# Vijay Kumar Agrawal v. State of U.P. & Ors

- **Citation:** (2019) 3 ILRA 176
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-15
- **Case number:** Writ A No.13188 of 2019
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-kumar-agrawal-v-state-of-u-p-ors-44798
- **Pages:** 6

## Headnote

A. Service Law- Suspension - Disciplinary
inquiry
-
Uttar
Pradesh
Cooperative
Societies Act, 1965 - Section 66, 77-A - U.P.
Cooperative Societies Rules, 1968 - Rule
367 - Uttar Pradesh State Cooperative
Societies Election Rules, 2014 - Uttar
Pradesh Government Servant (Discipline
and Appeal) Rules, 1999 - Rule 4 - Lack of
efficiency
or
competence
cannot
be
elevated to be an act and omission to
constitute misconduct.

The
allegation
does
not
disclose
the
imputation of the allegation constituting
misconduct. The charges do not list/disclose
the acts and omission to constitute misconduct
under the Conduct Rules. Mandate of proviso
to Rule 4 is not made out. (Para 14, 15, 16)

Petition allowed (E-4)
Precedent followed:-
1.Jeetendra Nath Singh Vs St. of U.P. & ors.
(Civil Misc. W. P. No. 33269 of 2007), decided
on 02.11.2017 (Para 11)
2.Shabih Haider Vs St. of U.P. & ors. [2018 (1)
ADJ 327 (DB)(LB)] (Para 12)

## Text

176 INDIAN LAW REPORTS ALLAHABAD SERIES
(2019)11ILR A176

ORIGINAL JURISDICTION
 CIVIL SIDE
DATED: ALLAHABAD 15.10.2019

BEFORE
THE HON'BLE SUNEET KUMAR , J.

Writ A No.13188 of 2019

Vijay Kumar Agrawal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri H.R. Mishra, Sri Krishna Mohan Misra.

Counsel for the Respondents:
C.S.C.

A. Service Law- Suspension - Disciplinary
inquiry
-
Uttar
Pradesh
Cooperative
Societies Act, 1965 - Section 66, 77-A - U.P.
Cooperative Societies Rules, 1968 - Rule
367 - Uttar Pradesh State Cooperative
Societies Election Rules, 2014 - Uttar
Pradesh Government Servant (Discipline
and Appeal) Rules, 1999 - Rule 4 - Lack of
efficiency
or
competence
cannot
be
elevated to be an act and omission to
constitute misconduct.

The
allegation
does
not
disclose
the
imputation of the allegation constituting
misconduct. The charges do not list/disclose
the acts and omission to constitute misconduct
under the Conduct Rules. Mandate of proviso
to Rule 4 is not made out. (Para 14, 15, 16)

Petition allowed (E-4)
Precedent followed:-
1.Jeetendra Nath Singh Vs St. of U.P. & ors.
(Civil Misc. W. P. No. 33269 of 2007), decided
on 02.11.2017 (Para 11)
2.Shabih Haider Vs St. of U.P. & ors. [2018 (1)
ADJ 327 (DB)(LB)] (Para 12)
3. St. of U.P. Vs. Jai Singh Dixit (Alld.), (1974)
ALJ 92 (Para 12)

4. U.O.I. & ors. Vs J. Ahmed, AIR (1979) SC
1022 (Para 14)
Present petition challenges suspension
order
dated
04.08.2019,
passed
by
Secretary, Cooperative, Government of
U.P., Lucknow.

(Delivered by Hon'ble Suneet Kumar, J. )

1. Heard Sri H.R. Mishra, learned
Senior
Counsel
appearing
for
the
petitioner and Sri Ajit Singh, learned
Additional Advocate General for the
State-respondents.

2.
Petitioner,
a
Assistant
Commissioner & Assistant Registrar,
(Agriculture),
Cooperative
Societies,
Varanasi Mandal, Varanasi, is assailing
the impugned suspension order dated 4
August
2019
passed
by
the
first
respondent,
Secretary,
Cooperative,
Government of U.P., Lucknow.

3. The allegation against the
petitioner, inter-alia, is based on a
preliminary enquiry report dated 3 August
2019, pertaining to Adarsh Krishi Sahkari
Samiti, Umbha, District Sonbhadra (for
short " the Adarsh Society"). The report
in so far it relates to the petitioner
primarily records that petitioner had not
followed the mandatory provisions in the
discharge of his duty under the Uttar
Pradesh Cooperative Societies Act, 1965
(for short ''Act, 1965). Consequently,
petitioner was placed under suspension
pending contemplation of enquiry. The
respondents have filed counter affidavit
and
supplementary
counter
affidavit
bringing on record the charge sheet dated
16 September
2019,
leveling
three
3 All. Vijay Kumar Agrawal Vs. State of U.P. & Ors.
177
charges. First charge alleges that a society
under the Act, 1965 can be constituted by
the farmers by pooling their land, but in
the instant case, the Adarsh Society was
constituted against the provisions of
Section 77-A. The matter pertaining to
cancellation of registration of the Adarsh
Society is pending before the Deputy
Registrar,
Cooperative
Society,
Vindhyachal Division, Mirzapur, and the
Assistant Registrar Cooperative Society,
Sonbhadra. The fact finding enquiry
posed a question to the petitioner as to
whether he had ever conducted any
inspection/enquiry against the society, but
the petitioner did not reply nor any
inspection and/or enquiry in terms of
Section 66 of the Act, 1965 was
constituted/conducted against the Adarsh
society. The second charge against the
petitioner is that no audit was conducted
against the society in terms of Rule 367 of
the U.P. Cooperative Societies Rules,
1968, nor any attempt to that effect was
made by the delinquent officer. The third
charge against the petitioner is that the
election to the society is to be held every
five years under the Uttar Pradesh State
Cooperative Societies Election Rules,
2014, in the presence of an observer
appointed by the office of the District
Magistrate/District Cooperative Election
Commissioner, however, no such election
was conducted.

4. The allegation primarily against
the petitioner is that the petitioner failed
in his duties by not contacting the
concerned officers of the Cooperative at
District Sonbhadra/Mirzapur for taking
appropriate action against the Adarsh
society.

5. In the aforesaid backdrop, it is
urged by learned Senior Counsel for the
petitioner that the allegation in the
impugned suspension order and in the
charge sheet, taken on face value do no
constitute misconduct within the meaning
of Uttar Pradesh Government Servant
(Discipline & Appeal) Rules,1999 (for
short
''Rules,
1999').
It
is
further
contended that admittedly the alleged
society came to be registered at District
Sonbhadra on 10 October 1952, under the
old Act and was re-registered in 1970
under the provisions of Act, 1965. The
proceedings with regard to cancellation of
registration of the society is pending
before the competent authority. Petitioner
came to be appointed by promotion as
Assistant Commissioner and Assistant
Registrar,
Cooperative,
on
recommendation of the Uttar Pradesh
Public Service Commission (UPPSC)
Allahabad, on 29 May 2015 . The first
posting of the petitioner was at District
Sultanpur where he joined on 14 July
2015, thereafter, he was transferred and
posted in the same capacity at Varanasi
vide order dated 31 July 2018. Petitioner
joined the post on 2 August 2018. The
administrative jurisdiction of the office of
Assistant Commissioner and Assistant
Registrar,
Cooperative
Societies,
Varanasi, comprises of five divisions viz.
Varanasi Division, Mirzapur Division,
Azamgarh Division, Gorakhpur Division
and
Basti
Division
comprising
22
districts.

6. It is urged that an unfortunate
incident occurred on 17 July 2019 in
village Umbha, Police Station and Tehsil
Ghorawal,
District
Sonbhadra,
ten
persons died and 28 persons were injured
in a dispute pertaining to land. Pursuant
thereof, the State Government vide Office
Memorandum
dated
17
July
2019
appointed
three
member
enquiry
178 INDIAN LAW REPORTS ALLAHABAD SERIES
committee, headed by Additional Chief
Secretary,
Revenue
and
two
other
members i.e. Commissioner, Vindhyachal
Division, Mirzapur and Additional Chief
Secretary Revenue and Basic Education,
Government of U.P. The fact finding
enquiry committee submitted report dated
3
August
2019
recommending
the
suspension of the petitioner and other
officials of the Revenue and also directed
that First Information Report be lodged
against
the
officials
including
the
petitioner. The allegation against the
petitioner is confined to the charges
leveled against the petitioner in the charge
sheet.
There
is
no
imputation
of
misconduct spelled out in the charges
with regard to the role or involvement of
the petitioner leading to the incident at
village Umbha. The responsibility, if any,
of the officials of the Co-operative would
have
to
be
identified
at
district
Sonbhadra/Mirzapur under which the
alleged society was functioning. The
petitioner, being the head and incharge of
five divisions could not have been placed
under suspension on vague and general
allegations. The charge is merely an
opinion/inference
expressed
by
the
enquiry committee not based on any
material.

