# Udai Veer Singh v. State of U.P. and others

- **Citation:** (2011) 1 ILRA 205
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-02-17
- **Case number:** Civil Misc. Writ Petition No. 38204 of 2008
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/udai-veer-singh-v-state-of-u-p-and-others-41837
- **Pages:** 5

## Headnote

Rules
1979-Rule-3Suspension
order
passed
by
higher
authority than the appointing authorityNo provision shown by the Standing
Counsel
to
justify
the
order
of
suspension-by Transport Commissionerwhile the appointing authority of a
constable
is
Regional
Transport
Authority-apart from that more than two
and half years gone-No disciplinary
proceedings
initiated-whether
an
employees
can
be
placed
under
suspension for indefinite period? Held-
"No".

Held: Para 8

The order of suspension pending in a
contemplated inquiry by itself is not a
punishment but in case it is prolonged
without
initiation
or
completion
of
inquiry, it may become punitive with the
passage
of
time.
Whether
such
a
prolonged suspension can be held valid
and
justified
and
whether
the
respondents can be allowed to keep an
employee
under
suspension
for
an
206 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
indefinite period! The answer is an
emphatic no.
Case law discussed:
2009 (1) AWC 691

## Text

1 All] Udai Veer Singh V. State of U.P. and others
205
employing an indirect method. In order to
be reasonable, the restriction must have a
reasonableness to the object. In short, a
regulation cannot go to the extent of
virtually eliminating the right guaranteed,
by introducing regulations which are not
related to the interest of the private persons
holding a hat even though the regulation
may be in the interest of general public."

8. The Sub Divisional Officer
therefore has simply acknowledged the
rights ,which are vested in the contesting
respondents as explained in the decisions
herein above. It is not the case of the
petitioners
that
the
respondents
are
indulging in any obnoxious trade or are
violating some mandate of the constitution.

9. The petitioner's appeal filed against
the said order was allowed and remanded
and the Sub Divisional Officer again
maintained his earlier order. While doing so
the Sub Divisional Officer relied on the
statements of Town Area Clerk Zaheerual
Islam and Abdul Wahid and that in view of
the map as produced by another clerk
Funnan Khan, the market which was being
held was found out side the limits of the
Town Area/petitioner Nagar Panchayat. In
view of this finding which could not be
successfully assailed before this court, the
applicability of the provisions of the Town
Area Act or any regulations or even
otherwise could not have been alleged by
the Town Area.

10. Apart from this, the evidence
adduced indicates that the contesting
respondents, in accordance with the Zila
Parishad Adhiniyam, had obtained licence
from the Zila Parishad upon payment of the
requisite fee. Thus on all scores the order
dated 8.5.92 cannot be said to be suffering
from any infirmity.

11. The writ petition lacks merit and is
accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.02.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 38204 of 2008

Udai Veer Singh

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

Counsel for the Petitioner:
Sri C.B. Yadav

Counsel for the Respondents:
C.S.C.

U.P. Transport Development Staff (Group
'D')
Service
Rules
1979-Rule-3Suspension
order
passed
by
higher
authority than the appointing authorityNo provision shown by the Standing
Counsel
to
justify
the
order
of
suspension-by Transport Commissionerwhile the appointing authority of a
constable
is
Regional
Transport
Authority-apart from that more than two
and half years gone-No disciplinary
proceedings
initiated-whether
an
employees
can
be
placed
under
suspension for indefinite period? Held-
"No".

Held: Para 8

The order of suspension pending in a
contemplated inquiry by itself is not a
punishment but in case it is prolonged
without
initiation
or
completion
of
inquiry, it may become punitive with the
passage
of
time.
Whether
such
a
prolonged suspension can be held valid
and
justified
and
whether
the
respondents can be allowed to keep an
employee
under
suspension
for
an
206 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
indefinite period! The answer is an
emphatic no.
Case law discussed:
2009 (1) AWC 691

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

1. Learned Standing Counsel was
allowed a month's time to file counter
affidavit on 31.07.2008. Almost two and
half years since then have passed but
respondents have chosen not to file any
counter affidavit. In the circumstances,
this Court has no option but to proceed to
dispose of the writ petition on the basis
of material available on record.

