# State of U.P v. Chandra Bose and Ors

- **Citation:** (2014) 1 ILRA 141
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-01-29
- **Case number:** Special Appeal (D) No. 115 of 2014
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-chandra-bose-and-ors-42955
- **Pages:** 5

## Headnote

Appeal Rules, 1999-Rule-4(c)-suspensionin contravention of statutory provision-at
dictation of concern minister-as
was
absent in program of minister-without
considering the cause of absence as he
was not relieved by its superior-entrusted
with task of distribution of laptop-not a
deliberate act or dereliction of dutyLearned Single Judge rightly quashedsuspension
order-observation
for
not
giving duty of his status wholly uncalled
far-as such order of Single Judge modifiedaccordingly amount of cost payable from
appellant shall be from state exchequerappeal disposed of.

Held: Para-10
We are cognisant of the fact that in
matters
of
suspension
pending
a
disciplinary inquiry, the intervention of the
Court, particularly under Article 226 of the
Constitution, must be rare. However, this
is one of those exceptional cases where
the intervention of the learned Single
Judge was manifestly required to prevent
what would otherwise have been a
complete miscarriage of justice. The order
of suspension was plainly in violation of
Rule 4(1) of the Rules. The authority which
passed the order of suspension acted at
142 INDIAN LAW REPORTS ALLAHABAD SERIES
the dictates of the Minister and did not
apply
its
mind
independently
as
to
whether an order of suspension was
necessary. Ex-facie, the requirement of the
proviso to Rule 4(1) was not fulfilled.

## Text

1 All] State of U.P. Vs. Chandra Bose and Ors.
141
Rules for proving the same misconduct
which has already been examined by an
independent body constituted under the
direction of this Court, the decision of which
has already been upheld up to this Court
would be repetitive as well as futile. The
second safeguard in Article 311 that the
order of dismissal, removal and reduction in
rank should not be passed by an authority
subordinate to that by which he was
appointed has also been met with. The
impugned order terminating the services of
the appellant has been passed by his
appointing authority."

9. The facts of the present case are,
therefore, clearly distinguishable. The
charge of misconduct has to be duly
established. Since no disciplinary inquiry
was held, the charge was never proved.

10. In this view of the matter, we are of
the view that the judgement and order of the
learned Single Judge is unsustainable and the
special appeal would have to be allowed.
We, accordingly, allow the special appeal in
terms of the following directions:

(i) The judgement of the learned
Single Judge dated 24 September 2013 is
quashed and set aside;

(ii) In consequence, the order of
termination dated 30 November 2010
shall stand quashed and;

(iii) The respondents shall be at
liberty to hold a departmental inquiry in
respect of the allegation of misconduct
and take necessary action thereafter as
may be warranted in accordance with law.

11. There shall be no order as to
costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2014

BEFORE
THE HON'BLE DR. DHANANJAYA
YESHWANT CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.

Special Appeal (D) No. 115 of 2014

State of U.P..... Appellant
Versus
Chandra Bose and Ors.... Respondents

Counsel for the Petitioner:
Sri Ramesh Upadhyaya, C.S.C.

Counsel for the Respondents:
Sri Y.S. Saxena

U.P. Government Servant(Discipline and
Appeal Rules, 1999-Rule-4(c)-suspensionin contravention of statutory provision-at
dictation of concern minister-as
was
absent in program of minister-without
considering the cause of absence as he
was not relieved by its superior-entrusted
with task of distribution of laptop-not a
deliberate act or dereliction of dutyLearned Single Judge rightly quashedsuspension
order-observation
for
not
giving duty of his status wholly uncalled
far-as such order of Single Judge modifiedaccordingly amount of cost payable from
appellant shall be from state exchequerappeal disposed of.

Held: Para-10
We are cognisant of the fact that in
matters
of
suspension
pending
a
disciplinary inquiry, the intervention of the
Court, particularly under Article 226 of the
Constitution, must be rare. However, this
is one of those exceptional cases where
the intervention of the learned Single
Judge was manifestly required to prevent
what would otherwise have been a
complete miscarriage of justice. The order
of suspension was plainly in violation of
Rule 4(1) of the Rules. The authority which
passed the order of suspension acted at
142 INDIAN LAW REPORTS ALLAHABAD SERIES
the dictates of the Minister and did not
apply
its
mind
independently
as
to
whether an order of suspension was
necessary. Ex-facie, the requirement of the
proviso to Rule 4(1) was not fulfilled.

(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)

1. The Special Appeal by the State
arises from the judgment and order of the
learned Single Judge dated 17 December
2013.

