# M/s R.A.Oil Company v. State of U.P. & others - **Citation:** (1999) 1 ILRA 151 - **Court:** High Court of Judicature at Allahabad - **Decided:** 1999 - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-r-a-oil-company-v-state-of-u-p-others-39076 - **Pages:** 7 ## Text 1 All.] ALLAHABAD SERIES 151 It may be pointed out that the government order has been issued in order to facilitate delivery of Kerosene to retail distributors and fair price shop keepers in the rural area so that the people living in remote areas may get this essential commodity conveniently under the public distribution system. In absence of a Block Distributor the petty retailers have to collect their quota of kerosene from the storage point of agents and wholesalers which are situate at a great distances. The supply of Kerosene by the agents or wholesalers to Block Distributors will reduce the distance which a retailer will have to cover in order to get his quota of Kerosene as his place of business is not likely to be at a great distance from the Block Headquarter. The government order having been issued for the convenience of people living in the rural areas cannot be struck down on these technical grounds at the instance of agents and wholesalers who make easy money without much effort as the Kerosene is supplied to them by the government owned Oild Companies. 11. No other point has been urged. 12. For the reason mentioned above, the writ petitions have no merit and are hereby dismissed. Stay order is vacated. 25,*,1$/ -85,6',&7,21 25,*,1$/ -85,6',&7,21 &,9,/ 6,'( &,9,/ 6,'( '$7(' $//$+$%$' '$7(' $//$+$%$' %()25( %()25( 7+( +21·%/( '. 6(7+ - 7+( +21·%/( '. 6(7+ - &LYLO 0LVF :ULW 3HWLWLRQ 1R RI &RQVWDEOH -1 5DL «3HWLWLRQHU 9HUVXV 663 $OODKDEDG RWKHUV «5HVSRQGHQWV &RXQVHO IRU WKH SHWLWLRQHU 6PW 3RRQDP 6ULYDVWDYD &RXQVHO IRU WKH UHVSRQGHQWV 6& 0U .5 6LQJK 83 3ROLFH 2IILFHUV RI 6XERUGLQDWH 5DQNV23XQLVKPHQW DQG $SSHDO 5XOHV 26HFWLRQ LDE26XVSHQVLRQ 2UGHU23DVVHG ZLWKRXW DSSOLFDWLRQ RI PLQG21R GHSDUWPHQWDO HQTXLU\ FRQWHPSODWHG2WKH RQO\ UHDVRQ GLVFORVHG WKDW WKH FULPLQDO 1998 ------ M/s R.A.Oil Company Vs. State of U.P. & others ------ G.P.Mathur, J. S.R.Alam, J. 1998 ------ October, 27 152 THE INDIAN LAW REPORTS [1999 SURFHHGLQJ SHQGLQJ DQG WKH FKDUJHV KDYH EHHQ IUDPHG DQG UHYRFDWLRQ RI VXVSHQVLRQ ZRXOG HIIHFW WKH &ULPLQDO 7UDLO2KHOG WKH RUGHU FDQ QRW VXVWDLQHG2WKH GHSDUWPHQWDO SURFHHGLQJ DQG WKH FULPLQDO SURFHHGLQJV DUH DOWRJHWKHU DQ LQGHSHQGHQW DFWLRQ DQG KDV QRWKLQJ WR GR ZLWK HDFK RWKHU 3DUD &DVH ODZ GLVFXVVHG $OOG /DZ 5HSRUWV $,5 6& 1. By an order dated 20.04.1993 the petitioner was put under suspension on the ground that disciplinary proceeding was contemplated against him. From the said order, it apperas that the order of suspension was issued in exercise of the powers under rule 17 (1) (a) (b) of the U.P.Police Officers of Subordinate Ranks Punishment and Appeal Rules 1991. Execpt mentioning about lodging of a first information report under section 147, 148,323,304 IPC, no further details have been mentioned. In the said order of suspension it was directed that a preliminary enquiry be compled. Subsequently preliminary enquiry was held, in which it was found that at the relevant point of time the petitioner was on duty and therefore, the question of keeping him under suspension should be reconsidered and the suspension be revoked. But the said suggestion was disagreed to by one R.S. Lal, A.S.I. (m), on the basis thereof, another report was submitted by A.P.O. on 25th May 1993 suggesting that the order of suspension should not be recalled since it might have an impact or affect on the pending enquiry. This suggestion was accepted by the Superintendent of Police on 26th May, 1993. In this background the order of suspension has since been challenged in this writ petition. 