Dr. Pitamber Datt Pandey v. State of Uttaranchal

Judgment

2. State of Uttaranchal through Principal Secretary, Medical Department, Government of Uttaranchal, Dehradun. Chief Medical Officer, Udham Singh Nagar ………… ……… Petitioner ……….. Respondents Sri Manoj Tiwari, Advocate for the petitioner. Sri B.D. Kandpal, Standing Counsel for the respondents. JUDGMENT Coram: Hon’ble Rajeev Gupta, C.J. Hon’ble J.C.S. Rawat, J. RAJEEV GUPTA, C. J. (Oral)

Sri Manoj Tiwari, the learned counsel for the petitioner is heard on admission.

2. Petitioner Dr. Pitamber Datt Pandey has filed this writ petition for the following reliefs: B. “A. To issue a writ, order or direction in the nature of certiorari for quashing the impugned suspension order dated 20.07.2006 passed by Respondent No. 1 (Annexed as Annexure No. 15 to the writ petition). To issue a writ, order or direction in the nature of mandamus harassing or victimizing the petitioner in any manner whatsoever. To issue any other writ, order or direction, which this Hon’ble Court may deem fit and proper in the circumstances of the case. respondents restraining C. D. Award the cost of the writ petition in favour of the petitioner.” 2

3. The petitioner, in substance, is challenging the order dated

20.07.2006 (Annexure 15) whereby the petitioner has been placed under suspension.

4. Sri Tiwari, the learned counsel for the petitioner, vehemently argued that the impugned order dated 20.07.206 placing the petitioner under suspension has been passed ignoring the provisions of Uttaranchal Government Servants (Discipline and Appeal) Rules, 2003 and as such, is bad in law.

5. The relevant portion of the impugned order dated 20.07.2006 whereby the petitioner has been placed under suspension reads as follows: “ vkns’k Mk0 ih0Mh0 ik.Ms fpfdRlk v/kh{kd lkeq0Lok0 dsUnz fdPNk dks ftuds fo:) fuEufyf[kr vkjksi ds lEcU/k esa vuq’kklfud dk;Zokgh izLrkfor gS] ,rn~}kjk rkRdkfyd izHkko ls fuyfEcr fd;k tkrk gSA **fnukad 15-07-2006 dh jkf= dks ,d ,DlhMsUV esa ,d e`rd ,oa nks ?kk;y O;fDr;ksa dks tc lkeq0Lok0 dsUnz fdPNk esa yk;k x;k ml le; Mk0 ik.Ms ‘kjkc ds u’ks esa Fks ftlls fpfdRlky; ifjlj dk ekgkSy [kjkc gks x;k o fpfdRlky; esa rksM+&QksM+ dh x;hA-----------------------------”

6. The petitioner at the relevant time was posted as Medical Superintendent at Community Health Centre, Kiccha. The allegation against the petitioner is that in the night of 15th of July, 2006, he was found at the Community Health Centre, Kiccha under the influence of liquor which led to an untoward incident in the hospital.

7. With a view to regulate the conduct of Government Servants employed in connection with the affairs of the State, the Uttaranchal Government Servants’ Conduct Rules, 2002 were framed. Rule 4-A of these Rules, which is relevant for the present petition, reads as follows: “4-A. Consumption of intoxicating drinks and drugs. - A Government Servant shall - 3 (a) Strictly abide by any intoxicating drinks or drugs in force in any area in which he may happen to be for the time being; relating (b) Not be under the influence of any intoxicating drinks or drugs during the course of his duty and shall also performance of his duties at any time is not affected on any way by the influence of such drinks or drugs; take due care (c) Refrain from consuming any intoxicating drink or drug in a public place; (d) Not appear in a public place in the state of intoxication; (e) Not use any intoxication drink or drug to excess.”

8. From the above quoted Rule 4-A it becomes evident that even the appearance of a Government servant in the state of intoxication at a public place is also prohibited and such a misconduct may entail the penalties prescribed in Rule 3 of the Uttaranchal Government Servant (Discipline and Appeal) Rules 2003.

9. Rule 3 of these Rules prescribes the following penalties which may be imposed on a delinquent Government servant: “(a) Minor penalties- (i) Censure; (ii) Withholding of increments for a specified period; (iii) Recovery from pay of the whole or part of any pecuniary loss caused to Government Servant by negligence or breach of orders; (iv) Fine in case of persons holding Group “D” posts: Provided that the amount of such fine shall in no case exceed twenty five percent of the months pay in which the fine is imposed. (b) Major Penalties- (i) Withholding of increments with cumulative effect: (ii) Reduction to a lower post or grade or time scale (iii) or to a lower stage in a time scale; removal from the service which does not disqualify from future employment; 4 (iv) Dismissal from the service, which disqualifies from future employment.

10. Sri Tiwari, the learned counsel for the petitioner, referring to the first proviso of Sub-Rule (1) of Rule 4 vehemently contended that a Government Servant should not be placed under suspension in a casual manner.

