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2001 DIGILAW 322 (JK)

State Of J. &K. v. Mohan Lal Sharma

2001-12-05

H.K.SEMA, S.K.GUPTA

body2001
Per H.K. Sema, Chief Justice (Oral): 1. We have heard Mr. J.P. Singh, learned counsel for the appellants as well as Mr. A.V. Gupta, learned counsel for the respondents on Caveat, at length. Caveat is discharged. 2. Considering the facts and circumstances of the case, this appeal is admitted to be heard. We propose to dispose of this appeal at this stage after hearing the parties. 3. The short facts leading to the filing of the present appeal are this. Two respondent™s along with one, have been placed under suspension by order dated: 26-02-2001. The order reads as under:- "Subject: Suspension of Officers/Officials. Government Order No: Rev (EP) 32 of 2001 dated: 26-02-2001. Pending inquiry into their conduct the following Officers/Officials are placed under suspension with immediate effect. S/Shri:- 1. Mohan Lal Sharma, Naib Tehsildar (Nazool) Jammu the then Naib Tehsildar, Balwal. 2. Hakikat Singh, Girdawar, Instructor R. T.I. Jammu. 3. Abdul Majid, Patwari Halqa Gool-II, the then Patwari, Paloura. They shall remain attached with the Deputy Commissioner, Jammu during suspension. The charge sheets follow. By order of the Government of Jammu and Kashmir. 4. Shri Haqiqat Singh whose name appeared in S.No. 2 of the order of suspension, has challenged the suspension order by filling SWP No. 3 96/2001, which was dismissed by the learned Single Judge on 10-08-2001. The present respondent No. 1 and 3 whose name appeared in S. No. 1 and 3, have also filed Civil Rule namely SWP No. 397/2001. The learned Single Judge by its order dated: 21-09-2001, allowed the writ petition by quashing the order of suspension. Being aggrieved, the State preferred this writ petition. 5. Mr. A.V. Gupta, learned senior counsel for the respondents has taken us through various orders to show that no case is made out for placing the respondents under suspension. He further submits that the order of suspension has been passed by malafide exercise of powers. We are not interested to go into this controversy at this stage. Rule 31(a) of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, provides as under:- 31. The appointing authority or any to which it is subordinate or any other authority empowered by the Government in this behalf, may place a Government servant under suspension where:- (a) an inquiry into his conduct is contemplated or is pending. Rule 31(a) of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, provides as under:- 31. The appointing authority or any to which it is subordinate or any other authority empowered by the Government in this behalf, may place a Government servant under suspension where:- (a) an inquiry into his conduct is contemplated or is pending. The rule as referred to above shows that the appointing authority is competent to place a Government servant under suspension where the inquiry into his conduct is contemplated or is pending. In this instant case, two respondents were placed under suspension in contemplation of initiating departmental proceedings against them. By another order dated: 20-06-2001, they were attached with the Divisional Commissioner Jammu till further orders. 6. Mr. A.V. Gupta, learned counsel for the respondents invited our attention to Government instructions issued from time to time and submits that a Government servant can either be suspended or attached to another office or be transfer to another station instead of placing him under suspension. According to him, in the instant case, respondents have been placed under suspension and again by another order they have been attached with the Divisional Commissioner. We are not at all convinced by such submission. The Government instructions cannot render the statutory rule otiose. Rule 31 of the Jammu and Kashmir Civil Services (Classification, Control and Appeals) Rules, 1956 already provides that the competent authority is within its competence to either place a Government servant under suspension in contemplation of inquiry proceedings initiated against him or when the inquiry is pending. 7. We are, therefore, clearly of the view that the statutory rule provides the suspension of a Government servant either in contemplation of initiating departmental proceedings against them or during the pendency of the inquiry. Whether to suspend a Government servant or attach him to another office during the period of inquiry is the prerogative of the appropriate authority to decide and the court should not interfere with such decisions by exercising the power of judicial review. As would clearly appear that the suspension of the respondents in contemplation of a departmental proceedings against them, has been followed by a memorandum of charge sheet i.e. dated: 06-06-2001. As would clearly appear that the suspension of the respondents in contemplation of a departmental proceedings against them, has been followed by a memorandum of charge sheet i.e. dated: 06-06-2001. The charge sheet reads as under: - Whereas E.P. orchard land measuring 30 kanals under survey No. 1, 2, 3, 4, 5, 6, 7, 8, 9 and 9 min situated at village Paloura was leased in favour of a local named Nandu S/o Mangoo Barwaalla and the period of lease expired on 16-04-1984. Whereas the lease was again made