# Dr. Subash Chand v. State of U.P. and others

- **Citation:** (2006) 1 ILRA 167
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-09-08
- **Case number:** Civil Misc. Writ Petition No. 32717 of 2003
- **Bench:** V.M. Sahai, Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-subash-chand-v-state-of-u-p-and-others-40821
- **Pages:** 36

## Headnote

Rules
1999-rule
4,6,
7-Suspension
Order-prolong
suspension
without
serving charge sheet. No allegation like
fabrication
of
false
record
or
embezzlement-which
require
investigation-nor
pendency
of
any
Criminal trail-despite of court's direction
No charge sheet served-for long period
of 2 years-held-authorities can not be
allowed sit idle without any disciplinary
inquiry it can be termed as arbitrary,
malafide-suspension order vitiates from
its very inception quashed.

Held: Para 54 & 55

It is also not the case in the counter
affidavit that the allegations are of such
a nature, like fabrication of false records
or
embezzlement
of
money,
which
requires investigation or scrutiny of
record
which
may
take
some
considerable time in ascertaining the
facts for framing the charges. It is also
not
the
case
of
respondents
that
suspension has been resorted to during
investigation, inquiry or pendency of
168 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
criminal trial, or in any other situation
envisaged by other sub-rules of Rule 4 of
1999 Rules. Contrary to it impugned
order
recites
suspension
under
contemplation of departmental inquiry
as envisaged by Rule 4 (1) of Rules

## Text

_Characters 0–39,849 of 121,477. This is a partial read: ask again with offset=39849 for what follows._

1 All] Dr. Subash Chand V. State of U.P. and others
167
the learned counsel for the petitioner have
force in it.

11. In support of his argument,
learned counsel for the petitioner has
relied upon a decision of this Court in the
case of Dayal Singh vs. State of U.P.,
reported in 1981 ALJ 808 in which this
Court has held that where the transfer is
made by irrevocable instruments such as
sale deeds, the benefit of proviso (b) to
sub-section (6) of section 5 of the Act can
be given.

12. Learned counsel for the
petitioner has argued that the impugned
order
is
discriminatory
against
the
petitioner and is violative of Article 14 of
the Constitution of India, on account of
the fact that benefit of exclusion of land
from the purview of land ceiling by virtue
of sale deed dated 16.2.1972 will be given
to one grand son of the daughter while the
another grand son from the daughter i.e.
the petitioner was deprived of the benefit
of proviso (b) to sub-section (6) of section
5 of the Act.

13. Taking into consideration the
entire facts and circumstances, I am of the
opinion that the submissions made by the
learned counsel for the petitioner have
substance and are liable to be accepted
and the impugned order of the appellate
authority suffers from manifest error law
which is liable to be set aside.

14. The writ petition is allowed. The
impugned order dated 03.08.1989 passed
by the appellate authority i.e. Additional
Commissioner
(Nyayik),
Jhansi
is
quashed. There will be no order as to
costs.

Petition Allowed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.09.2005

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 32717 of 2003

Dr. Subash Chand

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri A.K. Singh
Sri R.N. Singh
Sri V.K.S. Chandel

Counsel for the Respondents:
C.S.C.

U.P. Govt. Servant (Discipline & Appeal)
Rules
1999-rule
4,6,
7-Suspension
Order-prolong
suspension
without
serving charge sheet. No allegation like
fabrication
of
false
record
or
embezzlement-which
require
investigation-nor
pendency
of
any
Criminal trail-despite of court's direction
No charge sheet served-for long period
of 2 years-held-authorities can not be
allowed sit idle without any disciplinary
inquiry it can be termed as arbitrary,
malafide-suspension order vitiates from
its very inception quashed.

Held: Para 54 & 55

It is also not the case in the counter
affidavit that the allegations are of such
a nature, like fabrication of false records
or
embezzlement
of
money,
which
requires investigation or scrutiny of
record
which
may
take
some
considerable time in ascertaining the
facts for framing the charges. It is also
not
the
case
of
respondents
that
suspension has been resorted to during
investigation, inquiry or pendency of
168 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
criminal trial, or in any other situation
envisaged by other sub-rules of Rule 4 of
1999 Rules. Contrary to it impugned
order
recites
suspension
under
contemplation of departmental inquiry
as envisaged by Rule 4 (1) of Rules
1999. Besides this, it is also necessary to
mention that no interim order has been
granted by this Court at any point of
time either staying suspension order or
staying
the
disciplinary
inquiry
contemplated against the petitioner. In
such
circumstances
we
have
no
hesitation to hold that inspite of lapse of
a period of more than 2 years the
respondent could not be able to frame
the charge and issued any charge-sheet
and initiate any disciplinary proceeding
as contemplated in rule 7 for imposition
of major penalty against the petitioner.

