High Court · 2025

Petitioner :- Abu Bakara Respondent :- State Of U.P. Thru. Its Prin. Secy. Deptt. Of Appointment And Personnel Lko. And 5 Others Counsel for Petitioner :- Vishnu Kumar Srivastava,Siddharth Tripathi Counsel for Respondent :- C.S.C. Hon'ble Alok Mathur,J.

1. Heard Sri Vishnu Kumar Srivastava, learned counsel for the petitioner and the Standing counsel for State- respondent No.s 1 to 5 while Sri Dwisendra Prasad Gupta, Advocate has put in appearance on behalf of respondent No.6 and filed vakalatnama, which is taken on record.

2. It has been submitted that the petitioner is a class IV employee having been appointed in Government Industrial Training Institute, Kanpur on 8.7.2005 and subsequently transferred to Government Industrial Training Institute, Women, Bahraich vide order dated 20.5.2006 and is working here till date. It has been submitted that on 8.1.2025 opposite party No.5 has placed the petitioner under suspension vide impugned order in which several allegations have been leveled with regard to conduct of the petitioner including misbehaving with the Principal and using foul language and also intimidating opposite party No.5 and other officials of the training institute.

3. Learned counsel for the petitioner submits that in the entire impugned order there is no mention of any inquiry contemplated against the petitioner. He submits that though in case the charges are serious then power is vested in the appointing authority to place any government servant under suspension in contemplation of a departmental proceedings. He submits that in absence of contemplation of any inquiry to be conducted against a government servant he cannot be placed under suspension arbitrarily and in this regard he relies upon a Five Judges Bench of this Court in State of U.P. Vs. Jai Singh Dixit, 1974 LawSuit (All.) 726.

4. Learned Standing counsel has opposed the writ petition on the basis of the written instructions he has received from opposite party No.5. It is submitted that on 13.1.2025 an inquiry officer has been appointed and charge sheet has also been served upon the petitioner and the inquiry is underway.

5. I have heard learned counsel for the parties and perused the record.

6. The limited question which falls for consideration before this Court is with regard to validity of the impugned order dated 8.1.2025 passed by respondent No.5 thereby placing the petitioner under suspension in absence of any mention regarding holding of regular disciplinary proceedings or even providing for contemplation of inquiry proceedings. It is noticed that in the order dated 8.1.2025 serious allegations have been levelled against the petitioner of misbehaviour with respondent No.5 which undoubtedly falls within the ambit of misconduct. In such a situation, it was incumbent upon the respondents to have initiated disciplinary proceedings in accordance with law and once they have decided for initiation of disciplinary proceedings against the petitioner, it was open for them to have invoked the provisions of Rule 4 of Uttar Pradesh Government Servants Discipline and Appeal Rules, 1999 and place the petitioner under suspension.

