
functions to the command of third parties,
who have no role in law and also unaware
of his own duties and responsibilities as
also the manner in which he is supposed
to proceed. Such a person therefore,
should not be assigned such important
office and deserve to be posted in an
office where such independent exercise of
power is not required to be performed by
him. The State Government, therefore,
shall look into the matter forthwith and
take appropriate action without any
further delay and in any case within 15
days from the date of communication of
this judgment.

21. Subject to the above directions
and also in the context of discussion made
above,
it
cannot
be
doubted
that
impugned order of suspension deserve to
be quashed.

22. The writ petition is accordingly
allowed.
The
impugned
order
of
suspension dated 27.8.2013 (Annexure 4
to the writ petition) is hereby set aside.
The petitioner shall be entitled to all
consequential benefits and also a cost,
which I quantify to Rs.25,000/-. At the
first instance the cost shall be paid to the
petitioner by State of U.P. but it shall
have liberty to recover the same from the
concerned
appointing
authority
who
forgot its statutory duty while passing the
order impugned in the writ petition, which
has been set aside hereat after making
such inquiry, as permissible in law.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2013

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 67335 Of
2013

Sheo Murat Yadav & Anr.... Petitioners
Versus
Debts Recovery Appellate Tribunal & Ors.....
 ...Respondents

Counsel for the Petitioners:
Sri Sanjay Kumar Gupta, Sri Anirudh
Pandey

Counsel for the Respondents:
Sri K.M. Asthana, Sri Satish Chaturvedi

Recovery of Debts due to Banks and
Financial Institutions Act 1993-Section
22(g)-
Recall
application
petition
dismissed in absence of counsel-condition
to deposit of 30% of amount-wholly
arbitrary,
held-onerous-unsustainablequashed.