# R.C. Yadav v. State of U.P. and others

- **Citation:** (2002) 1 ILRA 286
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-03-14
- **Case number:** Special Appeal No. 127 of 2002
- **Bench:** S.K. Sen, C.J. S. Rafat Alam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/r-c-yadav-v-state-of-u-p-and-others-39819
- **Pages:** 4

## Headnote

Constitution
of
India,
Article
226-
Service
law-
Suspension
order-
challenged
as
no
formal
enquiry
pending-
complaint
of
corruption
1All] R.C. Yadav V. State of U.P. and others
287
preliminary
departmental
enquiry
report- the basis of suspension- can not
be interfered.

Held- Para 8

It is clear from the said judgment that
mere
existence
of
complaint
of
corruption is not sufficient or relevant.
However, in the instant case not only the
complaint have been looked into but a
preliminary inquiry was also conducted
and on the basis of the preliminary
report
the
department
has
already
contemplated full fledged inquiry. Under
such circumstances, in our view, the
decision does not really come in aid of
the learned counsel for the appellant.

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2002
286
practice on the part of the candidate or
any of his agents, then the High Court
may decide that the election of the
returned candidate is not void.

5. It is clear from the aforesaid
provisions of section 80 of the Act that no
election shall be called in question except
by an election petition. The High Court
under section 80A of the Act has been
empowered to try an election petition.
Under section 81 of the Act not only a
candidate but an elector also can present
an election petition. The petitioner being
elector or voter of the constituency in
question can file an election petition
under section 81 of the Act. So far as the
allegation made by the writ petitioner is
concerned that she was not allowed to
caste vote, we are of the view that section
100 (1)(d)(iv) of the Act shall apply in the
facts and circumstances of the case and
the petitioner has remedy of an election
petition.

6. Learned Advocate for the
petitioner has relied upon a judgment in
the case of Bar Council of Delhi and
another vs. Surjeet Singh and others
reported in (AIR 1980 SC 1612). This
decision relates to an election of Bar
Council, Delhi governing Advocates Act
and Bar Council of Delhi Election Rules.
In the facts and circumstances of the
present case this case does not have any
relevance. The other decision cited by the
learned Advocate for the petitioner in the
case
of
K.Venkatachalam
vs.
A.
Swamickan and another reported in (JT
1999 (3) SC 242) also does not apply to
the facts and circumstances of the present
case. It was specifically held by the
Supreme Court in paragraph 19 of the
said judgment that when the poll or repoll process is on for election to the
Parliament or Legislative Assembly, High
Court cannot exercise its jurisdiction
under Article 226 of the Constitution and
that remedy of the aggrieved parties is
under the Act read with Article 329 (b) of
the Constitution. The Act provides for
challenge to an election by filing the
election petition under section 81 on one
or more grounds specified in sub-section
(1) of Sections 100 and 101 of the Act.

7. We are of the view since it is well
settled by several decisions of the apex
court that there is no scope for granting
relief in such cases under Article 226 of
the Constitution and proper remedy for
the petitioner is to file an election petition
under the Act.

8. Accordingly the writ petition
stands dismissed being not maintainable.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.3.2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE S. RAFAT ALAM, J.

Special Appeal No. 127 of 2002

R.C. Yadav

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

Counsel for the Petitioner:
Sri Someshwari Prasad

Counsel for the Respondents:
Sri Sabhajeet Yadav
S.C.

Constitution
of
India,
Article
226-
Service
law-
Suspension
order-
challenged
as
no
formal
enquiry
pending-
complaint
of
corruption
1All] R.C. Yadav V. State of U.P. and others
287
preliminary
departmental
enquiry
report- the basis of suspension- can not
be interfered.

Held- Para 8

It is clear from the said judgment that
mere
existence
of
complaint
of
corruption is not sufficient or relevant.
However, in the instant case not only the
complaint have been looked into but a
preliminary inquiry was also conducted
and on the basis of the preliminary
report
the
department
has
already
contemplated full fledged inquiry. Under
such circumstances, in our view, the
decision does not really come in aid of
the learned counsel for the appellant.