7. Whether an order of suspension should include clear declaration firstly the intention of the State to initiate disciplinary proceedings or not is the question which has been raised by the petitioner. He has relied upon a Full Bench judgment of this Court in the case of State of U.P. Vs. Jai Singh Dixit, 1974 LawSuit (All.) 726. In the said judgment the Court was interpreting the provisions of Rule 49 A of U.P. Government Servants Punishment and Appeal Rules, which were similar in terms where also a provision was made for placing a government servant under suspension in contemplation of the disciplinary proceedings and, hence, this Court is of the considered opinion that the dispute in the said case was para materia of Rule 4 of the Rules of 1999. While considering the said aspect the Full Bench was of the considered opinion that it is incumbent upon the respondents to first make up their mind with regard to initiation of the disciplinary proceedings against the delinquent government servant in contemplation of an inquiry came to be interpreted in the said judgment wherein in para 95 it has been held as as under:- "95. It cannot be denied that for different classes of Government servants there are numerous Appointing Authorities, both of high rank and lower rank, depending upon the class of a Government servant to be suspended. To my mind, it is duty of the interpreter of the Rule to give certainty to it so that the Appoining Authority, high or lower in rank, varying in responsibility and intelligence, should be able to apply the Rule uniformly and not indiscriminately or arbitrarily as the Rule confers an unfettered discretion on the Appointing Authority to place a Government servant under suspension against whose conduct an inquiry is contemplated or is preceding. It would be seen that the power to suspend operates upto the conclusion of the inquiry. We all agree that the inquiry that is meant in this Rule is a formal departmental inquiry and not a fact finding preliminary inquiry, which usually precedes the formal inquiry. This is a pointer towards a legitimate inference that what ends with the conclusion of the inquiry should begin when the inquiry has begun or is about to begin. We also agree that it is on an objective consideration that the Appointing Authority forms the opinion that a formal inquiry is to be initiated. The rule does not permit forming an opinion on subjective considerations that the formal inquiry is likely to be held. It is only when a formal inquiry is to begin that the discretion of the Appointing Authority comes into play to suspend or not to suspend a Government servant. When a formal inquiry is proceeding and the Appointing Authority in its discretion suspends a Government servant pending conclusion of that inquiry, no problem arises. The Rule is clear on this score. The problem arises only when the formal inquiry has not begun or initiated. The rule-makers have used the words "against whose conduct an inquiry is contemplated, or is proceedings." The word " contemplate" has some what a vague import. Various meanings of this word have been reproduced from standard dictionaries by the learned Chief Justice in his opinion. " Contemplation ", the noun of the verb " contemplate ", is always a mental process. The process of mind or mental process can work subjectively as well as objectively. The objectivity of the mental process is occasioned by thinking or contemplating on something which can be physically observed or perceived. The subjectivity of the mental process is occasioned by something which is imagined and which cannot be physically observed or perceived by senses. It follows that when we say that a formal disciplinary inquiry is in view the meaning which is Sought to be given to the words " an enquiry is contemplated" and the view is to be based on objective considerations - it follows that there must be material which can be physically observed and perceived to form the basis of the formal inquiry. Since subjective consideration is eliminated, the mere hope or a mere theoritical formation of opinion that a formal inquiry will be held without any material basis for it being available is ruled out. One can say that when a mariner starts his journey on the high seas for a fixed destination somewhere in the middle of high seas, no doubt he is contemplating a journey to the Island of his intended destination. He can be said to be contemplating to reach the Island, which is his destination. One can also express it in different words, that the journey is with a view to reach his destination on the high seas. The Island of destination would only come in view when the mariner physically seas it or perceives its outline when he reaches near the Island. It is this sense that the formal inquiry would be in view of the Appointing Authority based on the objective material before him can be said to be contemplation. When a person takes a decision, the taking of that decision is also a mental process. To my mind, there is nothing wrong in holding, as Seth, J, held in Nigam's case, that an enquiry is contemplated when the mental process of the Appointing Authority has worked and he formed an opinion that formal inquiry is to be held. This is nothing but saying that the Appointing Authority decides that a formal inquiry be held. I do not think the interpreter strains the language of Rule 49A or misinterprets, or misconstrues it when he holds " an inquiry is contemplated " as synonvmous with " an inquiry is decided upon." The decision to hold an inquiry will not amount to initiation of the inquiry. While the decision is a mental process, the initiation is a physical process, that is when the decision is put into practice. It is in that sense that I conceive the Supreme Court in P.R. Nayak v. Union of India distinguished the phrase " an inquiry is initiated" from "an inquiry is contemplated." I again repeat what we held in Jawahar Lal Bhargava's case that the Supreme Court in P.R. Nayak's case having observed that they did not agree with the decision in Tarak Nath Ghosh's case, A.I.R. 1971 S.C. 823, it is quite clear that in P.R. Nayak's case they were not defining what was meant by " an enquiry is contemplated." Rather their disagreement with the decision in Taraknath Ghosh's case militates against the view that an inquiry can be contemplated at a stage prior to the collection of the appropriate material which would warrant a punishment of dismissal removal or reduction in rank of a Government servant, when the evidence furnished by that material was established to be true at a formal inquiry, I am unable to read anything in P.R. Nayak's case, decided by the Supreme Court, which would amount to a declaration of law as to the meaning of the words " an inquiry is contemplated.'"

