# Kamal Nayan Singh v. State of U.P. and others

- **Citation:** (2011) 1 ILRA 262
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-03-18
- **Bench:** Sunil Ambwani, Naheed Ara Moonis
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamal-nayan-singh-v-state-of-u-p-and-others-41862
- **Pages:** 6

## Headnote

Rules
1999
Rule-4suspension pending enquiry-does not
involve punishment-charges not appears
baseless-not
require
strict
Judicial
Review.

Held: Para 17

The judicial review of suspension order is
permissible in the cases where any
statutory conditions or limitation in
exercise of the powers to suspend an
employee, has been violated, or where
the suspension is by way of substantive
penalty without following the principles
of natural justice. An order of suspension
may also be challenged on the ground of
malafides. Where the suspension is
pending departmental enquiry as in the
present
case,
it
does
not
involve
punishment. It only means temporary
deprivation of the functions or the right
to discharge his duties. It was not
necessary to make a detailed enquiry,
into
the
allegations
of
alleged
misconduct, or to obtain the explanation
of the employee before making such
order. If the charges do not appear to be
groundless,
the
discretion
of
the
disciplinary
authority
to
place
the
government servant under suspension
does not admit a strict judicial review.
These principles, on which an order of
suspension
can
be
subjected
to
challenge, have been settled in Ghous
Mohd vs. State of Andhra Pradesh AIR
1957 SC 246; Khem Chand vs. Union of
India AIR 1963 SC 687; Pratap Singh vs.
State of Punjab AIR 1964 SC 72; State of
Haryana vs. Hari Ram Yadav AIR 1994
SC 1262; Union of India vs. Udai Narain
(1998) 5 SCC 535.
Case law discussed:
AIR 1957 SC 246; AIR 1963 SC 687; AIR 1964
SC 72; AIR 1994 SC 1262; (1998) 5 SCC 535.

## Text

262 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

16. In the said case, services of the
appellant's
deceased
husband
were
terminated on the ground that he was
convicted by a Judicial Magistrate for
certain offences under the provisions of
Indian Penal Code.

17. The Court observed that the
dismissal was in view of the order of
conviction passed by the Magistrate and
till that order is set aside by a superior
forum, the appellant's husband or the
appellant could not have questioned the
same till he was acquitted by the Sessions
Court.

18. In view of the peculiar
circumstances of the case, the Court held
that the High Court was not justified in
rejecting the prayer of the appellant
primarily on the ground of delay and laches
on the part of the appellant in questioning
the order of termination passed on 4.8.1992
in a petition filed in the year 2005, after
acquittal by Sessions Court in appeal.

19. In the instant case, there is one
more aspect which requires consideration
i.e. status of the employee, namely, the
Constable Raj Kumar Singh for the purpose
of passing of the order of dismissal from
service, when he unfortunately died during
the course of trial. If the trial was not
completed before his death, the question of
abatement
would
be
taken
into
consideration and also that whether the
dismissal order passed without taking into
consideration the aforesaid fact, could be
passed or sustained. Simply because at the
time of passing of the dismissal order the
person was in jail or on bail in pending
criminal trial and the dismissal order was
not challenged, that would not conclude the
fate of disciplinary proceedings.

20. This apart, the dismissal order
passed on 5.6.01 says that Raj Kumar
Singh is in detention under National
Security Act whereas his order of
detention under the said Act was quashed
by the High Court much before i.e.
16.10.2000.

21. Since all these questions arise in
the writ petition, which could not be
considered by the learned Single Judge in
the absence of the counter affidavit filed
by the State, we set aside the order passed
by the learned Single Judge and remit the
matter to the learned Single Judge having
jurisdiction to decide the matter afresh in
accordance with law.

22. We further direct that all the post
retiral dues or any other service dues
which were admissible to the deceased
employee even after the order of dismissal
from service being passed, would be paid
to be appellant on furnishing of the
required legal heir certificate.