(Delivered by Hon'ble S.K. Sen, C.J.)

1. Heard Sri Sidheshwari Prasad
Srivastava,
learned
Senior
Counsel
appearing on behalf of appellant. Sri
Sabhajeet
Yadav,
learned
Standing
counsel appearing on behalf of the
respondents.

2. This special appeal is directed
against the order passed by the learned
Single Judge dated 1.2.2002 in writ
petition, which was filed challenging the
suspension order wherein the learned
Single Judge has held that the inquiry
proceeding
contemplated
shall
be
concluded within four months and in the
event
the
proceeding
can
not
be
concluded in spite of the cooperation of
the writ petitioner it will be open to the
writ petitioner to apply for revocation of
the suspension order.

3. Learned Senior Counsel has
argued before us that contemplated
inquiry means inquiry must have been
initiated and in support of his contention
he has relied upon the judgment and
decision of a Division Bench of this Court
in the case of State of U.P.and others v.
Rajendra Shankar Nigum and others 1974
CAN 263 and has laid strong emphasis on
the portion of the judgment, which reads
as under:

"The expression 'an inquiry is
contemplated'
refers
to
the
formal
disciplinary inquiry held under rule 55 of
the Rules."

4. Relying upon the said decision
learned counsel has submitted that the
learned Single Judge should have quashed
the impugned order of suspension and
should not have directed the inquiry to be
concluded. He has also submitted before
us that the order of the learned Single
Judge directing inquiry to be completed is
without jurisdiction and as such the order
passed by the learned Single Judge should
be set aside.

5. It is well settled that unless an
inquiry is contemplated or an inquiry, is
pending, suspension order cannot be
passed. However, in the instant case the
impugned order itself shows that the
inquiry is under contemplation in respect
of the charges mentioned in the order. The
judgment and decision relied upon by the
learned Senior Counsel, in our view, does
not really assist him. In this connection
we may take note of the relevant portion
of the aforesaid judgment wherein a
Division Bench judgment of this Court in
the case of S.C. Kharbanda versus State
of U.P. Para 14 of the judgment reads as
under: -

"14. The material and relevant
expression in Rule 49-A is 'an inquiry is
contemplated or is proceeding'. The term
'contemplated' is not a term of art. It has
been used in its plain ordinary meaning.
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
288
The shorter Oxford Dictionary, Volume I
at
page
380
defines
the
word
'contemplated' to mean have in view, to
expect, to take into account as a
contingency. It indicates a stage where an
inquiry into the conduct of a Government
servant is imminently expected with a
view to impose some punishment upon
him. On receipt of complaints against the
conduct of a Government servant the
competent authority sets in motion an
informal inquiry to certify the correctness
of the allegations or to collect material
with a view to hold a disciplinary inquiry
so that if the alleged misconduct is
established
suitable
punishment
be
awarded. The inquiry which will result in
imposition of punishment can be said to
be expected or contemplated. When the
Government sets in motion its machinery
for investigating the alleged complaints so
that it may hold a formal inquiry more
properly the formal inquiry is clearly
contemplated, and the power to suspend
comes into play. In S.C. Kharbanda v.
State of U.P. a Division Bench observed:

"The mere fact that a preliminary
enquiry has been admittedly instituted is
proof positive of the fact that the
departmental enquiry is contemplated.
Were it otherwise, the authorities would
decline to undertake the preliminary
enquiry."

