# Siddhartha Pandey v. State of U.P. & Anr

- **Citation:** (2016) 3 ILRA 551
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-03-03
- **Bench:** Manoj Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/siddhartha-pandey-v-state-of-u-p-anr-43484
- **Pages:** 7

## Text

3 All. Siddhartha Pandey Vs State OF U.P. & Anr.
551

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2016

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.

Writ A No.- 6147 of 2016

Siddhartha Pandey ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for Petitioner:
Sri Satish Mandhyan

Counsel for Respondents:
C.S.C., Sri Ashish Mishra, Sri Manish Goyal

Proceedings

Heard counsel for the petitioner, learned standing counsel for respondent no.1, and Sri Ashish Mishra
for respondent no.2. The petitioner, while working as Sessions Clerk in the court of Additional District
Judge, Court No.7, Fatehpur, was placed under suspension by impugned order dated 1.01.2016
passed by the second respondent (Incharge District Judge, Fatehpur). The allegation against the
petitioner is that he had used unparliamentary language with the Incharge District Judge and
misbehaved with him, appearing to be in a state of intoxication. Consequently, he was sent for
medical examination at District Hospital, Fatehpur, which reported dilated pupils and presence of
alcoholic smell, though his blood pressure was normal. On the same date, the Incharge District Judge
passed the impugned suspension order. The Additional District and Sessions Judge, Court No.5, was
appointed as Inquiry Officer to frame and serve a charge sheet after approval from the second
respondent. Aggrieved thereby, the petitioner filed the instant writ petition.

Procedure

It is undisputed that the District Judge was absent on the date of the impugned order. Section 10 of
the Act empowers the senior-most Additional Judge or Subordinate Judge to assume charge of the
District Judge's office in his absence and exercise all powers of the District Judge. The petitioner's
service is governed by the Uttar Pradesh State District Court Service Rules, 2013. Rule 23(2)
empowers the Appointing Authority to place a person under suspension pending enquiry. In the
instant case, the second respondent, being the statutory in-charge and Disciplinary Authority, was
competent to initiate disciplinary proceedings and suspend the petitioner. Delegation by notification
dated 17.12.2015 related only to financial matters and did not affect administrative powers under
Section 10 of the Act.

Sections

None - service / disciplinary suspension matter.

LIST OF CASES CITED
552 INDIAN LAW REPORTS ALLAHABAD SERIES

Arjun Chaubey v. Union of India, AIR 1984 SC
State of U.P. v. Sheo Shanker Lal Srivastava, SC
Awadhesh Kumar Gupta v. Board of Directors, U.P. Gramin Bank, Allahabad HC
Union of India v. Tulsi Ram Patel, (1985) SC

HEADNOTES

In service law matters involving suspension and disciplinary proceedings, the statutory authority
competent to place an officer under suspension may do so even if the authority is also the
complainant, provided the doctrine of necessity applies. Suspension under these circumstances is
preventive in nature, pending inquiry, and does not constitute a penalty. Principles of natural justice,
including the rule that no one shall be a judge in their own cause, may be excluded by statute or
where necessity dictates, especially in cases where the in-charge authority must act to maintain
administrative functions. The authority placing the employee under suspension is not required to
personally conduct the enquiry but may designate an independent Inquiry Officer. Allegations
regarding intoxication or other misconduct are to be adjudicated during the disciplinary enquiry, and
the suspension order should not be interfered with at the interim stage.

FACTS

Petitioner, working as Sessions Clerk, was suspended by order dated 01.01.2016 issued by the Incharge District Judge, Fatehpur.
Allegations:
He used unparliamentary language and misbehaved with the In-charge District Judge.
He appeared to be intoxicated; medical report noted alcoholic smell and dilated pupils.
Based on the incident, he was placed under suspension and an Additional District & Sessions
Judge (Court No. 5) was appointed as Inquiry Officer.
Petitioner challenged the suspension on grounds that:
In-charge District Judge was not competent authority.
The authority was complainant and judge in his own cause.
Respondents argued that:
Under Section 10, Civil Courts Act, 1887, the senior-most ADJ automatically becomes In-charge
District Judge with full powers.
Doctrine of necessity justified the action because the designated authority alone could act.