23. Liberty is also given to the
appellant to amend the writ petition, if she
is so advised.

24. The special appeal is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.03.2011

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE NAHEED ARA MOONIS, J.

Civil Misc. Writ Petition no. 216 OF 2011

Kamal Nayan Singh

 ...Petitioner
versus
State of U.P. and others ...Respondents
1 All] Kamal Nayan Singh V. State of U.P. and others
263
Counsel for the Petitioner:
Sri Umesh Narain Sharma
Sri B.D. Mandhyan
Sri Satish Mandhyan
Sri Satyendra Kumar

Counsel for the Respondents:
C.S.C.

U.P. Government Servants (Punishment
and
Appeal)
Rules
1999
Rule-4suspension pending enquiry-does not
involve punishment-charges not appears
baseless-not
require
strict
Judicial
Review.

Held: Para 17

The judicial review of suspension order is
permissible in the cases where any
statutory conditions or limitation in
exercise of the powers to suspend an
employee, has been violated, or where
the suspension is by way of substantive
penalty without following the principles
of natural justice. An order of suspension
may also be challenged on the ground of
malafides. Where the suspension is
pending departmental enquiry as in the
present
case,
it
does
not
involve
punishment. It only means temporary
deprivation of the functions or the right
to discharge his duties. It was not
necessary to make a detailed enquiry,
into
the
allegations
of
alleged
misconduct, or to obtain the explanation
of the employee before making such
order. If the charges do not appear to be
groundless,
the
discretion
of
the
disciplinary
authority
to
place
the
government servant under suspension
does not admit a strict judicial review.
These principles, on which an order of
suspension
can
be
subjected
to
challenge, have been settled in Ghous
Mohd vs. State of Andhra Pradesh AIR
1957 SC 246; Khem Chand vs. Union of
India AIR 1963 SC 687; Pratap Singh vs.
State of Punjab AIR 1964 SC 72; State of
Haryana vs. Hari Ram Yadav AIR 1994
SC 1262; Union of India vs. Udai Narain
(1998) 5 SCC 535.
Case law discussed:
AIR 1957 SC 246; AIR 1963 SC 687; AIR 1964
SC 72; AIR 1994 SC 1262; (1998) 5 SCC 535.

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Heard Shri Umesh Narain
Sharma,
learned
counsel
for
the
petitioner. The State is represented by the
Standing Counsel.

2. The petitioner was serving as
Regional Food Officer/Incharge District
Supply Officer, Gorakhpur. He has been
placed
under
suspension
by
the
Commissioner, Food and Civil Supplies,
U.P. Lucknow by the order dated
8.12.2010, giving rise to this writ petition,
for quashing the suspension order and for
a writ of mandamus not to give effect to
the suspension order, received by the
petitioner on 12.12.2010.

3. The substance of allegations
against the petitioner, on which he has
been suspended, are that in between April,
2009 to April, 2010 the State Government
allocated 3240 kilo litres of kerosene oil to
District Gorakhpur, in addition to the
allocations already made for the district.
The petitioner, instead of distributing the
kerosene oil in all the seven Tehsils,
allotted the additional quota only in four
Tehsils. He made allocations only to four
whole sale dealers as against 16 in the
district. The kerosene oil was distributed
without verifying the previous distribution;
the arrivals in the stocks of the whole sale
dealers; and in making allocations to the
whole sale dealers of oil companies
beyond their storage capacity, thereby
misusing the allocation and in not keeping
effective control over the subordinate staff
of
his
office,
committing
gross
irregularities in discharging his duties.
264 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

4. On the first hearing of the writ
petition,
the
suspension
order
was
challenged on the ground that no notice or
opportunity was given to the petitioner.
He had not committed any misconduct
and
irregularity
in
distribution
of
additional quota of kerosene oil, and was
not involved in the fact finding enquiry,
which was completed on 20.7.2010,
whereas the order of suspension was
passed five months' later on 8.12.2010. It
was submitted that no charge sheet has
been served upon the petitioner, nor any
follow up action has been taken and thus
the
order
virtually
amounts
to
punishment.