Thus there was no scope for the
respondent to sit idle without holding
disciplinary
inquiry
to
be
initiated
against the petitioner. Thus we have no
hesitation to hold that keeping the
petitioner under suspension for such a
long
period
without
holding
any
disciplinary
inquiry
against
him
as
indicated in the order of suspension, the
respondents have no justification under
law. Suspension of the petitioner in such
a circumstances cannot be said to be
bonafide action of the respondent and
accordingly the same can be termed as
arbitrary, malafide and resorted to as
administrative routine, which would not
be justified under law. Thus in given
facts and circumstances of the case
impugned order of suspension vitiates
from its very inception and liable to be
quashed. Accordingly impugned order of
suspension dated 21.7.2003 (Annexure-5
of the writ petition) is hereby quashed.

(Delivered by Hon'ble V.M. Sahai, J.)

Feeling aggrieved against the order
dated 21.7.2003 (Annexure-5 of the writ
petition) passed by State Government,
whereby while working on the post of
Veterinary Officer in Animal Husbandry
Department of the Government the
petitioner was placed under suspension in
contemplation of disciplinary inquiry
against him, the petitioner has filed above
noted writ petition.

(2) The facts in brief have material
bearing on the question in controversy
involved in the case are that the petitioner
was appointed as Veterinary Officer in
Animal Husbandry Department of the
State Government on 11.2.1991 after due
selection
by
U.P.
Public
Service
Commission. During the service he was
transferred at different places from time to
time in the period from July 1997 to
9.7.2003. On 30.6.2003 the petitioner was
transferred from Mobile Unit Azamgarh
and posted as Veterinary Officer, Sahaar,
district Auraiya. In pursuance of which he
was relieved from Azamgarh on 9.7.2003
and joined at the office of Chief
Veterinary Officer, Auraiya/Etawah on
10.7.2003. According to the petitioner, his
work and conduct through out his service
career has been found fully satisfactory
and no cause of complaint has ever been
arisen against his work and conduct
during the aforesaid period. Surprisingly
enough he was placed under suspension
by the Government vide order dated
21.7.2003
in
contemplation
of
disciplinary inquiry against him on the
allegation of defiance of order of
superiors
and
working
in
arbitrary
manner, failure to achieve target of
prescribed policies and not working be
fitting to the post inasmuch as using of
vulgar language against the other officials
while working as Veterinary Officer,
Bachat Ekai, Azamgarh. The petitioner
has challenged the aforesaid order of
suspension mainly on the ground that
allegations mentioned in the impugned
1 All] Dr. Subash Chand V. State of U.P. and others
169
order
are
vague
and
not
serious
warranting impugned action taken against
him.

(3) A detailed counter affidavit has
been filed on behalf of State wherein
mainly in para 6, 9 and 12 an attempt has
been made to justify impugned state
action taken against the petitioner by
precisely making averment that during the
posting of petitioner in Azamgarh Mobile
Unit there were a lot of complaints
regarding arbitrary functioning and disobeying the orders of superior officers
inasmuch as allegations against the
petitioner of misbehaviour with officials
and also with the superior officers of the
department. For ready reference para
6,9,12 of counter affidavit is quoted as
under:-