2. The first respondent was posted as
the District Youth Welfare Officer, Budaun.
On 22 August 2013, the Director General,
Provincial
Rakshak
Dal
addressed
a
communication to all the District Collectors
stating that on 26 August 2013 a review
meeting had been convened by the Minister
for Youth Welfare and Sports Affairs,
Government of U.P. at Lucknow for
conducting a review of welfare activities.
The meeting was to be attended by all the
District Youth Welfare Officers. On 24
August 2013, the Chief Development
Officer, Budaun addressed a letter to the
Director General stating that the first
respondent would not be able to attend the
meeting on 26 August 2013 since during the
period between 20 August to 26 August
2013, he had been assigned duties in
connection with the distribution of laptops by
the State Government. In his place, Gopal
Ram, Physical Instructor was assigned the
duty of attending the meeting at Lucknow.
The meeting at Lucknow was attended by
Gopal Ram on 26 August 2013. At the
meeting, Gopal Ram was not able to
satisfactorily explain the progress of the
programme undertaken at Budaun. The first
respondent was suspended from service on
27 August 2013. The order of suspension
stated
that
the
first
respondent
had
deliberately and willfully failed to remain
present in the meeting on 26 August 2013
chaired by the Minister and that the person
who had been deputed to attend the meeting
had not been provided with adequate
information to make a presentation at the
meeting. A charge sheet has since been
served on 26 September 2013 whereby the
first article of charge is the absence of the
first respondent at the meeting on 26 August
2013.

3. On these facts the first respondent
filed a writ petition challenging the order
of suspension. When the petition came up
before the learned Single Judge, an
interim order was passed on 6 December
2013 wherein the submission of the first
respondent was recorded that he had been
assigned the duty of attending the
distribution of laptops by the Chief
Minister on 26 August 2013 and he was
not relieved by his superior officers to
attend the meeting at Lucknow which fact
was duly communicated to the Director
General in spite of which he was
suspended from the service. At that stage,
time was granted to file a counter
affidavit and the Director General was
directed to appear in Court to explain how
the first respondent could have left the
Head Quarter at Budaun when he was not
relieved by his superior officers on the
ground that he has been assigned duties in
connection with the distribution of laptops
by the Chief Minister. An affidavit was,
accordingly, filed before the learned
Single Judge by the Director General,
Ram Singh. In paragraph 6 of the
affidavit, it was specifically stated that the
order for suspending the first respondent
was issued on the directions of the
Minister. Since the Director General was
present, he informed the Court that he had
issued the order of suspension under the
directions of the Minister.
1 All] State of U.P. Vs. Chandra Bose and Ors.
143

4. Learned Single Judge has held
that though an order of suspension does
not constitute a punishment per se under
Rule 4(1) of U.P. Government Servant
(Discipline and Appeal) Rules, 1999, an
independent application of mind by the
Director General was required. The
Director General had merely acted at the
behest of the Minister and instead of
following the rule of law had taken action
against the first respondent. In the
circumstances, the order of suspension
was set aside and while allowing the
petition
costs
of
Rs.25,000/-
were
imposed on the State with liberty to
recover
them
from
the
concerned
appointing authority who ignored the
statutory duty. Moreover, a direction was
also issued to the effect that Ram Singh,
Director General should not be assigned
duties of such an important office. The
State Government was directed to take an
appropriate action within 15 days.

5. The State is in appeal.

6. Learned Standing Counsel
appearing on behalf of the appellant
submits that the order of suspension
against the first respondent was not
passed merely on the ground of his
absence from the meeting on 26 August
2013 which was to be chaired by the
Minister but also as a result of failure of
the first respondent to depute a person,
who would have vital information of the
progress of the activities in the district.
The person who was deputed was unable
to provide a satisfactory explanation of
the activities in the district. The decision
to suspend the first respondent was taken
in the meeting which was chaired by the
Minister but which was also attended by
senior officers. Hence, it was submitted
that it would be unfair to attribute the
order of suspension to have been passed
merely on the direction of the Minister
concerned.

7. The primary basis of the order of
suspension in the present case, as the order
itself would disclose, is that the first
respondent had wilfully remained absent at
the meeting on 26 August 2013 which had
been convened to be chaired by the Minister
for Youth Welfare and Sports. Now, the
record indicates that the Chief Development
Officer had informed the Director General,
upon receipt of a communication dated 22
August 2013, by a letter dated 24 August
2013 that the first respondent would be
unable to attend the meeting since he had
been deputed to attend the distribution of
laptops between 20 August to 27 August
2013. Admittedly, this was an event at
which the Chief Minister of the State was to
participate. Therefore, it is evident that the
absence of first respondent from the
meeting at Lucknow on 26 August 2013
was not a deliberate act on his part nor was
there any dereliction of duty. On the
contrary, the superior officers of the first
respondent had assigned to him the duty of
remaining present at the distribution of the
laptops and had also communicated to the
Director General that for this reason the first
respondent would not be able to attend the
meeting at Lucknow on 26 August 2013.

8. Thus, ex-facie, the primary basis
of the order of suspension has no
foundation. The first respondent has thus
been victimised for his absence at the
meeting on 26 August 2013 though that
absence was duly explained and was only
in compliance of a lawful order of the
superior officers requiring him to be
present
during
the
course
of
the
distribution of the laptops. The record
before the Court also indicates that the
144 INDIAN LAW REPORTS ALLAHABAD SERIES
order of suspension was passed by the
Director General at the behest of the
Minister. The Director General admitted
this fact in the affidavit which he filed
before the learned Single Judge in
response to the interim directions. In
paragraph
6
of
the
affidavit,
he
categorically admitted to the order of
suspension being passed at the behest of
the Minister. Besides, such was also his
statement to the Court when he remained
personally present in response to the
notice issued by the Court. That the
officer who was deputed was unable to
provide satisfactory answers in regard to
the progress of the activities in the district
is a subsidiary matter altogether for which
the first respondent cannot be victimised.

