# Rakesh Bhusan Mishra v. State of U.P. and others

- **Citation:** (2011) 3 ILRA 1122
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-09-27
- **Case number:** Civil Misc Writ Petition No. 55931 of 2009
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-bhusan-mishra-v-state-of-u-p-and-others-42053
- **Pages:** 5

## Headnote

Appeal) Rules 1999-Rule-4-suspension
without
chargesheet-no
progress
in
disciplinary
proceedings-prolong
suspension without chargesheet-cannot
be
appreciated-suspension
order
quashed with liberty to fresh enquiry if
desired-cost of Rs. 20000/-recovered
from erring officer.

Held: Para 5

This is also a fact that the counter
affidavit
though
was
sworn
on
3 All Rakesh Bhusan Mishra V. State of U.P. and others
1123
13.5.2011, but there is nothing on record
to show that any charge sheet was
issued
to
the
petitioner
or
any
departmental inquiry commenced except
of
issuance
of
suspension
order
27.8.2009
though
this
Court
while
staying
the
order
of
suspension
permitted the respondents to continue
with the departmental enquiry.
Case law discussed:
2009 (1) AWC 691

## Text

1122 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
against the management of the institution
under the Intermediate Education Act.

8. At the very outset it may be
recorded that power of District Inspector of
Schools
to
appoint
a
person
on
compassionate ground, against the vacancy
available in the petitioner's institution, under
Regulations 101 to 106 of Chapter III of the
Regulations framed under the Intermediate
Education Act, which is within the quota for
direct recruitment, cannot be questioned.
Therefore, the recommendation made for
appointment of respondent no. 4 in the
petitioner's institution on compassionate
ground against the vacancy available for
direct recruitment is held to be legal and
valid.

9. The conclusion that if the second
post within the quota for direct recruitment
is filled by compassionate appointment, it
would amount to 100% reservation is
concerned, this Court finds that the
provisions of Regulations 101 to 106 of
Chapter-III of the Regulations framed under
the Intermediate Education Act do not carve
out any such prohibition. The statutory
provisions have not been challenged in this
petition.

10. So far as the insistence of the
District Inspector of Schools to ensure
joining of the compassionate appointee is
concerned, this Court is of the considered
opinion that the District Inspector of
Schools may not have acted strictly in
accordance with law even then the action
taken is in furtherance of interest of justice
and for enforcing lawful orders. Any
interference with the order of the District
Inspector of Schools will amount to
perpetuating an illegal action of the
management. Power under Article 226 of
the Constitution of India is not to be
exercised in favour of the Committee of
Management, which want to act illegally
and insists that other courses open to law
should have been adopted with sole purpose
to delay the joining of the lawfully
appointed candidate.

11. In the facts and circumstances of
the case, this Court refuses to exercise its
discretion under Article 226 of the
Constitution of India.

12. Writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.09.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc Writ Petition No. 55931 of 2009

Rakesh Bhusan Mishra
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri J.K. Sharma
Sri Shish Pal
Sri Shesh Kumar

Counsel for the Respondents:
C.S.C.

U.P. Govt. Servants (Disciplined and
Appeal) Rules 1999-Rule-4-suspension
without
chargesheet-no
progress
in
disciplinary
proceedings-prolong
suspension without chargesheet-cannot
be
appreciated-suspension
order
quashed with liberty to fresh enquiry if
desired-cost of Rs. 20000/-recovered
from erring officer.

Held: Para 5

This is also a fact that the counter
affidavit
though
was
sworn
on
3 All Rakesh Bhusan Mishra V. State of U.P. and others
1123
13.5.2011, but there is nothing on record
to show that any charge sheet was
issued
to
the
petitioner
or
any
departmental inquiry commenced except
of
issuance
of
suspension
order
27.8.2009
though
this
Court
while
staying
the
order
of
suspension
permitted the respondents to continue
with the departmental enquiry.
Case law discussed:
2009 (1) AWC 691

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

1. This is a case which demonstrates
how the power of suspension conferred
under the rules can be misused by the
nefarious and notorious Officers or those
who do not understand their responsibility
and statutory obligations.

2. Petitioner was appointed as Gram
Vikas Adhikari on 1.4.1989. It is not in
dispute that the appointing authority of
Gram
Vikas
Adhikari
is
District
Panchayat
Raj
Officer
(hereinafter
referred to as "DPRO"). Initially on the
allegation
that
petitioner
had
not
completed certain construction work, he
was
placed
under
suspension
on
12.1.2009. The said order of suspension
was revoked and the petitioner was
reinstated by order dated 23.1.2009. The
reinstatement order said that departmental
enquiry shall continue. The said enquiry
ultimately culminated in an order of
exoneration as is evident from the order
of January 2010 (Annexure 10 to the
counter affidavit). In the meantime
petitioner
was
again
placed
under
suspension by order dated 9.2.2009 which
was revoked on 3.3.2009 holding that
petitioner
has
completed
all
the
construction work and nothing wrong was
found on his part. He was allowed the
entire arrears of salary. Then a third order
of suspension was passed on 27.8.2009
referring to the show cause notice dated
13.7.2009 observing, besides others, as
under:

^^Jh jkds'k Hkw"k.k feJk] xzke iapk;r vf/kdkjh]
xzke iapk;r&flgkSyh] HkklkSu] fodkl [k.M&vkSjS;k
dks jk"V~h; jkstxkj xkjUVh ;kstuk ds dk;ksZ esa :fp
u ysus] Jfedksa ds tkc dkMZ cuokus o cus tkWcdkMksZa
dks vius ikl j[k /ku olwyus] xzke iapk;r&HkklkSu
dh [kqyh cSBd gsrq fu/kkZfjr frfFk fnukad 09-062009 dks [kqyh cSBd u djkus] xzke iapk;r HkkSrkiqj
ds 45 etnwjksa dks Hkqxrku u djus] 'kkSpky; fuekZ.k
dh xyr lwpuk izLrqr djus] fujh{k.k esa vkoafVr
200 'kkSpky;ksa ds lkis{k ek= 123 'kkSpky; cus ik;s
tkus vkfn ds fy, dk;kZy; i= la[;k 432 fnukad
13-07-2009 }kjk fuxZr vfUre dkj.k crkvksa uksfVl
dk Li"Vhdj.k 3 fnu ds vUnj izLrqr djus ds
funsZ'kksa ds foijhr fnukad 28-08-2009 rd
Li"Vhdj.k izLrqr u djus vkfn vkjksiksa esa rRdky
izHkko ls fuyfEcr fd;k tkrk gSA**

3. Respondents have filed their
counter affidavit wherein the copy of
show cause notice dated 13.7.2009
referred to in the impugned order of
suspension, has been filed as CA-9, and it
reads as under:

^^vij eq[; vf/kdkjh] ftyk iapk;r us vius
i= la[;k eheksa@fnukad 12-06-2009 }kjk voxr
djk;k gS fd vki }kjk xzk0 ia0 flgkSyh esa fofHkUu
;kstukvksa ds rgr fu/kkZfjr y{; dh tkudkjh
miyC/k ugha djkbZ xbZ rFkk ujsxk ds vUrZxr djk;s
x;s dk;Z esa tkc dkMZ /kkjdksa dks etnwjh u nsdj
tkc dkMZ vius ikl j[kus dh f'kdk;r dh xbZ gS
Bhd blh izdkj [k.M fodkl vf/kdkjh] vkSjS;k us
vius i= la[;k 441 fnukad 11-06-2009 }kjk voxr
djk;k gS fd vki }kjk xzke iapk;r&HkklkSu dh
[kqyh cSBdksa gsrq fu/kkZfjr frfFk fnukad 09-06-2009
dks [kqyh cSBd ugha djkbZ xbZ vkSj u gh mDr
fnukad dh vuqifLFkfr ds lEcU/k esa dksbZ Li"Vhdj.k
fn;k x;k] blh izdkj xzke iapk;r HkkSrkiqj ds
40&50 etnwj eq[; fodkl vf/kdkjh] egksn; ls
feys vkSj vki }kjk Hkqxrku vkfn u djus dh
f'kdk;r dh xbZA

vr% vkidksa bl vfUre dkj.k crkvksa uksfVl
ds ek/;e ls funsZf'kr fd;k tkrk gS fd vki
1124 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
mijksDr ds lEcU/k viuk Li"Vhdj.k fnukad 18-072009 rd izR;sd n'kk esa miyC/k djk;sa] lkFk gh
vki }kjk viuh rSukrh dh iapk;rksa esa tks 'kkSpk;y
vc rd iw.kZ ugha djk;s x;s gSa vksj mUgsa vkius
vius xyr Li"Vhdj.k esa iw.kZ n'kkZ;k gS tcfd
ftyk fodkl vf/kdkjh egksn;] us vius fujh{k.k esa
vkoafVr 200 'kkSpk;yksa ds lkis{k ek= 123 'kkSpky;
cus ik;s gSa ds lEcU/k esa Hkh 'kkSpky; 3 fnu ds
vUnj iw.kZ djkrs gq, Li"Vhdj.k miyC/k djk;sA
vkidk Li"Vhdj.k fu/kkZfjr vof/k esa izkIr u gksus
dh fLFkfr esa vkidks fuyfEcr dj vfuok;Z
lsokfuo`fRr dh dk;Zokgh izkjEHk dj nh tk;sxhA
ftlds fy, vki Lo;a O;fDrxr :i ls iw.kZ
mRrjnkbZ gksaxsA**

4. Learned Standing Counsel
submitted that petitioner has not been
placed under suspension without any
reason. There are certain acts and
omissions constituting misconduct on
account whereof he has been placed under
suspension.

5. This is also a fact that the counter
affidavit though was sworn on 13.5.2011,
but there is nothing on record to show that
any charge sheet was issued to the
petitioner or any departmental inquiry
commenced
except
of
issuance
of
suspension order 27.8.2009 though this
Court
while
staying
the
order
of
suspension permitted the respondents to
continue with the departmental enquiry.