2. Smt. Poonam Srivastava, learned counsel for the petitioner contends that rule 17 (1) (a) prescribes suspension in contemplation of enquiry but till date no departmental disciplinary proceedings have yet been initiated against the petitioner, and as such the order of suspension appears to have been passed wholly without application of mind. In as much as the power under rule 17 (1) (a) can be exercised only when a departmental enquiry is contemplated. Since no departmental enquiry has been initiated , it cannot be said that there was any departmental enquity in contemplation, and therefore there cannot be any suspension under clause (a). The order of suspension having been passed under clause (a), is wholly without application of mind. She next contends that the alleged investigation 1998 ------ Constable J.N.Rai Vs. S.S.P., Alld. & others ------ D.K.Seth, J. 1 All.] ALLAHABAD SERIES 153 in respect of the case mentioned in the order of suspension, was allegedly initiated on the complaint of a private person. Unless there is specific indication in the order or there are sufficient material to indicate that it satisfies the test of clause (b) of rule 17 (1), no order under clause (b) could be passed. She points out the nothing has been indicated as to how the alleged lodging of first information report in respect of the alleged offence, had involved the petitioner in his official capacity and as to how it would embarrass in discharge of his duty. Then again, she points out that till date neither the petitioner had ever been called on to appear in any investigation or in trial nor he has been summoned to appear in any proceedings though it is alleged in the counter-affidavit that chargesheet has been submitted, therefore, there was no justification for continuing the order of suspension. At the same time, there is no material which could satisfy the test laid down in clause (b) of rule 17 (1). She also relies on two decisions of the Apex Court in support of her contention. On these grounds, she prays that the order of suspension should be quashed, having regard to the facts and circumstances of the case. 3. Mr. K.R. Singh, learned Standing Counsel, on the other hand contends that it is not necessary that there must be sufficient material for passing an order of suspension. The order of suspension is passed at the discretion of the disciplinary authority. If there is discretion vested in an officer, unless it is shown that the same has been exercised malafide, there is no scope for this court to interfere with such exercise of discretion. Nothing has been brought to the notice of the Court to indicate that the discretion has been exercised malafide. Any report or suggestion by a sub ordinate officer is not binding on the disciplinary authority. It is always open to the disciplinary authority to exercise his discretion dispite such report when he is of the view that the order of suspension should continue. Such view is reflected in the order passed by the disciplinary authority on 26th may 1993 as it appears from annexure-4 to the writ petition. The question as to whether there was application of mind or not, has to be decided on the basis of the order of suspension. Further materials cannot be looked into for this purpose. On these ground, he submits that the writ petition is liable to be dismissed. 4. I have heard both the learned counsels at length. The fact remains that no departmental enquiry has yet been initiated against the petitioner. There is nothing indicated in the order of suspension as to on which ground the disciplinary/departmental proceeding is contemplated. No further material has been disclosed to substantiate 1998 ------ Constable J.N.Rai Vs. S.S.P., Alld. & others ------ D.K.Seth, J. 154 THE INDIAN LAW REPORTS [1999 formation of the opinion that disciplinary proceeding is contemplated. The absence of any further material in this regard goes to show that there was no disciplinary proceeding contemplated against the petitioner. The power under clause (a) of rule 17 (1) of the aforesaid rules appears to have been exercised without any application of mind. If any disciplinary/departmental proceeding was in contemplation against the petitioner, in the event, since 1993 after lapse of five years, the same ought to have been concluded or chargesheet could have been isssued initiating departmental proceeding against the petitioner. Since no where it has been contended in the Counter -affidavit that a disciplinary proceeding has been initiated against him or any chargesheet has been issued, the contention of Smt. Poonam Srivastava seems to be of substance that the order of suspension passed under clause (a) of rule 17 (1) appears to have been passed without any application of mind and as such cannot be sustained. 