# Nabi Jan Qureshi v. State of U.P. and others

- **Citation:** (2009) 3 ILRA 1118
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-12-01
- **Case number:** Civil Misc. Writ Petition No. 73502 of 2005
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nabi-jan-qureshi-v-state-of-u-p-and-others-41395
- **Pages:** 7

## Headnote

Rules, 1968 (as amended in 2004)-Rule
73 (3)-suspension of executive officerorder passed as per dictation of superior
authority without application of mind not
sustainable.

(B) Words and Phrauges-misconductPetitioner working as executive officerduring
inspection,
Commissioner
noticed-non supply of drinking water,
sanitation,
sewage
and
drainage
arrangements-can
be
treated
as
inefficiency but can not be termed as
misconduct
suspension
order
wholly
unwarranted.

Held: Para 12 & 16

The responsibility of Executive Officer is
to carry out the functions as per policy
decision taken by elected representative
of the local body. Unless there is
material to so that the writ petitioner in
a particular manner was to act or omit
but he defied and failed to do so, it
cannot be said that some deficiency in
observing certain statutory functions of
the local body would per se constitute
misconduct

Thus
an
act
does
not
amount
to
misconduct on the part of the concerned
employee unless it could be shown that
he is guilty of acting or omitting his duty
deliberately which he is otherwise liable
to perform. Hence also, I do not find that
any departmental inquiry could have
been initiated against the petitioner on
the allegations as contained in the
impugned order of suspension. In my
view, for this reason also, the writ
petition deserves to sustain.
3 All] Nabi Jan Qureshi V. State of U.P. and others
1119
(C) Constitution of India Article 226Prolong
Suspension-without
serving
charge sheet-without appointing Enquiry
Officer-not sustainable.

Held: Para 11

The statutory power conferred upon the
disciplinary
authority
to
keep
an
employee
under
suspension
during
contemplation or pending disciplinary
enquiry cannot thus be interpreted in a
manner so as to confer an arbitrary,
unguided and absolute power to keep an
employee
under
suspension
without
enquiry for unlimited period or by
prolonging
enquiry
unreasonably,
particularly
when
the
delinquent
employee is not responsible for such
delay. Therefore, I am clearly of the
opinion that a suspension, if prolonged
unreasonably
without
holding
any
enquiry or by prolonging the enquiry
itself, is penal in nature and cannot be
sustained.
Case law discussed:
2006(3) ESC 1755, 2004 (3) UPLBEC 2934,
AIR 1979 SC 1022, (1992) 4 SCC 54, Writ
Petition No. 39528 of 2006 decided on
29.11.2007.

## Text

1118 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Court and application filed by the
applicant and other co-accused persons
was disposed of. So far as the plea of alibi
is concerned, the same may be taken at
the time of the trial. In this case the death
of the deceased has occurred within 7
years of marriage of the deceased, the
death was unnatural, therefore, the
applicant may not be released on bail.

6.

Considering
the
facts,
circumstances of the case, submission
made by learned counsel for the applicant,
learned A.G.A. and learned counsel for
the complainant and from the perusal of
the record it appears that it is case in
which
without
doing
the
proper
investigation,
the
final
report
was
submitted by the I.O., the same has been
rejected
by
the
learned
Magistrate
concerned, the death of the deceased has
taken place within 7 years of her
marriage, it was unnatural death, the
deceased has sustained 3 ante mortem
injuries, to ensure the fair trial and
without expressing any opinion on the
merits of the case, the applicant is not
entitled for bail. The prayer for bail is
refused.

Accordingly
this
application
is
rejected.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.12.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 73502 of 2005

Nabi Jan Qureshi

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

Counsel for the Petitioner:
Sri Anoop Trivedi

Counsel for the Respondents:
Sri R.N. Yadav
Sri P.K. Pandey
S.C.

(A) U.P. Nagar Palika Centerlised Service
Rules, 1968 (as amended in 2004)-Rule
73 (3)-suspension of executive officerorder passed as per dictation of superior
authority without application of mind not
sustainable.