9. On these facts, the learned Single
Judge was justified in coming to the
conclusion that the Director General had
abdicated his duty of independently
applying his mind to the issue as to
whether the order of suspension was
necessary. An angry Minister by himself
cannot provide justification for toying
with the lives of the employees and
officers of the State. All public power is
conferred on the foundation that it is held
in trust and not on the assumption that it
would be wielded for extraneous reasons.
Rule 4(1) of the Rules contemplates the
placement of a government servant under
suspension against whom an inquiry is
contemplated or is proceeding. The
proviso to Rule 4(1), however, stipulates
that the 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". There
has been a total non-application of mind
to this aspect also. No reasonable person
or body of persons could possibly come to
the conclusion that the facts of the present
case are such as would prima facie
suggest that a major penalty would be
imposed if the charge is found to be true.
In a situation as the present, where the
first respondent was unable to remain
present at the meeting convened by the
Minister because he was associated with
the function of the distribution of the
laptops on the directions of his superiors,
the said respondent would not be guilty of
misconduct. The absence of the first
respondent was duly explained.

10. We are cognisant of the fact that
in matters of suspension pending a
disciplinary inquiry, the intervention of
the Court, particularly under Article 226
of the Constitution, must be rare.
However, this is one of those exceptional
cases where the intervention of the
learned Single Judge was manifestly
required to prevent what would otherwise
have been a complete miscarriage of
justice. The order of suspension was
plainly in violation of Rule 4(1) of the
Rules. The authority which passed the
order of suspension acted at the dictates
of the Minister and did not apply its mind
independently as to whether an order of
suspension was necessary. Ex-facie, the
requirement of the proviso to Rule 4(1)
was not fulfilled.

11. In the circumstances, no case for
interference with the order of the learned
Single Judge setting aside the order of
suspension is made out. The imposition of
costs was wholly justified in the facts of
this case. However, in the concluding part
of the judgment the learned Single Judge
has issued a direction to the effect that
Ram Singh, Director General should not
be assigned such an important office and
should be posted in an office where an
1 All] Smt.Arti Verma Vs. State of U.P. and Ors.
145
independent exercise of power is not
required to be performed by him. These
observations of the learned Single Judge
are really not necessary for a decision of
the writ petition and consequently we
consider it appropriate and proper to set
aside the directions contained to that
effect in paragraph 20 of the judgment
and order. We also clarify that the costs in
the present case shall be borne by the
State Government.

12.

The
Special
Appeal
is,
accordingly, disposed of in the aforesaid
terms and the impugned judgment stands
modified to that extent. There shall be no
order as to costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.02.2014

BEFORE
THE HON'BLE DR. DHQANANJAYA
YESHWANT CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.

Special Appeal Defective No. 123 of 2014

Smt. Arti Verma... Petitioner
Versus
State of U.P. and Ors.... Respondents

Counsel for the Petitioner:
Sri Shambhu Nath, Sri Adeel Ahmad Khan

Counsel for the Respondents:
C.S.C., Sri Nisheeth Yadav.

Constitution of India, Art.-226-Service lawcancellation
of
candidature-appellant
applied on lines application-claiming benefit
of dependant of fighter of freedomsubsequent application to change the
application form -held-once declaration
given-that any information found wrongcandidature shall be cancelled-held-learned
Single Judge rightly declined to interfere.
Held: Para-4
No fault can, therefore, be found in
rejecting the application for correction
when the candidate himself has failed to
make a proper disclosure or where, as in
the present case, the
application is
submitted
under
a
wrong
category.
Interference of the High Court under
Article 226 of the Constitution is clearly
not warranted in such matters as it creates
grave uncertainty since the selection
process cannot be finally completed.
Moreover,
in
the
present
case,
the
appointment was of a contractual nature
for a period of eleven months. Hence,
considering
the
matter
from
any
perspective, the learned Single Judge was
not in error in dismissing the petition
under Article 226 of the Constitution.

Case Law discussed:
Spl. Appeal 834 of 2013; Spl. Appeal 75 of
2013.

(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)

1. The appellant made an on-line
application for engagement as Shiksha
Anudeshak (Arts) for 2012-13 on a
contract basis. In the application, the
appellant claimed to have belonged to the
Freedom Fighters' category, which was
admittedly not the category to which the
appellant could have claimed. The name
of the appellant was shown in the select
list of candidates belonging to the
Freedom
Fighters'
Category.
The
Secretary
to
the
State
Government
rejected the representation filed by the
appellant for correcting the error in the on
line application. The learned Single Judge
dismissed the petition filed by the
appellant under Article 226 of the
Constitution for setting aside the order
passed by the Secretary noting that under
the declaration given by the appellant
while filling up the application, it was