Pawan Kishor vs State Of U.P.Throu Its Prin.Secy.Nagar Vikas

1. Heard learned counsel for the petitioner, learned Standing Counsel for the respondents no.1, 2, 3 & 5 and Shri Yogendra Mishra, learned counsel for the respondent no. 4.

2. Under challenge is the suspension order dated 3.3.2015, a copy of which is annexure 1 to the writ petition, whereby the petitioner has been placed under suspension by the Director, Directorate of Local Bodies, Lucknow.

3. This Court has passed a detailed order dated 31.3.2015 by which the suspension order had been stayed until further order. The said order still continues.

4. For the sake of convenience, the order dated 31.3.2015 passed by this Court is reproduced below: "Heard learned counsel for the petitioner and learned Standing Counsel appearing for the State-respondents. Let a counter affidavit to the averments made in the writ petition be filed by the respondents within four weeks. Two weeks' time thereafter shall be available to the learned counsel for the petitioner to file rejoinder affidavit. List after expiry of the aforesaid period. Pursuant to the earlier order dated 24.03.2015, the records from the office of Director, Local Bodies, U.P. Directorate, Indira Bhawan, 2 WRIA No. 1199 of 2015 Lucknow and also from the State Government have been produced. The petitioner has been placed under suspension by means of the order dated 03.03.2015, passed by the Director, Local Bodies, U.P. on the direction issued by the State Government by means of letter dated 20.02.2015. The fact that the suspension order has been passed by the Director pursuant to the letter of the State Government is clear from the endoresement-1 made in the order dated 03.03.2015 itself. The original record produced before the Court from the Directorate does not contain any document or material leading to suspension of the petitioner except the letter of the State Government dated 20.02.2015. It appears from the documents available in the said file of the Directorate that pursuant to his selection by the U.P. Public Service Commission and appointment made thereon, petitioner had submitted his first joining at Nagar Panchayat, Salon, Raebareli on 20.07.2014. As far as the record of the State Government produced before the Court is concerned, the same contains two letters written by a local Member of Legislative Assembly (MLA) which appear to have been received by the State Government on 28.01.2015. In one of the said letters, it has been stated by the MLA that the petitioner appears to be a relative of a political leader belonging to a political party and further that he was earlier posted somewhere else, however, since he belongs to Gauriganj, as such he has got himself transferred to Salon. The letter further states that the petitioner permits individuals belonging to a particular political party to have access in his office, therefore, he be transferred from Salon. The letter further states that his removal from Salon is very necessary for the reason that the Chairman of the Nagar Palika Parishad, Salon is also not happy with the petitioner. In the other letter, it has been stated by the same MLA that petitioner proclaims himself to be a relative of a political leader and earlier he was posted somewhere else but some how he managed to be posted at Salon. Letter further states that the petitioner appreciates functioning of earlier Government. In this second letter also it has been stated by the MLA that petitioner be transferred/removed immediately from Salon Town Area. Except the aforesaid two letters received in the State Government on the same day, i.e. on 28.01.2015, there is no other material on the basis of which the State Government has directed the Director, Local Bodies, U.P. to place the petitioner under suspension by means of letter dated 20.02.2015. Admittedly, the appointing authority of the incumbent holding the post of Executive Officer of the Nagar Panchayat, Salon is the Director, Local Bodies. The State Government can, of course, issue necessary directions 3 WRIA No. 1199 of 2015 to take appropriate disciplinary action against an erring employee. However, the provision contained in Rule 4 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 have to be kept in mind by the Appointing Authority, which provides that a 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. The provision of Rule 4 of the aforesaid Rules contains a caveat in the shape of a proviso appended thereto, which provides 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, the same may ordinarily warrant major penalty. Rule 4 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 is quoted hereinbelow:- "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 further that concerned Head of Department empowered by the governor by an order in this behalf may place a Government Servant or class of Government Servant belonging to Group 'A' and 'B' posts under suspensions under this rule: Provided also that in the case of any Government Servant or class of Government Servant belonging to Group 'C' and 'D' posts, the Appointing Authority may delegate its power under this rule to the next lower authority" From a perusal of the aforequoted Rule 4, which has been framed under Article 309 of the Constitution of India, it is abundantly clear that the discretion of the appointing authority for placing the government servant under suspension cannot be exercised without application of mind. The proviso appended to said Rule 4 makes it incumbent upon the appointing authority to apply his mind as to the seriousness of the charges which, if established, may ordinarily result into award of major penalty. Application of mind by the appointing authority for exercising his discretion will depend upon the availability of material on record. In the instant case, except for two letters written by the local MLA, there is no other material available either before the State Government or even before the Director, Local Bodies, who is the appointing authority. The said letters, in my considered opinion, cannot be said to be the basis of placing the petitioner under suspension as these letters do not form 4 WRIA No. 1199 of 2015 sufficient material to arrive at a conclusion to place an employee under suspension. Further, since the Appointing Authority of the petitioner is the Director and not the State Government, it is the Director who ought to have applied his independent mind to the material available on record. Record maintained in the office of Director does not disclose any material except the letter of the State Government dated 20.02.2015. Thus, prima facie, it appears that the Director has not applied his mind before taking the decision to place the petitioner under suspension; rather he appears to have abdicated and surrendered his discretion. Accordingly, till further orders of this Court, the operation and implementation of the impugned suspension order dated 03.03.2015, passed by the Director, Directorate of U.P., Local Bodies, Lucknow shall remain stayed. The petitioner shall be allowed to discharge duties of the post of Executive Officer, Nagar Panchayat,Salon, Raebareli and he will also be paid salary as and when the same accrues to him."