(B) Words and Phrauges-misconductPetitioner working as executive officerduring
inspection,
Commissioner
noticed-non supply of drinking water,
sanitation,
sewage
and
drainage
arrangements-can
be
treated
as
inefficiency but can not be termed as
misconduct
suspension
order
wholly
unwarranted.

Held: Para 12 & 16

The responsibility of Executive Officer is
to carry out the functions as per policy
decision taken by elected representative
of the local body. Unless there is
material to so that the writ petitioner in
a particular manner was to act or omit
but he defied and failed to do so, it
cannot be said that some deficiency in
observing certain statutory functions of
the local body would per se constitute
misconduct

Thus
an
act
does
not
amount
to
misconduct on the part of the concerned
employee unless it could be shown that
he is guilty of acting or omitting his duty
deliberately which he is otherwise liable
to perform. Hence also, I do not find that
any departmental inquiry could have
been initiated against the petitioner on
the allegations as contained in the
impugned order of suspension. In my
view, for this reason also, the writ
petition deserves to sustain.
3 All] Nabi Jan Qureshi V. State of U.P. and others
1119
(C) Constitution of India Article 226Prolong
Suspension-without
serving
charge sheet-without appointing Enquiry
Officer-not sustainable.

Held: Para 11

The statutory power conferred upon the
disciplinary
authority
to
keep
an
employee
under
suspension
during
contemplation or pending disciplinary
enquiry cannot thus be interpreted in a
manner so as to confer an arbitrary,
unguided and absolute power to keep an
employee
under
suspension
without
enquiry for unlimited period or by
prolonging
enquiry
unreasonably,
particularly
when
the
delinquent
employee is not responsible for such
delay. Therefore, I am clearly of the
opinion that a suspension, if prolonged
unreasonably
without
holding
any
enquiry or by prolonging the enquiry
itself, is penal in nature and cannot be
sustained.
Case law discussed:
2006(3) ESC 1755, 2004 (3) UPLBEC 2934,
AIR 1979 SC 1022, (1992) 4 SCC 54, Writ
Petition No. 39528 of 2006 decided on
29.11.2007.

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

1. Counter affidavit has already been
filed in this case by the respondents.

2. Heard Sri Anoop Trivedi for the
petitioner and learned Standing Counsel
for the respondents. Sri Trivedi does not
propose to file any rejoinder affidavit. As
requested and agreed by the learned
counsel for the parties this Court proceeds
to hear and decide the matter finally under
the Rules of the Court.

3. The present writ petition has been
filed challenging the order of suspension
dated 30.6.2005 passed by respondent
no.2, the Director, Local Bodies, U.P.,
Lucknow placing the petitioner under
suspension. It appears that the petitioner
was working as Executive Officer,
Nagarpalika Parishad Puranpur, Pilibhit at
the relevant time when the impugned
order of suspension was passed. There
was a visit by Commissioner, Bareilly
Division of the aforesaid Nagarpalika
Parishad
wherein
he
found
mismanagement regarding supply of
drinking water, cleaning, sewer and
drainage arrangements for which he held
the Executive Officer, i.e., the petitioner
prima facie responsible and sent his report
to the Government pursuant whereto a
letter dated 27.6.2005 issued by the State
Government directing respondent no.2 to
place petitioner under suspension and
hold departmental inquiry against him.
Pursuant thereto respondent no.2 has
passed the impugned order.

4. It is contended by learned counsel
for the petitioner that respondent no.2, the
disciplinary authority has passed the
impugned
order
not
on
his
own
application of mind but under the dictates
of respondent no.1 and, therefore, there is
no independent application of mind by
respondent no.2. It is further contended
that the allegations upon which the
impugned order of suspension has been
passed do not amount to misconduct
inasmuch as, it says that there was
deficiency in supply of pure drinking
water, cleaning, sewer and drainage
arrangement which at the best may result
or show lack of efficiency of the
petitioner in functioning but in the
absence of anything more, would not
constitute ''misconduct' on the part of the
petitioner warranting any disciplinary
action whatsoever. Hence he could not
have been placed under suspension in
exercise of powers under Rule 37(3) of
1120 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
U.P. Nagar Palika (Centralised Service)
Rules, 1968 as amended in 2004. He
lastly
contended
that
till
date
no
chargesheet
was
served
upon
the
petitioner and no departmental inquiry at
all has seen the light of the day which
itself shows that the impugned order of
suspension is punitive since neither any
departmental inquiry is contemplated nor
pending pursuant whereto the impugned
order of suspension has been passed,
hence it is liable to be set aside.

5. Learned Standing Counsel relying
on the counter affidavit submitted that the
Commissioner, Bareilly Division, Bareilly
made a spot inspection with respect to the
matter of drinking water, sanitation,
sewage and drainage arrangements of the
aforesaid Nagarpalika Parishad and found
the above aspects being maintained very
poorly for which he found the petitioner
guilty
and
recommended
for
his
suspension pursuant whereto the State
Government sent a letter dated 27.6.2005
recommending
suspension
of
the
petitioner and make departmental inquiry
against
him
pursuant
whereto
the
impugned order of suspension has been
passed and, therefore, it is correct.

6. The counter affidavit has been
filed on 23.1.2008 but there is no whisper
about the stage of departmental inquiry as
to whether any chargesheet has been
served upon the petitioner and inquiry
proceeded further or not.

7. Having considered the rival
submissions of the parties and perused the
record, in my view, the petition deserves
to be allowed.

8. A bare perusal of the impugned
order shows that it has been passed by
observing
that
the
departmental
proceedings are being initiated against the
petitioner but in the absence of issuance
of any chargesheet even after four years,
it cannot be said that any departmental
inquiry was in contemplation when the
impugned order was passed. It is no doubt
true that the order of suspension pending
contemplated inquiry or during pendency
of inquiry by itself is not a punishment
but where no inquiry is initiated at all for
years
together
and
the
employee
continues under suspension, such a
suspension cannot be said to be nonpunitive. By efflux of time and otherwise
such a suspension becomes punitive. It
also affects the reputation of the employee
concerned
amongst
own
colleagues,
society etc. This Court has considered this
aspect in Ayodhya Rai and others Vs.
State of U.P. and others 2006(3) ESC
1755 wherein it has been held as under:

"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
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
3 All] Nabi Jan Qureshi V. State of U.P. and others
1121
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."

9. 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."

10. 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).

11. The statutory power conferred
upon the disciplinary authority to keep an
employee
under
suspension
during
contemplation or pending disciplinary
enquiry cannot thus be interpreted in a
manner so as to confer an arbitrary,
unguided and absolute power to keep an
employee
under
suspension
without
enquiry for unlimited period or by
prolonging
enquiry
unreasonably,
particularly
when
the
delinquent
employee is not responsible for such
delay. Therefore, I am clearly of the
opinion that a suspension, if prolonged
unreasonably without holding any enquiry
or by prolonging the enquiry itself, is
penal in nature and cannot be sustained.

12. Besides even the allegations
pursuant whereto the impugned order of
suspension has been passed, assuming the
same to be correct, in absence of anything
further, I find that the same cannot be
read as constituting misconduct entitling
the respondents to hold departmental
enquiry. The mismanagement in supply of
drinking
water,
sewer,
drainage
arrangements etc. which are the statutory
functions of a local body are matters to be
condemned by one and all but the same
by itself can not be said to be a
misconduct of an Executive Officer who
alone
is
not
responsible
for
such
functions. The responsibility of Executive
Officer is to carry out the functions as per
policy
decision
taken
by
elected
representative of the local body. Unless
there is material to so that the writ
petitioner in a particular manner was to
1122 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
act or omit but he defied and failed to do
so, it cannot be said that some deficiency
in observing certain statutory functions of
the local body would per se constitute
misconduct

13. Learned Standing Counsel also
could not show as to how and in what
manner it was the sole responsibility of
the petitioner to take steps for removal or
effective arrangements in respect to the
above matters. Failure to perform in a
better or satisfactory manner may reflect
upon the efficiency of the employee
concerned but is not a misconduct as held
by the Apex Court in Union of India Vs.
J. Ahmed, AIR 1979 SC 1022, wherein,
explaining the term 'misconduct' the
Hon'ble Court held as under :

"It would be appropriate at this stage
to ascertain what generally constitutes
misconduct, especially in the contest of
disciplinary
proceedings
entailing
penalty." (para 10)
"Code of conduct as set out in the
Conduct Rules clearly indicates the
conduct expected of a member of the
service. It would follow that that conduct
which is blameworthy for the Government
servant in the context of Conduct Rules
would be misconduct. If a servant
conducts himself in a way inconsistent
with due and faithful discharge of his duty
in service, it is misconduct (see Pearce v.
Foster) (1988) 17 QBD 536 (at p.542). A
disregard of an essential condition of the
contract
of
service
may
constitute
misconduct
[see
Laws
v.
London
Chronicle (Indicator Newspaper)]. (1959)
1 WLR 698. This view was adopted in
Shardaprasad Onkarprasad Tiwari v.
Divisional
Supdt.,
Central
Railway,
Nagpur Divn., Nagpur, 61 Bom LR 1596:
(AIR 1961 Bom 150) and Satubha K.
Vaghela v. Moosa Razaf, (1969) 10 Guj
LR 23. The High Court has noted the
definition of misconduct in Stroud's
Judicial Dictionary which runs as under:-

"Misconduct
means,
misconduct
arising from ill motive; act of negligence,
errors of judgment, or innocent mistake,
do not constitute such misconduct."
In industrial jurisprudence amongst
others, habitual or gross negligence
constitute misconduct but in Management,
Utkal Machinery Ltd. v. Workmen, Miss
Shanti Patnaik, (1966) 2 SCR 434: (AIR
1966 SC 1051), in the absence of standing
orders
governing
the
employee's
undertaking, unsatisfactory work was
treated as misconduct in the context of
discharge being assailed as punitive. In S.
Govinda Menon v. Union of India, (1967)
2 SCR 566: (AIR 1967 SC 1274), the
manner in which a member of the service
discharged his quasi judicial function
disclosing abuse of power was treated as
constituting misconduct for initiating
disciplinary proceedings. A single act of
omission or error of judgment would
ordinarily
not
constitute
misconduct
though if such error or omission results in
serious or atrocious consequences the
same may amount to misconduct as was
held by this Court in P.H. Kalyani v. Air
France, Calcutta, (1964) 2 SCR 104: (AIR
1963 SC 1756), wherein it was found that
the two mistakes committed by the
employee while checking the load-sheets
and
balance
charts
would
involve
possible accident to the aircraft and
possible loss of human life and, therefore,
the negligence in work in the context of
serious consequences was treated as
misconduct. It is, however, difficult to
believe
that
lack
of
efficiency
or
attainment
of
highest
standards
in
discharge of duty attached to public office
3 All] Nabi Jan Qureshi V. State of U.P. and others
1123
would ipso facto constitute misconduct.
There may be negligence in performance
of duty and a lapse in performance of duty
or error of judgment in evaluating the
developing situation may be negligence in
discharge of duty but would not constitute
misconduct
unless
the
consequences
directly attributable to negligence would
be such as to be irreparable or the
resultant damage would be so heavy that
the degree of culpability would be very
high. An error can be indicative of
negligence and the degree of culpability
may indicate the grossness of the
negligence. Carelessness can often be
productive of more harm than deliberate
wickedness or malevolence. Leaving aside
the classic example of the sentry who
sleeps at his post and allows the enemy to
slip through, there are other more
familiar (examples) instances of which
(are) a railway cabinman signalling in a
train on the same track where there is a
stationary
train
causing
headlong
collision; a nurse giving intraveious
injection which ought to be given
intramuscular
causing
instantaneous
death; a pilot overlooking an instrument
showing snag in engine and the aircraft
crashing causing heavy loss of life.
Misplaced sympathy can be a great evil
(see Navinchandra Shakerchand Shah v.
Manager,
Ahmedabad
Co.-op.
Department Stores Ltd., (1978) 19 Guj LR
108 at p.120). But in any case, failure to
attain the highest standard of efficiency in
performance
of
duty
permitting
an
inference
of
negligence
would
not
constitute misconduct nor for the purpose
of Rule 3 of the Conduct Rules as would
indicate lack of devotion to duty." (para
11)

14. Again in the case of State of
Punjab and others vs. Ram Singh ExConstable, (1992) 4 SCC 54 the Hon'ble
Apex Court has held as under:-

"Thus it could be seen that the word
''misconduct' though not capable of
precise definition, on reflection receives
its connotation from the context, the
delinquency in its performance and its
effect on the discipline and the nature of
the duty. It may involve moral turpitude, it
must be improper or wrong behaviour;
unlawful behaviour, wilful in character;
forbidden
act,
a
transgression
of
established and definite rule of action or
code of conduct but not mere error of
judgment, carelessness or negligence in
performance
of
the
duty;
the
act
complained of bears forbidden quality or
character. Its ambit has to be construed
with reference to the subject matter and
the context wherein the term occurs,
regard being had to the scope of the
statute and the public purpose it seeks to
serve. The police service is a disciplined
service and it requires to maintain strict
discipline. Laxity in this behalf erodes
discipline in the service causing serious
effect in the maintenance of law and
order." (para 6)

15. The same view has been taken
by this Court also in Civil Misc. Writ
Petition No. 39528 of 2006 (Dhirendra
Singh Vs. The Collector, Kanpur
Dehat,
and
another)
decided
on
29.11.2007.

16. Thus an act does not amount to
misconduct on the part of the concerned
employee unless it could be shown that he
is guilty of acting or omitting his duty
deliberately which he is otherwise liable
to perform. Hence also, I do not find that
any departmental inquiry could have been
initiated against the petitioner on the
1124 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
allegations as contained in the impugned
order of suspension. In my view, for this
reason also, the writ petition deserves to
sustain.

17. In the result, the writ petition
succeeds and is allowed. The impugned
order of suspension dated 30.6.2005
passed by respondent no.2 is hereby
quashed. The petitioner shall be entitled
to all consequential benefits. No order as
to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.12.2009

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 53992 of 2009

Jagmohan Shukla

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

Counsel for the Petitioner:
Sri Ramesh Upadhyaya

Counsel for the Respondents:
Sri Pradeep Kumar
C.S.C.

U.P. Intermediate Education Act, 1921Section 16 E(10)-Power of Reviewpetitioner was regularized as lecturer by
the Board on 21.12.1994-Joint Director
revised by order dated 24.09.2009-No
allegation of fraud or concealment of
facts
on
part
of
petitioner-wholly
without
jurisdiction-except
DirectorJoint Director has no role to play after 19
years.

Held: Para 18

Learned counsel for the Committee of
Management and the learned counsel for
the respondent no. 5 have urged that it
was not open to the petitioner to
question
the
regularisation
of
the
respondent nos. 5 and 6, inasmuch as,
the Regional Joint Director of Education
has no power to review the same as
there was no fraud or misrepresentation
and secondly even if the regularisation
order was infirm on any count, then the
same could have set aside only by the
Director of Education under Section 16E(10) or their removal could have been
given effect to through an approval by
the U.P. Secondary Education Services
Selection Board. This argument need not
detain this Court, inasmuch as, while
considering the case of the petitioner on
the question of regularisation herein
above, it has been held that the Regional
Joint Director of Education has no power
to review the regularisation order of the
petitioner, and as such, similarly on the
same reasoning the said authority had
no
power
to
review
the
claim
of
regularisation of the respondent nos. 5
and 6, which was not obtained by any
fraud or misrepresentation.

(Delivered by Hon'ble A.P. Sahi, J.)

1. The dispute relates to the
regularisation of the petitioner as a
Lecturer in Mathematics and his seniority
in that cadre as against the respondent
nos. 5 and 6. The provisions governing
the dispute are contained in the U.P.
Secondary Education Services Selection
Board
Act,
1982
and
the
U.P.
Intermediate Education Act, 1921.

2. This writ petition has been filed
questioning the order dated 24.09.2009
whereby the Regional Joint Director of
Education has annulled the regularisation
of the petitioner, which was granted on
21.12.1994.
The
other
order
under
challenge is dated 6th October, 2009,
whereby
the
seniority
has
been
determined between the petitioner and the
respondent nos. 5 and 6.