IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/S) No. 1210 of 2011 Rajeev Kumar ….Petitioner. Versus State of Uttarakhand & others …Respondents. Present : Mr. D.S. Patni, Advocate for the petitioner. Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand. Hon’ble Sudhanshu Dhulia, J. (Oral) Heard Mr. D.S. Patni, Advocate for the petitioner and Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand. The petitioner is a “Patwari” – i.e. a Revenue Officer in the State of Uttarakhand. He has challenged the order dated 13.5.2010 (annexure no. 2 to the writ petition), by which the petitioner has been suspended and subsequent order dated 29.8.2011 (annexure no. 1 to the writ petition), by which disciplinary inquiry has been initiated against the petitioner. The order dated 13.5.2010 shows that there was allegation that the petitioner in a capacity of a Government servant was asking for illegal gratification of `10,000/- from one Sri Nanak Singh for entering his name in “khasra/khatauni”. The matter was reported to the vigilance department and a trap team was constituted where the petitioner was caught red handed taking bribe. The petitioner was arrested and subsequently he was suspended. A criminal case against the petitioner has also been registered. The petitioner thereafter moved an application under Rule 4 (3) (b) of Uttaranchal Government Servant (Discipline and Appeal) Rules, 2003 (from hereinafter referred to as 2003 Rules). The aforesaid provision reads as follows :- “4. Suspension. – (1) A Government Servant against whose conduct an inquiry in completed, or is proceeding may be placed under suspension pending the conclusion of the inquiry in the discretion of the Appellate Authority : 2 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 the 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 : Provided also that in the case of any Government Servant or class of Government Servants belonging 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 home an investigation, inquiry or trial relating to a criminal charge, which is connected with his position as a 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, with effect from the date of his detention, if he is detained in custody, whether the 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 shall after considering the representation in the light of the facts and circumstances of the case as well as; the provisions contained in this rule, pass appropriate order continuing the deemed suspension from the date of release from custody or revoking or modifying it. (4) … (5) … (6) … (7) … (8) … (9) …” According to the petitioner, he had moved the application under Rule 4 (3) (b) for his reinstatement after he was released from jail, since there was a provision for deemed suspension on such arrest. All the same, on his moving the application 3 another order was passed on 29.8.2011 in which it has been stated that the inquiry is being contemplated against the petitioner, and as such he has been suspended. Learned counsel for the State has raised objections on the maintainability of the present writ petition at this stage and has relied upon a Division Bench judgment of this Court, namely, Hare Ram Gupta Vs. State of Uttarakhand and others reported in 2008 (1) U.D. 375 where a Division Bench of this Court after considering two judgments of the Hon’ble Apex Court, namely, Public Service Tribunal Bar Association Vs. State of U.P. and another reported in (2003) 4 SCC 104 and Secretary, Minor Irrigation & Rural Engineering Services, U.P. and others Vs. Sahngoo Ram Arya and another reported in (2002) 5 SCC 521 has come to the conclusion as follows :- “9. A combined reading of the observations made in Public Services Tribunal Bar Association case (supra) and the observations made in Sahngoo Ram Arya (supra), both extracted and quoted above, clearly suggests to us, without any manner of doubt, that, first and foremost, the Tribunal under 1976 Act, while exercising its jurisdiction under Section 4, has the power to receive, entertain and decide and dispose of a claim petition challenging a suspension order and, secondly, because of this jurisdiction and power vesting in the Tribunal, a writ petition under Article 226 of the Constitution of India is not maintainable in the High Court directly inasmuch as a person, aggrieved of a suspension order, has the alternative and efficacious remedy of approaching the Tribunal. The presence and existence of such a power, therefore, operates as a self-imposed bar as far as the exercise of jurisdiction by the High Court in entertaining writ petitions directly is concerned. The fact that, under sub-section (5-B) of Section 5 of 1976 Act, the Tribunal has no power to grant any interim order with respect to a suspension order, does not militate against the jurisdiction of the Tribunal and does not permit the person aggrieved to approach this Court directly. In a given case where, in view of its peculiar facts and circumstances, a person desires or wishes to obtain an interim relief qua the operation or continued operation of a suspension order, on such relief being declined by the Tribunal, such a person has the remedy of approaching this Court under Article 226 of the Constitution of India 4 against the order declining the interim relief by the Tribunal even while the claim petition, filed by such person under Section 4 of 1976 Act, is still pending before the Tribunal.” Learned counsel for the petitioner, on the other hand, has relied upon the judgment of the Hon’ble Apex Court in Public Service Tribunal Bar Association case (supra), where the Hon’ble Apex Court has stated that in exceptional cases, particularly in suspension matters, where under sub-section (5-B) of Section 5 of U.P. Public Services (Tribunal) Act, 1976 since the Tribunal does not have any power to grant interim orders, the petitioner has a remedy to approach this Court under Article 226 of the Constitution of India. All the same, in view of the fact that a Division Bench of this Court has already examined this issue, which is also the subject matter of the present petition, and has held that since the statute already provides that in such cases as the present i.e. suspension matters, the petitioner must approach the Tribunal, this case is also liable to be dismissed on the ground of alternative remedy and is hereby dismissed. No order as to costs. (Sudhanshu Dhulia, J.) 12.9.2011 Avneet