# Paras Nath and another v. State of U.P. and others

- **Citation:** (2001) 1 ILRA 334
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/paras-nath-and-another-v-state-of-u-p-and-others-39624
- **Pages:** 7

## Text

1All] Paras Nath and another V. State of U.P. and others
334
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By the Court

1. Heard Shri M.D. Singh, learned
counsel for the petitioners.

2. The instant writ petition has been
filed challenging the election on two
grounds. Firstly that voter's name was
included in two wards and secondly, the
candidate was not duly qualified since he
was below age. Both the grounds are
covered by our judgment wherein it has
been
held
that
election
petition
is
appropriate remedy. So far as the first
ground is concerned we have already held
today in writ petition no. 53873 of 2000
that
the
petitioner
has
an
equally
efficacious and speedy alternative remedy
by way of filing an election petition. So
far as other ground is concerned Section
19 C provides as follows:

"19(c) that such person was not
qualified to be nominated as a candidate
for election or that the nomination paper
of the petitioner was improperly rejected."

3. It has been averred that under
Section 13 D disqualification has been
prescribed. Since the elected member is
below age he is disqualified. That
amounts to the fact that nomination paper
should not have been accepted and that is
covered under Section 19 C. Under
Section 19 C he is to file election petition.
In that view of the matter we are of the
opinion
that
election
petition
is
appropriate remedy and writ petition does
not lie.

4. The writ petition fails and is
dismissed.

5. Mr. Singh prays for certificate
under Article 134-A of the Constitution of
India for appeal to the Supreme Court.
We are of the view that the matter does
not involve substantial question of law of
general importance to grant leave. The
prayer for grant of leave is, therefore,
rejected.

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INDIAN LAW REPORTS ALLAHABAD SERIES [2001
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By the Court

1. The short and moot point for
determination and consideration in the
present petition is whether a Government
servant can be placed under suspension
pending
departmental
enquiry
or in
contemplation thereof by an order passed
by an officer higher in rank than the
appointing authority ? The controversy
has arisen in the wake of the following
facts:

2. The petitioner, who is a Boring
Technician in the Department of Minor
Irrigation and is posted at Vikas Khand,
Virnao, district Ghazipur, has been placed
under suspension in contemplation of
departmental enquiry by order dated
21.9.2000
by
the
Superintending
Engineer,
Minor
Irrigation
Circle,
Allahabad. There is no dispute about the
fact that the services of the petitioner are
governed by U.P. Laghu Sinchai Boring
Providhigya Sewa Niyamawali, 1993
(hereinafter
referred
to
as
the
"Niyamawali") and in pursuance of Rule
3
(ka),
the
Executive
Engineer,
(Adhishashi Abhiyanta) of concerned
Mandal
of
the
Minor
Irrigation
Department is the appointing authority.

3. It is also an indubitable fact that
the order of suspension dated 21.9.2000, a
copy of which is Annuexure 1 to the
petition,
has
been
passed
by
Superintending Engineer, Minor Irrigation
Circle, Allahabad, who is an authority
higher in rank to the Executive Engineer,
i.e.,
the
appointing
authority.
The
gravamen of the charges against the
petitioner is that he has submitted false
Travelling
Allowance
bills
for
Rs.
9308.90P on the basis of forged and
fictitious documents by misleading the
authorities. He has further misconducted
himself by capricious and indisciplined
behaviour.

4. The only ground canvassed to
challenge
the
aforesaid
order
of
suspension in this writ petition under
Article 226 the Constitution of India is
that it is vitiated on account of the fact
that it has not been passed by the
Executive Engineer, compete to appoint
the petitioner under the rules.

5. This position is accepted at all
hands
that
the
Executive
Engineer
concerned is the appointing authority of
the petitioner, while the Superintending
Engineer
who
has
suspended
the
petitioner is an officer higher in rank than
the Executive Engineer.

6. Heard S/Sri M.M. Rai and
Sudhakar Pandey, learned counsel for the
petitioner, learned Standing counsel as
well
as
Ms.
Naheed
Ara
Moonis
1All] Lallan Prasad V. State of U.P. and others
336
appearing on behalf of the respondent no.
4.

