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2008 DIGILAW 507 (JK)

Ab. Rashid Sheikh v. State

2008-12-22

HAKIM IMTIYAZ HUSSAIN

body2008
1. Admit. 2. Petition is taken up for final disposal. 3. Petitioner-Abdul Rashid Sheikh is working as Senior Assistant in the State Forest Department. Vide Order No. 266 of 2005 dated 17.8.2005, he was posted in the office of (Head Quarter) Project Coordinator, North Jehlum Vide Order No. 348 of 2006 dated 17.10.2006, he was posted at North Jehlum Project, Baramulla in place of one Mohammad Shafi Khan, who was posted as Senior Assistant Project Coordinator, North Jehlum office. 4. Vide Order No. 1 of 2007-08 dated 20.11.2007, the petitioner was placed under suspension by the Project Officer, ERDC North Jehlum Baramulla on the ground of non-compliance of the orders and an enquiry was initialed against him in which charge sheet was also framed. The petitioner replied the charges vide reply dated 8.3.2008. The petitioner was attached in the office of CF, Srinagar circle vide order No. 58 of 2008 dated 27.2.2008. The order further provided that CCF, Kashmir shall propose the name of Senior Assistant for his posting in the North Jehlum Project, Baramulla. Vide Order No. 2 of 2007-08 dated 12.3.2008, the petitioner was reinstated with immediate effect pending final outcome of the enquiry and was relieved from Baramulla but vide Order No. 239 of 2008 dated 29.9.2008, he was again transferred and attached in the office of CCF, Kashmir till further orders. In his place one Mohammad Maqbool, Senior Assistant, CCFs office, Kashmir-respondent No.6 was transferred and posted to Sindh Forest Division, Ganderbal. The petitioner is aggrieved of the same. He states that the inquiry initiated against him vide order dated 20.11.2007 is not in accordance with the rules, as the Project Officer had no competence to place the petitioner under suspension and direct an inquiry against him. The petitioner has also challenged the order dated 29.9.2008 on the ground that the attachment of the petitioner in the office of CCF, Kashmir is not in accordance with the law. He states that the respondents have attached him prematurely in the office of respondent No.3 and there is no law which provides for attaching an employee in any office without giving him work commensurate of his status. 5. Respondents have in their reply stated that the petitioner was posted as Senior Assistant in ERDC North Jehlum Project, the petitioner was placed under suspension by the project officer North Jehlum vide order dated 20.11.2007 for non-disbursement of Rs. 5. Respondents have in their reply stated that the petitioner was posted as Senior Assistant in ERDC North Jehlum Project, the petitioner was placed under suspension by the project officer North Jehlum vide order dated 20.11.2007 for non-disbursement of Rs. 1.50 lacs to the Range Officer as Forest advance for which they had furnished form-44, the petitioner kept the money illegally with him without any reason and authority and non-release of the same created various kinds of problems. It was also reported that the petitioner does not behave properly with his superior officer. In order to ascertain true and correct facts an inquiry was ordered vide order dated 4.12.2007, the Project Coordinator of the North Jehlum was appointed as an inquiry officer, however, in the meanwhile the petitioner being very close to the then Forest Minister and also belonging to his constituency managed his posting in the Sindh Forest Division. The respondents further state that the petitioner did not cooperate with the inquiry officer as reported, therefore, he was attached with the office of Chief Conservator of Forests Kashmir. The respondents further state that while the petitioner was posted in Sindh Forest Division in the year 2005, he had committed theft of form-25 books and also sale of permit books to smugglers and for that he was placed under suspension and attached to the office of Conservator of Forests, Srinagar. It is submitted that Mohd. Maqbool-respondent No.6 has already assumed the charge of Senior Assistant in Sindh Forest Division as back as on 30.9.2008. The petitioner was aware about this fact but on incorrect facts he got an interim direction from the court on 13.10.2008. 6. Heard. I have considered the matter. 7. The petitioners counsel has referred to Rule-24 of J&K Civil Services (Classification, Control and Appeal) Rules, 1956 and submitted that the petitioners attachment in the office of CF, Srinagar circle is not in accordance with the rules, as the transfer can be only against a post and not to an office. The transfer order does not indicate the post against which the petitioner has to work. Learned counsel also assails the order of placing the petitioner under suspension by the Project Officer on the ground that the Project Officer being not an appointing or disciplinary authority of the petitioner was not competent to direct suspension of the petitioner and initiate a departmental enquiry against him. Learned counsel also assails the order of placing the petitioner under suspension by the Project Officer on the ground that the Project Officer being not an appointing or disciplinary authority of the petitioner was not competent to direct suspension of the petitioner and initiate a departmental enquiry against him. Learned counsel relying on AIR 1986 SC 1955 submits that the frequent transfers is not permissible and such a practice has been disapproved by the Supreme Court. Learned counsel urges that the attachment order is by way of punishment, the petitioner has been placed under suspension on line complaints, copies of which have been placed on file, which appear to be prototype therefore this is a clear case of victimization which needs interference by this court. 8. Learned counsel has relied on 1981 JKLR 126, 1984 SLJ 311, 1986 JKLR 1051, 1994 SLJ 539 and 1996 SLJ 288 in support of his contention that the charge can be framed by the appointing authority only. 9. Learned counsel for the official respondents and learned counsel for respondent No.2 have on the other hand vehemently defended the order of attachment and submitted that since an enquiry was pending against the petitioner, the respondents could attach the petitioner with the office of CCF for completion of the enquiry. 