# Phool Singh v. State of U.P. & Ors

- **Citation:** (2014) 3 ILRA 1351
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-11-24
- **Case number:** Civil Misc. Writ Petition No. 36130 of 2014
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/phool-singh-v-state-of-u-p-ors-43134
- **Pages:** 8

## Headnote

(A) U.P. Municipalities Act 1916, read
with U.P. Municipal Board Servants
(Inquiry Punishment and Termination of
1352
 INDIAN LAW REPORTS ALLAHABAD SERIES
Services) Rules 1960-Rule 74-Suspension
of permanent servant of non centralized
services-challenged
being
without
jurisdiction-as appointing
authority is
municipality and not the President-heldmunicipality means an institution of Self
government as per provisions of Section
77-competent authority is the president
and not the Board-can not be said
without jurisdiction.
Held: Para-16 & 17

## Text

3 All].
Phool Singh Vs. State of U.P. & Ors.
1351
Officer, Barabanki was not justified in
restraining
the
Management
from
advertising the posts.
11. There is another aspect of the
matter. Under Rule 13, the Management
is only required to intimate the vacancy to
District Basic Education Officer and its
approval for advertising the same in the
newspaper was not required. The grant of
approval to the selection made on Class
IV post by the Management comes at a
later stage under sub rule (5) of Rule 15.
In view of this, there was no justification
on part of District Basic Education
Officer to pass the impugned order,
refusing
to
accord
approval
for
advertising the post. Sri Rahul Shukla
appearing on behalf of Basic Education
Officer also supported the submission
made by the petitioner, in this regard.
12. Learned counsel for the
petitioner
submitted
that
there
is
apprehension
that
District
Basic
Education Officer, who has passed the
impugned order, would not nominate the
specialist in the Selection Committee and
would thereby, scuttle the selection
process. The aforesaid apprehension of
the petitioner can be taken care of by
providing that District Basic Education
Officer shall nominate the specialist in
case request is made to him by the
petitioner, after due advertisement of the
vacancies. However, after the Selection
Committee makes recommendation, the
District Basic Education Officer shall be
empowered to take decision on its own
merits, regarding grant of approval to
such appointment.
13. In view of above discussion, this
writ petition is allowed. The order dated
27.9.2014 passed by the District Basic
Education Officer, Barabanki is quashed.
The Management shall be free to
advertise the vacancies. However, it is
provided that the Management shall
specifically mention in the advertisement
that the selection would be held subject to
decision of this Court in special appeal
No.1023 of 2012 pending against the
judgment of this Court dated 21.3.2012.
The District Basic Education Officer,
Barabanki is further directed to act in
accordance with law and nominate a
specialist in case any such request is made
by the Management, after following the
procedure prescribed for advertising the
vacancies. These, directions are without
prejudice to the power of the District
Basic Education Officer to examine the
validity of the selection at the stage of
grant of approval under Rule 15 (5).
14.

Subject
to
aforesaid
observations/directions,
writ
petition
stands allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.11.2014
BEFORE
THE HON'BLE SUNEET KUMAR, J.
Civil Misc. Writ Petition No. 36130 of 2014
Phool Singh
...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri A.C. Tiwari
Counsel for the Respondents
C.S.C., Sri Jagdish Pathak, Sri Anil Tiwari
(A) U.P. Municipalities Act 1916, read
with U.P. Municipal Board Servants
(Inquiry Punishment and Termination of
1352
 INDIAN LAW REPORTS ALLAHABAD SERIES
Services) Rules 1960-Rule 74-Suspension
of permanent servant of non centralized
services-challenged
being
without
jurisdiction-as appointing
authority is
municipality and not the President-heldmunicipality means an institution of Self
government as per provisions of Section
77-competent authority is the president
and not the Board-can not be said
without jurisdiction.