2. Sri Nisheeth Yadav, learned
counsel for the petitioner contended that
the impugned order of suspension has
been passed not by the competent
authority but by an authority, may be
higher in status, but not competent to
pass the order of suspension under the
Rules.
He
further
submitted
that
suspension even otherwise is penal in
nature
inasmuch
as
no
inquiry
whatsoever has been initiated till date
and, therefore also, it is liable to be set
aside.

3. The petitioner was appointed as
Class-IV employee on 10.03.1987 by
Regional Transport Officer, Agra. Later
on he was promoted as Enforcement
Constable by Regional Transport Officer
as stated in para 5 of supplementary
affidavit.
The
impugned
order
of
suspension has been passed by the
Additional
Transport
Commissioner
(Enforcement), U.P., Lucknow. Rule 3(a)
of
U.P.
Transport
Department
Enforcement Staff (Group D) Service
Rules, 1979 (hereinafter referred to as
the "1979 Rules") defines appointing
authority and reads as under:

"3(a) 'Appointing Authority' means
the Assistant Transport Commissioner
(Administration) for the posts at the
Headquarters
of
the
Transport
Commissioner
and
the
Regional
Transport Officer for the posts in the
Region;"

4. The petitioner has categorically
stated
that
he
was
appointed
as
Enforcement Constable by Regional
Transport Officer and that is what
provided in 1979 Rules.

5. Rule 4(1) of U.P. Government
Servant (Discipline and Appeal) Rules,
1999 (hereinafter referred to as the
"1999 Rules") empowers the appointing
authority to place a Government servant
under suspension where an inquiry is
contemplated or proceeding in the
discretion
of
appointing
authority.
Second proviso says that the concerned
Head of the Department empowered by
the Governor by an order in this behalf
may also place Government servant or
class of Government servant belong to
Group 'A' and 'B' posts under suspension.
Obviously this proviso has no application
to the case of petitioner because he is a
Class-IV employee. Third proviso says
that a Government servant belong to
Group 'C' and 'D' posts may be placed
under
suspension
by
an
authority
subordinate
to
appointing
authority
provided such power is delegated to it.
There is nothing in Rule 4(1) of 1999
Rules which empower any higher other
authority to place a Group 'C' and 'D'
Government servant under suspension.

6. I find substance in the
submission of learned counsel for the
petitioner that the Additional Transport
Commissioner
(Enforcement),
U.P.,
1 All] Udai Veer Singh V. State of U.P. and others
207
Lucknow does not come within any of
the above category prescribed under Rule
4(1) of 1999 Rules so as to assume
jurisdiction to place petitioner under
suspension. The Additional Transport
Commissioner
(Enforcement)
U.P.,
Lucknow
is
admittedly
higher
in
hierarchy to Regional Transport Officer.
In respect to Group 'C' and 'D' employees
the rule provides that suspension can be
made by appointing authority or by an
authority who is next lower in rank to
whom the power of suspension is
delegated. It thus makes it clear that rule
does not permit a higher authority to pass
an order of suspension so far as Group
'C' and 'D' employees is concerned. An
authority lower in rank and that too next
lower in rank to appointing authority if
delegated power of suspension it can be
exercised by it otherwise only by
appointing authority. No provision has
been shown by learned Standing Counsel
to show that a higher authority has been
empowered to place suspension a Group
'C' or 'D' Government servant or that
there is any amendment in the rules
empowering
Additional
Transport
Commissioner
(Enforcement)
U.P.,
Lucknow to place an Enforcement
Constable under suspension who is
appointed by Regional Transport officer.
This results in making the impugned
order of suspension wholly illegal and
without jurisdiction.

