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2005 DIGILAW 104 (JK)

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

2005-04-08

R.C.GANDHI

body2005
(Oral) 1. Petitioner by means of this petition seeks to quash order No. 5757 DESK of 2003 dated 16-12-2003 passed by respondent No. 2, Director School Education, Kashmir, whereby the petitioner has been placed under suspension for violation of Rule 10 of the J&K Government Employees (Conduct) Rules, 1971. 2. Petitioner is working as teacher in the Education Department. He was summoned vide letter dated 06-12-2002 by the respondent No. 2 to appear before him. He accordingly appeared. He was asked by respondent No. 2 to arrange a plot of land for his friend. He could not arrange a plot, therefore, the respondent No.2 has placed him under suspension. 3. Respondents have filed reply stating therein that the petitioner was summoned in the office to test the veracity of the allegations contained in the complaint received by the respondent No.2 against the petitioner that he being a government employee is running his business. It is stated that the petitioner is running business under the name and style of Bhat Builders which has subsequently been changed as Gousia House Building Cooperative Ltd. It is also stated that the suspension is neither based on malafide exercise of power nor the result of extraneous consideration as pleaded by the petitioner. The suspension order has been passed after taking into consideration the entire conduct of the petitioner. The petitioner has engaged himself in business simultaneously which is violation of the Service Conduct Rules and particular Rule 10 of J&K Government Employees (Conduct) Rules, 1971 (hereinafter called the Conduct Rules of 1971)�. The respondent has the proof that the petitioner is running business besides an employee. He was issued show cause notice dated: 2.4.2001 mentioning therein that the petitioner is functioning as Chairman/Secretary of the Gousia Housing Colony, Rawalpora, a construction company who without prior permission of the Government and has, thus, violated Rule 10 of the Conduct Rules of 1971. Petitioner has not replied the show cause notice. The suspension order does not suffer from any illegality. 4. Heard learned counsel for the parties and perused the record. 5. Learned counsel for the petitioner has submitted that the petitioner has been placed under suspension as he could not arrange a plot of land for the friend of respondent No.2 and that the suspension is malafide and for extraneous considerations. 4. Heard learned counsel for the parties and perused the record. 5. Learned counsel for the petitioner has submitted that the petitioner has been placed under suspension as he could not arrange a plot of land for the friend of respondent No.2 and that the suspension is malafide and for extraneous considerations. In rebuttal learned counsel for the respondents has submitted that a complaint was received against the petitioner that despite being a government employee he is running the business and is indirectly and directly participating having his business in Gousia House Building Cooperative Ltd, Rawalpora Budgam. To test the veracity of the allegations petitioner was summoned by respondent No.2 vide his letter dated: 6. 12. 2003. Petitioner appeared before the respondent No.2 and was asked to arrange a plot of land for his friend. The petitioner denied that he is associated in any manner with the construction company. However, he has admitted that wife of the petitioner is having interest in the business. Respondents alongwith the objections have filed a photo stat copy of a document which reveals that share of the petitioner in the Gousia House Building Cooperative Ltd. is Rs. 4, 46, 000/-. Petitioner has been placed under suspension as inquiry into his conduct is contemplated. 6. A government servant cannot directly and indirectly involve himself in any trade or business and has to observe all the rules governing the service and the employment. Respondents have promulgated SRO 47 of 1971 which contain J&K Government Employees (Conduct) Rules, 1971�. Rule 10 relevant for the purpose is extracted and reads: Private trade and employment-(1) No government employee, whether on leave or active service, shall except with the previous sanction of the government, engage directly or indirectly in any trade or business or undertake any other employment�. 7. No government employee while in active service or on leave without the sanction of the Government can engage himself directly or indirectly in any trade or business or undertake any other employment without the previous sanction of the Government. The respondents have placed a document with the reply which reveals the prima facie evidence against the petitioner that he is having his interest in the business of Gousia House Building Cooperative Ltd., to the extent of Rs. 4, 46, 000/-. Ten other persons have also been named in this document. The total capital invested in the business is Rs. 11.00 lakhs. 