7. Learned counsel for the petitioner
further submits that the respondents are
bound to follow the provisions mandated
under Rules, 1999 governing disciplinary
proceedings.
Rule
4
provides
for
suspension,
whereunder,
Government
Servant against whose conduct an inquiry
is contemplated or is proceeding may be
placed
under
suspension
pending
conclusion of the inquiry in the discretion
of the Appointing Authority provided that
suspension should not be resorted to
unless
the
allegations
against
the
Government Servant are so serious that in
the event of being established may
ordinarily warrant major penalty. Rule 4
for the purpose of the instant case is
extracted :

"4. Suspension

(1)
A
Government
Servant
against whose conduct an inquiry is
contemplated, or is proceeding may be
placed under suspension pending the
conclusion of the inquiry in the discretion
of the Appointing Authority:

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:

Provided xx xx xx

Provided xx xx xx

(2) A Government Servant in
respect
of,
or
against
whom
an
investigation, inquiry or trial relating to a
criminal charge, which is connected with
his position as a Government Servant or
which is likely to embarrass him in the
discharge of his duties or which involves
moral turpitude, is pending, may at the
discretion of the appointing Authority or
the Authority to whom the power of
suspension has been delegated under
these rules, be placed under suspension
until termination of all proceedings
relating to that charge.

(3) (a) A Government Servant
shall be deemed to have been placed or as
the case may be, continued to be place
under suspension by an order of the
3 All. Vijay Kumar Agrawal Vs. State of U.P. & Ors.
179
Authority Competent to suspend, with
effect from the date of his detention , if he
is detained in custody, whether the
detention is on criminal charge or
otherwise , for a period exceeding forty
eight hours."

8. Further, it is contended that the
appointing authority of the petitioner is
the
Principal
Secretary/Secretary
Cooperative, Government of U.P. The
impugned order has been passed based on
the
fact
finding
enquiry
report
mechanically without application of mind
as to whether the allegation prima facie
constitutes misconduct in sofar it relates
to the petitioner. It is further contended
that even assuming that there was
negligence in not complying the provision
of the Act and Rules it cannot be said that
the office of Assistant Commissioner and
Assistant Registrar at Varanasi was
remotely responsible for the death of
innocent villagers arising out of land
dispute at district Sonbhadra.

9. In rebuttal, the learned Additional
Advocate General submits that the
mandatory duties assigned upon the
Assistant Registrar for inspection of the
societies and mandating audit was not
done,
therefore,
petitioner
is
also
responsible for the incident that occurred
in village Umbha. It is further urged that
had the petitioner been vigilant the
incident could have been avoided. It is,
therefore, urged that the allegations are
serious and in the event of charges being
proved, it would warrant imposition of
major penalty. Criminal prosecution is
also pending against the petitioner.

10. On specific query, learned
counsel appearing for the respondent
admits that the alleged society came to be
registered in 1952 and since then it is
functioning, the proceedings pertaining to
cancellation of registration of the Adarsh
society is pending before the competent
authority of the Cooperative at district
Mirzapur and Sonbhadra. It is not being
disputed that the petitioner came to be
appointed Assistant Registrar in 2015 and
his second posting at Varanasi was made,
one year before the occurrence of the
incident at Sonbhadra. It is also not being
disputed that petitioner has five divisions
comprising
22
districts
under
his
jurisdiction and Adarsh Society falls
under
the
jurisdiction
of
Deputy
Registrar/Assistant Registrar, Cooperative
at Mirzapur and Sonbhadra. Petitioner has
not been suspended pending criminal
proceedings, nor has the petitioner been
arrested. The only material relied upon
while passing the impugned suspension
order or framing of the charge sheet is the
fact finding enquiry report.

11. The Division Bench of this
Court in Jeetendra Nath Singh Versus
State of U.P. and others (Civil Misc.
Writ Petition No. 33269 of 2007)
decided on 2 November 2017, while
considering the suspension order passed
on the recommendation of an official who
had no concern either with department or
the appointing authority, the Court held
that the order of suspension passed by the
Inspector General, Registration, U.P.,
Lucknow, on the recommendation of
Deputy Inspector General of Police,
Railway, Allahabad Region, Allahabad, is
without application of mind, exercise of
independent discretion, and passed in a
mechanical manner against the mandate
of Rule 4 of Rules, 1999. It was further
held that pursuant to the First Information
Report
petitioner
therein
was
not
detained. In the circumstances, the
180 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned order of suspension came to be
quashed.

12. The Division Bench in Shabih
Haider Versus State of U.P. and others,
[2018(1) ADJ 327 (DB)(LB)], held that
the order of suspension is not to be passed
in a routine manner but the competent
authority is required to consider the
gravity of the misconduct sought to be
enquired into or investigated and the
nature of the evidence placed before the
appointing authority. The power of the
State Government to place government
servant under suspension is creature of
the statute and/or contract and the
decision be taken keeping in view the
letter and spirit of the statute. The power
of suspension arises when on an objective
consideration the appointing authority is
of the view that a formal disciplinary
inquiry is expected or is proceeding. It
was also held placing reliance on the
decision of a Five Judge Bench of this
Court in State of U.P. v. Jai Singh Dixit
(Alld.), 1974 ALJ 92, that mere lack of
efficiency or skill does not ipso facto
constitute
misconduct
and
call
for
suspension of a government servant.

