Vishwanath Misra vs State of U.P. and Another

Ritu Raj Awasthi, J.—Heard learned Counsel for the Petitioner as well as Mr. Nrapendra Mishra holding brief of Mr. Manish Kumar, learned Counsel for the opposite part No. 2.

Counter affidavit and rejoinder affidavit filed today are taken on record.

The writ petition has been filed challenging the suspension order dated 16.03.2011 passed by the opposite party No. 2 i.e. District Judge/Incharge District Judge, Sultanpur.

Learned Counsel for the Petitioner submits that the impugned order of suspension has been passed by the District Judge, Sultanpur on the directions issued by the Administrative Judge and it has not been passed by opposite party No. 2 by application of his own mind, as such the order is bad in the eyes of law. In support of his submission he he relies upon a judgment passed in the case of Ashok Kumar Singh alias Gappu Bhadauriya, Aruna Singh alias Raja Bhadauriya and Ajeet Singh alias Guddan Bhadauriya (In Jail) Vs. State of U.P., in which it has been held as under:

In the case of Ram Narain Tiwari (supra), this Court held that an authority higher in rank than the Appointing Authority cannot pass the order of suspension and if such order of suspension is passed, the same would be incompetent and void. In the case of Bhart Lal (supra) another Division Bench of this Court held that it is is only the Appointing Authority which can pass on order of suspension. So far as the law laid down in the Case of Director General ESI v. T. Abdul Razak (supra), is concerned, the Hon''ble Apex Court held that "the legal position is well settled that it is not necessary that the authority competent to impose the penalty must initiate the disciplinary proceedings and that the proceedings can be initiated by any superior authority who can be held to be the controlling authority who may be an officer subordinate to the Appointing Authority.[ See State of M.P. v. Shardul Singh (1993) 4 SCC 419, 108; P.V. Srinivasa Sastry V. Comptroller (1993) 4 SCC 419, and Inspector General of Police and another Vs. Thavasiappan,

The contention of the Petitioner is that the District Judge, Sultanpur by administrative order 69 of 2011 had observed that the Administrative Judge by his order had observed that the loss of records of court is a serious matter. Sri Vishwanath Mishra, Ahalmad found responsible prima facie in preliminary enquiry be immediately suspended and regular departmental enquiry be conducted against him. In compliance of the said order District Judge, has placed the Petitioner under suspension without application of his own mind.

Administrative order No. 69/2011 dated 16.03.2011 is being produced below.

Administrative order No. 69/2011

The Presiding officer of the court of Addl. District and Sessions Judge, Sultanpur Court No. 14 (ETC) has intimated about the loss of the record in S.T. No. 257/97 State v. Avval and the report regarding, the loss of the paper was sent to the Hon''ble court as provided in the Rule 216 of G.R. Civil 1957 through this office letter No. 2060 dated 01.10.2010.

A preliminary inquiry has been initiated for fixing the responsibility for the loss of the record.

The inquiry officer submitted the report on 27.09.2010 holding Sri Vishwanath Misra the then Ahalmad of the Court of Addl. Chief Judicial Magistrate, Sultanpur Court No. 18 for loss of the record in the above mentioned case.

On the report of the inquiry officer a final inquiry has been initiated vide order dated 30.09.2010 passed by the then District Judge, Sultanpur appointing Sri Ram Piyare Addl. District & Session Judge, Court No. 13 (E.T.C) as inquiry officer.

Pending inquiry an letter No. 10515/Admin.(B-M) dated 28.01.2011 has been received from Sri Saleem Ahmad Khan (H.J.S.) Joint Registrar (Inspection) of the Hon''ble High Court of Judicature at Allahabad communicating the order of the Hon''ble Administrative Judge which is reproduced as under:

The loss of records of court is a serious matter. Sri Vishwanath Mishra, Ahalmad found responsible prima facie in preliminary enquiry be immediately suspended and regular departmental enquiry be directed against him.

The order was received on 01.02.2011 and the matter was referred by the in-charge District, Judge, Sultanpur to the Hon''ble High Court Allahabad seeking direction for passing of the order as the District Judge, Sultanpur was retired from service 31.01.2011 vide this officer letter No. 326/11 dated 01.02.2011.

Further Sri Saleem Ahmad Khan Joint Registrar, (Inspection) of Hon''ble High Court of Allahabad has sent a letter No. 11005/Admin dated 09.03.2011 and the order of the Hon''ble Administrative Judge, Sultanpur has been communicated through the above said letter.

I have gone through the records and order passed by the Hon''ble Administrative Judge, Sultanpur dated 28.02.2011 communicated through the letters referred to above, so in these circumstances it would be just and proper to suspend Sri Vishwanath Misra the then Ahalmad of the Court of Addl. Chief Judicial Magistrate Court No. 18, at present working as Head Copyist Civil Court, Sultanpur with immediate effect during the pending enquiry against the delinquent official.

Therefore, Sri Vishwanath Misra, Head Copyist Civil Copying Section Civil Court Sultanpur is placed under suspension with immediate effect.

Sri Vishwanath Misra shall get half of the salary as subsistence allowance in view of Financial Hand Book Volume II to IV and fundamental Rule 53. He shall also be entitled to get D.A on the subsistence allowance. The subsistence allowance shall be paid to the delinquent official on production of the certificate, s provided under the Rules.

Sri Vishwanath Misra shall submit certificate every month to the effect that the is not engaged in any other service, business etc.

During the suspension period, he shall remain attached with Administrative office."

Learned Counsel for opposite party No. 2 by filing counter affidavit submitted that the Petitioner was responsible for the loss of records pertaining to Session Trial No. 257/97 and he has been placed under suspension by the competent authority i.e. District Judge, Sultanpur, who is also appointing authority of the Petitioner. There is no illegality or infirmity in the impugned suspension order.

I have considered various submissions made by the counsel for the parties and gone through the records. Admittedly the suspension order has been issued by the District Judge Sultanpur, who is competent authority and the appointing authority of the Petitioner. The order dated 16.03.2011 indicates that the Administrative Judge had recorded his serious concern with regard to the loss of records of court and had mentioned that Sri Vishwanath Mishra, (Petitioner) Ahalmad is found responsible prima facie in preliminary enquiry, therefore he shall be immediately suspended and regular departmental enquiry shall be initiated against him.

The District Judge, considering the entire material on record, has passed the order that in the circumstance it would be just and proper to suspend Sri Vishwanath Misra (Petitioner) with immediate effect during the pendency of inquiry.

In the case of Ashok Kumar Singh (Supra) Division Bench of this Court had observed that an authority higher in rank than the appointing authority cannot pass the order of suspension and if such order of suspension is passed, the same would be incompetent and void. However, the impugned order of suspension has been passed by the District Judge, Sultanpur who is said to be the competent authority. It is also to be seen that the District Judge in its administrative order dated 16.03.2011 had made an observation that in the circumstances it would be just and proper to suspend the Petitioner, as such it cannot be presumed that he has not applied his mind and the impugned suspension order has been passed merely on the dictates of the Administrative Judge.

The contention of the learned Counsel for the Petitioner has no force. No other ground has been pressed by the learned Counsel for the Petitioner.

The writ petition, being devoid of merits, is dismissed.