4, 46, 000/-. Ten other persons have also been named in this document. The total capital invested in the business is Rs. 11.00 lakhs. Without holding enquiry it cannot be established as to whether the petitioner has created business interest while in the employment of the respondents and has violated Rule 10 of the Conduct Rules of 1971 inquiry into his conduct is contemplated. The respondent-employer is within its right to invoke Rule 31 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956 and place the petitioner under suspension and hold inquiry. 8. Mr. Qayoom, learned counsel for the petitioner relying upon 1986 JKLR 514 has submitted that the suspension of the petitioner under such circumstances is unjustified and uncalled for while the petitioner has denied the allegations. The Division Bench of this Court in the aforesaid judgment while dealing with the case for admission of the petition have observed that the petitioner therein was not under the administrative control of the District Development Commissioner, Udhampur who has placed under suspension. The Court admitted the writ petition to hearing and observed in paras 4,5 and 6 as under:- Suspension means debarring usually, for a time, from any privilege, from the execution of an office or from the enjoyment of an income according to the ordinary dictionary meaning. It is a temporary privation of office or of a privilege. However by reach of mere suspension the person concerned does not loose his office nor does he suffer any degradation but he ceases to exercise the powers and discharge the duties of the office for the time being. Though his rank remains the same, yet he cannot draw his salary during the period of suspension. The powers, functions and privileges of a civil servant during suspension remain in abeyance and he continues to be subject to the same discipline and penalties and to same authorities as any other civil servant. Suspension under the present set up attaches a stigma to the concerned public servant and cannot be treated as a normal routing order with respect to a civil servant which allegedly do not affect his rights. A suspended civil servant looses the respect and dignity which he enjoys before such an order is passed. Suspension under the present set up attaches a stigma to the concerned public servant and cannot be treated as a normal routing order with respect to a civil servant which allegedly do not affect his rights. A suspended civil servant looses the respect and dignity which he enjoys before such an order is passed. Suspension may not amount to punishment within the meaning of Art. 311 of the Constitution of India or within the meaning of the punishments prescribed under any rules governing service conditions of the civil servants, even then it carries a stigma with respect to the concerned civil servant and definitely lowers him in the estimation of the society, his friends, relations and colleagues. It is true that the principle as enumerated in AIR 1949 Nagpur 118 to the effect that when a man is suspended, he is in our opinion reduced in rank� is no more good law of numerous judgment of different High Courts wherein the said decision has been dissented from. It is also not acceptable that suspension, as a matter of general rule is not justiciable by the courts of law. The construction, the statute and the statutory rules which govern the service conditions have to be kept in mind while adjudicating the order of suspension. We do not agree with the objection raised that in nom case suspension was justiciable. In our view the order of suspension can be challenged and the court has the right to set it aside, if it is proved that the order of suspension is:- (a) in violation of any statute; (b) contravenes any statutory rules; (c) is the result, of malafide exercise of power by the superior authority. (d) is motivated for extraneous considerations; (e) is by itself in the given circumstances of a case as a measure of punishment; (f) or has been passed by a person other than the one authorised to suspend even without getting such an order confirmed by the competent authority; Again the circumstances enumerated hereinabove are not exhaustive and there may arise other occasion as well when the conscience of the court may be shocked and forced to interfere if excess is done to a public servant. It is however true that if an order of suspension is passed by the competent authority in accordance with the provisions of law without malice, ill-will, or extraneous reasons, the court would not interfere with such an order.� 9. In the case in hand the petitioner-teacher has been placed under suspension by the respondent No.2, Director School Education, Kashmir, who is the appointing authority of the petitioner. There is prima facie evidence also with the respondents, though denied by the petitioner, which cast a cloud on the conduct of the petitioner and under such circumstances where an inquiry into the conduct of an employee is contemplated, such employee, as the petitioner herein, can be placed under suspension by the employer exercising power vested in the employer under Rule 31 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956. I do not find any illegality committed by the respondents by placing the petitioner under suspension and find no merit in the petition. 10. For the aforesaid reasons, the petition being devoid of merit is dismissed.