Held: Para-16 & 17
16. A bare perusal of the provisions of the
Act and 1960 Rules, the petitioner a clerk,
is permanent superior staff within the
meaning of Section 74 belonging to the
non-centralized service, can be appointed
and dismissed by the President, Section 77
read with 1960 Rules the authority
competent to pass an order of suspension
is the President not the Board, Section 77B read with rule 8(i) refers to 'competent
authority' and not the Board, thus, the
competent authority for punishment of
superior staff is the President.
17. Thus, it is evident from the
provisions of the Act and the rules,
stated herein above, the competent
authority to place the petitioner under
suspension is the President and not the
Board.
(B) U.P. Municipal Board Servants (Inquiry
Punishment & Termination of Service)
Rules 1960-Rule-4 (iv) and Rule 8 (1)-
Suspension-whether punishment or not?-
explained-when
during
contemplated
enquiry suspension order passed is no
punishment-under Rule 4(iv) suspensionheld-punishment.
Held: Para-26 & 27
26.
In the 1960 Rules, suspension is
provided both as a punishment, as well as,
pending enquiry
or contemplation
of
enquiry (rule 4(4)(iv) and rule 8(1) of
1960 Rules). Suspension pending enquiry
or contemplation of enquiry provided
under rule 8(1), is not a punishment. It is
not the case of the respondents that
suspension by way of punishment was
imposed upon the petitioner.
27. The petitioner was placed under
suspension on 29.05.2014, the moment
the President accepted the proposal of
Executive Officer to place the petitioner
under suspension pending enquiry. The
order
dated
02.06.2014
is
merely
communication of the suspension order
pending euquiry, it is not an order of
punishment.
Case Law discussed:
2001 (3) UPLBEC 2057; 1995 AIR 600; 1998
(1) AWC 282; [1999 (2) E.S.C. 1009 (S.C.)];
AIR (SC) 1959-0-1342; (1968) 2 SCR 577; AIR
1952 SC 362; AIR 1961 SC 276; AIR 1964 SC
787; (2006) 2 SCC 269; (1970) 1 SCC 362;
AIR 1996 SC 1313; (1969) 3 SCC 28; (2006) 2
SCC 269; (1960) 1 SCR 476; AIR 1961 SC 276;
AIR 1964 SC 787; (1970) 1 SCC 362; AIR 1968
SC 800.
(Delivered by Hon'ble Suneet Kumar, J.)
1. The petitioner is class III
employee working as a clerk with the
Nagar Palika Parishad, Bijnor, service
conditions are governed under the Uttar
Pradesh Municipalities Act 1916 read
with U.P. Municipal Board Servants
(Inquiry, Punishment and Termination of
Services)
Rules,
1960
(hereinafter
referred to as '1960 Rules')
2. By means of this writ petition, the
petitioner has challenged the complaint
dated 27.05.2014 made by the respondent
no. 3/4, Executive Officer, Nagar Palika
Parishad,
Bijnor,
approval
dated
29.05.2014 granted by the President,
Nagar
Palika
Parishad
and
the
consequential order of suspension dated
02.06.2014 passed by respondent no. 3.
3. Submission of learned counsel for
the petitioner is that the suspension order
is a malafide exercise of power in order to
punish the petitioner, is wholly without
jurisdiction as the appointing authority of
3 All].
Phool Singh Vs. State of U.P. & Ors.
1353
the petitioner is the Municipality and not
the President, the order is without
application of mind as the President has
merely
countersigned
the
complaint
lodged by the Executive Officer against
the petitioner. The order nowhere states
that
enquiry
is
either
pending
or
contemplated, and finally the allegations,
if accepted as correct, are not serious to
warrant the imposition of major penalty.
4. Learned counsel for the petitioner
in support of his submission has relied
upon the following judgments:
Smt. Meera Tiwari Versus The
Chief Medical Officer and others1, Om
Prakash Gupta Versus The State of
U.P.2, Ram Dular Tripathi Versus
State of U.P. and other3 and Capt. M.
Paul Anthony Versus Bharat Gold
Mines Ltd. and another4.