5. Shri Umesh Narain Sharma and
Shri B.D. Mandhyan appearing for the
petitioner
thereafter
justified
the
distribution.
They
submit
that
the
distribution
was
made
strictly
in
accordance
with
the
demand
and
particularly in those Tehsils, which were
affected by the floods. The additional
allocation was made by the State
Government to be supplied by only a few
oil companies of which the whole sellers
were allotted the quota for distribution.

6. A supplementary affidavit was
filed on 4.2.2011 alleging that in
pursuance to the letter issued by the
Commissioner, Food and Civil Supplies
dated 8.12.2010, the District Magistrate,
Gorakhpur
issued
the
letters
on
14.12.2010 and
16.12.2010
to
Sub
Divisional Magistrates of all the seven
Tehsils out of which the Sub Divisional
Magistrates of Tehsils Sadar; Chauri
Chaura; Sahjanwa; and Campairganj
informed
by
their
letters
dated
27.12.2010, 28.12.2010, 30.12.2010 and
30.12.2010
that
there
were
no
irregularities regarding disbursement of
the additional kerosene oil, and on the
basis of these reports, the District
Magistrate, Gorakhpur by his letter dated
5.1.2011 informed the Commissioner,
Food and Civil Supplies not to initiate any
departmental action taken in the matter,
against the concerned employees.

7. Shri Sharma submits that the
District Magistrate, Gorakhpur by his
letter dated 09.4.2009 had informed the
Principal
Secretary,
Food
&
Civil
Supplies, that the regular monthly quota
of district Gorakhpur is 2736 kilo litre.
According to the instructions issued by
the State Government the non-LPG card
holders are entitled to 05 litres of
kerosene oil and LPG card holders are
entitled to 03 litres kerosene oil per month
on every card; there are 890475 ration
cards in the district out of which 235475
are LPG ration cards. On the standard
fixed by the State Government, a total of
3981 kilo litres of kerosene oil was
required in the district, whereas only 2736
kero litres kerosene oil was allocated for
the month. The district was affected by
the rostering of the electricity on account
of which there was increased demand
from
the
consumers.
The
District
Magistrate requested that the quota of the
district should be increased from 2736
kilo litres to 3981 kilo litres kerosene oil
and that for the month of April, 2009 at
least 400 kilo litres of additional kerosene
oil be allocated. A similar letter was sent
on 23.6.2009 to the Under Secretary,
Food and Civil Supplies Department,
Government
of
U.P. Lucknow,
for
allocating at least 600 kilo litres kerosene
oil for June, 2009. The District Magistrate
repeated the demands for the months of
June, July, August, September, October,
December, 2009 and January, February,
March & April, 2010 for additional
1 All] Kamal Nayan Singh V. State of U.P. and others
265
allocation of at least 600, 450, 600, 400,
450, 600, 600, 600, 550, & 500 kilo litres
kerosene oil respectively.

8. The allocations made to the
various districts from April, 2009 to
January, 2010 collectively annexed to
rejoinder affidavit, as Annexure-RA-2
shows that the district Gorakhpur was
allocated additional quota of 156 kilo
litres kerosene oil for April, 2009; 288
kilo litres for May, 2009; 228 kilo litres
for July, 2009; 60 kilo litres for July,
2009; 254 kilo litres for September, 2009;
204 kilo litres for October, 2009; 216 kilo
litres for December, 2009 and 228 kilo
litres for January, 2010 respectively.

9. The petitioner has relied upon the
letters of Sub Divisional Magistrate,
Sadar dated 24.4.2009 and 10.7.2009 for
allocation of 80 kilo litres and 60 kilo
litres of additional kerosene oil in view of
the geographical position of the villages
in the district. For July, October, and
December, 2009 the Sub Divisional
Magistrate, Campairganj repeated the
demand for additional quota of 100 kilo
litres of kerosene oil. The Sub Divisional
Magistrate also repeated the demand of at
least 100 kilo litres of kerosene oil in
addition to normal allocation for August,
and December, 2009. The petitioner has
referred to the letters of Sub Divisional
Magistrate, Campairganj for additional
demand of 80 kilo litres for January,
March and April, 2010 and the letters of
the Sub Divisional Magistrate, Gola dated
12.1.2009 surrendering 42 kilo litres of
kerosene oil. It is submitted that the
allocation was made for the areas for
which the demand was raised, and that in
some areas the additional quota was
surrendered.