13. This Court normally would
decline
to
interfere
in
disciplinary
proceedings and the impugned suspension
order unless it is shown that it is in
violation of statutory rules and does not
constitute allegations of misconduct to
warrant imposition of major penalty
taking the allegations on face value.

14. The three charges at a glance
would convey the impression that the
petitioner was not a very efficient officer.
Some negligence is being attributed to
him and lack of qualities expected of an
officer
of
the
rank
of
Assistant
Commissioner and Assistant Registrar.
The question, therefore, is whether lack of
efficiency or competence can be elevated
to acts and omission to constitute
misconduct. The answer can be found in
the observation of the Supreme Court in
Union of India and others Versus J.
Ahmed1, which is extracted:

"The five charges listed above
at a glance would convey the impression
that the respondent was not a very
efficient officer. Some negligence is being
attributed to him and some lack of
qualities expected of an officer of the rank
of Deputy Commissioner are listed as
charges. to wit, charge No. 2 refers to the
quality of lack of leadership and charge
No. 5 enumerates inaptitude, lack of
foresight,
lack
of
firmness
and
indecisiveness.
These
are
qualities
undoubtedly expected of a superior
officer and they may be very relevant
while considering whether a person
should be promoted to the higher post or
not or having been promoted, whether he
should be retained in the higher post or
not or they may be relevant for deciding
the competence of the person to hold the
post, but they cannot be elevated to the
level of acts of omission or commission as
contemplated by Rule 4 of the Discipline
and Appeal Rules so as to incur penalty
under rule 3. Competence for the post,
capability to hold the same, efficiency
requisite for a post, ability to discharge
function attached to the post, are things
different from some act or omission of the
holder of the post which may be styled as
misconduct so as to incur the penalty
under the rules......."

15. The allegation does not disclose
the
imputation
of
the
allegation
constituting misconduct. The charges do
3 All. Dr. Rakesh Raman Vs. State of U.P. & Ors.
181
not list/disclose the acts and omission to
constitute misconduct under the Conduct
Rules.

16. Having due regard to the facts and
circumstances and to the allegations made
against the petitioner, this Court, prima facie,
is of the opinion that the mandate of proviso
to Rule 4 is not made out. Accordingly, the
writ petition is allowed. The impugned
suspension order dated 4 August 2019
passed by the first respondent, Secretary,
Cooperative, Government of U.P., Lucknow,
is set aside and quashed. Petitioner shall be
reinstated, however, the pending disciplinary
proceedings against the petitioner shall
continue and be concluded expeditiously
preferably within four months from the date
of receipt of certified copy of this order,
provided the petitioner cooperates and there
is no other impediment.

17. No cost.
----------
(2019)11ILR A181

ORIGINAL JURISDICTION
 CIVIL SIDE
DATED: LUCKNOW 07.11.2019

BEFORE
THE HON'BLE RAJESH SINGH CHAUHAN , J.

Service Single No.13256 of 2019

Dr. Rakesh Raman ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Hari Prasad Gupta

Counsel for the Respondents:
C.S.C.

A. Service Law - Departmental Inquiry -
Initiation of the departmental inquiry -
Commences from the date of service of
the charge-sheet on the delinquent.

If the charge- sheet is not served upon the
employee, it may not be said that the
departmental inquiry against the incumbent is
pending. (Para 8).

B. Service Law - Promotion pending
Departmental Enquiry - Sealed cover
procedure can be resorted to only after a
charge memo is served on the concerned
official or the charge-sheet is filed
before the criminal court and not before.
(Para 8)

Petition allowed (E-4)

Precedent followed: -
1. U.O.I. etc. Vs K.V. Jankiraman & etc. (1991)
4 SCC 109 (Para 8, 9)

2. Harish Kumar Sharma, IFS Vs St. of Pun. &
anr. (2017) 4 SCC 366 (Para 8)
(Delivered by Hon'ble Rajesh Singh
Chauhan, J. )

1. Heard Sri H.P. Gupta, learned
counsel for the petitioner and Dr. Uday Veer
Singh, learned Additional Chief Standing
Counsel for the State-respondents.

2. By means of this writ petition, the
petitioner has prayed for the following
reliefs:-

"(I) Issue a writ, order or direction
in the nature of mandamus directing the
opposite parties to open the sealed cover
procedure, wherein recommendation of the
D.P.C. held in the year 2016 has been kept in
sealed cover procedure, while the juniors to
the petitioner has been promoted vide order
dated 30.09.2016.

(II) Issue a writ, order or
direction in the nature of mandamus