CONTENTIONS

Petitioner's Arguments

No delegation of administrative powers; thus suspension illegal.
In-charge DJ acted as complainant; hence bias and violation of natural justice.
Medical report does not prove intoxication.

Respondent's Arguments

Section 10 confers full disciplinary authority upon In-charge District Judge.
Doctrine of necessity permits action by the complainant-authority itself.
Suspension is procedural; not a punishment.

ANALYSIS

Authority of In-charge District Judge
3 All. Siddhartha Pandey Vs State OF U.P. & Anr.
553
Section 10 of the Bengal, Agra & Assam Civil Courts Act ensures continuity of administration.
The senior-most ADJ becomes In-charge DJ and may exercise any powers of DJ, including suspension.

Rules Governing Disciplinary Power
Rule 23(2), U.P. District Court Service Rules, 2013 gives suspension power to the appointing authority
(District Judge).
On that date, the second respondent was de jure disciplinary authority.

Delegation Argument Rejected
Financial delegation notification does not curtail statutory authority under Section 10.
No delegation to "next lower authority" existed; hence disciplinary power remained with In-charge DJ.

Complainant Acting as Disciplinary Authority
Ordinarily prohibited (nemo judex rule).
But doctrine of necessity applies where no other authority can act - as held in Sheo Shanker Lal,
Tulsi Ram Patel, etc.
Therefore, not illegal for In-charge DJ to suspend.

Suspension Not Punitive
It only facilitates enquiry.
Charges (misconduct + intoxication) are serious; suspension justified.

Medical Examination Dispute
Whether petitioner was actually drunk is a question of fact for the enquiry, not writ jurisdiction.

Bias Argument Not Sustainable
The enquiry is to be conducted by another officer; decision-maker ≠ complainant.
No demonstrated prejudice.

Scope of Article 226
Court cannot test factual allegations during pendency of disciplinary proceedings.
Only legality of suspension order examined - it is valid.

CONCLUSION

The In-charge District Judge was competent to suspend the petitioner under Section 10.
The action was not vitiated by bias because doctrine of necessity applied.
Suspension pending enquiry is procedural, not punitive.
The writ petition lacks merit and is dismissed.
Disciplinary proceedings directed to be concluded expeditiously.

(Delivered by Hon'ble Manoj Kumar Gupta, J.)

1. Heard counsel for the petitioner, learned standing counsel for respondent no.1 and
Sri Ashish Mishra for respondent no.2.

2. The petitioner, while he was working as Sessions Clerk in the court of Additional
District Judge, Court No.7, Fatehpur, was placed under suspension by impugned order dated
dated 1.01.2016 passed by the second respondent (Incharge District Judge, Fatehpur). The
allegation against the petitioner is that he had used unparliamentary language with the
Incharge District Judge and misbehaved with him. He appeared to be in a state of
554 INDIAN LAW REPORTS ALLAHABAD SERIES
intoxication and consequently, he was sent for medical examination at District Hospital,
Fatehpur. Following the medical examination a report was given, according to which, his
pupil was found dilated and there was alcoholic smell present on expiration. However, his
blood pressure was found to be normal. The Incharge District Judge, on the same date,
passed the impugned order placing the petitioner under suspension on charge of misconduct.
The Additional District and Sessions Judge, Court No.5 has been appointed as Inquiry
Officer and he has been authorised to frame a charge sheet and serve the same on the
petitioner after getting it approved from the second respondent. Aggrieved thereby, the
petitioner has preferred the instant writ petition.

3. The suspension order is being challenged primarily on two grounds. It is contended
that the second respondent, who was officiating as District Judge on that date, was not
competent to place the petitioner under suspension inasmuch as there was no delegation of
administrative powers of the District Judge in his favour. The other ground on which
challenge is laid to the suspension order is that the second respondent himself being the
complainant could not be a judge in his own cause and thus, could not have placed the
petitioner under suspension. It is urged that the petitioner was not under influence of
intoxication, nor the medical examination proves any such fact.

4. On the other hand, learned counsel appearing on behalf of the second respondent
submitted that on 1.1.2016, the date on which the impugned order was passed, the second
respondent was holding the charge of the office of the District Judge and in view of
provisions of Section 10 of the Begal, Agra and Assam Civil Courts Act, 18871, he was
competent to place the petitioner under suspension. He further submitted that the doctrine of
necessity impelled the second respondent to take the impugned decision and no exception
can be taken to the same.