7. Sri Sudhakar Pandey, learned
counsel for the petitioner urged that since
the Executive Engineer has been specified
as the appointing authority under the rules
governing the service conditions, no other
officer is empowered to suspend the
petitioner. He further urged that when
specific provision with regard to the
appointing authority has been made in the
rules, no other authority can exercise the
powers to initiate disciplinary proceedings
or to suspend an employee. In short, the
submission of the learned counsel for the
petitioner is that when a rule deals with a
particular subject and is exhaustive on
that subject, it has to be followed and no
other course in violation thereof is
permissible. In support of his contention,
the learned counsel for the petitioner
placed reliance on the full Bench decision
of this court in the case of S.P.
Srivastava Vs. Banaras Electric Light
and Power Company Ltd.(1968 A.L.J.
- 257) in which it was observed that it is a
well known cannon of construction that
when
a
particular
mode
of
doing
something is specified by statute, the
modes of doing that thing are prohibited
by necessary implication. A reference was
also made to the decision of the apex
court in Babaji Kondaji Garad and other
Vs. Nasik Nerchants Co-operative Bank
Ltd. ALR 1984 S.C. -192 in which the
principles of interpretation of statutes and
construction of legislative measures came
to be considered. It was held that when
Statutes require certain things to be done
in a particular manner, it can be done in
that manner alone, unless al contrary
indication is to be found in the statutes.
There can be no quarrel about the
proposition of law laid down in the
aforesaid two decisions with regard to the
interpretation and construction of the
provisions of law and the rules.

8. Sri Pandey further placed reliance
on the decision of the Division Bench of
this court in the case R.N. Tiwari Vs.
Joint
General
Manager
(Administration
Personnel)
and
another-1986 (I) AISLJ Page 20 to lend
strength to his submission that the
suspension by an authority senior to the
appointing authority but not empowered
by the Rules is not permissible. The
petitioner of that case was suspended in
contemplation of enquiry by the Joint
General
Manager,
U.P. State Road
Transport
Corporation
while
his
appointing authority was the Regional
Manager, an authority lower in rank than
the Joint General Manager. On behalf of
the petitioner of that case, contention was
raised than an order by an authority not
competent to pass is void and bad in law.
The order of suspension was quashed on
the ground that the joint General Manager
was not the person competent to suspend
the petitioner of that case. A careful study
of the aforesaid decision would reveal that
it was nowhere laid down that the
authority superior to the appointing
authority
cannot pass an order of
suspension
or
initiate
departmental
enquiry. In that case undisputed facts
were that the appointing authority was the
Regional Manager but the Board of
Directors of the U.P. State Transport
Corporation had passed a resolution
empowering the General Manager also to
pass order of suspension and to initiate
disciplinary
action
against
certain
categories of persons whose appointing
authority was lower in rank than the
Chairman and the General Manager.
There was no delegation and authorisation
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
337
in favour of the Joint General Manager.
The submission on behalf of the U.P.
State Road Transport Corporation that on
the date on which the order was passed
the General Manager was out of station
and the Joint General Manager was
discharging his functions and therefore,
the order was passed by the Joint General
Manager exercising the power of General
Manager was valid and operative was
negatived on the ground that a bare
perusal of the order impugned showed
that it has been passed by Joint General
Manager in whose favour there was no
delegation and accordingly the order of
suspension was held to be illegal. The
case of Sampuran Singh Vs. State of
Punjab -1982 (3) S.C.C. - 200 was also
distinguished on the ground that the
language of Regulation 67 of the U.P.
State
Road
Transport
Corporation
Employees (other than officers) Service
Regulation 1931 provides that an order of
suspension can be passed either by the
appointing authority or by any one of the
authorities empowered in this behalf by
the Board. In view of this specific
provision it was held that the decision of
the apex court in Sampuran Singh (Supra)
does not apply to the case. The decision
of R.N. Tewari (supra) is of no help to the
petitioner. It is not an authority on the
point that the authority higher in rank to
the appointing authority cannot suspend a
delinquent subordinate in the department.

9. Sri Sudhakar Pandey further
placed reliance on the decision in the case
of State of U.P. and others Vs. Ram Singh
and another - 1997 U.P.L.B.E.C. 1160 as
well as Division Bench decision of this
court in Amanat Hussain Vs. Assistant
Conservator
of
Forests
1989
(1)
U.P.L.B.E.C. - 484. The law which flows
from these two decisions is that an
authority subordinate to the appointing
authority if not invested with the power of
suspension either under the rules or by
specific authorisation or delegation, is not
entitled to pass an order of suspension and
if an order of suspension has been passed
by such an authority, it would be bad in
law. These authorities have no bearing on
the question that the order of suspension
passed by an authority superior to the
appointing authority is not sustainable.
The reliance on these two decisions is,
therefore, misplaced.