6. In the rejoinder affidavit, in para
9, petitioner has said that there is no
progress in enquiry.

7. The order of suspension can be
passed only when prima facie an
employee is found to have committed
some
act
or
omission
constituting
misconduct
which
may
result
in
imposition of major penalty as provided
under Rule 4 of U.P. Government
Servants Discipline and Appeal) Rules,
1999 (hereinafter referred to as "1999
Rules"), relevant part whereof is as under:

"Provided that suspension should not
be resorted to unless the allegations
against the Government servant are so
serious that in the event of their being
established may ordinarily warrant major
penalty."

8. In the present case, notice dated
13.7.2009 issued to petitioner mentioned
that in case petitioner does not get the
construction work completed and submit
his reply, he shall be placed under
suspension
and
proceeding
for
his
compulsory retirement would be initiated.
Meaning thereby that the competent
authority was clear in his mind that no
major penalty can be imposed upon the
petitioner and at the best he can be
considered for compulsory retirement
under Fundamental Rule 56. It is well
settled that compulsory retirement under
Fundamental Rule 56 is not a punishment
and the Rule does not contemplate any
punishment like compulsory retirement.

9. Moreover, non issuance of any
charge sheet to petitioner so far fortify
and justify an inference to be drawn by
this Court that the order of suspension
passed in this case is stigmatic, arbitrary
and even otherwise illegal and also gross
abuse of the power conferred upon the
appointing
authority
regarding
suspension.

10. Moreover, such a prolonged
suspension can not be held valid and
justified and the respondents can not be
allowed to keep an employee under
suspension for an indefinite period as held
by this Court in Smt. Anshu Bharti Vs.
State of U.P. and others, 2009(1) AWC
3 All Rakesh Bhusan Mishra V. State of U.P. and others
1125
691 where in paras 9, 10, 11, 12 and 13
this Court has observed as under:

"9. . . . . . The prolonged suspension
of the petitioner is clearly unjust and
unwarranted. The question deals with the
prolonged agony and mental torture of a
suspended employee where inquiry either
has not commenced or proceed with snail
pace.
Though
suspension
in
a
contemplated or pending inquiry is not a
punishment but 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 if 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 with due
diligence and within a reasonable time. 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
without holding any enquiry, or in a
prolonged enquiry is unreasonable. It 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.

10. A Division Bench of this Court in
Gajendra Singh Vs. High Court of
Judicature
at
Allahabad
2004
(3)
UPLBEC 2934 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."

11.
Disapproving
unreasonable
prolonged suspension, the Apex Court in
Public Service Tribunal Bar Association
Vs. State of U.P. & others 2003 (1)
UPLBEC 780 (SC) observed as under :

"If a suspension continues for
indefinite
period
or
the
order
of
suspension passed is malafide, 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)

12. The statutory power conferred
upon the disciplinary authority to keep an
employee
under
suspension
during
contemplated or pending disciplinary
enquiry cannot thus be interpreted in a
manner so as to confer an arbitrary,
unguided an absolute power to keep an
employee
under
suspension
without
enquiry for unlimited period or by
prolonging
enquiry
unreasonably,
particularly
when
the
delinquent
1126 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
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.

13. The view I have taken is
supported from another Judgment of this
Court in Ayodhya Rai & others Vs. State
of U.P. & others 2006 (3) ESC 1755."

11. In view of above discussion, writ
petition is allowed. Impugned order dated
27.8.2008 (Annexure 5 to the writ
petition) passed by respondent no. 3 is
hereby quashed.

12. It is, however, made clear that
this
order
shall
not
preclude
the
respondents
from
completing
departmental enquiry, if any, against the
petitioner.

13. Petitioner shall also be entitled
to cost which I quantify to Rs. 20,000/-
against respondent no. 3 which, at the first
instance, shall be paid by the respondent
no. 1 but it would have liberty to recover
the said amount from the official
concerned who is/was responsible for
passing order impugned in this writ
petition at the relevant time; after making
such enquiry as permissible in law.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2011

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 57580 of 2007

Santosh Singh

 ...Petitioner
Versus
State of U.P. and another

 ...Respondents

Counsel for the Petitioner:
Sri Atul Kumar
Sri Vijay Gautam
Sri R.S. Yadav
Sri Ajeet Kumar Yadav

Counsel for the Respondents:
C.S.C.

U.P. Police officers of subordinates Ranks
(Punishment and Appeal) Rules 1999-Rule
8 (2) (b)-dismissal from service-dispensing
with formal enquiry-no reasons recorded
of satisfaction for not practicable to held
enquiry-order not sustainable-direction for
reinstatement
with
all
consequential
benefits given.

Held: Para 17

A bare perusal of the impugned order goes
to show that no reason has been recorded
by the authority for invoking the power
conferred by Rule 8 (2) (b) of 1991 Rules
and
to
dispense
with
the
regular
departmental enquiry. Even in the counter
affidavit filed on behalf of the respondents,
no such material has been brought on
record on the basis of which, it could be
said that the authority was satisfied that it
was not reasonably practicable to hold a
regular departmental enquiry.
Case law discussed:
AIR 1985 SC 1416; (1991) 1 SCC 362; (2005) 11
SCC 525; Special Appeal No. 1122 of 2001, State
of U.P. And others Vs. Chandrika Prasad; Special