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IN THE HIGH COURT OF ALLAHABAD
Aloke Chakrabarti and Yatindra Singh, JJ.
SATYA PRAKASH SINGH - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
C. M. W. P. 25865, 27052, 27129, 27131 and 27302 Of 1998
Decided On : 04/16/1999
SERVICE LAW - RESTRICTED SERVICE - IMPOSITION - VALIDITY - ADMINISTRATIVE EXIGENCY - NO OPPORTUNITY OF HEARING - JUSTIFICATION - PRINCIPLES OF NATURAL JUSTICE - REASONABLE OPPORTUNITY - SATISFACTION OF.
Fact of the Case:
The petitioners, employees of the Irrigation Department, were placed in restricted service and transferred to non-executive posts for a period of five years based on a report submitted by a committee constituted to inquire into the functioning of tube-wells in Allahabad district. The petitioners challenged the impugned order, contending that it was punitive, arbitrary, discriminatory, and passed without providing them an opportunity to be heard.
Finding of the Court:
The court held that the impugned order was not punitive but an administrative measure taken in view of the committee's report. It further held that the State Government had the implied power to restrain employees from performing certain duties as long as the service contract was subsisting, provided that the employees were paid their salaries and allowances. The court also found that the order was neither arbitrary nor discriminatory as it was based on the committee's report and was not a punishment. Regarding the opportunity of hearing, the court held that in the given circumstances, a formal show cause notice was not necessary and that the petitioners had been given reasonable opportunity to present their case through their association with the inquiry conducted by the committee.
Issues: 1. Whether the impugned order was punitive or an administrative measure? 2. Whether the State Government had the power to pass such an order? 3. Whether the order was arbitrary or discriminatory? 4. Whether an opportunity of hearing was necessary before passing the impugned order? 5. Whether reasonable opportunity was given to the petitioners before the order was issued?
Ratio Decidendi: 1. The impugned order was not punitive but an administrative measure taken in view of the committee's report. 2. The State Government had the implied power to restrain employees from performing certain duties as long as the service contract was subsisting, provided that the employees were paid their salaries and allowances. 3. The order was neither arbitrary nor discriminatory as it was based on the committee's report and was not a punishment. 4. In the given circumstances, a formal show cause notice was not necessary. 5. The petitioners had been given reasonable opportunity to present their case through their association with the inquiry conducted by the committee.
Final Decision: The writ petition was dismissed with costs, but the court clarified that nothing said in the judgment would affect the merit of the disciplinary inquiry pending against the petitioners or prohibit the State Government from withdrawing the impugned order if justice so required.
( 1 ) THESE five writ petitions challenge the decision of the State Government dated 3. 8. 1998 placing the petitioners in amapya Pratibandhit Seva in addition to posting them at avkaryakari sthan/khand/up-Khand for 5 years and posting/transfer orders in pursuance of the aforesaid decision. The decision of the State Government is same in these five petitions though the posting orders are different. Same questions of law are being agitated, hence these writ petitions are consolidated. Satya Prakash Singh and another v. State of U. P. and others, Civil Misc. Writ petition No. 25865/98, is the leading writ petition and for the sake of convenience reference to the facts and annexures are from this writ petition, facts
( 2 ) SRI Ram Dulare Singh Patel, resident of Daraganj, Allahabad, is a former State Minister of uttar Pradesh and President of sinchai Bandhu. (friend of irrigation) Allahabad. He by his letter dated 30. 1. 1998 pointed out deficiency in the functioning of the tube-wells of Allahabad district and requested the Minister concerned to look into the matter. The State Government by letter dated 7. 2. 1998 requested the Chief Engineer, Irrigation department to conduct an inquiry through a Committee of two Superintending Engineers. The chief Engineer by his letter dated 12. 2. 1998 constituted a Committee of Sri B. B. Mathur and Sri madan Mohan. Superintending Engineers, (the Committee for short) and requested them to submit their report. The Committee requested the persons concerned to make the records available and made spot inspection in presence of the officers and the villagers. They submitted their report dated 7. 4. 1998. The State Government on the basis of the report took the impugned decision on 3-8. 1998 and on the same day a show cause notice was issued to the petitioners asking them if they had anything to say against the same before any adverse/punitive decision is taken. Petitioners have submitted their reply. No decision has been taken so far, points FOR DETERMINATION
( 3 ) WE have heard the counsel for the parties. Following points arise for consideration : what, is the nature of the impugned order? is it punitive? Does it mean that petitioner will be given no work and have to sit idle? Or is it an order providing them with particular kind of work at a particular place? is it a suspension order? Has the State Government power to pass such an order? is this order arbitrary or discriminatory? was it necessary to afford on opportunity to the petitioners before passing the impugned order? was reasonable opportunity given to the petitioners before order was issued? nature OF THE ORDER its Meaning
( 4 ) THE impugned order is in Hindi, it says that the decision is taken in view of the administrative exigency on the basis of the committees report. Petitioners are placed in amapya Prattbandhit seva. This would be in addition to their place at av Karyakari Sthan/khand/up-Khand for five years. In short, it means that petitioners are placed in restricted service with no fieldwork at non-executive (working] place. It is place where there is no fieldwork, no drawing and disbursing power. It is a post for drawing up projects ; conducting surveys, etc. Such posts are in service. Is it a Suspension Order? has The State Government Power To pass Such An Order?
( 5 ) THE impugned order is neither passed under the provision, relating to suspension nor the Slate government claims it to be. A suspension order can be by way of punishment or it could be pending inquiry. Such an order suspends the contract of service. It is true that there is no implied power to suspend. The power should be in the contract itself or in the service rules. This is suspension as it is normally understood. But it is settled principle of service jurisprudence that every employer has implied power, so long as the service contract is subsisting, to restrain an employee from doing anything in discharge of his service. Such a direction is bi
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