5. It is not in dispute that on 1.1.2016 when the impugned order was passed, the District
Judge was absent from the place where his court is held. Section 10 of the Act specifically
provides that in such circumstances, the Additional Judge, or, if an Additional Judge is not
present at that place, the senior Subordinate Judge present thereat, shall, without
relinquishing his ordinary duties, assume charge of the duties of the District Judge, and shall
continue in-charge there of until the office is resumed. Sub-section 2 of Section 10 provides
that while in charge of the office of the District Judge, the Additional Judge or Subordinate
Judge, as the case may be, may, subject to any rules which the High Court may make in this
behalf, exercise any of the powers of the District Judge. Thus, the Statute does not envisage
a vacuum and makes provision authorising the Additional Judge to exercise any of the
powers of the District Judge. Concededly, no rules have been framed by the High Court in
this regard. The second respondent on that particular date was indisputably the senior most
Additional Judge in the district court and therefore, as per provisions of Section 10, he was
working as Incharge District Judge. Consequently, he was competent to exercise any of the
powers of the District Judge.

6. The service of the petitioner is regulated by the Uttar Pradesh State District Court
Service Rules, 20132. Under Rule 2 (1), the 'Appointing Authority' means the District and
3 All. Siddhartha Pandey Vs State OF U.P. & Anr.
555
Sessions Judge of the District. Section 2 (12) defines 'Disciplinary Authority' to mean an
Authority empowered under Rule 23 to impose penalty. Rule 23 (2) empowers the
Appointing Authority to place a person under suspension against whose conduct an enquiry
is contemplated or is proceeding. Under the third proviso, the Appointing Authority is
empowered to delegate its power to the next lower authority. In the instant case, concededly
there is no delegation of power to the next lower authority. The second respondent, in view
of provision of Section 10 of the Act read with Rule 23 (2) was thus the Disciplinary
Authority on that particular date and was competent to initiate disciplinary proceedings
against the petitioner and place him under suspension.

7. Learned counsel for the petitioner submitted that there had been a delegation of
power in favour of the second respondent by a notification dated 17.12.2015 but it is only in
relation to financial matters. It is, therefore, sought to be suggested that the second
respondent was not competent to exercise the administrative powers attached to the office of
the District Judge. However, this Court is unable to accept the said contention in view of
specific provisions of Section 10 of the Act which empowers the Incharge District Judge to
exercise any of the powers of the District Judge.

8. The other issue which arises for consideration before this Court is whether, in the
facts and circumstances of the instant case, the second respondent being the complainant
himself, was competent to place the petitioner under suspension. Learned counsel for the
petitioner has placed reliance on a Constitution Bench judgment of the Supreme Court in the
case of Arjun Chaubey Vs. Union of India and others3, wherein the Supreme Court has
held that where the complainant himself is the authority considering the explanation offered
by the delinquent, the order of dismissal passed, was held to be in breach of the principles of
natural justice. In that case, the appellant was working as a Senior Clerk in the office of
Chief Commercial Superintendent, Northern Railway, Varanasi4. His explanation was
called by CCS and finding it to be unsatisfactory, he was dismissed from service. The
regular disciplinary enquiry was not held on the pretext that it was not reasonably
practicable to hold an enquiry. Most of the charges related to alleged misconduct in relation
to CCS himself. The Supreme Court noticing that the Disciplinary Authority himself was the
complainant and also involved in assessing the weight of his own accusations, held the order
of termination to have been passed in breach of principles of natural justice. The Supreme
Court observed as under:-

"Evidently, Respondent 3 assessed the weight of his own accusations against the
appellant and passed a judgment which is one of the easiest to pass, namely, that he himself
was a truthful person and the appellant a liar. In doing this, Respondent 3 violated a
fundamental principle of natural justice. The main thrust of the charges against the
appellant related to his conduct qua Respondent 3. Therefore, it was not open to the latter to
sit in judgment over the explanation offered by the appellant and decide that the explanation
was untrue. No person can be a judge in his own cause and no witness can certify that his
own testimony is true. Any one who has a personal stake in an inquiry must keep himself
aloof from the conduct of the inquiry. The order of dismissal passed against the appellant
556 INDIAN LAW REPORTS ALLAHABAD SERIES
stands vitiated for the simple reason that the issue as to who, between the appellant and
Respondent 3, was speaking the truth was decided by Respondent 3 himself."