10. One cannot lose sight of the fact
that
an
order
of
suspension
in
contemplation of the disciplinary enquiry
or during the pendency thereof or even
during the investigation enquiry or trial of
a criminal charge, does not amount to an
order of punishment. The employee
concerned continues to be in service. He
is merely forbidden from performing his
duties. It is well settled proposition of law
that an enquiry may initiated against a
delinquent employee even by an officer
who is subordinate to the appointing
authority as in such a case provisions of
Article 311 of the Constitution of India
would not be attracted. An order of
suspension passed against a Government
servant pending departmental enquiry is
neither one of dismissal nor removal from
service within the meaning of Article 311
of the Constitution of India. This position
has been clearly laid down by a
Constitution
Bench
of
the
Hon'ble
Supreme Court in the case of Mohd.
Gause Vs. State of Andhra Pradesh A.I.R.
1957 S.C. 246. Clause (1) of Article 311
will get attracted only when an employee
of the category specified in the Article or
one who holds a civil post under the
Union
or
State
is
'dismissed'
or
'removed' from service. The provisions of
1All] Lallan Prasad V. State of U.P. and others
338
the said clause has no application,
whatever,
to
a
situation
where
a
Government servant has been merely
placed
under
suspension
pending
departmental enquiry since such action
does not constitute either dismissal or
removal from service. It was in this
context that the apex court in Sampuran
Singh (Supra) took a view that by
necessary
implication
the
receiving
authority may be higher in rank to the
appointing authority.

11. The point in hand came to be
directly considered and decided by this
court in the case of Kamlesh Kumar
Chaurasia Vs. State of U.P. and others
1992 (19) A.L.R. - 522. In that case, the
Chief Secretary of the State who is higher
in rank to the Joint Director of Medical
and Health passed an order of suspension.
It was held that chief Secretary who
undoubtedly is the superior authority
could pass order of suspension though
such an order could not be passed by an
authority inferior or subordinate to the
appointing authority unless specifically
authorised.
Placing
reliance
on
the
decisions of the apex court in Sampuran
Singh (Supra); State of U.P. V. Ram
Naresh Lal A.I.R. 1970 S.C. 1262 and
R.P.Kapoor Vs. Union of India and
another A.I.R. 1964 S.C. 784 as well as
the decision of this court in Mritunjai
Singh Vs. State of U.P. A.I.R. 1971
Allahabad -214 it was held that on
general principles, the State Government
being employer has a right to suspend a
public servant. The Government acts
through its Secretaries and the Chief
Secretary is highest civil servant of the
State. Therefore, the impugned order of
suspension it was observed, can be treated
to
be
one
passed
by
the
State
Government, which has the authority to
suspend the petitioner (of that case).

12. In view of the peculiar structural
hierarchy of the Government, the powers
which are conferred on the subordinate
authorities are exercisable by the superior
officers. In this connection, a reference
may be made to clause(e) of paragraph 3
in Annexure- Part IV under the heading
'Delegation and Forms' appended to
Financial Hand Book, Part II to IV, which
provides that any power delegated to any
authority may also be exercised by any
authority higher to such authority in the
same
department
and
also
by
the
administrative department concerned, and
any
such
higher
authority
or
the
administrative department concerned may
modify or cancel any orders passed by a
lower authority.

13. Sequel to the above provision, a
reference was made to the observations
made by this court in the case of
Committee of Management Sri Gadhi
Adarsh Inter College, Lavedi district
Etawah and others Vs. Joint Director of
Education, Kanpur Region, Kanpur and
others
(1999)1
U.P.L.B.E.C.(Sum)-27
which run as under:

"...........A superior officer has the
implied and implicit administrative power
to perform the functions which its
subordinate
can
discharge.
If
a
subordinate officer has omitted to perform
his administrative duty or administrative
function, the superior would certainly step
in to pass appropriate correct order on
administrative side. If the illegal and
incorrect administrative order of the
subordinates are allowed to exist and
continue, the very purpose of creating the
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
339
hierarchy in the civil services would
frustrate ..........."

14. In the instant case, there is an
allegation that the appointing authority
was
in
collusion
with
the
present
petitioner and since the former was not
inclined
to
initiate
disciplinary
proceedings
against
the
latter,
the
Superintending
Engineer,
an
officer
higher in rank, had no option but to pass
an order of suspension in contemplation
of the departmental enquiry. This fact has
been controverted by the petitioners. So
far as the truthfulness and correctness of
this allegation is concerned, it is not
required to be sifted but the fact remains
that if such a situation arises, should the
higher authorities rendered to a helpless
state. The answer to it is an emphatic 'no'.
The
hierarchical
structure
of
the
governmental machinery is founded on
the
pre-supposition
that
the
higher
departmental authorities may exercise all
such powers, as may be vested in the
subordinate officer. If any void or vacuum
arises, it is permissible for the higher
authorities to exercise all those powers
and functions, which may be resorted to
or taken recourse by their subordinates.

15. As said above, service condition
of the petitioner are regulated by the
Niyamawali. Apart from the provision
made in rule 3 (Ka) that the Executive
Engineer of concerned Mandal of the
Minor Irrigation Department shall be the
appointing
authority
of
boring
Technicians, there is no legal interdict of
the rules that the superior authority cannot
initiate disciplinary action against such
Technicians. The silence of a rule on the
point has no exclusionary effect except
where
it
flows
from
necessary
implication. The Niyamawali governing
the service conditions of the petitioner
does
not
prohibit
the
initiation
of
disciplinary enquiry by an authority other
than the appointing authority.

16. The firm legal position which
emerges from the various decisions of the
apex court or of this court may thus be
stated that insofar as initiation of enquiry
by
an
officer
subordinate
of
the
appointing authority is concerned, it is
unobjectionable. The initiation can be by
an officer subordinate to the appointing
authority. Only the dismissal/removal
shall not be by an authority subordinate to
the appointing authority (See Transport
Commissioner, Madras-5 V. Thiru A
Radha Krishna Moorthy -JT 1994 (7)
S.C.
-744).
The
order
of
interim
suspension is capable of being passed by
the
appointing
or
the
disciplinary
authority or an authority subordinate to
the appointing authority if permissible
under the rules or duly authorised in that
behalf. In the absence of delegation or due
authorisation the subordinate authority,
though may initiate enquiry, cannot pass
an order of interim suspension. But
converse is not true for an authority
higher in rank to the appointing authority
can always exercise the powers and
functions
which
its
subordinate
functionary can perform.

17. The matter may be viewed with
yet another angle. Though the order of
punishment normally subject to scrutiny
by means of a departmental appeal to be
preferred
before
designated
higher
authority, the order of suspension pending
enquiry or in contemplation of the enquiry
is not appealable. No appeal lies against
an interim order of suspension. Therefore,
an employee who has been suspended by
an authority higher to the appointing
1All] Anil Kumar Azad and others V. State of U.P. and others
340
 authority cannot complain that he has
been deprived of the right of appeal. The
delinquent employee is not prejudiced in
any manner, if the order of suspension is
passed by a higher authority.

18. In the conspectus of above
discussion, I have no hesitation in
recording a firm finding that an order of
suspension
pending
enquiry
or
in
contemplation of such enquiry or, for that
matter, during the investigation, enquiry
and trial on a criminal charge of a
Government servant may be passed by an
authority superior and higher in rank to
the appointing authority. There is no law
to the contrary. Therefore, by virtue of his
placement
higher
in
hierarchy,
the
Superintending Engineer could pass an
order of suspension of the petitioner in
contemplation of the enquiry.

19.

Learned counsel for the
petitioner wanted me to go into the merits
or demerits of the allegations on the
strength of which the petitioner has been
suspended. The truthfulness, correctness
and the genuineness or otherwise of the
allegations charges against the petitioner
have to be determined by the enquiry
officer after evidence. The apex court has
repeatedly pointed out that even when the
matter comes to the High Court or
Tribunal
after
the
imposition
of
punishment, it has no jurisdiction to go
into truth of the allegations/charges
except in a case where they are based on
no evidence, i.e. where they are perverse.
The jurisdiction of this court, i.e. the
power of judicial review, is limited to the
examination of the procedural correctness
of the decision making process. This writ
court cannot sift the merits of the
allegations against the petitioner.

20. For the reasons stated above, the
order of suspension passed by the
Superintending
Engineer
cannot
be
legally faulted or assailed. The writ
petition, therefore, turns out to be devoid
of any merits and substance and it is
accordingly dismissed without any order
as to costs.

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