6. According to this decision, the
power to suspend will accrue when an
informal inquiry has been instituted.

7. In our view, it is also necessary to
take note of paragraph 16 of the judgment
relied upon by the learned Senior
Counsel. It reads as under:

"16. The order of suspension passed
against Sri R.S. Nigam the respondent in
Special Appeal No. 114 of 1973 only
mentions
that
the
Government
has
received serious complaints of corruption
from which doubt about his honesty and
integrity has arisen. The existence of such
serious complaints is to our mind not
relevant and material for the purpose of
the Note. If the Government desired that it
was not feasible to retain the charged
officer at his post it was open to it to pass
an order of suspension in the exercise of
its inherent power. The only difference
would have been that the officer would
have been entitled to full pay and
allowance.
Since
no
circumstances
making out a case of emergency or of
exceptional circumstances have been even
attempted to be established we deem it
unnecessary to express a concluded
opinion upon this aspect of this case."

8. It is clear from the said judgment
that mere existence of complaint of
corruption is not sufficient or relevant.
However, in the instant case not only the
complaint have been looked into but a
preliminary inquiry was also conducted
and on the basis of the preliminary report
the department has already contemplated
full-fledged
inquiry.
Under
such
circumstances, in our view, the decision
does not really come in aid of the learned
counsel for the appellant.

9. In our view, the learned Single
Judge
has
also
given
sufficient
opportunity to the appellant. Since the
learned Single Judge in the order has
provided that in the event in spite of the
co-operation
of
the
appellant-writ
petitioner the inquiry is not completed it
is open for him also to make an
application for cancellation of inquiry
1All] Sugreev Singh Desuriya V. The Central Government of India and others
289
under such circumstances, we do not find
any merit in the Special Appeal.

The Special Appeal being without
any merit fails and is dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD APRIL 3, 2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE R.K. AGARWAL, J.

Special Appeal No. 865 of 1999

Sugreev Singh Desuriya
...Appellant
Versus
The Central Government of India and
others

 ...Respondents

Counsel for the Appellant:
Sri Sugreev Singh Desuriya
In Person

Counsel for the Respondents:
Sri S.K. Rai
Sri K.D. Nag
S.C.

Air Force Rules 1969- Rule 15 and 24-
Policy
to
discharge
the
habitual
offenders Airman- Policy can not be said
ultra vires or illegal.

Held-Para 8

Sri S.K. Rai, learned Additional Standing
Counsel, however, submitted that the
appellant- writ petitioner had been given
entries in Red and Black ink in his
conduct book and when it increased to
more than four, a warning letter was
issued to him to mend his ways. When
another red entry was goven, he was
issued a show cause notice to show
cause as to why he should not be
discharged to which the appellant- writ
petitioner replied and thereafter he was
discharged from service. He further
submitted that this policy of Discharge of
Habitual Offender applied by the Indian
Air Force, has been subject matter of
consideration
before
the
Hon'ble
Supreme Court in the case of Union of
India and others vs. Corporal A.K. Bakshi
and another reported in A.I.R. 1996 SC
1368. The Hon'ble Supreme Court has
upheld the order of discharge on the
basis of this policy. He further submitted
that in the said policy the basic idea in
the said policy is that recurring nature of
punishment for misconduct imposed on
an air man renders him unsuitable for
further retention in the Air Force and is
not by way of punishment for the mis
conducts for which he has already been
punished. The policy cannot be said to be
ultra- vires or illegal.

(Delivered by Hon'ble R.K. Agarwal, J.)

1. Special Appeal No. 865 of 1999
has been filed by the appellant writ
petitioner,
Sugreev
Singh
Desuriya,
against the Judgment and order dated
24.11.1995 passed by the learned Single
Judge, whereby, the learned Single Judge,
dismissed the Misc. Writ Petition No.
3320
of
1991
with
the
following
observations:

"In my opinion as the petitioner has
not prayed for any relief against any
punishment order either minor or major,
but apprehending some punishment he
has
prayed
for
direction
to
the
respondents not to discharge the petitioner
prematurely.

The main grievance shown by the
petitioner with regard to the warning
contained in Annexure No. 23, which
refers to previous action taken against the
petitioner and the warning by itself is not
indicative of the ultimate order of
discharge. In my opinion the warning
issued to the petitioner as contained in the