5. So far as the order of suspension under clause (b) of rule 17 (1) is concerned, it appears that the order of suspension was issued on the basis of lodging of a first information report in respect of the alleged offence. No doubt, it has been pointed out in the counter affidavit that a chargesheet has been submitted in connection with the said case, but at the same time nothing has been disclosed therein as to how initiation of the said criminal proceeding against the petitioner involves any kind of his moral turpitude or it is likely to embarrass him in discharge of his duties or how it is connected with the petitioner's position as a police officer. No material is forthcoming before thisCourt to substantiate any of these conditions as contemplated in clause (b) of rule 17 (1) of the aforesaid rules. Admitedly, the disciplinary authority has discretion to place a person under suspension under clause (b) provided either of these three conditions are satisfied, namely: (i) The charges are connected with the person in his position as a ploice officer, or (ii) It is likely to embarrass him indischarge of his duties, or 6. When any of these conditions are satisfied, then certainly such discretion is to be exercised by the disciplinary authority provided there are justifiable reasons to suspend if such complaints are initiated by private person. Admittedly, the complaint was lodged by 1998 ------ Constable J.N.Rai Vs. S.S.P., Alld. & others ------ D.K.Seth, J. 1 All.] ALLAHABAD SERIES 155 a private person. Nothing has been disclosed to show that the disciplinary authority had applied its mind to justify the suspenstion since the complaint was intitiated on the accusations of a private person. Unless there is sufficient material to show that the disciplinary authority had applied its mind and had justifiabale reasons to suspend a person, the order of suspension cannot be sustained. In the present case nothing has been disclosed to show as to how the suspension of the petitioner is justified. Only reason that has been disclosed in the note or endorsement dated 26th May, 1993 is that is might effect the criminal case. The suspension or reinstatement can never affect proceedings of a criminal case. Success of a criminal case depends on the materials on record brought in evidence and not on the conduct of the disciplinary authority in putting a person under suspension or initiatting departmental proceeding or enquiry against him. An order of suspension is issued in course of a disciplinary proceeding departmentally. It is altogether an independent action and the same has nothing to do with the criminal prosecution. Crininal prosecution in no way is concerned with the departmental disciplinary proceeding. Therefore, the justification that has been sought to be advance seems to be unfounded. For the aforesaid reasons the order of suspension cannot be sustained. 7. Smt. Poonam Srivastava had relied on the decision in the case of P.J. Sundarrajan Vs. Unit Trust of India (1993 (22) Alld. Law Reports-141). The said decision is a very shsort one, the text whereof is quoted below: " Heard parties. We have perused the records. We are of the view that the departmental enquiry should be stayed till the trial which is stated to be pending in the court of the Chief Metropolitan Magistrate, Madras is completed. The enquiry shall accordingly stand stayed. However, it will be open to the respondents to proceed with the enquiry, if they so choose after the trial court has rendered its judgment, whether or not any appeal is taken from that judgment to a higher court. We are told that the trial has been pending since May 1989 and many witnesses have already been examined. Accordingly, we expect the trial court to complte the trial within three months from the date of receipt of a copy of this judgment. In the circumstances, the appeal is disposed of with no order as to costs." 