"6. That in reply to the contents of
paragraphs 8,9,10 and 11 of the writ
petition it is stated that there are many
complaints against the petitioner. It is
further stated that during the posting of
the petitioner at Azamgarh Mobile Unit
there were lot of complaints regarding
irregular functioning and not obeying the
orders of the superior officers against the
petitioner. It is further submitted that the
petitioner also used to misbehave the
officials, and consequently disciplinary
proceeding was directed to be initiated
against the petitioner and he was also
placed under suspension as will be
evident from annexure-5 of the writ
petition.
9. That in reply to the contents of
paragraphs 15 and 16 of the writ petition
it is stated that the petitioner was
transferred from Mobile Unit, Azamgarh
to Sahar Auraiya as per Scheme of the
State Government in Public Interest.
However, his suspension has been done as
he misbehaved his superior officers, not
obeyed the orders of his superior officers
and also for misbehaving the officials.
12. That the contents of paragraphs
20,21,22 and 23 of the writ petition are
wrong and denied. In reply it is submitted
that work and conduct of the petitioner
was not found satisfactory and as such
adverse entry was made in his character
roll for the year 2001-02. It is further
stated that as there were lot of complaints
against the petitioner and his behaviour
was
also
not
found
satisfactory,
consequently
he
was
placed
under
suspension and departmental enquiry is
being initiated against him. It is further
stated
that
under
the
departmental
proceeding the charge sheet will be
served against him at an early date. "

(4) We have heard Sri Ram Niwas
Singh, learned counsel for the petitioner
and learned Standing counsel appearing
for the respondents and also perused the
records. Since the necessary affidavits
have been exchanged between the parties
and case was ripped for final disposal,
with the consent of learned counsel for
the parties, therefore, the case has been
heard for final disposal.

(5) The thrust of the submission of
learned counsel for the petitioner is that
the allegations mentioned in the order of
suspension are vague, false and flimsy in
nature, even if assumed to be correct for
the sake of argument the same do not
constitute misconduct of such a serious
nature warranting any major penalty
against the petitioner so as to enable the
respondents to place the petitioner under
suspension
in
contemplation
of
disciplinary inquiry against him. In
support of his submission he placed
reliance upon the reported decision of a
170 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Division Bench of this Court rendered in
Ram Dular Tripathi Vs. State of U.P. and
others, 1997 (2) Alld. Civil Journal, 1416.
 Contrary to it learned Standing Counsel
has submitted that in given facts and
circumstances of the case since the order
of suspension has been passed against the
petitioner in contemplation of disciplinary
inquiry against him, thus the same cannot
be said to be punishment and cannot be
called in question before this Court under
Article 226 of the Constitution of India.

(6) Having regard to the rival
contentions and submissions of the
learned counsel of the parties, a short
question arises for consideration as to
whether the petitioner can be placed under
suspension on the allegations mentioned
in the order of suspension and/or as to
whether in given facts and circumstances
of the case, the same is justified or not?

(7) At the very out set it is necessary
to point out that while entertaining the
writ petition a Division Bench of this
Court on 31.7.2003 has directed the
learned Standing Counsel to file reply
within a period of two weeks along with a
copy of charge-sheet/proposed chargesheet against the petitioner and no interim
order
either
staying
the
order
of
suspension or staying the disciplinary
inquiry to be held against the petitioner
has been passed by this Court during the
pendency of the writ petition but till now
neither any charge-sheet has been filed by
the
respondents
alongwith
counter
affidavit nor the Court has been informed
regarding the issue and service of such
charge-sheet upon the petitioner for
holding any disciplinary inquiry against
him and a period of more than two years
have been passed since then the petitioner
is under suspension. Thus it is also a case
of keeping the petitioner under suspension
without holding any disciplinary inquiry
against him.

(8) Before dealing with the rival
submissions of learned counsel for the
parties it is necessary to examine the law
regarding
suspension
of
government
servants. In this regard it is necessary to
point out that petitioner is government
servant
and
provisions
of
U.P.
Government Servant (Discipline and
Appeal) Rules, 1999 herein after referred
to as new Rule of 1999 are relevant rule
dealing with the matter of discipline
including
suspension
of
government
servant of State of U.P. Rule 4 of the
aforesaid rules deals with the suspension
as under:

"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
1 All] Dr. Subash Chand V. State of U.P. and others
171
''C' and ''D' posts, the appointing
authority may delegate its power under
this rule to 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
provisions 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, 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,
interment
periods
of
imprisonment, if any shall be taken into
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 or
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 sub-rule
shall be construed as affecting the power
of the disciplinary authority in a case
where a penalty of dismissal or removal
172 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
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 respect 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 claimed or
their particulars better specified or any
part there of 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, be 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-II, Parts II to IV."