8. Considering Rule 4 as well as the judgment of Full Bench of this Court, I am of the considered view that suspension can be resorted to only in a condition where serious allegations are levelled against the delinquent government servant which may entail major penalty and for the said misconduct departmental inquiry is contemplated. In absence of any of these contingencies it was not open for the respondents to have invoked the provisions of Rule 4 of Rules of 1999. Even though it is open for them to proceed to take disciplinary proceedings against any such government servant but it is not necessary that whenever the charges are serious Rule 4 has to be resorted to and it should be resorted on any of the contingencies as provided in Rule itself and where there are chances of the delinquent government servant interfering in the inquiry or his remaining on the said post would defeat the purpose of conducting inquiry against him.

9. In the present case, absence of contemplation of an inquiry goes to the root of the matter and there is no exercise of the powers vested in the authority under Rule 4 of the Rules of 1999 to place a government servant under suspension without contemplation of any inquiry. In case such an order is passed which is not relatable to Section 4 of the Rules of 1999 that would amount to punishment. Therefore, the order dated 8.1.2025 is illegal and arbitrary to this extent and accordingly the writ petition is allowed. Order dated 8.1.2025 is aside.

10. It is clarified that this Court has not interfered in the disciplinary proceedings initiated by the respondents by issuing charge sheet against the petitioner. Considering the fact that the impugned order of suspension dated 8.1.2025 has been set aside only on the ground of non recording of satisfaction by the competent authority with regard to contemplation of disciplinary proceeding, it shall always be open for them, if they so choose, to pass fresh orders in accordance with law.

11. Subject to aforesaid observations, the writ petition is allowed. (Alok Mathur, J.) Order Date :- 29.1.2025 RKM. RAKESH KUMAR MAURYA High Court of Judicature at Allahabad, Lucknow Bench

Petitioner :- Abu Bakara Respondent :- State Of U.P. Thru. Its Prin. Secy. Deptt. Of Appointment And Personnel Lko. And 5 Others Counsel for Petitioner :- Vishnu Kumar Srivastava,Siddharth Tripathi Counsel for Respondent :- C.S.C. Hon'ble Alok Mathur,J.

1. Heard Sri Vishnu Kumar Srivastava, learned counsel for the petitioner and the Standing counsel for State- respondent No.s 1 to 5 while Sri Dwisendra Prasad Gupta, Advocate has put in appearance on behalf of respondent No.6 and filed vakalatnama, which is taken on record.

2. It has been submitted that the petitioner is a class IV employee having been appointed in Government Industrial Training Institute, Kanpur on 8.7.2005 and subsequently transferred to Government Industrial Training Institute, Women, Bahraich vide order dated 20.5.2006 and is working here till date. It has been submitted that on 8.1.2025 opposite party No.5 has placed the petitioner under suspension vide impugned order in which several allegations have been leveled with regard to conduct of the petitioner including misbehaving with the Principal and using foul language and also intimidating opposite party No.5 and other officials of the training institute.

3. Learned counsel for the petitioner submits that in the entire impugned order there is no mention of any inquiry contemplated against the petitioner. He submits that though in case the charges are serious then power is vested in the appointing authority to place any government servant under suspension in contemplation of a departmental proceedings. He submits that in absence of contemplation of any inquiry to be conducted against a government servant he cannot be placed under suspension arbitrarily and in this regard he relies upon a Five Judges Bench of this Court in State of U.P. Vs. Jai Singh Dixit, 1974 LawSuit (All.) 726.

4. Learned Standing counsel has opposed the writ petition on the basis of the written instructions he has received from opposite party No.5. It is submitted that on 13.1.2025 an inquiry officer has been appointed and charge sheet has also been served upon the petitioner and the inquiry is underway.

