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2008 DIGILAW 119 (JK)

Mushtaq Ahmad Wani v. State

2008-04-10

NISAR AHMAD KAKRU

body2008
1. This writ petition against the order of suspension, emanating from the allegations of corruption, resulting in trap, laid on the petitioner-Block Development Officer by the Vigilance Organization, way back in the year 2002 in the main market of Bandipora, was dismissed by judgment dated 2nd of August 2006 which was challenged before the Division Bench in LPA 319/2006.The LPA was allowed or the grounds extracted hereunder; ".... We have heard learned counsel for the parties and examined the impugned judgment. We find that the Writ Court has omitted to deal with the contentions raised by the appellant in his writ petition. Admittedly, his case was that his suspension is violative of principles of natural justice and government instructions, and could not have been ordered after four years of incident - which pleas should have been considered and dealt with by the Writ Court in the light of stand taken by the official respondents, which has not been done Appellant is, therefore, justified in expressing his grievance that the writ Court has over looked the grounds of challenge taken by him against the suspension order...." 2. The observations of the Division Bench, (sic) that alteration of the writ Courts judgment resulted cause of violation of principles of natural of justice, a view taken by the Division Bench, on the basis of a case set up by the petitioner that a delayed order of suspension is violative of Government Instructions, the other, that unless a Government servant is granted an opportunity of hearing, the order of suspension cannot be passed but which rule or Government instruction supports the contention, the learned counsel for the petitioner could cite none. 3. Failure of the learned counsel to refer to any law, to substantiate the challenge, forming basis of the order of reversal of the judgment of the writ Court, calls for reference to the provision, envisaging the power of suspension and limitations thereto, contained in Rule 31 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 which reads: "31. (1) 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 where: - (a) an inquiry into his conduct is contemplated or is pending; or (b) a complaint against him of any criminal offence is under investigation or trial. (1) 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 where: - (a) an inquiry into his conduct is contemplated or is pending; or (b) a complaint against him of any criminal offence is under investigation or trial. (2) A Government servant who is detained in custody whether on a criminal charge or otherwise, for a period longer than forty eight hours shall be deemed to have been suspended by the appointing authority under his rule. (3) An order of suspension under sub-rule(1) may be revoked at any time by the authority making the order or by any authority to which it is subordinate. (4) Where a penalty of dismissal or removal from service imposed upon a Government servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal or removal and shall remain in force until further orders. (5) Where a penalty of dismissal or removal from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of law and the competent authority a consideration of the circumstances of the case decides to hold a further inquiry against him on the allegations on which the penalty of dismissal or removal was originally imposed, the Government servant shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal or removal and shall continue to remain under suspension until further orders. Government Instructions: - (1) An officer on suspension is entitled to ask that the matter should be investigated with reasonable diligence and charges should be framed within reasonable period of time and if such steps are omitted then it would imply that the authorities are vested with a total arbitrary and unfettered power of placing its officers under disability and distress for an indefinite duration. The suspension order is bad if it is not followed by charge sheet and enquiry within a reasonable time. The suspension order is bad if it is not followed by charge sheet and enquiry within a reasonable time. It has been observed that on occasions the power under the aforesaid rule is being invoked on unjustifiable ground or on mere suspicion of misconduct before prima facie case has been established. It may be appreciated that frequent resort to suspensions even at slightest provocation is not only unwarranted but also counter productive. Resides affecting morable in the services it puts avoidable stain on the public exchequer by way of subsistence allowance for non-work done. Public interest should be the guiding factor in deciding whether or not a Government servant should be placed under suspension or whether such action should be taken even while the matter is under investigation and before a prima facie case has been established. It is therefore, imperative that the discretion vested in the authorities should be exercised with due care and caution after taking all the factors into account. For example where continuance in office of a Government servant is considered likely to prejudice, investigation trial or enquiry or his continuance is considered likely to subvert the discipline in the office in which he works the purpose can be achieved if he is transferred to some other station or office as the case may be rather than to place him under suspension Like-wise if such a Government servant would like to proceed on leave that might be due to him and if the authority concerned thinks that such a step would not be in appropriate, there should be no objection to leave being granted instead of suspending him. Similarly, in case where a Government servant has unauthorizedly absented from duty the proper cause is to initiate action against him under article 128 of Jammu and Kashmir Civil Service Regulations and not to place him under suspension. Similarly, in