Hon’ble H.L. Gokhale, CJ.—The following questions are referred for the determination of this Bench :

1. Whether Rule 17 (1) (a) of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 prohibits passing of a suspension order during the pendency of preliminary enquiry.

2. Whether the Division Bench judgment rendered in Kripa Shanker Prasad and others v. State of U.P. and others, 2004(1) ESC 33, lays down the correct law.

2. Inasmuch as the reference refers to Rule 17 (1) (a), we may quote the said Rule, which reads as follows :

“17 (1)(a). A Police Officer against whose conduct an enquiry is contemplated or is proceeding may be placed under suspension pending the conclusion of the enquiry in the discretion of the appointing authority or by any other authority not below the rank of the Superintendent of Police, authorised by him in this behalf.”

3. The short facts leading to this reference are as follows : The appellant is a Sub-Inspector in the Civil Police. The appellant has been suspended by an order dated 9.2.2007. He challenged the suspension order. The order contains some serious allegations against the appellant. The order stated that a preliminary inquiry will be held, but in the meanwhile, the appellant was being suspended. The learned Judge has dismissed the writ petition by his order dated 27.2.2007, considering the nature of the charges. This order has led to the appellant filing the special appeal to challenge the order of the learned Single Judge.

4. Mr. Suneet Kumar learned Counsel for the appellant submits that the order of the learned Single Judge is contrary to the view taken by a Division Bench of this Court in Kripa Shanker Prasad and others v. State of U.P. and others, 2004(1) ESC 33. there the Division Bench had taken the view that a suspension order could not be passed during the pendency of preliminary inquiry (see para 13 of that judgment).

5. The Division Bench in Kripa Shanker Prasad’s case (supra) has placed reliance on an earlier judgment of a learned Single Judge of this Court, in which Rule 17 of the same Rules, was under consideration, i.e., Hari Nath Sharma v. State of U.P. and others, reported in 1997(3) ESC 1833. The Division Bench has also referred to the judgment of the apex Court in Champaklal Chimanlal Shah v. Union of India, AIR 1964 SC 1854; Government of India, Ministry of Home Affairs and others v. Tarak Nath Ghosh, AIR 1971 SC 823 and Narayan Dattatraya Ramteerathkhar v. State of Maharashtra and others, AIR 1997 SC 2148. The Division Bench had allowed the appeal accepting the contention of the appellant that the suspension cannot be ordered during the pendency of preliminary inquiry.

6. The referring Court was of the view that the opinion taken by the Division Bench in Kripa Shanker Prasad (supra) required a reconsideration and hence, this reference has been made to this larger Bench.

7. The Division Bench in Kripa Shanker Prasad’s case (supra) had referred to a judgment of learned Single Judge of this Court in Hari Nath Sharma (supra). That was a writ petition, wherein a preliminary inquiry was already held against the petitioner and thereafter he was issued an order of suspension, which was challenged by filing a writ petition, which came before the learned Single Judge. As far as the order suspending the petitioner was concerned, it did not disclose that a disciplinary proceeding was contemplated against the petitioner. It was contended on behalf of the State Government that a preliminary inquiry had been held and the petitioner had been found guilty and, therefore, the order of suspension had been issued in contemplation of the inquiry. It was further contended that the order of suspension had been issued under the above Rule 17 (1) (a) and by reason of the order of suspension, it is presumed that the inquiry is contemplated. The learned Single Judge, in para-7 of his order, held that mere passing of an order under Rule 17 (1)(a) did not absolve the resp