10. Learned Standing Counsel has
filed counter affidavit of Shri Vijay
Shanker Pandey, the present District
Supply Officer, Allahabad. He has raised
the issues regarding the non-verification
of supplies made to some whole sale
kerosene dealers and the allocation
beyond
their
storage
capacity.
In
paragraphs 8, 10 and 11 of the counter
affidavit, it is stated that out of seven
Tehsils, 19 blocks and 07 town areas, in
which 16 whole sale kerosene oil dealers
are operating, (09 of IOC, 03 of BPC, 01
of IBPC and 03 of HPC), only 04 whole
sale dealers were allocated additional
kerosene oil for which no reasons were
given by the petitioner. The arrivals of
24000 litres on 4.4.2009; 12000 litres on
5.4.2009; 12000 litres on 10.7.2009 and
6000 litres on 16.6.2009 in the stocks of
M/s Eastern U.P. Traders, Kushnahi
Bazar was not verified by the petitioner.
The storage verification in some cases
was done beyond the storage capacity of
the dealers. The Special Enquiry Team
inspected the relevant records and the
arrivals of 84000 litres kerosene oil. M/s
Eastern U.P. Traders, Kushnahi Bazarauthorized dealer of BPC had storage
capacity of only 4000 litres, whereas the
arrivals of 84000 litres were verified in
his stocks which included the quantities
detailed as above. In some cases a
verification was made of the arrivals of
kerosene oil of huge quantities of same
day,
namely
on
27.11.2009
and
26.12.2009, contrary to the procedure of
unloading
of
kerosene
oil
in
the
Government Orders dated 2.6.2008 and
24.12.2008.
Similarly
M/s
Jalan
Enterprises, Kolia- authorized dealer of
BPC also received 6000 litres of kerosene
oil on 27.12.2009 while the sale of the
dealer on 27.11.2009 was found to be nil
266 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
and only 1116 litres kerosene oil was left
in the storage.

11. In paras 14 and 16 of the counter
affidavit, it is stated that the petitioner
was given full opportunity to give his
explanation in the preliminary enquiry.

12. In reply Shri Vijay Shanker
Pandey,
District
Supply
Officer,
Allahabad has stated in supplementary
counter
affidavit
that
the
District
Magistrate had raised the demand of
additional kerosene oil from April, 2009
to April, 2010 for the entire district on the
ground that the entire district was affected
by the rostering of electricity supply.
There was great resentment among the
public due to non-supply of adequate
kerosene oil. The Special Enquiry Team
constituted by the Food Commissioner
found that the additional kerosene oil was
not distributed equally in the entire
district. It was confined only to four
Tehsils. The petitioner was given an
opportunity to explain to the Special
Enquiry Team whether he had informed
all
the
concerned
Sub
Divisional
Magistrate about the additional allocation
of kerosene oil.

13. From the aforesaid facts, we find
that the petitioner, as incharge of the
distribution of kerosene oil in the district,
had prima facie failed to carry out his
responsibilities.
There
was
a
great
demand of kerosene oil (a heavily
subsidised essential commodity) in the
entire district. The District Magistrate did
not confine the demand into any particular
area. It was for the petitioner to have
taken adequate and sufficient measures
for equal distribution of the additional
quota in all the 07 Tehsils, including 19
blocks; and 07 town areas in the district.
The petitioner appears to be satisfied with
some letters received from some Sub
Divisional Magistrates with regard to the
sufficiency
of
the
distribution
and
allocated the quota 04 out of 16 dealers
which was in turn distributed in only 04
Tehsils.