1998 ------ Constable J.N.Rai Vs. S.S.P., Alld. & others ------ D.K.Seth, J. 156 THE INDIAN LAW REPORTS [1999 8. This judgment has no relevance so far as the present point is concerned. In the said case, a view was expressed that departmental enquiry should remain stayed then criminal trial is pending. It does not deal with the question of suspension or with rule 17 (1) (a) or 17 (1) (b) of the rules. Thus, reliance on this judgment is wholly misplaced. 9. Another decision relied on by the learned counsel for the petitioner is the decision in the case of Kusheshwar Dubey Vs. Bharat Coking Coal Ltd and others (A.I.R. 1988 S.C.-2118), in which the Apex Court had laid down as Follows: "6.The view expressed in the three cases of this Court seem to support the position that while there could be no legal bar for simultaneous proceedings being taken, yet there may be cases where it would be appropriate to defer disciplinary proceeding awaiting disposal of the criminal case. In the latter class of cases it would be open to the delinquent employee to seek such an order of stay or injunction from the Court. Whether in the facts and circumstances of a particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the Court will decide in the given circumstance of a particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial. As we have already stated that is is neither possible nor advisable to evolve a hard and fast, straight-jacket formula valid for all cases and of general application without regard to the particularities of the individual situation. For the dispossal of the present case, we do not think it necessary to say anything more, particularly when we do not intend to lay down any general guideline. 7. In the instant case, the criminal action and the disciplinary proceedings are grounded upon the same set of facts. We are of the view that the disciplinary proceedings should have been stayed and the High Court was not right in interfering with the trial court's order of injunction which had been affirmed in appeal." 10. A reading of the above decision shows that this case also has no relevance so far as the present question is concerned. In the said case, it was held that where criminal case is pending, it would be appropriate to defer the disciplinary proceeding awaiting disposal of the criminal case, and in such cases it would be open to the delinquent employee to seek an order of stay or injunction from the court. Whether in the facts and circumstances of a particular case 1998 ------ Constable J.N.Rai Vs. S.S.P., Alld. & others ------ D.K.Seth, J. 1 All.] ALLAHABAD SERIES 157 there should or should not be such simulteneous proceedings would then receive judicial consideration and the court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should have been stayed. Thus, reliance on this decision also does not held thus learned counsel for the petitioner. 11. In the facts and circumstances of the case as indicated before, this writ petition succeeds and is hereby allowed. The impugned order of suspension dated 20.04.1993 contained in annexure-1 to the writ petition is quashed. However, this order will not prohbit the respondents to pass appropriate order, if circumstances so warrant, provided there are sufficient reasons and justifiction therefor and it is so permitted in law. 25 25,*,1$/ -85,6',&7,21 ,*,1$/ -85,6',&7,21 &,9,/ 6,'( &,9,/ 6,'( '$7(' $//$+$%$' '$7(' $//$+$%$' %()25( %()25( 7+( +21·%/( %,12' .80$5 52< - 7+( +21·%/( %,12' .80$5 52< - 7+( +21·%/( 5. 6,1*+ - 7+( +21·%/( 5. 6,1*+ - &LYLO 0LVF :ULW 3HWLWLRQ 1R RI 7HKVLO %DU $VVRFLDWLRQ 'HRULD DQRWKHU «3HWLWLRQHU 9HUVXV ,* 5HJLVWUDWLRQ $OODKDEDG DQG RWKHUV «5HVSRQGHQWV &RXQVHO IRU WKH SHWLWLRQHU 6UL -3 *XSWD &RXQVHO IRU WKH UHVSRQGHQWV 6& 83 'RFXPHQWV :ULWHUV OLFHQVLQJ 5XOHV 25XOH *2 GDWHG EHDULQJ 1R65 (OHYHQ LV YDOLG 3DUD By the Court The prayer of the petitioner is to quash G.O.dated 20.4.1990 issued by the State Government in its Institutional Finance (Stamp and Registration) Deparment,Lucknow bearing No.SR-758 /Eleven-90 sent by the Joint Secretary to the Inspector General Registraion. 1998 ------ November,17