5. From the aforesaid order it emerges that although the competent authority has passed impugned order of suspension but no independent mind had been applied by the competent authority while passing the impugned suspension order.

6. Learned Standing Counsel on the basis of the averments contained in the counter affidavit has also not been able to indicate that there has been application of mind on the part of the Director while passing the order impugned.

7. Considering the aforesaid, the writ petition is allowed. The impugned order of suspension dated 3.3.2015, a copy of which is annexure 1 to the writ petition, is set aside.

8. Consequences to follow. September 24, 2025 J. K. Dinkar (Abdul Moin,J.) JESHU KUMAR DINKAR High Court of Judicature at Allahabad, Lucknow Bench

1. Heard learned counsel for the petitioner, learned Standing Counsel for the respondents no.1, 2, 3 & 5 and Shri Yogendra Mishra, learned counsel for the respondent no. 4.

2. Under challenge is the suspension order dated 3.3.2015, a copy of which is annexure 1 to the writ petition, whereby the petitioner has been placed under suspension by the Director, Directorate of Local Bodies, Lucknow.

3. This Court has passed a detailed order dated 31.3.2015 by which the suspension order had been stayed until further order. The said order still continues.

4. For the sake of convenience, the order dated 31.3.2015 passed by this Court is reproduced below: "Heard learned counsel for the petitioner and learned Standing Counsel appearing for the State-respondents. Let a counter affidavit to the averments made in the writ petition be filed by the respondents within four weeks. Two weeks' time thereafter shall be available to the learned counsel for the petitioner to file rejoinder affidavit. List after expiry of the aforesaid period. Pursuant to the earlier order dated 24.03.2015, the records from the office of Director, Local Bodies, U.P. Directorate, Indira Bhawan, 2 WRIA No. 1199 of 2015 Lucknow and also from the State Government have been produced. The petitioner has been placed under suspension by means of the order dated 03.03.2015, passed by the Director, Local Bodies, U.P. on the direction issued by the State Government by means of letter dated 20.02.2015. The fact that the suspension order has been passed by the Director pursuant to the letter of the State Government is clear from the endoresement-1 made in the order dated 03.03.2015 itself. The original record produced before the Court from the Directorate does not contain any document or material leading to suspension of the petitioner except the letter of the State Government dated 20.02.2015. It appears from the documents available in the said file of the Directorate that pursuant to his selection by the U.P. Public Service Commission and appointment made thereon, petitioner had submitted his first joining at Nagar Panchayat, Salon, Raebareli on 20.07.2014. As far as the record of the State Government produced before the Court is concerned, the same contains two letters written by a local Member of Legislative Assembly (MLA) which appear to have been received by the State Government on 28.01.2015. In one of the said letters, it has been stated by the MLA that the petitioner appears to be a relative of a political leader belonging to a political party and further that he was earlier posted somewhere else, however, since he belongs to Gauriganj, as such he has got himself transferred to Salon. The letter further states that the petitioner permits individuals belonging to a particular political party to have access in his office, therefore, he be transferred from Salon. The letter further states that his removal from Salon is very necessary for the reason that the Chairman of the Nagar Palika Parishad, Salon is also not happy with the petitioner. In the other letter, it has been stated by the same MLA that petitioner proclaims himself to be a relative of a political leader and earlier he was posted somewhere else but some how he managed to be posted at Salon. Letter further states that the petitioner appreciates functioning of earlier Government. In this second letter also it has been stated by the MLA that petitioner be transferred/removed immediately from Salon Town Area. Except the aforesaid two letters received in the State Government on the same day, i.e. on 28.01.2015, there is no