5. Per contra, Sri Anil Tiwari,
learned counsel for the Parishad would
submit that the order dated 02.06.2014 is
not the order of suspension, but merely
communication of the order, suspension
was passed vide order dated 29.05.2014
by the President. The allegations against
the petitioner, are very serious, as is
reflected in the complaint made by the
Executive Officer recommending the
suspension and initiation of disciplinary
proceedings which was duly approved
and endorsed by the President on
29.05.2014.
6. It is alleged that the petitioner,
being a clerk, had disobeyed the order of
the Commissioner and has been indulging
in illegal activities which was not in the
interest of the Nagar Palika Parishad.
Petitioner has removed important records
from the Nagar Palika, as well as, the
service book is in the custody of the
petitioner, questions was raised in the
Assembly regarding Nagar Palika, Bijnor,
but proper reply could not be sent to the
Assembly as the files and records were in
the custody of the petitioner which was
not handed over to the Nagar Palika, on
20.06.2014 the Executive Officer was
threatened, by some persons, at the behest
of
the
petitioner
to
withdraw
the
suspension order, respondent no. 3 lodged
First Information Report on 20.06.2014,
thus, the order of suspension pending
enquiry is legal and lawful order.
7.

Learned
counsel
for
the
respondents in support of his submission
has relied upon the following judgments:
Management Hotel Imperial, New
Delhi Vs Hotel Workers Union5,
Balvantray Ratilal Patel Versus State
of Maharash6, Shrimati Hira Devi and
others
Versus
District
Board,
Shahjahanpur through the Collector7,
T. Cajee Versus U. Jormanik Siem and
another8, R.P. Kapur Versus Union of
India and another9, L.K. Verma Vs.
HMT Ltd. and another10 and V.P.
Gidroniya
Vs.
State
of
Madhya
Pradesh and another11.
Rival
submissions
fall
for
consideration.
8. The submission of learned
counsel for the petitioner is two fold,
firstly that the order of suspension is
without jurisdiction as the competent
authority mentioned under the 1960 Rules
is the Municipality and not the President.
Secondly, it is argued that the suspension
order dated 02.06.2014 does not refer to
any allegation nor does it state that
enquiry is either contemplated or pending,
by merely endorsing the complaint of the
1354
 INDIAN LAW REPORTS ALLAHABAD SERIES
executive officer would not mean that the
order of suspension was passed by the
President, finally there is allegation of
malafides against the respondent no. 4,
the Executive Officer.
9. It is further contended that the
petitioner is a clerk, a class III employee
belonging to the non centralized service
of the Nagar Palika Parishad. Section 74
of the U.P. Municipalities Act 1916
(hereinafter referred to as 'Act') provides,
servants on posts in non-centralised
service, carrying scale of pay equal to or
higher than the lowest scale of pay
admissible to the clerical staff, shall be
appointed and may be dismissed, removed
or otherwise punished, or the services of a
probationer may be terminated, by the
President, subject to the right of appeal.
Proviso to section 74 refers the certain
posts including Tax and Sectional Head
Clerks whose appointments on such posts
shall be subject to the approval of the
Municipality. Section 74 is as follows:-
"74. Appointment and dismissal of
permanent superior staff.-Subject to the
provision of Sections 57 to 73, servants on
posts in the non-centralised services,
carrying scale of pay equal to or higher than
the lowest scale of pay admissible to the
clerical staff, shall be appointed and may be
dismissed, removed or otherwise punished,
or the services of a probationer may be,
terminated, by the President subject to the
right of appeal, except in the case of the
termination of the service of a probationer,
to such authority within such time and in
such manner as may be prescribed.
Provided that appointment on the
posts of Tax Superintendent, Assistant
Tax Superintendent, Inspectors, Head
Clerks, Sectional Head Clerks, Sectional
Accountants, Doctors, Vaids, Hakim and
Municipal Fire Station Officers, shall be
subject
to
the
approval
of
the
[Municipality].
10. Section 75 provides for
appointment of permanent inferior staff
and the power is vested with the
Executive Officer. The servants referred
to as the inferior staff would mean
servants carrying scales of pay lower than
the lowest scale of pay referred to in
section 74, and section 76 confers power
of punishment and dismissal of permanent
inferior staff upon the Executive Officer
and when there is no Executive Officer on
the President. Section 76 and 77 are as
follows:-
76. Punishment and dismissal of
permanent inferior staff.- Except as
otherwise
provided,
the
Executive
Officer, and where that is no Executive
Officer, the President may dismiss,
remove or otherwise punish servants of
the [Municipality], or terminate the
services of probationers, [referred to in
Section 75], subject to their right of
appeal, except in the case of termination
of the service of a probationer, to such
authority within such time and in such
manner as may be prescribed.]
77. Limitation of powers conferred
by Sections 71 to 76.-(1) the provisions of
Sections 71, 73, 74, 75 and 76, shall be
subject to the provisions of,-
(a)..........
(b).........
(2) The provisions of Sections 74, 75
and 76 shall also be subject to the
provisions of any regulation raising any
maximum or minimum monthly salary
prescribed
in
those
sections
with
reference to the respect powers of the
[Municipality], the [President] and the
Executive Officer over the staff."
3 All].
Phool Singh Vs. State of U.P. & Ors.
1355
11.
The powers conferred under
Section 74, 75 and 76 is subject to the
provisions of section 78 and any rule
pertaining to suspension or dismissal
[removal or other punishment or discharge or
termination of service] of such persons so
appointed. The power of suspension is
covered under Section 77-B. Section 77-B,
sub-clause 1 and sub-clause 5, is as follows:-
77-B. Power of suspension.-(1) The
authority competent to punish an officer
or servant of the [Municipality] may place
him under suspension,-
(a) where a disciplinary proceedings
against him is contemplated or pending;
or
(b) where a criminal case against him
in respect of an offence involving moral
turpitude is under investigation, enquiry
or trial.
(2)................
(3)................
(4)................
(5) [Municipality] shall act under this
section by a special resolution supported
by not less than two-thirds of the
members constituting the Board.
12. Sub-clause 9 of section 2 defines
"Municipality" means an institution of
self-Government [referred to in clause (e)
of Article 243-P] and sub-section (22) of
section
2
defines
"servant
of
the
[Municipality]" means any person in the
pay and service of the [Municipality].
13. Section 9 provides for the
Composition of Municipality which shall
consist by a President who shall be its
Chairman, elected members, Ex officio
members and nominated member.
14. The Service conditions of the
servants belonging to the non-centralized
servants is governed under 1960 Rules.
"Servants" in the Rules has been defined,
meaning servant of the Municipality and
competent authority means the authority
or Board (Municipality) competent under
the law to take such action. Rule 4
provides for the penalties which can be
imposed by the Board for sufficient
reasons. Sub-clause of rule 4 is as
follows:-
"4. Subject to the provisions of these
rules and any law governing a Municipal
Board, the following penalties may, for
good and sufficient reasons, be imposed
upon
a
servant
by
the
competent
authority, namely
(i) Censure,
(ii) With holding of increments,
including stoppage at an efficiency bar.
(iii) Reduction to a lower post or a
time-scale, or to a lower stage in a timescale.
(iv) Suspension"
15.

Rule
8(i)
provides
for
suspension of servant of Municipality
during enquiry or contemplation of
enquiry. Rule 8(i) is as follows:-
"8(1) Subject the provisions of any
law governing the municipal board, a
servant against whose conduct an inquiry
is contemplated or is proceeding, may in
the discretion of the competent authority
be placed under suspension pending the
conclusion of the enquiry."
16. A bare perusal of the provisions
of the Act and 1960 Rules, the petitioner a
clerk, is permanent superior staff within
the meaning of Section 74 belonging to
the non-centralized service, can be
appointed and dismissed by the President,
Section 77 read with 1960 Rules the
1356
 INDIAN LAW REPORTS ALLAHABAD SERIES
authority competent to pass an order of
suspension is the President not the Board,
Section 77-B read with rule 8(i) refers to
'competent authority' and not the Board,
thus,
the
competent
authority
for
punishment of superior staff is the
President.
17. Thus, it is evident from the
provisions of the Act and the rules, stated
herein above, the competent authority to
place the petitioner under suspension is
the President and not the Board.
18.

As
regards,
the
second
submission, as to whether the order of the
Chairman dated 29.05.2014 endorsing the
complaint of the Executive Officer
recommending
suspension
pending
enquiry or contemplation of enquiry is an
order of suspension or not, requires close
reading of the complaint. The executive
officer
complained
on
27.05.2014
alleging that the petitioner had scanned
his signature and issued contract, the
petitioner did not attend the Tehsil Diwas
in spite of the directions of the
Commissioner,
Moradabad
Division,
Moradabad, as such, the petitioner was
removed as Lekha Lipik and was made
the pairokar to pursue the cases of the
Nagar Palika Parishad. The petitioner did
not inform the Executive Officer of the
important cases, as a result, the Nagar
Palika Parishad lost certain important
cases thus resulting in loss to the Nagar
Palika; in spite of the directions being
issued to the petitioner, appeal was not
filed before the High Court, as such, the
Palika lost several crores, there are
allegations of the petitioner conniving
with the opposite party against the interest
of the Palika; keeping in custody of the
service book; filing of proxy complaints,
thus the Executive Officer recommended
that the petitioner be placed under
suspension pending enquiry, which was
duly approved and endorsed by the
President on 29.05.2014, the petitioner
was thereafter communicated the order of
suspension
on
02.06.2014
by
the
Executive Officer.
19. The contention of learned counsel
for the petitioner that endorsement of the
President dated 29.05.2014 is not the
suspension
order,
the
order
dated
02.06.2014
communicating
that
the
petitioner has been placed under suspension
is the order of suspension, cannot be
accepted for the simple reason that the
petitioner was placed under suspension on
29.05.2014
i.e. the moment President
approved the proposal. It would be wrong to
say that the President did not apply his
mind. The complaint made by the executive
officer alleges serious allegation against the
petitioner, which if true, would follow
imposition of major penalty, the President
by merely endorsing the complaint and
directing to proceed, as proposed would
mean that the petitioner was placed under
suspension with immediate effect pending
enquiry.
Merely
because
the
communication order dated 02.06.2014,
passed pursuant to the endorsement dated
29.05.2014, does not refer or mention that
the petitioner was placed under suspension
pending enquiry, is not correct, as the
suspension and enquiry was already
proposed which was approved and accepted
by the President. It is settled principle of
law that the suspension order comes into
effect the date it is passed and not from the
date of communication, unlike termination
or dismissal order.
20. An order passed by a competent
authority dismissing a government servant
from services requires communication
3 All].
Phool Singh Vs. State of U.P. & Ors.
1357
thereof vide State of Punjab Versus Amar
Singh Harika12, but an order placing a
government servant on suspension does not
require communication of that order vide
State of Punjab Versus Khemi Ram13.
What is, therefore, necessary to be borne in
mind is the knowledge leading to the
making of the order. An order of suspension
ordinarily would be presumed to have been
made when it is signed.
21. The contention on behalf of the
petitioner is that the order is not only
malafide exercise of power but the order
of suspension is a punishment order under
rule 4(4)(iv), hence opportunity should
have been given to the petitioner before
passing the order.
22.

Suspension
in
service
jurisprudence is of different kinds, viz as
punishment if provided under the service
rules, inherent power of the employer to
suspend and thirdly, rules providing for
suspension during pending enquiry or
contemplation of enquiry.
23. In L.K. Verma Versus HMT Ltd.
and another14, the Supreme court held as
follows:-
"17. Suspension is of three kinds. An
order of suspension may be passed by
way of punishment in terms of the
conduct rules. An order of suspension can
also be passed by the employer in
exercise of its inherent power in the sense
that it may not take any work from the
delinquent officer but in that event, the
entire salary is required to be paid. On
order of suspension can also be passed, if
such a provision exists in the rule laying
down that in place of the full salary, the
delinquent officer shall be paid only the
subsistence allowance specified therein."