14. The distribution of essential
commodities through Public Distribution
Scheme is made to various categories of
consumers. The State Government has
fixed separate quotas of the kerosene oil
for the card holders, who have LPC
connection, and those, who do not have
LPG connection. On account of rostering
of electricity, floods and severe winters,
the distribution was required to be made
equally to all the card holders in
accordance with their entitlement. The
submissions made by Shri U.N. Sharma,
that if the distribution of additional quota
was made in the entire district, each card
holder would have got only a few mili
litres of kerosene oil in addition to the
normal quota and consequent distribution
only in a part of district, overlooks the
object
of
the
distribution
of
the
scheduled
commodities
through
the
Public Distribution System. It is not the
question of small quantity but of equal
distribution of subsidised scheduled
commodities to be made by the officers,
who are made responsible for it. The
petitioner has not given any good reasons
on
record
in
the
writ
petition,
challenging the suspension order to
justify the distribution only in a few
Tehsils, and through a few whole sale
dealers only. He will also have to explain
in the departmental enquiry as to why he
did not verify the arrivals of stocks with
the whole sale dealers and stocks were
allowed in their account beyond their
storage
capacity.
1 All] Dr. S.P. Mittal V. State of U.P. Thru Prin. Secy.Education and others
267

15. The suspension order is based
upon the allegations, without making any
enquiry. A special enquiry team had
verified the arrivals and distribution and
had given opportunity to the petitioner to
explain the unequal distribution of the
kerosene oil in the district. It is only after
the special enquiry team reported the
irregularities that the petitioner has been
placed under suspension.

16. We are not impressed by the
argument, that under the proviso to Rule 4
of
the
UP
Government
Servants
(Punishment and Appeal) Rules, 1999, the
allegations, even if established, will not
attract major penalty. Prima facie the
allegations
of
misconduct
in
the
suspension order, do not suggest that on
their proof a major penalty cannot be
given to the petitioner.

17. The judicial review of suspension
order is permissible in the cases where any
statutory conditions or limitation in exercise
of the powers to suspend an employee, has
been violated, or where the suspension is by
way
of
substantive
penalty
without
following the principles of natural justice.
An order of suspension may also be
challenged on the ground of malafides.
Where
the
suspension
is
pending
departmental enquiry as in the present case,
it does not involve punishment. It only
means
temporary
deprivation
of
the
functions or the right to discharge his duties.
It was not necessary to make a detailed
enquiry, into the allegations of alleged
misconduct, or to obtain the explanation of
the employee before making such order. If
the charges do not appear to be groundless,
the discretion of the disciplinary authority to
place
the
government
servant
under
suspension does not admit a strict judicial
review. These principles, on which an order
of suspension can be subjected to challenge,
have been settled in Ghous Mohd vs. State
of Andhra Pradesh AIR 1957 SC 246;
Khem Chand vs. Union of India AIR
1963 SC 687; Pratap Singh vs. State of
Punjab AIR 1964 SC 72; State of
Haryana vs. Hari Ram Yadav AIR 1994
SC 1262; Union of India vs. Udai Narain
(1998) 5 SCC 535.

18. The petitioner has not made out
any good ground to challenge the
suspension order. The petitioner as
incharge District Supply Officer, was
responsible for equal and equitable
distribution
of
additional
quota
of
kerosene oil in the district and to maintain
the supplies for all the eligible citizen
holding ration cards for entitlement of
such
distribution.
Prima
facie
the
allegations are not of such nature on
which the powers of suspension could not
be invoked. No other point was pressed.

19. The writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.03.2011

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE SUDHIR AGARWAL, J.

Service Bench No. - 251 of 2009

Dr. S.P. Mittal

 ...Petitioner
Versus
State Of U.P. Thru Prin. Secy. Education
and others

 ...Respondent

Counsel for the Petitioner:
Sri Sunil Sharma

Counsel for the Respondent:
C.S.C.