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2001 DIGILAW 115 (JK)

Nazir Ahmad Hamdani v. State Of J. &K.

2001-05-31

NISAR AHMAD KAKRU

body2001
1. The petitioner, a principal of Higher Secondary School, has been placed suspension by Director School Education Kashmir by order No. 350 DSEK of 2001 dated 07/04/2001. It is challenged on the ground of lack of jurisdiction. Admittedly, the petitioner is a member of gazetted service and the Director School Education is not appointing authority. This being the position, a question arises as to whether Director can exercise such power and this question needs to be viewed in the light of the mandate of sub-rule 1 of Rule 31 of Jammu and Kashmir Civil Service (Classification Control & Appeal) Rules 1956, which reads: "The appointing authority or any authority to which it is subordinate or any other authority empowered by the government in this behalf, may place a Government Servant under suspension..." 2. A plain reading of sub rule (1) shows that the power of suspension can also be exercised by an officer to whom it is delegated. Is there any such delegation of power by the government, reference to Schedule I-D J&K Civil Service Regulations Vol.11 page 90 become imperative and for facility of reference, item 6 is extracted hereunder: S. No. Reference Article in J&K C.S.Rs under which delegation made Nature of Power To Whom Delegated Extent 6 108 To issue order of suspension (i) to (iv) ........... (v) Director Education Head of High/Higher Secondary School/Tehsil Education Officers Deputy Education Officers, Head Assistants and Superintendents in the Sub Office. 3. Examining the argument of lack of jurisdiction on the touch stone of the aforementioned schedule. It emerges that the power to suspend a head of the Higher Secondary School stand delegated to the Director, therefore, the impugned order cannot be said to be without jurisdiction. 4. It is next contended that the order emanates from mala fide considerations. Settled position in law is that onus to prove the malafide lies on one who alleges it. The inference of malafide action can be drawn from the pleadings and antecedent facts and circumstances. To appreciate the relevant facts it is pertinent to mention that the petitioner stands booked in Case F.I.R. No. 7/2000 P/S VOK, under Section 5(2) of J&K Prevention of Corruption Act of 2000. The inference of malafide action can be drawn from the pleadings and antecedent facts and circumstances. To appreciate the relevant facts it is pertinent to mention that the petitioner stands booked in Case F.I.R. No. 7/2000 P/S VOK, under Section 5(2) of J&K Prevention of Corruption Act of 2000. From perusal of the text of the order of suspension it is quite clear that the Director was prompted to place the petitioner under suspension because of the criminal offence for which he is supposed to face the trial before the competent court of jurisdiction. This fact is sufficient to frustrate the petitioners abortive attempt to challenge the order of suspension on the ground of malafide. 5. It is also contended that the order is not a speaking one. Suffice it to say that such omission cannot invalidate the order of suspension, for, it is always open to the competent authority to show by reference to the contemporaneous record that it had applied its mind to arrive at a conclusion that a prima facts case existed for such action. In the instant case, the production of contemporaneous record is not a requirement because the contents of the order of suspension make it very clear that it has been passed in view of the fact that a criminal offence was under investigation for which the petitioner is to be tried. Needless to say that legality of the investigation of the offence or trial need not be embarked upon because it is not the subject matter of this case. 6. This brings me to the, argument that the circular debars the Director from exercising power of suspension. It is pertinent to mention here that even an in-depth examination of the writ petition does not suggest any such ground of challenge and fact of the matter is that only an oral submission is pressed into service. To appreciate scope of oral submission, it is advantageous to refer to a judicial pronouncement handed down by the apex court in S.S. Sharma versus Union of India (AIR 1981 SC page 588 Para 6) It was held: "...............No ground has been taken in the writ petitions assailing the validity of the office memorandum on the basis now pressed before us. We are of opinion that the courts should ordinarily insist on the parties being confined to their specific written pleadings and should not be permitted to deviate from them by way of modification or supplementation except through the well-known process of formally applying for amendment. We do not mean that justice should be available to only those who approach the court confined in a strait-jacket. But there is a procedure known to the law and long established by codified practice and good reason, for seeking amendment of the pleadings. If undue laxity and too easy informality is permitted to enter the proceedings of a court it will not be long before a contemptuous familiarity assails its institutional dignity and ushers in chaos and confusion undermining it s effectiveness. Like every public institution, the courts function in the security of public confidence, and public confidence resides most were institutional discipline prevails. Besides this, oral submissions raising new points for the first time tend to do grave injury to a contesting party by depriving it of the opportunity, to which the principles of natural justice hold it entitled, of adequately preparing its response." 7. Applying, the ratio of the judgment, I am of the opinion that if the oral submission of the-petitioner is taken into consideration, the result will be denial of right to rebut which right is available to the respondents. Since such course is bound to cause violation of principles of natural justice in the facts and circumstances of this case, therefore, I decline to entertain the oral submission. That apart a circular cannot take away the power duly and validly delegated to an authority, that too, when it is nobodys case that the power delegated has been withdrawn. 8. In the result this writ petition fails and is accordingly dismissed along with CMPs. However, no order as to costs.