11. Rule 4 which deals with suspension of a Government Servant reads as follows: “4. Suspension- (1) A Government Servant against whose conduct an inquiry in contemplated, or is proceeding may be placed under suspension pending the conclusion of Appointing Authority: the discretion of inquiry 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 further Department empowered by the Governor by an order in this behalf may place a Government Servant or class of Government Servants belonging to Group ‘A’ and ‘B’ posts under suspension under this Rule: that concerned Head of Provided also that in the case of any Government Servant or class of Government Servants belong to Group ‘C’ and ‘D’ posts, the Appointing Authority may delegate its power under this Rule to the next lower authority. (2) A Government Servant in respect of, or against whom an investigation, inquiry or trail relating to a criminal is connected with his position as a charge, which 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 the 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 placed under suspension by an order of the Competent Authority to suspend, which effect from the date of his detention, if he is detained in custody, whether the 5 detention is on criminal charge or otherwise, period exceeding forty eight hours. (b) The aforesaid Government Servant shall, after the release from the custody, inform in writing to the Competent Authority about his detention and may also make representation against the deemed suspension. The Competent Authority representation in the light of the facts and circumstances of the case as well as the provisions contained in this the deemed rule, pass appropriate order continuing suspension from the date of release from custody or revoking or modifying it. considering (4) Government Servant shall be deemed to have been placed or, as the case may be, continued to be placed under suspension by an order of the Competent Authority to suspend under these rules, with effect from the date of his conviction if in the event of a conviction for an offence he is sentenced to a term of imprisonment forty eight hours and exceeding dismissed removed consequent to such conviction. forthwith is not Explanation- A period of forty eight hours referred to in sub- rule 11 be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment shall be taken to account. (5) Where a penalty of dismissal or removal from service imposed upon a Government Servant is set aside in appeal or on review under these rules or under rules rescinded by these rules and the case in remitted for further inquiry or action or with any other directions: (a) If he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any such directions as aforesaid, be deemed to have continued in force on and from the date of the original order of dismissal or removal; (b) If he was not under suspension, he shall, if so appellate or Reviewing directed by Authority, be deemed to have been placed under suspension by an order of the Appointing Authority on and from the date or the original order of dismissal or removal: Provided that nothing in this sub-rule shall be construe as affecting Disciplinary Authority in a case where a penalty of dismissal or removal in Service imposed upon a Government Servant is set aside in appeal or on the power of 6 review under these rules grounds other than the merits of the allegations which, the said penalty was imposed but the case is remitted for further inquiry or action or with any other directions to pass an order to suspension being further inquiry against him on those allegations so, however, that any such suspension shall not have retrospective effect. (6) Where penalty of dismissal or removal from Service imposed upon a Government Servant is set aside or declared or rendered void in consequence of or by a decision of a court of law and the Appointing Authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal or removal was originally imposed, whether the allegations remain in their original form or are clarified or their particulars better specified or any part thereof of a minor nature omitted: (a) If he was under suspension immediately before the penalty was awarded to him the order of his suspension shall, subject to any direction of the Appointing Authority, be deemed to have continued in force on and from the date of the original order of dismissal or removal; (b) If he was not under such suspension, he shall, if so directed by the Appointing Authority, be deemed to have been placed under suspension by an order of the Competent Authority on and from the date of the original order of dismissal or removal. (7) Where a Government Servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise) and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the Competent Authority to place him under suspension may, for reasons to e recorded by him in writing, direct that the Government Servant shall continue to be under suspension till the termination of all or any of such proceedings. (8) Any suspension ordered or deemed, to have been ordered or to have continued in force under this Rule shall continue to remain in force under it is modified or revoked by the Competent Authority. (9) A Government Servant placed under suspension or deemed to have been placed under suspension under this 7 rule shall be entitled to subsistence allowance in accordance with the provisions of Fundamental Rule-53 of the Financial hand Book, Volume-II, Part II to IV.

12. On a cumulative reading or Rules 3 and 4 of 2003 Rules, it becomes apparent that if an enquiry is contemplated against a Government Servant on a serious charge, he may be placed under suspension pending such enquiry. Not only consumption of liquor by a Government Servant during his duty hours is a misconduct but even the appearance of a Government Servant at a public place in the state of intoxication has also been enumerated as a misconduct under the above quoted Rule 4-A of 2002 Rules.

13. The allegations leveled against the petitioner, detailed in the above quoted portion of the impugned order dated 20.07.2006, specify in no uncertain the petitioner who was Medical Superintendent of the Community Health Centre, Kiccha, was found in the hospital premises in the state of intoxication which led to an untoward incident in the night of 15.07.2006.

14. As an enquiry is contemplated against the petitioner on the above charges, it is premature for us to examine the correctness or otherewise of the allegations against the petitioner. What is to be seen at this stage, for examining the legality of the impugned order whereby the petitioner has been placed under suspension, is that whether the allegations which are subject matter of the enquiry contemplated against the petitioner, do justify the passing of the impugned order placing the petitioner under suspension.

15. In our considered view, there was sufficient material before the authorities passing the impugned order to place the petitioner under suspension. We, therefore, do not find any infirmity in the impugned order which may warrant interference. We are refraining from commenting on the merits of the allegations against the petitioner lest it may prejudice the petitioner’s case in the enquiry contemplated against him. 8

16. For the foregoing reasons, the writ petition is liable to be dismissed and is hereby dismissed summarily.

17. With the above order, CLMA No. 9611 of 2006 also stands dismissed. A (J.C.S. Rawat, J.) 01.08.2006 (Rajeev Gupta, J.)

01.08.2006