case where a Government servant has unauthorizedly absented from duty the proper cause is to initiate action against him under article 128 of Jammu and Kashmir Civil Service Regulations and not to place him under suspension. The following circumstances may, however, be considered appropriate to place a Government servant under suspension: - (i) where the continuance in office of the Government servant will be against the wider public interest, e.g., if there is public scandal arid it is considered necessary to place the Government servant under suspension to demonstrate the policy of the Government to deal strictly with officer involved in such scandal (ii) where a preliminary enquiry into allegations made has revealed a prima facie case justifying criminal or departmental proceedings which are likely to lead to his conviction or and dismissal, removal or compulsory retirement from service other than under Article 226(2) of the Jammu and Kashmir Civil Service Regulations. (iii) where the public servant is suspected to have engaged himself in activities prejudicial to the interest of the security of the State. (iv) serious negligence and dereliction of duty resulting in loss to the Government. Government Instructions (2): - Competent authorities should endeavour to have charge-sheet filed in Court in case of prosecution, or served on the Government servant, in case of departmental proceedings within three months from the date of suspension. Cases in which this is not possible such authorities will report to the next higher authority, explaining the reason for delay. The cases of Government servants under suspension should be reviewed by the competent authorities periodically to see that steps could be taken to expedite the progress of the court trial/departmental proceedings, so as to induce the periods of suspension to barest minimum." 4. Regarding violation of principles of natural justice, the contention needs to be appreciated in the light of Rule 31 which empowers the competent authority to suspend an employee to prevent him from functioning on the post held by him in case of contemplated inquiry into his conduct or during the pendency of a departmental inquiry or a criminal proceeding. Regarding violation of principles of natural justice, the contention needs to be appreciated in the light of Rule 31 which empowers the competent authority to suspend an employee to prevent him from functioning on the post held by him in case of contemplated inquiry into his conduct or during the pendency of a departmental inquiry or a criminal proceeding. What the authority is required to do, is to pass an order within the fore corners of Rule 31 after due application of mind but examination of the rule does not contain any condition which would prevent the competent authority from exercising the power of suspension unless employee is heard and it has to be like that, because suspension is not a punishment, therefore, no cause to interfere with the order of suspension. 5. This brings me to the contention urged before the Division Bench and left to the writ Court for decision as to whether delayed action lacks the sanction of the rules. Before dealing with the question, it will be profitable to notice that undoubtedly the petitioner was placed under suspension after a delay of four years although event of trap by the Vigilance Organization was within the knowledge of high ups of the Department. What prevented them from proceeding against the petitioner? Why this grave lapse? No reason even worth the name is given in the objections, filed by the respondents. Admittedly the respondents opted for inaction in spite of availability of power of inquiry and suspension, resultantly, the petitioner approached the Court by medium of SWP 197 of 2003, registering grievance against failure of the respondents in release of his salary which was disposed of with a direction to release his salary provided he had worked. The order was sought to be complied with through contempt proceedings, compelling obedience of the judgment, accordingly Government Order No. 534 DRDK of 2005 dated 02.07.2005 in his favour attributing release of the salary to the dictum of the direction of the Court which has emerged out of share suppression of most relevant fact that he had landed in the judicial custody after having been trapped by Vigilance Organization on 15-6-2002 misleading the Court mischievously but contribution by the respondents to the disbursement of salary is no less a lapse gravity-wise, expected of an impersonal agency only. I say so because the Court at no point of time, restrained the respondents from giving effect to the deemed suspension. That apart no explanation much less satisfactory one is advanced which would justify omission of the respondents to place the petitioner under suspension when admittedly, he has remained in the lock up for more than forty eight hours amounting to his deemed suspension in terms of sub rule (2) of rule 31 of the Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules 1956, envisaging that a Government servant detained in custody whether on a criminal charge or otherwise for a period longer than forty eight hours shall be deemed to have been suspended by the appropriate authority. Reverting to the delayed suspension, perusal of rule 31 and Government instructions appended thereto becomes imperative but its perusal does not even remotely suggest that delay in exercise of power of suspension could work as an embargo on the power of suspension and then there cannot be estoppel against the law. Situations are conceivable where facts and circumstances could suggest that the delayed suspension is actuated by malafides or is aimed at achievement of an ulterior motive and it goes without saying that in such cases Court cannot afford to be a spectator. Suffice it to say that the facts of the case on hand certainly do not make it the one like that. 6. In the aforementioned backdrop the writ petition fails and is dismissed along with CMPs. Interim direction, if any, shall stand vacated.