7. Besides, the petitioner, as it is
said, has not even been issued a charge
sheet so far. It is thus evident that
petitioner has been kept for more than 2
and half years under suspension without
even initiating departmental proceeding.

8. The order of suspension pending
in a contemplated inquiry by itself is not
a punishment but in case it is prolonged
without initiation or completion of
inquiry, it may become punitive with the
passage of time. Whether such a
prolonged suspension can be held valid
and justified and whether the respondents
can be allowed to keep an employee
under suspension for an indefinite
period! The answer is an emphatic no.

9 In fact this question is no more
res integra. In Smt. Anshu Bharti Vs.
State of U.P. and others, 2009(1) AWC
691, (paras 9, 10, 11, 12 and 13), this
Court has observed:

"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
208 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
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
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."

10. In view of above discussion, the
writ petition is allowed. The impugned
order of suspension dated 27.06.2008
(Annexure-9 to the writ petition) is
hereby quashed. However, this judgment
shall not preclude respondents from
proceeding with departmental enquiry, if
any. No cost.
---------
1 All] C/M Madarsa Arabia Ataurrasool Maharajganj V. State of U.P. and others
209
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.02.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 39779 of 2006

C/M Madarsa Arabia Ataurrasool Thru'
Manager A.A. Raini

 ...Petitioner
Versus
State oF U.P. Thru' Prin. Min. of Welfare
and others

 ...Respondents

Counsel for the Petitioner:
Sri H.C. Singh
Sri A.P. Singh
Sri Krishan Ji Khare

Counsel for the Respondents:
Sri Mansoor Ahmad
Sri Rizwan Ahmed
C.S.C.

Constitution
of
India,
Art.
30Termination order against a teacherworking
under
minority
institutionDirector Arbi Farsi Madarasa-set-a-side-
the order for non compliance of principle
of natural justice-whether the director
can exercise power of Inspector despite
of the provision of Para 34 of Madarasa
Niyamawali?
held-'No'
except
suggestions
by
Inspector,
Executive
Officer has no jurisdiction to interfere
with
disciplinary
action
of
the
management of minority institution.

Held: Para 11 and 12

In the circumstances para 34 of the
aforesaid rules, in my view, does not
confer any power or authority to the
Inspector
to
nullify
the
order
of
termination.

Once it is an admitted case of the parties
that the executive authorities had no
statutory power to interfere with the
disciplinary proceedings initiated by the
employer, I find no justification to
sustain
the
orders
passed
by
the
executive
authorities
having
no
jurisdiction to intervene in such matters.

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

1. Heard Sri Krishnaji Khare for the
petitioner and learned Standing Counsel
for respondents No.1 to 4. Respondent
No.5 is represented by Mrs. Swati
Agrawal but she is not present though the
case has been called out in revised list and
besides her, names of Sri Rizwan Ahmad
and Mansoor Ahmad are also shown in
the cause list.

2. It is contended that the petitionerinstitution,
namely,
Madarsa
Arabia
Ataurrasool,
Siswa
Bazar,
District
Maharajganj is a minority institution
wherein the respondent no. 5 was working
as Assistant Teacher. It appears that a
charge sheet was issued to the respondent
no. 5 and inquiry officer was also
appointed. After inquiry, the committee of
management
passed
an
order
on
22.01.2006 terminating him whereagainst
the respondent no. 5 made a complaint
before the Registrar/Inspector, Arabi and
Farsi Madarsas, U.P., Lucknow who has
passed
the
impugned
order
dated
16.03.2006 observing that the order of
termination appears to have been passed
without properly considering reply of the
respondent no. 5 and, therefore, is in
violation of the principle of natural justice
hence the appropriate action be taken. The
said order passed by the Registrar is
addressed to District Minority Welfare
Officer, Maharajganj who pursuant to said
order has passed the second impugned
order dated 17.03.2006 directing the
petitioner-institution
to
treat
the
respondent no. 5 in continuous service
and pay salary in accordance with law.