IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 381 OF 2009 (SS) Abid Hussain ………..Petitioner. Versus State of Uttarakhand and another. ……..Respondents. Mr. D.S. Patni, Advocate for petitioner. Mr. N.P. Sah, Standing Counsel for State of Uttarakhand. 13th November, 2009 Hon’ble Sudhanshu Dhulia, J. Heard Mr. D.S. Patni, Advocate for petitioner and Mr. N.P. Sah, Standing Counsel for State of Uttarakhand. The petitioner is a Collection Amin in the Uttarakhand Revenue Services. Vide order dated 26.6.2006, the petitioner was suspended from his service and departmental proceedings were initiated against him ad an Inquiry Officer was appointed in this regard. The charge against the petitioner was that he was caught red handed while receiving bribe of Rs. 3,000/-. Consequently, a criminal case was filed against the petitioner, inter alia, under Prevention of Corruption Act. The petitioner had earlier challenged the suspension order before this Court. However, during the pendency of the writ petition, an order dated 24th April, 2009 was passed by the appointing authority, which was based on the report of the Inquiry Officer, which states that since a criminal case is already pending against the petitioner, therefore, till a decision is reached in this matter by the trial Court, the disciplinary proceedings against the petitioner may remain suspended and the petitioner be reinstated in service. On this report, the appointing 2 Authority further stated after quoting the portion of that report in the impugned order dated 24th April, 2009 (Annexure-4 to the amended writ petition) that a criminal case has been filed against the petitioner under Prevention of Corruption Act. Apart from this, it has been stated that there is no other case of misconduct against the petitioner. In such a condition, the only competent authority is the Court, which is hearing the criminal case of the petitioner under Prevention of Corruption Act and it is only the Court which can take decision on this matter. It has further been stated by the appointing Authority that this is not the case of disciplinary proceedings but in his opinion after suspending the services of the petitioner, the department should have awaited the result of the criminal trial, which is pending against the petitioner and any action should be taken only after the decision on the criminal trial is made. The appointing Authority is also of the view that the matter, which is pending before the Competent Court, the same cannot be taken cognizance in a disciplinary proceeding. It has further been stated by the appointing Authority that the Inquiry officer as well as Tehsildar Kichha have also expressed similar view in this matter. Therefore, the appointing Authority i.e. the District Magistrate, Udham Singh Nagar has recalled earlier order by which disciplinary proceedings were initiated against the petitioner. It has further been stated that the petitioner is presently under suspension and will continuing to remain under suspension till the matter is decided by the Competent Criminal Court. It is this order, which the petitioner has presently challenged by amendment in the writ petition. 3 According to the petitioner, he was suspended from service on 26th June, 2006 and this decision has been taken by the concerned authority after a period of three years, during which the petitioner has remained suspended from his service. In case, they are awaiting the result of the trial, there is no occasion for keeping the petitioner under suspension, as this is also an opinion of the Inquiry Officer. Learned counsel for the petitioner has further stated that suspension during service can only be done on two occasions A) where an inquiry is contemplated against the petitioner and B) when disciplinary proceedings have been initiated against the incumbent. None of these situations presently exists and therefore, this is another reason for quashing the said order. A counter affidavit has been filed by the State, wherein they have referred to Rule 4 (2) of the Uttaranchal Government Servant (Discipline and Appeal) Rules, 2003, which reads as follows: “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 on 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.” 4 A perusal of the aforesaid Rule shows that there is a provision under the Rules, whereby Government servant can remain under suspension during the period where a criminal trial is pending against such a government servant. However, the necessary ingredients of said provision are that firstly it is not mandatory and it is the discretion of the appointing Authority to pass such an order, moreover, such orders can only be passed in a contingency, where the position of the government servant is likely to embarrass him in the discharge of his duties or which involves moral turpitude. However, the fact that these necessary ingredients as contemplated under Rule 4(2) of the Uttaranchal Government Servant (Discipline and Appeal) Rules, 2003 are present in the present case has nowhere been stated in the order presently impugned i.e. order dated 24.4.2009 and therefore it cannot be said that the impugned order has been passed in exercise of powers of Rule 4 (2), as referred above. There is another aspect to this matter. It is a settled position of law that a government servant who remains suspended during the pending of an inquiry should not remain suspended indefinitely and a disciplinary proceeding initiated against a government servant must come to an end as expeditiously as possible. In the present case, firstly the petitioner has already remained under suspension for more than three and half years. Secondly there is likelihood that the petitioner will remain under suspension for a further period, which is again indefinite. In such an eventuality, the suspension order dated 24.4.2009, which is presently impugned, is hereby quashed. It is, however, made clear that in case the charges against the petitioner are found proved 5 before the trial Court, and the petitioner is convicted and sentenced under the Prevention of Corruption Act or in any other charge under the criminal law by the trial Court, the respondent shall be free to initiate the disciplinary proceedings against the petitioner. With the above observation, writ petition is disposed of. No order as to costs. (Sudhanshu Dhulia, J.) 13.11.2009 Rathour