[Refer:
Management
of
Hotel
Imperial V. Hotel Workers' Union15, T.
Cajee Versus U. Jormanik Siem and
another16 and R.P. Kapoor Versus Union
of India and another17,]
24. In V.P. Gidroniya Versus State
of Madhya Pradesh and another18, the
Constitution Bench of the Supreme Court
held as under:-
"8..............The general principle is
that an employer can suspend an
employee of his pending an enquiry into
his misconduct and the only question that
can arise in such a suspension will relate
to the payment of his wages during the
period of such suspension. It is now well
settled that the power to suspend, in the
sense of a right to forbid an employee to
work, is not an implied terms in an
ordinary contract. Between master and
servant, and that such a power can only be
the creature either of a statute governing
the contract or of an express term in the
contract itself. Ordinarily, therefore, the
absence of such a power either as an
express term in the contract or in the rules
framed under some statute would mean
that an employer would have no power to
suspend an employee of his and even if he
does so in the sense that he forbids the
employee to work, he will have to pay the
employee's wages during the period of
suspension. Where, however, there is
power to suspend either in the contract of
employment or in the statute or the rules
framed thereunder, the order of suspension
has the effect of temporarily suspending the
relationship of master and servant with the
consequence that the servant is not bound to
render service and the master is not bound
to pay. It is equally well-settled that an
order of interim suspension can be passed
against the employee while an enquiry is
1358
 INDIAN LAW REPORTS ALLAHABAD SERIES
pending into his conduct even though
there is no such term in the contract of
employment or in the rules, but in such a
case the employee would be entitled to his
remuneration for the period of suspension
if there is no statute or rule under which,
it could be withheld. The distinction
between suspending the contract of a
service of a servant and suspending him
from performing the duties of his office
on the basis that the contract is subsisting
is important. The suspension in the latter
case is always an implied term in every
contract of service. When an employee is
suspended in this sense, it means that the
employer merely issues a direction to him
that he should not to the service required
of him during a particular period. In other
words the employer is regarded as issuing
an order to the employee which because
the contract is subsisting, the employee
must today."
25. Suspension as punishment can
be imposed after holding departmental
enquiry.
The
Supreme
Court
in
Balvantray Ratilal Patel Versus State of
Maharashtra19, observed as follows:-
"...........On
general
principles
therefore the government like any other
employer, would have a right to suspend a
public servant in one of two ways. It may
suspend any public servant pending
departmental enquiry or pending criminal
proceedings; this may be called interim
suspension. The Government may also
proceed to hold a departmental enquiry
and after his being found guilty order
suspension as a punishment if the rules so
permit. This will be suspension as a
penalty."
26. In the 1960 Rules, suspension is
provided both as a punishment, as well as,
pending enquiry or contemplation of
enquiry (rule 4(4)(iv) and rule 8(1) of
1960 Rules). Suspension pending enquiry
or contemplation of enquiry provided
under rule 8(1), is not a punishment. It is
not the case of the respondents that
suspension by way of punishment was
imposed upon the petitioner.
27. The petitioner was placed under
suspension on 29.05.2014, the moment
the President accepted the proposal of
Executive Officer to place the petitioner
under suspension pending enquiry. The
order
dated
02.06.2014
is
merely
communication of the suspension order
pending euquiry, it is not an order of
punishment.
28. In my opinion, there is no
illegality or infirmity in the impugned
orders.
29. For the reasons and law stated
herein above, the writ petition fails and is
accordingly dismissed.
30. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.10.2014
BEFORE
THE HON'BLE ASHWANI KUMAR MISHRA, J.
Civil Misc. Writ Petition No. 40533 of 2014
Ankit Tiwari & Ors.
 Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
Sri Ashok Khare, Sri V.D. Shukla
Counsel for the Respondents
C.S.C., Sri Neeraj Tiwari, Sri R.K. Ojha