Allowed

Santosh Kumar Jaiswal v. State of U.P. Thru. Addl. Chief Secy. Nagar Vikas Lko and 4 Others

Allahabad HC2 Sept 2024/7103/2024

Case brief

AI extract

What is this about?

Petitioner challenged a suspension order passed by the Executive Officer solely on the directives of the Commissioner, not recording independent subjective satisfaction. The court applied settled law holding such delegation illegal.

What did the court decide?

The impugned order of suspension dated 21st October, 2023 passed by the Executive Officer was quashed. Liberty granted to pass fresh orders upon recording subjective satisfaction. Direction issued for

Santosh Kumar Jaiswal Vs State of U.P. Thru. Addl… — Service and Employment | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:60101

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Court No. - 18

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Case :- WRIT - A No. - 7103 of 2024

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Petitioner :- Santosh Kumar Jaiswal Respondent :- State Of U.P. Thru. Addl. Chief Secy. Nagar Vikas Lko And 4 Others

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Counsel for Petitioner :- Girish Chandra Verma Counsel for Respondent :- C.S.C.,Anil Kumar Tripathi

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Hon'ble Manish Mathur,J.

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Heard learned counsel for petitioner, learned State Counsel for opposite parties 1 and 2 and Mr. Anil Kumar Tripathi learned counsel for opposite parties 3 to 5.

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Petition has been filed challenging order dated 21st October, 2023 passed by Executive Officer, Nagar Palika Parishad, Gonda placing petitioner under suspension pending departmental proceedings. Also under challenge is the order of same dated 21st October, 2023 passed by Commissioner Devi Patan Division, District Gonda whereby direction has been issued to the opposite party No.4 for suspending petitioner as well as initiating departmental proceedings against him.

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Learned counsel for petitioner submits that a bare perusal of impugned order of suspension passed by opposite party no.4 will make it evident that same has been passed completely on the dictates of the Commissioner without any independent application of mind.

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It is submitted that opposite party No.4, the Executive Officer of Nagar Palika Parishdad, being the appointing authority of petitioner, was required to apply independent application of mind after perusal of material on record before passing the impugned order of suspension. He has placed reliance on judgment rendered by Supreme Court in the case of Joint Action Committee of Airline Pilots Association of India versus Director General of Civil Aviation (2011) 5 SCC page 435 to buttress his submission. It is also submitted that even initiation of disciplinary proceedings against petitioner is against settled norms of service jurisprudence since the charge sheet has also been issued only on the dictates of Commissioner without any

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application of mind and while indicating the suspension order as the only document in evidence.

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Learned counsel appearing for opposite parties have refuted submissions advanced by learned counsel for petitioner with submission that allegations levelled against him pertain to missing file and is a serious offence in case it is proved. It is submitted that the impugned order passed by opposite party No.4 being the appointing authority is not on the dictates of Commissioner but is on the basis of application of mind on the aspect required to be considered.

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Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is evident that charge sheet issued to petitioner in pursuance of impugned order dated 21st October, 2023 passed by the Commissioner of the Division is not under challenge and therefore no observation with regard thereto is being made.

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So far as order of suspension dated 21st October, 2023 by the opposite party No.4, Executive Officer is concerned, a perusal of the order clearly indicates only a narration of the directions issued by the Commissioner in his letter dated 21st October, 2023. There does not appear to be any independent subjective satisfaction of the appointing authority based on any material placed before him requiring suspension of petitioner. Ex facie the order has been passed only on the directions issued by the Commissioner of Division. Supreme Court in the case of Joint Action Committee of Airline Pilots Association of India (supra) has clearly held that it is settled legal proposition that the authority which has been conferred with the competence under statute alone which can pass an order and in a democratic set up person occupying key positions are not supposed to mortgage that discretion, volition and and decision-making authority only on the issue. Relevant portions of the judgment are as follows:-

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"26. The contention was raised before the High Court that the Circular dated 29-5-2008 has been issued by the authority having no competence, thus cannot be enforced. It is a settled legal proposition that the authority which has been conferred with the competence under the statute alone can pass the order. No other person, even a superior authority, can interfere

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with the functioning of the statutory authority. In a democratic set-up like ours, persons occupying key positions are not supposed to mortgage their discretion, volition and decisionmaking authority and be prepared to give way to carry out commands having no sanctity in law. Thus, if any decision is taken by a statutory authority at the behest or on suggestion of a person who has no statutory role to play, the same would be patently illegal. (Vide Purtabpore Co. Ltd. v. Cane Commr. of Bihar [(1969) 1 SCC 308 : AIR 1970 SC 1896] , Chandrika Jha v. State of Bihar [(1984) 2 SCC 41 : AIR 1984 SC 322] , Tarlochan Dev Sharma v. State of Punjab [(2001) 6 SCC 260 : AIR 2001 SC 2524] and Manohar Lal v. Ugrasen [(2010) 11 SCC 557 : (2010) 4 SCC (Civ) 524 : AIR 2010 SC 2210] .)

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27. Similar view has been reiterated by this Court in Commr. of Police v. Gordhandas Bhanji [1951 SCC 1088 : AIR 1952 SC 16] , Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia [(2004) 2 SCC 65 : AIR 2004 SC 1159] and Pancham Chand v. State of H.P. [(2008) 7 SCC 117 : AIR 2008 SC 1888] observing that an authority vested with the power to act under the statute alone should exercise its discretion following the procedure prescribed therein and interference on the part of any authority upon whom the statute does not confer any jurisdiction, is wholly unwarranted in law. It violates the constitutional scheme.

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28. In view of the above, the legal position emerges that the authority who has been vested with the power to exercise its discretion alone can pass the order. Even a senior ofÏcial cannot provide for any guideline or direction to the authority under the statute to act in a particular manner."

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Upon application of the aforesaid judgment in the present facts and circumstances of the case, it is quite evident that impugned order dated 21st October, 2023 suspending petitioner from service has been passed clearly only on the dictates of the higher authority.

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In view thereof, the impugned order dated 21st October, 2023 passed by opposite party No.4 i.e. Executive Officer, Nagar Palika Parishad, District Gonda is hereby quashed by issuance of writ in the nature of Certiorari granting liberty to the aforesaid authority to pass orders afresh, in case required, but only upon recording subjective satisfaction upon application of mind by the appointing authority itself and on the basis of material placed before him. Further direction is issued to the concerned authority to ensure payment of arrears of salary for

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the period of suspension.

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The order dated 21st October, 2023 passed by the Commissioner is not being interfered with at this stage since it may only be recommendatory in nature.

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Resultantly petition succeeds and is allowed. Parties to bear their own cost.

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Order Date :- 2.9.2024 prabhat

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Digitally signed by :- PRABHAT KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Santosh Kumar Jaiswal v. State of U.P. Thru. Addl. Chief Secy. Nagar Vikas Lko and 4 Others

Case brief

What is this about?

What did the court decide?

Santosh Kumar Jaiswal v. State of U.P. Thru. Addl. Chief Secy. Nagar Vikas Lko and 4 Others

Case brief

What is this about?

What did the court decide?

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