# Haridaya Nand Sharma v. State of U P & others

- **Citation:** (2010) 2 ILRA 559
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-05-19
- **Case number:** Service Single No. 2867 of 2010
- **Bench:** Devendra Kumar Arora
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/haridaya-nand-sharma-v-state-of-u-p-others-41628
- **Pages:** 4

## Headnote

Appeal) Rules 1999. Rule-4-Suspension
order-without
application
of
own
independent mind of the appointing
authority-order passed at behest of
superior officer-not sustainable.

Held: Para-7

A perusal of the impugned order reveals
that
the
suspension
order
dated
16.02.2010
has
been
passed
in
pursuance of the directions issued by the
Special Secretary, Rural Development
dated 3rd February, 2010 and apparently
the suspension order has not been
passed by the competent authority after
due application of independent mind. As
such the suspension order cannot be
sustained and the same deserves to be
quashed.
Case Law discussed:
AIR 1970 SC 1894
(2001) 6 SCC 260:
(AIR 2001 SC 2524)
560 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

## Text

2 All] Haridaya Nand Sharma V State of U.P. and others
559
circumstances
and
situation
of
the
relevant period, when the award was
rendered by the Tribunal.

The petitioner counsel has cited the
case reported in (209) 4 SCC 377
Uttaranchal
Transport
Corporation
Limited v. Vimla Devi (Smt.) and others
and submits that the interest may be
reduced.

14.

So
far
as
quantum
of
compensation and interest is concerned, it
depend upon the facts and circumstances
of each case as some time, the interest
will be higher and the other time, the
interest may be lower. It depends upon the
banking and market rate. No material has
been placed on record by the appellant's
counsel to indicate that in the year 2001,
when the Tribunal has granted 12%, what
was the ordinary interest payable by the
Bank to its customers, hence interest paid
by Tribunal does not call for reduction. In
a case reported in 2006 (1) T. A.C. 965
(S.C.), Oriental Insurance Co. Ltd. v. R.
Swaminathan and others their lordships
of Hon'ble Supreme Court had awarded
interest @12% per annum from the date
of filing of the claim petition while
affirming the compensation under the
Motor Vehicles Act.

15. In our view, the impugned award
passed by the Tribunal does not seem to
be suffer from any impropriety or
illegality.

The appeal is dismissed.

In case some amount has not been
deposited by the appellant, it shall be
deposited before the Tribunal within two
months from today and the Tribunal may
proceed in terms of the award. The
amount deposited in this Court shall be
remitted to the Tribunal forthwith.

No order as to cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.05.2010

BEFORE
THE HON'BLE DEVENDRA KUMAR ARORA, J.

Service Single No. 2867 of 2010

Haridaya Nand Sharma
 ...Petitioner
Versus
State of U P & others
 ...Respondent

Counsel for the Petitioner:
Sri A M Tripathi

Counsel for the Respondent:
C.S.C

U.P. Government Servant (Discipline and
Appeal) Rules 1999. Rule-4-Suspension
order-without
application
of
own
independent mind of the appointing
authority-order passed at behest of
superior officer-not sustainable.

Held: Para-7

A perusal of the impugned order reveals
that
the
suspension
order
dated
16.02.2010
has
been
passed
in
pursuance of the directions issued by the
Special Secretary, Rural Development
dated 3rd February, 2010 and apparently
the suspension order has not been
passed by the competent authority after
due application of independent mind. As
such the suspension order cannot be
sustained and the same deserves to be
quashed.
Case Law discussed:
AIR 1970 SC 1894
(2001) 6 SCC 260:
(AIR 2001 SC 2524)
560 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
(Delivered by Hon'ble D.K. Arora, J.)

1. Heard learned counsel for parties
and perused the record.

By means of this writ petition, the
petitioner has prayed for a writ in the
nature of certiorari for quashing of the
impugned order dated 16.02.2010, passed
by opposite party no. 3, as contained in
Annexure No. 1 to the writ petition.
Petitioner has further prayed for a writ in
the nature of mandamus commanding the
opposite parties to allow the petitioner to
continue to work and discharge his duties
on the post of Senior Clerk/Accountant
and to pay him salary regularly.

2. The facts of the case, in brief, are
that the petitioner is working as Senior
Clerk/Accountant in the office of the
District Development Officer, Balrampur
who has been placed under suspension by
means
of
order
dated
16.02.2010.
Submission of learned counsel for the
petitioner is that the impugned order of
suspension has been passed at the behest
of the directions issued by Special
Secretary,
Rural
Development
Department,
Government
of
U.P.,
Lucknow dated 3rd February, 2010
(Annexure No.2 to the writ petition),
without application of mind by the
competent authority.

3. In support of his contention,
learned counsel for the petitioner relies on
a Division Bench Judgment of this Court
dated 07.03.1994 passed in Special
Appeal No. 8 (SB) of 1994 Dinesh Kumar
Srivastava Vs State of U.P. & others in
which it is held as under:-

"A bare perusal of the documents,
indicated above, including the order of
suspension shown that there was a kind of
clear direction on the part of the higher
authorities to place the petitioner under
suspension immediately."