other material on the basis of which the State Government has directed the Director, Local Bodies, U.P. to place the petitioner under suspension by means of letter dated 20.02.2015. Admittedly, the appointing authority of the incumbent holding the post of Executive Officer of the Nagar Panchayat, Salon is the Director, Local Bodies. The State Government can, of course, issue necessary directions 3 WRIA No. 1199 of 2015 to take appropriate disciplinary action against an erring employee. However, the provision contained in Rule 4 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 have to be kept in mind by the Appointing Authority, which provides that a 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. The provision of Rule 4 of the aforesaid Rules contains a caveat in the shape of a proviso appended thereto, which provides 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, the same may ordinarily warrant major penalty. Rule 4 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 is quoted hereinbelow:- "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 further that concerned Head of Department empowered by the governor by an order in this behalf may place a Government Servant or class of Government Servant belonging to Group 'A' and 'B' posts under suspensions under this rule: Provided also that in the case of any Government Servant or class of Government Servant belonging to Group 'C' and 'D' posts, the Appointing Authority may delegate its power under this rule to the next lower authority" From a perusal of the aforequoted Rule 4, which has been framed under Article 309 of the Constitution of India, it is abundantly clear that the discretion of the appointing authority for placing the government servant under suspension cannot be exercised without application of mind. The proviso appended to said Rule 4 makes it incumbent upon the appointing authority to apply his mind as to the seriousness of the charges which, if established, may ordinarily result into award of major penalty. Application of mind by the appointing authority for exercising his discretion will depend upon the availability of material on record. In the instant case, except for two letters written by the local MLA, there is no other material available either before the State Government or even before the Director, Local Bodies, who is the appointing authority. The said letters, in my considered opinion, cannot be said to be the basis of placing the petitioner under suspension as these letters do not form 4 WRIA No. 1199 of 2015 sufficient material to arrive at a conclusion to place an employee under suspension. Further, since the Appointing Authority of the petitioner is the Director and not the State Government, it is the Director who ought to have applied his independent mind to the material available on record. Record maintained in the office of Director does not disclose any material except the letter of the State Government dated 20.02.2015. Thus, prima facie, it appears that the Director has not applied his mind before taking the decision to place the petitioner under suspension; rather he appears to have abdicated and surrendered his discretion. Accordingly, till further orders of this Court, the operation and implementation of the impugned suspension order dated 03.03.2015, passed by the Director, Directorate of U.P., Local Bodies, Lucknow shall remain stayed. The petitioner shall be allowed to discharge duties of the post of Executive Officer, Nagar Panchayat,Salon, Raebareli and he will also be paid salary as and when the same accrues to him."

5. From the aforesaid order it emerges that although the competent authority has passed impugned order of suspension but no independent mind had been applied by the competent authority while passing the impugned suspension order.

6. Learned Standing Counsel on the basis of the averments contained in the counter affidavit has also not been able to indicate that there has been application of mind on the part of the Director while passing the order impugned.

7. Considering the aforesaid, the writ petition is allowed. The impugned order of suspension dated 3.3.2015, a copy of which is annexure 1 to the writ petition, is set aside.

8. Consequences to follow. September 24, 2025 J. K. Dinkar (Abdul Moin,J.) JESHU KUMAR DINKAR High Court of Judicature at Allahabad, Lucknow Bench