5. I have heard learned counsel for the parties and perused the record.

6. The limited question which falls for consideration before this Court is with regard to validity of the impugned order dated 8.1.2025 passed by respondent No.5 thereby placing the petitioner under suspension in absence of any mention regarding holding of regular disciplinary proceedings or even providing for contemplation of inquiry proceedings. It is noticed that in the order dated 8.1.2025 serious allegations have been levelled against the petitioner of misbehaviour with respondent No.5 which undoubtedly falls within the ambit of misconduct. In such a situation, it was incumbent upon the respondents to have initiated disciplinary proceedings in accordance with law and once they have decided for initiation of disciplinary proceedings against the petitioner, it was open for them to have invoked the provisions of Rule 4 of Uttar Pradesh Government Servants Discipline and Appeal Rules, 1999 and place the petitioner under suspension.

7. Whether an order of suspension should include clear declaration firstly the intention of the State to initiate disciplinary proceedings or not is the question which has been raised by the petitioner. He has relied upon a Full Bench judgment of this Court in the case of State of U.P. Vs. Jai Singh Dixit, 1974 LawSuit (All.) 726. In the said judgment the Court was interpreting the provisions of Rule 49 A of U.P. Government Servants Punishment and Appeal Rules, which were similar in terms where also a provision was made for placing a government servant under suspension in contemplation of the disciplinary proceedings and, hence, this Court is of the considered opinion that the dispute in the said case was para materia of Rule 4 of the Rules of 1999. While considering the said aspect the Full Bench was of the considered opinion that it is incumbent upon the respondents to first make up their mind with regard to initiation of the disciplinary proceedings against the delinquent government servant in contemplation of an inquiry came to be interpreted in the said judgment wherein in para 95 it has been held as as under:- "95. It cannot be denied that for different classes of Government servants there are numerous Appointing Authorities, both of high rank and lower rank, depending upon the class of a Government servant to be suspended. To my mind, it is duty of the interpreter of the Rule to give certainty to it so that the Appoining Authority, high or lower in rank, varying in responsibility and intelligence, should be able to apply the Rule uniformly and not indiscriminately or arbitrarily as the Rule confers an unfettered discretion on the Appointing Authority to place a Government servant under suspension against whose conduct an inquiry is contemplated or is preceding. It would be seen that the power to suspend operates upto the conclusion of the inquiry. We all agree that the inquiry that is meant in this Rule is a formal departmental inquiry and not a fact finding preliminary inquiry, which usually precedes the formal inquiry. This is a pointer towards a legitimate inference that what ends with the conclusion of the inquiry should begin when the inquiry has begun or is about to begin. We also agree that it is on an objective consideration that the Appointing Authority forms the opinion that a formal inquiry is to be initiated. The rule does not permit forming an opinion on subjective considerations that the formal inquiry is likely to be held. It is only when a formal inquiry is to begin that the discretion of the Appointing Authority comes into play to suspend or not to suspend a Government servant. When a formal inquiry is proceeding and the Appointing Authority in its discretion suspends a Government servant pending conclusion of that inquiry, no problem arises. The Rule is clear on this score. The problem arises only when the formal inquiry has not begun or initiated. The rule-makers have used the words "against whose conduct an inquiry is contemplated, or is proceedings." The word " contemplate" has some what a vague import. Various meanings of this word have been reproduced from standard dictionaries by the learned Chief Justice in his opinion. " Contemplation ", the noun of the verb " contemplate ", is always a mental process. The process of mind or mental process can work subjectively as well as objectively. The objectivity of the mental process is occasioned by thinking or contemplating on something which can be physically observed or perceived. The subjectivity of the mental process is occasioned by something which is imagined and which cannot be physically observed or perceived by senses. It follows that when we say that a formal disciplinary inquiry is in view the meaning which is Sought to be given to the words " an enquiry is contemplated" and the view is to be based on objective considerations - it follows that there must be material which can be physically observed and perceived to form the basis of the formal inquiry. Since subjective consideration is eliminated, the mere hope or a mere theoritical formation of opinion that a formal inquiry will be held without any material basis for it being available is ruled out. One can say that when a mariner starts his journey on the high seas for a fixed destination somewhere in the middle of high seas, no doubt he is contemplating a journey to the Island of his intended destination. He can be said to be contemplating to reach the Island, which is his destination. One can also express it in different words, that the journey is with a view to reach his destination on the high seas. The Island of destination would only come in view when the mariner physically seas it or perceives its outline when he reaches near the Island. It is this sense that the formal inquiry would be in view of the Appointing Authority based on the objective material before him can be said to be contemplation. When a person takes a decision, the taking of that decision is also a mental process. To my mind, there is nothing wrong in holding, as Seth, J, held in Nigam's case, that an enquiry is contemplated when the mental process of the Appointing Authority has worked and he formed an opinion that formal inquiry is to be held. This is nothing but saying that the Appointing Authority decides that a formal inquiry be held. I do not think the interpreter strains the language of Rule 49A or misinterprets, or misconstrues it when he holds " an inquiry is contemplated " as synonvmous with " an inquiry is decided upon." The decision to hold an inquiry will not amount to initiation of the inquiry. While the decision is a mental process, the initiation is a physical process, that is when the decision is put into practice. It is in that sense that I conceive the Supreme Court in P.R. Nayak v. Union of India distinguished the phrase " an inquiry is initiated" from "an inquiry is contemplated." I again repeat what we held in Jawahar Lal Bhargava's case that the Supreme Court in P.R. Nayak's case having observed that they did not agree with the decision in Tarak Nath Ghosh's case, A.I.R. 1971 S.C. 823, it is quite clear that in P.R. Nayak's case they were not defining what was meant by " an enquiry is contemplated." Rather their disagreement with the decision in Taraknath Ghosh's case militates against the view that an inquiry can be contemplated at a stage prior to the collection of the appropriate material which would warrant a punishment of dismissal removal or reduction in rank of a Government servant, when the evidence furnished by that material was established to be true at a formal inquiry, I am unable to read anything in P.R. Nayak's case, decided by the Supreme Court, which would amount to a declaration of law as to the meaning of the words " an inquiry is contemplated.'"