(9) From a bare reading of various
provisions contained in the different subrules of the aforesaid rule, it is clear that
although there are different situations
envisaged in the aforesaid provisions of
rule under which a government servant
can be placed under suspension or shall
continue to be under suspension, but we
need not to embark on the inquiry of all
the provisions contained under Rule-4 of
the aforesaid rules rather we have to
confine our scrutiny only with regard to
the Rule 4(1) along with first proviso
appended to it, which alone have material
bearing with the question in issue
involved in the case.

(10) From the perusal of aforesaid
rule 4 (1) of Rules 1999 it is clear that a
1 All] Dr. Subash Chand V. State of U.P. and others
173
government servant can be placed under
suspension against whose conduct inquiry
is either contemplated or is proceeding,
pending conclusion of such inquiry in the
discretion
of
appointing
authority,
meaning thereby the appointing authority
in his discretion can place a government
servant under suspension in aforesaid two
situations
i.e.
an
inquiry is either
contemplated or is proceeding pending
conclusion of such inquiry. The first
proviso appended to the aforesaid rule
further provides that the 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.
Thus
it
is
necessary to examine true import and
scope of the rule 4 (1) of aforesaid rules
quoted herein before along with the first
proviso
appended
thereto.
For
that
purpose it would be useful to go into the
history of rules regarding suspension prior
to the commencement of the aforesaid
rules.

(11) In this connection it is necessary
to
mention
here
that
prior
to
commencement of new Rules of 1999, the
Civil Services (Classification, Control &
Appeal) Rules, 1930 (in short CCA
Rules) and the Punishment and Appeal
Rules for Sub-ordinate Services Uttar
Pradesh, 1932 (in short Punishment and
Appeal Rules) were relevant rule in
operation in connection of disciplinary
action
including
the
suspension
of
government
employees.
For
ready
reference Rule 49-A of erstwhile CCA
Rules amended by Notification dated 30th
October,
1976
existing
earlier
i.e.
immediately preceding to commencement
of Rules 1999 is reproduced as under:

"49-A.
This
section
has
been
amended vide Notification No. 18.4.1976Personnel I, dated 30th October, 1976. It
is as under:
"49-A. (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 in the case of any
Government
servant
or
class
of
Government servants, not belonging to a
State Service, the appointing authority
may delegate its power under this subrule to next lower authority:
Provided further that any other
authority empowered by the Governor by
general or special order in this behalf,
may place a Government servant under
suspension under this sub-rule:"

(12) Earlier to it Rule 49-A (1) of
erstwhile CCA Rules was as noticed by a
Full Bench of this Court in para 10 of the
decision rendered in State of U.P. Vs.
Jawahar Lal Bhargava and another,
1974 A.L.J. 282 as under:

"10. The material part of Rule 49-A
may be conveniently quoted here .-
"49-A(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."
Note- "As a rule, suspension should
not be resorted to unless the allegations
against the Government Servant are so
serious that in the event of their being
established, they may ordinarily be
expected
to
warrant
his
dismissal,
removal or reduction, Suspension, where
deemed necessary should, as far as
174 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
possible,
immediately
precede
the
framing
of
charges
and
their
communication
to
the
Government,
servant charged."

(13) In this case the content and
import of expression "inquiry", and
"contemplated" in the light of footnote
appended to the aforesaid rule as
extracted
herein
before
was
under
consideration. The scope of aforesaid
expressions have been elaborately dealt
with by the Full Bench in para 14, 15 and
16 of the decision, which are quoted as
under:

"14. The submission of the learned
counsel for the respondent appears to be
well founded that the contents of the Note
ought to be given full effect in construing
the material provisions of Rule 49-A.
When the Note is taken into consideration
then the meaning of the word ''Inquiry'
used in clause (1) becomes clear, which
means the departmental inquiry as
envisaged by Rule 55, as held by Seth, J.
The instructions given by the Government
as extracted above show that the
disciplinary proceedings are most often
preceded by an investigation of an
informal character and the immediate
superior
officer
on
whom
the
responsibility
for
initiating
formal
proceedings lay is directed to complete
the investigation as soon as possible
without undue delay occurring at any
stage. When the investigation, if any, has
been completed and it has been decided to
undertake
formal
disciplinary
proceedings, a time schedule has to be
observed. The charge or charges should
be handed over to the charged officer
within 15 days from the date of taking the
decision to start formal proceedings and
it is at the same time that a decision
should be taken whether the Officer be
placed under suspension pending inquiry.
Thus the word ''inquiry' means nothing
but the formal disciplinary proceeding
and not the investigation of an informal
character which most often precedes the
initiation
of
formal
disciplinary
proceeding envisaged by Rule 55. When
the appointing authority takes a decision
to start formal proceedings, then within
15 days of taking that decision charge or
charges should be handed over to the
charged officer. Thus there is a time lag
of 15 days permitted between taking the
decision to start formal proceedings and
the service of charges on the charged
officer. The direction given by the
Governor envisages that at the time when
a decision is taken by the appointing
authority to start formal proceedings it
must also simultaneously decide whether
the Officer should be placed under
suspension pending the inquiry. It is at
this stage that it can be said that an
inquiry is contemplated against the
conduct of the Government servant. The
only meaning that can be given to the
phrase ''against whose conduct an inquiry
is contemplated', occurring in clause (1)
of Rule 49-A, would be against whose
conduct an inquiry under Rule 55 is to be
initiated." That will be when a decision
has been taken on the basis of the
material
collected
on
preliminary
investigation and the appointing authority
is prima facie satisfied that they have
substance and the starting of formal
proceedings would be justified. At any
point of time prior to the taking of such a
decision it could not be said that an
inquiry under Rule 55 was contemplated.

15. Though the verb ''contemplate'
has many meanings and has somewhat an
ambiguous import, yet it has to be given a
1 All] Dr. Subash Chand V. State of U.P. and others
175
definite meaning in the context in which it
has been used in harmony with the
scheme laid down in the Civil Services
(Classification,
Control
and
Appeal)
Rules pertaining to conduct and discipline
of the Government servant who fall within
the rule making power of the Governor
under Article 309 of the Constitution.
With great respect the meaning given by
Seth, J. in Rajendra Shanker Nigam Vs.
State of U.P. appears to be correct, that is
to have in view an inquiry under Rule 55
or to hold an inquiry under Rule 55. This
stage would not be reached unless the
appointing authority decides in the
circumstances of the case that it will
proceed to hold an inquiry under Rule 55.
Viewed in this light and the directions of
the Governor as given in para 2 of the
Appendix IV, quoted above, the substance
of which is contained in the Note, the
phrase
''suspension,
where
deemed
necessary should, as far as possible
immediately precede the framing of
charges and their communication to the
Government servant charged' occurring
in the Note will mean where it is decided
to suspend a Government servant pending
an formal inquiry under Rule 55 the order
of suspension as far as possible be passed
immediately preceding the framing of the
charges and their communication. By the
use of the words '' as far as possible' an
intention is manifest that when the
appointing authority considering the
prevailing
circumstances
finds
some
practical difficulties, it may not take a
decision to suspend a Government servant
at the point of time immediately preceding
the
framing
of
charges
and
their
communication
to
the
Government
servant charged and may defer the
decision to suspend to a later date. The
Note does not permit the appointing
authority to suspend a Government
servant before it decides to initiate a
formal inquiry under Rule 55 against the
Government servant. The Note fixes the
earliest point of time for the exercise of
the power of suspension. The phrase ''as
far as possible' cannot be construed as
leaving a power with the appointing
authority to suspend a Government
servant at a point of time earlier then the
earliest point of time fixed by the Note.