9. The Supreme Court in the case of State of U.P. Vs. Sheo Shanker Lal Srivastava
and others5 was dealing with a case where Lok Ayukta charged his Private Secretary of
certain misconduct. It was alleged that he had disobeyed the orders passed by the Lok
Ayukta and also used indecent language. A show cause notice was issued to him by the Lok
Ayukta and thereafter, the Lok Ayukta passed an order imposing punishment on him. The
order passed by the Lok Ayukta awarding punishment was subjected to challenge on the
ground that he himself being the complainant could not have conducted the enquiry nor was
competent to impose any punishment. The Supreme Court held that the doctrine of necessity
would be applicable and it would exclude the principles of natural justice. The order of
punishment was upheld by observing as under:-

"13. It is true that the principle of natural justice is based on two pillars : (i)
nobody shall be condemned without hearing; and (ii) nobody shall be a judge in his own
cause.

14. It is, however, well known that the principles of natural justice can be
excluded by a statute. They can also be waived.

15. In a case where doctrine of necessity is applicable compliance of the
principles of natural justice would be excluded."

10. A learned Single Judge of this Court in the case of Awadhesh Kumar Gupta Vs.
Board of Directors Allahabad U.P. Gramin Bank and others6 was confronted with a
similar plea. It was contended that disciplinary proceedings initiated against the delinquent
are liable to be struck down as the domestic enquiry was initiated by the complainant
himself. The Court, after noticing various decisions of the Supreme Court, concluded by
holding that doctrine of necessity would come into play and thus, no exception can be taken
to the initiation of domestic proceedings by the complainant himself.

11. A Constitution Bench of the Supreme Court in the case of Union of India and
another Vs. Tulsi Ram Patel7 as far back in the year 1985 examined the doctrine of natural
justice and thereafter, held that the rules of natural justice "yields to and changes with the
exigencies of different situations. They do not apply in the same manner to situations which
are not alike. These rules are not cast in a rigid mould nor can they be put in a legal straitjacket. They are not immutable but flexible. These rules can be adapted and modified by
statutes and statutory rules and also by the constitution of the Tribunal which has to decide
a particular matter and the rules by which such Tribunal is governed".

12. In the instant case, indisputably, on the date the incident had occurred, the second
respondent being the Disciplinary Authority, was competent to place the petitioner under
suspension. As noted above, there had been no delegation of power by the District Judge
under the third proviso to Rule 23 (2). The second respondent himself being a statutory
3 All. Puran Vs State OF U.P.
557
delegatee in view of the provisions of Section 10 of the Act, was not competent to further
delegate such power by taking recourse to the third proviso to Rule 23 (2). In such a
situation, this Court does not find any illegality in the action of the second respondent in
placing the petitioner under suspension.

13. The suspension of the petitioner during pendency of the disciplinary proceedings is
not penal in nature. The charge, if proved, is serious enough to entail infliction of a major
penalty. The own case of the petitioner is that he has not even been served with a charge
sheet so far. The second respondent is not holding the enquiry himself, but has designated
another officer as the Enquiry Officer. There does not appear to be any element of bais.
Thus, it is not a fit case for interference under Article 226 of the Constitution.

14. The other pleas of the petitioner that he was not under the influence of intoxication
on that particular date or that the report of medical examination does not indicate that he was
under influence of liquor, are all questions which shall be examined during the course of the
disciplinary enquiry. This is not the stage to go into these pleas, nor can suspension order be
interfered with on such grounds.

15. The writ petition lacks merit and is dismissed.

16. Sri Mandhyan, learned counsel for the petitioner prayed that the disciplinary
proceedings be directed to be concluded expeditiously.

17. Having regard to the facts of the case, it is hereby directed that the disciplinary
proceedings be held and concluded expeditiously, in accordance with law.

18. No order as to costs.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.03.2016

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE NAHEED ARA MOONIS, J.

Criminal Appeal No.- 601 OF 1985;

Puran ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for the Appellant:
Shri V.P. Srivastava, Sri K.D. Tripathi (Later arguments in appeal advanced by Sri R.R. Singh)

Counsel for the Respondent: