1 IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL (Chapter VIII Rule 32 (2)(b) Description of the case. Writ Petition No. 210 of 2004 (S/B) Date of Decision: 5th May, 2005 A.F.R. (Approved for Reporting) (Yes) ______________________ Not approved for reporting Date Initials of Judge Note: Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for Signature. IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 210 of 2004(S/B) S.K. Goel, aged about 53 years S/o Late V.S. Goel, R/o 58 Mitra Lok Colony, District Dehradun ……… Petitioner Versus 1. State of Uttaranchal through Excise Secretary. Civil Secretariat, District Dehradun. 2. B.C. Chandola s/o not known to the petitioner, presently posted as Excise Secretary as also Excise Commissioner, State of Uttaranchal, Dehradun ……… Respondents Mr. Paresh Tripathi, Advocate for the petitioner. Mr. K.P. Upadhyaya, Standing Counsel for the State of Uttaranchal Coram: Hon’ble Cyriac Joseph, C.J. Hon’ble M.M. Ghildiyal, J. [Per Hon’ble Chief Justice (Oral)] 1. While the petitioner was working as Assistant Excise Commissioner in the office of the Excise Commissioner at Dehradun, he was placed under suspension pending disciplinary proceedings as per Annexure 1 order dated 15.07.2004. According to Annexure 1 order, the contemplated disciplinary action was in respect of alleged irregularities committed by the petitioner when he was working as District Excise Officer at Haridwar. Challenging Annexure 1 order of suspension, the petitioner filed this writ petition and by interim order dated 19.07.2004, operation of the suspension order dated 15.07.2004 was stayed by this Court. Against the interim order dated 19.07.2004, the State of Uttaranchal filed Civil Appeal No. 1494 of 2005 in the Hon’ble Supreme Court and the said Appeal was disposed of by the Supreme Court on 28.02.2005 setting aside the interim order passed by the High Court and directing the High Court to dispose of the writ petition as expeditiously as possible and in any event within a period of three months. Consequent upon the said order of the Hon’ble Supreme Court, the petitioner was again placed under suspension by an order dated 23/25-10- 2004. Thus, the petitioner continues to be under suspension pending disciplinary action against him. 2 2. The representation of the petitioner regarding the change of option for the Uttaranchal State had been rejected by the Government of U.P. on 28.07.2002. In the order dated 17.05.2004 by which final allocation of Assistant Excise Commissioners to the State of Uttaranchal has been made, the name of the petitioner was not included. Consequently, the petitioner is liable to be treated as allocated to the State of U.P. Hence, by order dated 26.02.2005 of the Government of Uttaranchal and consequential order dated 02.03.2005 of the Excise Commissioner, Uttaranchal, the petitioner was relieved from the State of Uttaranchal and was directed to report to the Government of U.P. Challenging the said orders, the petitioner filed writ Petition No. 38 of 2005 (S/B) before this Court and by the interim order dated 19.03.2005, this Court stayed the relieving order dated 02.03.2005 till the disposal of the writ petition. Thus, on the strength of interim order passed in Writ Petition No. 38 of 2005 (S/B), the petitioner continues to be in service of the State of Uttaranchal. Whether or not the petitioner is liable to be allocated to the State of Uttaranchal is an issue to be decided in the Writ Petition No. 38 of 2005. Till the issue is finally decided in that writ petition, the petitioner is entitled to be treated as continuing in the service of the State of Uttaranchal. 3. It cannot be disputed that the Government, being the Appointing Authority, was competent to suspend the petitioner pending disciplinary action. It is also seen that the disciplinary action was initiated against the petitioner on the basis of a preliminary enquiry conducted in respect of certain irregularities alleged to have been committed by him while he was working as District Excise Officer, Haridwar. The petitioner has got a contention that no disciplinary action can be taken against him on the basis of the said enquiry report as the said report was rejected by the Supreme Court in some other proceedings. It is an objection that can be taken by the petitioner in the disciplinary proceedings itself. Hence, we refrain from expressing any opinion on the above contention. The disciplinary authority shall consider such an objection, if raised before it. 3 4. It is not necessary to place a Government employee under suspension in every case where disciplinary proceedings are contemplated. The continuance of the employee in the same post or at the same station may be considered likely to influence or prejudice the enquiry and the disciplinary proceedings. Sometimes, in view of the nature of the post held by the officer and the nature of the irregularities alleged, the very continuance of the officer in service during the disciplinary proceedings may be considered undesirable. In the first case, the proper conduct of enquiry and disciplinary proceedings can be ensured by a mere transfer of the officer. Only in the second case the officer need be placed under suspension. Hence, it is incumbent upon the disciplinary authority to consider whether a transfer of the officer will be sufficient or whether suspension itself is required. Only when the disciplinary authority is satisfied that suspension itself is required, an officer can be placed under suspension. If and when the suspension is questioned in a Court of law, the disciplinary authority is bound to show that he had arrived at a satisfaction that a mere transfer was not sufficient and that suspension itself was required. If the disciplinary authority fails to show that he had properly considered the matter and was satisfied that suspension itself was required, the order of suspension is liable to be declared illegal and arbitrary and quashed on that basis, it should be remembered that though suspension is not a punishment, it visits the employee with serious civil consequences and loss of reputation and prestige. Hence, an order of suspension should not be passed lightly, casually or without proper application of mind. 5. In this case, from the impugned order or from the affidavits filed on behalf of the respondents, it is not seen that the disciplinary authority had properly considered whether a transfer would be sufficient or suspension itself would be required and thereafter arrived at a satisfaction that suspension was necessary to facilitate a proper enquiry and that continuance of the petitioner in service during the disciplinary proceedings was undesirable. At any rate, there cannot be any justification for keeping an employee under suspension indefinitely without even serving the memo of charges on him as in this case. If the employee is indefinitely kept under 4 suspension without serving the memo of charges and without conducting any enquiry as contemplated under the Rules, the suspension will virtually amount to a punishment. Payment of subsistence allowance is no consolation in such a situation. There cannot be any such punishment without holding an employee guilty of the charges levelled against him. Therefore, in this case it is necessary to consider whether there is justification for continuing the suspension of the petitioner. The petitioner was placed under suspension on 15.07.2004. Till today, the memo of charges has not been duly served on him. The enquiry has not been even commenced. In the supplementary counter affidavit filed on 11.04.2005, it is stated that the charge-sheet could not be served on the petitioner due to the pendency of the writ petition and that the charge-sheet is being served on the petitioner. Though a copy of an unsigned charge-sheet has been annexed to the supplementary counter affidavit, learned counsel for the petitioner submitted that till today the charge-sheet has not been duly served upon the petitioner. It may be true that copies of the supplementary counter affidavit and the annexures have been served on the petitioner, but the respondents are bound to serve on the petitioner a charge-sheet duly signed by the Competent Authority. The explanation that charge-sheet could not be served due to the pendency of this writ petition is not all acceptable. There was no interim order staying the disciplinary proceedings and hence the charge-sheet could have been served on the petitioner despite the pendency of this writ petition. 6. From the averments contained in the affidavits filed on behalf of the respondents and the materials placed on record, we are not satisfied that the reinstatement of the petitioner in service at this stage will in any way influence the enquiry or prejudice the disciplinary proceedings or that the continuance of the petitioner in service is undesirable. The alleged irregularities were committed when the petitioner was working as District Excise Officer at Haridwar. At the time of suspension, the petitioner was working as Assistant Excise Commissioner attached to the office of the Excise Commissioner at Dehradun. If the Government considers that the petitioner’s presence even in the office of the Excise 5 Commissioner will influence or prejudice the enquiry, it is open to the Government to post him at any other place within the State. We do not find any valid reason to keep the petitioner under suspension any more, in view of the failure on the part of the respondents in serving the charge- sheet on the petitioner and in view of the inordinate delay in conducting the disciplinary proceedings. 7. In the above circumstances, Annexure 1 order dated 15.07.2004 and Annexure S.C.A. 3 order dated 23/25-10-2004 are quashed. The suspension of the petitioner stands revoked with immediate effects. The petitioner shall immediately report for duty before the Excise Commissioner. The Excise Commissioner shall give suitable posting to the petitioner subject to the final decision in Writ Petition No. 38 of 2005 (S/B). It is made clear that the continuance of the petitioner in the State of Uttaranchal will be subject to the final decision in the Writ Petition No. 38 of 2005. (S/B). 8. The Writ Petition stands disposed of in the above terms. (M.M. Ghildiyal, J.) (Cyriac Joseph, C.J.) 05.05.2005 05.05.2005 A