in favour of said Nandu in 1995 on an enhanced rent of Rs.4500/- annum subject to increase of 10% after every subsequent year lease, which makes it clear that the land in question was in the continuous possession of Nandu at least up to 1995. Whereas you have attested the mutation of the said land in favour of Haqiqat Singh vide mutation No. 6594 dated 10-02-1999 under section 3-A of Agrarian Reforms Act despite the fact that Agrarian Reforms Act 1976 does not apply to orchard lands and Shri Haqiqat Singh being as Government Employee could not have been shown with cultivating possession of the land. Whereas presuming that Haqiqat Singh was in possession of the land, but since the entries were tampered with and the property was on lease with Mr. Nandu, the Naib Tehsildar was not competent to attest a disputed mutation and correct the entries of 1971 Whereas you have not made any mention of the lease/allotment order and thereby made it clear that you have deliberately superseded the fact and connived to confer wrongful gain to Shri Haqiqat Singh and cause wrongful loss to the E.P. Department. Whereas the crucial date of conferring rights under various section including section 3 -A of Agrarian Reform Act in 01-09-1971. Whereas you have relied on the judgment of Hon™ble High Court in WP No.25 and 26 of 1990 and to give cover to your illegal act. Whereas you have shown Mr. Haqiqat Singh in the cultivation possession of orchard lands when there can be no cultivation of orchard lands. Whereas by attesting the said mutation the Haqiqat Singh has disposed off the property by sale and thereby deprived the E.P. Department/Evacuee of this property. Whereas you have shown Mr. Haqiqat Singh in the cultivation possession of orchard lands when there can be no cultivation of orchard lands. Whereas by attesting the said mutation the Haqiqat Singh has disposed off the property by sale and thereby deprived the E.P. Department/Evacuee of this property. Whereas under Rule 4 of Agrarian Reforms Rules 1977 an officer not below the rank of Tehsildar is empowered to make corrections in entries of kharief 71 and Naib Tehsildar has no competence to effect a change in the said entry. Whereas Tehsildars were directed not to attest the mutation under Rule 4 of Agrarian Reforms Rules and Asstt. Commissioners were empowered to attest such mutations�. The substance of charge read as it is, shows that the respondents were charge sheeted for unlawful sale of Evacuee property of orchard land at Paloura in connivance with Haqiqat Singh. The charge amounts to a serious misconduct against the government Officer and it would require a detailed and elaborate inquiry so as to arrive at a logical conclusion whether the charge is substantiated in course of inquiry or not. Such a serious allegation cannot be scuttled by issuing a writ of certiorarie quashing the suspension order and allowing the delinquent government officer to tamper with or interfere with the inquiry. An impartial inquiry without any interference can always be held if the officer is placed under suspension. The choice is always left to the competent authority in the facts and circumstances of each case. This is not the function of the court. In the instant case, considering the allegations contained in the charge sheet which is of serious in nature, relating to the grave misconduct of the government servants, in our view, it was a fit case that the respondents ought to have been placed under suspension during the inquiry. 8. The allegation of Mr. A.V. Gupta, leaned counsel for the respondents that no case of allegations has been made out for suspending the respondents, cannot be considered at this stage, because prima facie, we are of the view that sufficient materials as would appear in the charge sheet was available before placing the respondents under suspension. 8. The allegation of Mr. A.V. Gupta, leaned counsel for the respondents that no case of allegations has been made out for suspending the respondents, cannot be considered at this stage, because prima facie, we are of the view that sufficient materials as would appear in the charge sheet was available before placing the respondents under suspension. At the same time, whether the charge is substantiated or not is a matter to be examined by the Inquiry Officer during the time of inquiry and at this stage this court is not called upon to examine the sufficiency or insufficiency of the materials placed on record. 9. In the result, there is substance in this appeal and the same is accordingly allowed. The judgment and order dated 21-09-2001, passed by the learned Single Judge in SWP No. 397/2001, is hereby set aside and quashed. Writ petition stand dismissed. We are, however, direct the appropriate authority to complete the proceedings within a period of six months from the date of receipt of this order. It is also open to the competent authority to consider the revocation of the suspension order if the situation so arises, even during the pendency of inquiry. In the event, the inquiry could not be completed within the stipulated time due to non-cooperation of delinquent Government servants, the matter shall be brought to the notice of this court. Alternatively, if for any reasons, the inquiry could not be completed within stipulated time, it is open to the competent authority to seek extension of time.