2010 Supreme(All) 3016

[2010(10) ADJ 246 (FB)]
ALLAHABAD HIGH COURT
BEFORE : ASHOK BHUSHAN, ARUN TANDON AND A.P. SAHI, JJ.
RAJ VEER SINGH …Petitioner
Versus
STATE OF U.P. ….Respondent
(Civil Misc. Writ Petition No. 57960 of 2007, decided on 3rd September, 2010)

Headnote:(A) Reference—Larger Bench—Suspension—Whether a reference made by a Division Bench, which has not noticed a Constitution Bench judgment of this Court, comprising of a large number of judges, squarely applicable on subject, was liable to be returned unanswered by Full Bench only on ground that Constitution Bench judgment has not been considered by Division Bench, while making reference—Question as to whether Full Bnech in Shahroj Anwar Khan's case ought to have been returned unanswered since Division Bench making reference did not notice larger Bench judgment in State of U.P. v. Jai Singh Dixit's case—Full Bench in Shahroj Anwar Khan's case did consider five judges Larger Bench in State of U.P. v. Jai Singh Dixit, and relied on propositions laid down by Larger Bench—Therefore, no purpose shall be served in referring said question for consideration by a Larger Bench of five judges—Moreso, when issues, which have been arisen in writ petition, giving rise to reference, are fully covered by five judges Larger Bench. [Paras 33, 34 and 36]

       (B) U.P. Government Servants (Discipline and Appeal) Rules, 1999—Rule 4—Reference—Larger Bench—Suspension—Whether Full Bench in case of Shahroj Anwar Khan is correct in recording that word "inquiry" as contemplated under Rule 17(1)(a) (Para materia to Rule 49-A of C.C.A. Rules will include a preliminary inquiry to be precise whether word "inquiry" in said Rules includes within its ambit preliminary inquiry inasmuch as Constitution Bench of this Court in case of State of U.P. v. Jai Singh Dixit has specifically held that word "inquiry" under Rule 49-A of C.C.A. Rules, necessarily referes to formal departmental inquiry referable to Rule 55 and 56-A of C.C.A. Rules, or Rules 6, 7 of U.P. Police Officer of Subordinate Ranks (Punishment and Appeal) Rules, 1991—Five judges Larger Bench in State of U.P. v. Jai Singh Dixit have categorically laid down that word "inquiry" as used in Rule 49-A of C.C.A. Rules relates to "formal departmental enquiry" as used in Rules 55 and 55-A of C.C.A. Rules, word "inquiry" does not include within its ambit fact finding enquiry/preliminary inquiry—Ratio of five judges Larger Bench clearly lays down that suspension can be resorted evenwhen preliminary inquiry has been ordered, not ordered, if ordered not complete, thus, there is no prohibition in passing an order of suspension during pendency, or simultaneously directing for preliminary enquiry, provided there are sufficient materials on which an objective satisfaction is reached by appointing authority that regular departmental enquiry is expected in matter—While considering challenge to a suspension order passed during pendnecy of preliminary/fact finding enquiry, test to be applied in examining—Correctness, or otherwise of suspension order is as to whether on objective consideration of materials, appointing authority considers case as one which would lead to a departmental enquiry, as laid down by five judges Larger Bench in State of U.P. v. Jai Singh Dixit's case—Issues having already covered by five judge, Larger Bench, question needs no reference to larger Bench. [U.P. Civil Services (Classification, Control and Appeal) Rules,1930—Rule 49-A—U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991—Rules 6 and 7]. [Paras 37, 38, 45 and 46]

       (C) Reference—Larger Bench—Suspension—Whether, while directing preliminary inquiry, power to suspend has to be exercised on objective consideration of material on record of each case, and therefore, it is for State Government on a challenge being made to an order of suspension in contemplation of an inquiry to justify by such material on record that irrespective of preliminary inquiry, authority was satisfied that suspension was warranted in facts of case—This question has been answered by five judges Larger Bench in State of U.P. v. Jai Singh Dixit's case—Larger Bench has laid down that departmental inquiry is contemplated when on objective consideration of materials, appointing authority considers case, as one which would lead to a departmental inquiry, irrespective of whether any preliminary inquiry summary, or detailed, has or has not been made, or if made, is not complete—As that answer still holds good, hence no reason to refer said question for consideration by a Larger Bench of five judges. [Paras 47 and 48]

       (D) U.P. Civil Services (Classification, Control and Appeal) Rules, 1930—Rules 49-A—Suspension—Whether an order of suspension, in contemplation of a vigilance inquiry, would be within four corners of Rule 49-A of U.P. Civil Services (Classification, Control and Appeal) Rules, 1930—Suspension under Rule 49-A of C.C.A. Rules can be ordered in contemplation of "inquiry", which word means regular departmental inquiry—"Contemplation of a preliminary inquiry" is not contemplated while exercising power of suspension under Rule 49-A of C.C.A. Rules—Five Judges Larger Bench lays down that suspension can be ordered at any stage, prior to, or after framing of charges when on objective consideration, authority concerned is of view that formal departmental inquiry under Rules 55 and 55-A is expected, or is proceeded—Thus, said question is not needed to be referred to Larger Bench. [Paras 49, 50 and 51]

       Result; Order Accordingly.