He further relies on judgment and
order dated 12.01.2010 passed by this
Court in Writ Petition No. 8410 (SS) of
2009 Ram Saharey Verma Vs. State of
U.P.& others in which this Court has held
as under:-

"In the instant case, the appointing
authority of the petitioner is Director.
Though the Director has passed the
suspension order, but it has been passed
on the basis of the letter written by the
Special
Secretary
dated
03.02.2010,
contained in Annexure No.4 to the writ
petition. Further, the Opposite Party No.
2, without applying his mind, has passed
the suspension order. It is settled law and
normally, when an appointing authority
or the disciplinary authority seeks to
suspend a delinquent employee, pending
inquiry or contemplated inquiry or
pending investigation into grave charges
of misconduct or deflection of funds or
serious acts of omission and commission,
the order of suspension would be passed
after taking into consideration the gravity
or misconduct sought to be inquired and
nature of evidence placed before the
appointing authority and the authority
concerned should consider all aspects
and
decide
whether
suspension
is
expedient or not and the same not be in
an administrative routine and automatic
manner."

Learned Standing counsel does not
dispute that the impugned suspension
order has been passed at the dictates of
the Special Secretary, Rural Development
2 All] Haridaya Nand Sharma V State of U.P. and others
561
Department,
Government
of
U.P.,
Lucknow.

Since
the
only
legal
question
involved in the present writ petition is as
to whether action of the appointing
authority/ competent authority in passing
the suspension order at the dictates of the
higher authority is justifiable or not, the
present writ petition is being considered
and disposed of finally at the admission
stage itself.

4. I have considered the arguments
of the learned counsel for the respective
parties and gone through the record.

Rule
4
of
U.P.
Government
Servant (Discipline & Appeal) Rules
1999 provides that 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. It is further
provided 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.

5. In sum and substance, an
employee can be placed under suspension
in contemplation of an inquiry or during
pendency of inquiry at the discretion of
the Appointing Authority. This discretion
is to be exercised by the Appointing
Authority, if the allegations against a
government servant are so serious that in
the event of there being established, may
warrant imposition of major penalty
against
the
delinquent
employee.
Therefore, a discretion has to be exercised
by the competent authority subjectively
taking into consideration the entire
material against the delinquent employee
independently and the same cannot be
exercised mechanically at the dictates of
the higher authority. The higher authority
at the most can request the appointing
authority/competent authority to examine
the
case
independently
and
pass
appropriate
orders
after
independent
application of mind.

6. It is settled proposition of law that
when Statute confers power on a
particular authority or person to perform
certain functions, it cannot be exercised
by any other person.

In the Purtabpur Company Ltd. V.
Cane Commissioner of Bihar, AIR 1970
SC 1894, the Hon'ble Supreme Court has
observed as under (Paras 13 and 14):-

"The powers exercisable by the Cane
Commissioner under Clause 6 (1) is
statutory power. He alone could have
exercised that power, while exercising
that power, he cannot obligate his
responsibilities in favour of any one, not
even in favour of the State Government or
the Chief Minister. It was not proper for
the Chief Minister to have interfered with
the
functions
of
the
Cane
Commissioner......the Executive Officers,
entrusted with statutory discretion, may,
in some cases, be obliged to take into
account consideration of public policy
and in some context the policy of the
Minister or the Government as the whole
when it is relevant factor in weighing the
policy but this will not absolve them from
the duty to exercise the personal judgment
in individual case unless explicit statutory
provisions have been made for them to be
given binding instructions by a superior."
562 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

Similarly,
in
Tarlochan
Dev
Sharma v. State of Punjab, (2001) 6
SCC 260: (AIR 2001 SC 2524), the
Hon'ble Supreme Court, after placing
reliance upon a large number of its earlier
judgment, observed as under:-

"In the system of Indian democratic
governance, as contemplated by the
constitution, senior officers occupying
good position as Secretaries, are not
supposed
to
mortgage
their
own
discretion, volition and decision-making
authority and be prepared to give way or
being pushed back or pressed ahead at
the behest of the politicians for carrying
out command having no sanctity in
law......No Government servant shall in
the performance of his official duties, or
in the exercise of power conferred on him,
act otherwise than in his best judgment
except when he is acting under the
direction of his official superior."

7. A perusal of the impugned order
reveals that the suspension order dated
16.02.2010 has been passed in pursuance
of the directions issued by the Special
Secretary, Rural Development dated 3rd
February,
2010
and
apparently
the
suspension order has not been passed by
the
competent
authority
after
due
application of independent mind. As such
the suspension order cannot be sustained
and the same deserves to be quashed.

8. Writ petition is, therefore,
allowed. The impugned suspension order
dated 16.02.2010 is hereby quashed.
However, it is open for the competent
authority to pass afresh order if the
material available on record against the
petitioner is found so grave which may
warrant awarding of major punishment
against the petitioner, as per rules.
There is no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.05.2010

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE DR. SATISH CHANDRA, J.

Misc. Bench No. 3049 of 2010

Ram Nagar Refrigeration and Ice (Cold
Storage) Private Limit
 ...Petitioner
Versus
State Of U.P

 ...Respondent

Counsel for the Petitioner:
Sri R.C. Pathak

Counsel for the Respondent:
C.S.C.,
Sri Pratyush Tripathi

U.P. Regulation of cold storage Act 1976Section-35-pending Statuary Appeal-No
interim
order
passed-due
to
non
availability
of
member-inspite
of
direction of Court neither State Standing
Counsel nor Additional Solicitor General
produced any instruction-once the State
as well as Central Govt. fails to discharge
their statuary obligation-Court issued
Mandamus to fulfill those vacancy within
two months-recovery proceeding stayed
till
consideration
of
interim
stay
Application

Held: Para-8 and 9

We feel that State of U.P. as well as
Government of India has failed to
discharge the statutory duty in not filling
the vacancy of the Tribunal. On account
of failure on the part of the respondents,
we are of the view that a direction may
be issued to fill up the vacancy within a
reasonable period
to
safeguard
the
litigant's interest.