8. Considering Rule 4 as well as the judgment of Full Bench of this Court, I am of the considered view that suspension can be resorted to only in a condition where serious allegations are levelled against the delinquent government servant which may entail major penalty and for the said misconduct departmental inquiry is contemplated. In absence of any of these contingencies it was not open for the respondents to have invoked the provisions of Rule 4 of Rules of 1999. Even though it is open for them to proceed to take disciplinary proceedings against any such government servant but it is not necessary that whenever the charges are serious Rule 4 has to be resorted to and it should be resorted on any of the contingencies as provided in Rule itself and where there are chances of the delinquent government servant interfering in the inquiry or his remaining on the said post would defeat the purpose of conducting inquiry against him.

9. In the present case, absence of contemplation of an inquiry goes to the root of the matter and there is no exercise of the powers vested in the authority under Rule 4 of the Rules of 1999 to place a government servant under suspension without contemplation of any inquiry. In case such an order is passed which is not relatable to Section 4 of the Rules of 1999 that would amount to punishment. Therefore, the order dated 8.1.2025 is illegal and arbitrary to this extent and accordingly the writ petition is allowed. Order dated 8.1.2025 is aside.

10. It is clarified that this Court has not interfered in the disciplinary proceedings initiated by the respondents by issuing charge sheet against the petitioner. Considering the fact that the impugned order of suspension dated 8.1.2025 has been set aside only on the ground of non recording of satisfaction by the competent authority with regard to contemplation of disciplinary proceeding, it shall always be open for them, if they so choose, to pass fresh orders in accordance with law.

11. Subject to aforesaid observations, the writ petition is allowed. (Alok Mathur, J.) Order Date :- 29.1.2025 RKM. RAKESH KUMAR MAURYA High Court of Judicature at Allahabad, Lucknow Bench