10. Learned counsel for the private respondent No.6 would rely on State of UP & anr., v. Chandrapal Singh & anr. (2003)4 SCC 670, Steel Authority of India & anr. v. Dr. R.K. Diwakar & ors. (1997)11 SCC 17. Director General, ESI & anr. v. T. Abdul Razal, (1996)4 SCC 708 and Inspector General of Police & anr. v. Thavasiappan (1996)2 SCC 145 and contend that the charge framed by the Project Officer was well within the competence of the officer as he is the controlling officer of the petitioner. 11. On consideration of the matter, I find due force in the pleas raised by the petitioner that the enquiry has been initiated and the suspension was directed by an officer who was not competent to do so. 12. In Inspector General of Police v. Thavasiappan (1996)2 SCC 145, it was held that generally speaking it is not necessary that the charges should be framed by the authority competent to award the proposed penalty or that the enquiry should be conducted by such authority. 13. 12. In Inspector General of Police v. Thavasiappan (1996)2 SCC 145, it was held that generally speaking it is not necessary that the charges should be framed by the authority competent to award the proposed penalty or that the enquiry should be conducted by such authority. 13. In T. Abdul Razaks case (1996)4 SCC 708 the Apex Court observed:- "With regard to initiation of disciplinary proceedings by the Regional Director, we find that the legal position is well settled that it is not necessary that the authority competent to impose the penalty must initiate the disciplinary proceedings and that the proceedings can be initialed by any superior authority who can be held to be the controlling authority who may be an officer subordinate to the appointing authority." 14. In Steel Authority India & anr. vs. Dr. R.K. Diwakar & ors. (1997)11 SCC 17, T. Abdul Razaks case was cited, the court found that ever the controlling authority could issue the charge-sheet. 15. In State of U.P. & anr. v. Chandrapal Singh & anr. (2003) 4 SCC 670, it was held that looking to the terms and content of Article 311(1) of the Constitution, it does not follow that even initiation or conduct of inquiry proceedings should be by that authority itself, which is empowered to dismiss or remove an official under the said article, unless there is an express rule governing the official requiring it to be so. 16. These authorities relied upon by Mr. T. Khwaja, would show that it is not necessary that only the disciplinary authority, competent to award the penalty, should initiate or conduct inquiry and frame the charge, even the controlling authority could issue the charge-sheet and conduct inquiry unless there is an express rule to the contrary. 17. In this State departmental inquiries against civil servants are governed by Rule-33 of the J&K Civil Services (Classification, Control and Appeal) Rules. 1956, (for short the rules), Sub rule-4 of which provides as under: - "(4) The competent authority may inquire into the charges itself or if it considers it necessary so to do, it may appoint an inquiry officer for the purpose." 18. Thus under the sub-rule the inquiry can be conducted either by the competent authority itself or it may appoint an inquiry officer for the purpose. 19. Thus under the sub-rule the inquiry can be conducted either by the competent authority itself or it may appoint an inquiry officer for the purpose. 19. Since a specific rule regarding conduct of inquiry by the competent authority itself (or his appointee) exists in the State, the authorities cited by Mr. Khwaja would not apply to the present case and in terms of the observations in Chandrapals case, the initiation and conduct of the inquiry should be either by the competent authority itself or its nominee. 20. In T. Abdul Razaks case(supra), cited by Mr. Khawaja it is specifically provided that in accordance with the maxim delegatus non protest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided. 21. That the power to initiate and conduct an inquiry, frame the charge-sheet and impose penalty vests in the appointing authority under the rules is well settled now. Reference in this behalf may be made to 1981 JKLR 126, 1984 SLJ 311, 1986 JKLR 1051, 1994 SLJ 539 and 1996 SLJ 288. 22. In a recent judgment reported as Dr. Showkat Ali Zargar v. State & ors. 2005 (Supp.) JKJ HC-169 : 2006(1) SLJ 312 this Court on interpretation of Rules 33(4) and 34 of the Rules and section 126(1) of the State Constitution held that competent authority referred to in Rule 33(4) means the appointing authority of the employee. 23. Since the Project Officer is admittedly not the appointing authority of the petitioner, I find the order by the Officer placing the petitioner under suspension, initiating enquiry against him and framing charge sheet is not in accordance with the rules. 24. There is however another aspect of the case regarding attachment of the petitioner in the CCF office. Mr. Qayoom vehemently submitted that since the attachment was not in accordance with the law, the respondents could not have attached the petitioner in the office of CCF. 25. I do not find any force in the submissions for the reason that an employer is not powerless to direct attachment of an employee in the office if the administrative exigencies require such an action. The respondents could direct attachment of the petitioner in the office of CCF when they received complaints against the petitioner. 26. Attachment does not amount to any punishment. The respondents could direct attachment of the petitioner in the office of CCF when they received complaints against the petitioner. 26. Attachment does not amount to any punishment. It is only an incident of service and does not effect the service conditions of the employee. As such an order of attachment is not open to challenge. 27. In these circumstances, I do not find any fault with the order of attachment dated 29.9.2008, impugned in the present petition. 28. This petition is therefore, party allowed and the order initiating inquiry by the Project Officer against the petitioner is set aside with an observation that the respondents may initiate a proper enquiry against the petitioner, if the facts and circumstances warrant. The action in this behalf be taken by the competent authority within two weeks. In case the respondents find that such an enquiry was required they may keep the petitioner attached with the office but if the respondents find that an inquiry in the matter was not required they shall post-the petitioner against a proper post commensurating his status. Disposed of accordingly.