16. The first part of the Note which
says "as a rule suspension should not be
resorted to unless the allegations against
the Government servant are so serious
that in the event of their being established
they may ordinarily be expected to
warrant
his
dismissal,
removal
or
reduction" shows that only in cases where
major punishments, that is dismissal,
removal or reduction, can be imposed on
the basis of the nature of the allegations,
against the Government servant that he
may
be
suspended.
Whether
the
seriousness of the allegations warrant in
the
ordinary
course
his
dismissal,
removal or reduction will certainly
depend
on
the
contents
of
those
allegations. In as much as under clause
(1) of Rule 49-A the power of suspension
can be exercised only when a decision has
been taken to start an inquiry under Rule
55 as held by us what is envisaged by the
Note in its first part is that when on
preliminary investigation such material
has been collected which has substance to
justify the departmental proceedings and
it is expected that on the evidence brought
before the inquiry officer such misconduct
on the part of the Government servant
will be established which in normal
course would justify the infliction of either
of the major punishments dismissal,
removal or reduction in rank, then the
power of suspension be resorted to. The
176 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
expression ''as a rule', occurring in the
beginning of the Note, implies that that is
always the rule to be observed. The word
''allegations' used in first part of the Note
do not mean the allegations contained in
the
complaint
received
against
a
Government servant but would mean the
allegations having substance revealed by
the investigation of an informal nature.
The same conclusion would be reached if
the provisions of rule 55-B are examined.
When only minor penalties are decided to
be imposed, like censure or stoppage at
an efficiency bar even framing of formal
charge or calling for explanation of the
Government servant is dispensed with.
Where other minor penalties are to be
imposed, then only formal proceedings
embodying the statement of the Offence or
fault are to be drawn up, explanation of
the person concerned obtained and the
reason for punishment recorded. In this
case also no formal charge need be
framed and communicated to the person
charged. Thus where minor punishments
are to be imposed no formal inquiry as
envisaged under Rule 55 is required. It is
only in a case where prima facie material
justifies the imposition of major penalties
that charges are to be framed. The major
penalties cannot be inflicted unless the
requirement of Rule 55 has been complied
with. It is the framing of the charge or
charges and their communication to the
Government
servant
charged
which
initiates or marks the start of the formal
departmental proceedings under Rule 55.
Since the suspension of a Government
servant is not envisaged under the rules
unless in the ordinary course on the
charges framed it is expected that major
punishment
could
be
imposed,
the
suspension is to be resorted to either
when an inquiry under Rule 55 is
contemplated or is proceeding against a
Government servant under that rule. The
exercise of power of suspension thus is
circumscribed under the scheme of the
rules and it is to be resorted to at a point
of
time
and
under
circumstances
indicated therein. The exercise of power
is not unbounded depending on the sweet
will of the appointing authority. It is
difficult,
therefore,
to
accept
the
contention of the learned Chief Standing
Counsel as his contention tends to confer
on the appointing authority a power to be
exercised on the basis of the subjectivity
and not objectivity which Rule 49-A
intends to achieve. For the above reasons
it is also not possible to accept the view of
the Division Bench in the case of State of
Uttar Pradesh Vs. Rajendra Shanker
Nigam that if there are compelling and
exceptional circumstances the power of
suspension can be exercised even before
deciding to hold a departmental inquiry
under Rule 55 against a Government
servant or that will again leave the matter
to the subjective satisfaction of the
appointing authority and to call upon it to
justify the exercise of its power by
establishing the existence of ''compelling
and
exceptional
circumstances'
will
hardly
be
of
any
benefit
to
the
Government servant against whom the
power of suspension is exercised. Even a
review by a Court of law in this regard
will hardly be an adequate safe-guard
against discrimination as the concept of
''compelling
and
exceptional
circumstances' being elusive in its import
and somewhat ephemeral in its content
will introduce uncertainty in the situation
which Rule 49-A with the Note appended
aims to avoid."

(14) Thus from a close analysis of
the observations made by full Bench of
this Court, it is clear that the expression
1 All] Dr. Subash Chand V. State of U.P. and others
177
"inquiry" used in the Rule 49-A (1) means
the departmental inquiry as envisaged by
Rule-55 which means nothing but the
formal disciplinary proceeding and not an
investigation of informal character which
most often precedes the initiation of
formal disciplinary proceeding envisaged
by Rule-55. So far as the meaning of
phrase "against whose conduct an inquiry
is contemplated" is concerned, the full
Bench observed that against whose
conduct an inquiry is expected or to be
initiated under Rule-55 of the C.C.A.
Rules. That will be when a decision has
been taken on the basis of material
collected on preliminary investigation and
the Appointing Authority is prima facie
satisfied that they have substance to
justify either of the major punishments
and initiation of formal proceeding would
be justified. At any point of time prior to
taking of such a decision it could not be
said that an inquiry under Rule-55 was
contemplated. This stage would not be
reached unless the appointing authority
decides in circumstances of the case that
it will proceed to hold an inquiry under
Rule-55. It is framing of charge or
charges and their communication to the
charged government servant, virtually
initiates
the
formal
departmental
proceeding.

(15) While explaining the nature,
scope and impact of note appended to
Rule 49-A (1) of C.C.A. Rules the full
Bench has held that the first part of the
note which says " as a rule suspension
should not be resorted to unless the
allegation against the government servant
are so serious that in event of their being
established
they
may
ordinarily
be
expected
to
warrant
his
dismissal,
removal or reduction shows that only in
cases where major punishment can be
imposed on the basis of nature of the
allegation against government servant that
he may be suspended whether seriousness
of allegation warrant in the ordinary
course his dismissal, removal or reduction
will certainly depend on the contents of
those allegations. In as much under clause
(1) of rule 49-A the power of suspension
can be exercised only when decision has
been taken to start an inquiry under Rule55 which can be done only when on
preliminary investigation, such material
has been collected which have substance
to
justify
the
formal
departmental
proceeding and it is expected that on
evidence brought before inquiry officer,
such
misconduct
on
the
part
of
government servant will be established,
which in normal course would justify
either
of
the
major
penalties
viz.
dismissal, removal or reduction in rank,
suspension is resorted to". The court
further held that the expression "as a rule"
occurring in the beginning of the note
implies that that is always the rule to be
observed.

(16) The word "allegations" used in
the first part of the note do not mean that
allegation contained in the complaint
received against the government servant
but would mean the allegations having
substance revealed by an investigation of
informal nature. As held earlier it is
framing of charge or charges and their
communication to the government servant
virtually marks starting point of formal
inquiry.
Since
the
suspension
of
government servant is not envisaged
under the rules unless in ordinary course
on the charges framed it is expected that
major penalties could be imposed hence
the suspension is to be resorted to either
when an inquiry under Rule-55 is
contemplated or is proceeding against
178 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
government servant under that rule. The
exercise of power of suspension thus
circumscribed under the scheme of rules
and it is to be resorted to at a point of time
and
under
circumstances
indicated
therein. The exercise of power is not
unbounded depending on the sweet will of
the appointing authority." This is what in
substance, the aforesaid full Bench of this
Court has held regarding the matter
pertaining to suspension in context of the
rule with Note below appended thereto.

(17) Later on the aforesaid footnote
appended to rule 49-A of erstwhile
C.C.A. Rules and Rule 1-A of erstwhile
Punishment and Appeal Rules was
deleted by Notification dated 23rd March
1974 which has been noticed in para-5 of
the decision of subsequent Five Judges
Full Bench of this Court rendered in State
of U.P. Vs. Jai Singh Dixit & others,
1974 A.L.J. 862 as under:

"5. The Note below Rule 49-A of the
C.C.A.
Rules
was
deleted
under
Notification No. 16/111-1973-Apptt.(3)
dated March 23, 1974, and the Note
below Rule 1-A of the Punishment and
Appeal Rules under Notification No.
18/111-1973 (3) Apptt. (3) dated March,
1974, and in both the cases the deletion
was to take effect from October 29,
1968."

(18) The question for consideration
before Five Judges Full Bench was that
what is meant by word "inquiry" and
"contemplated" used in Rule 49-A of
CCA Rules and Rule 1-A of Punishment
and Appeal Rules particularly in context
and reference of deletion of note below
which was earlier appended to the
aforesaid rule? And in other words what
is true content and import of the aforesaid
rules after deletion of the aforesaid Note
below? This subsequent five Judges Full
Bench in Jai Singh Dixit's case has dealt
with the issue at length and para 30 and
31 of the decision recorded its concluded
opinion
regarding
the
meaning
of
expression "inquiry" used under aforesaid
rules as under:-
"30. The word ''inquiry' has also
been used in Rules 55 and 55-A of the
C.C.A. Rules. Rules 55 and 55-A relate to
formal departmental inquiry where major
punishment of dismissal, removal or
reduction can be imposed. Such an
inquiry is invariably preceded by framing
of charges. It is of significance that in the
other rules governing cases in which
minor punishment can be awarded the
word ''inquiry' has been omitted and the
rules merely provide for the award of
punishment. It is true that most of the
minor punishments shall be awarded after
some inquiry, but when the rule making
authority intentionally avoided making a
reference to this term in the other rules
and used the word ''inquiry' in rule 49-A
and also Rule 55 and 55-A the underlying
intention
was
that
the
inquiry
contemplated by Rule 49-A is the one held
under Rules 55 and 55-A.