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2009 DIGILAW 669 (JK)

State v. Mohd. Amin Sheikh

2009-12-22

GH.HASNAIN MASSODI, NISAR AHMAD KAKRU

body2009
Nisar Ahmad Kakru, J. 1. Professor Tahira Soherwardi, Principal, Govt. Degree College, Bandipora, reacted to the siphoning of money from the students of the college, amounting to Rs. 1,49,360/- and misappropriation thereof, on the part of the writ petitioner Mohammad Amin Sheikh, Chowkidar of the college, (respondent herein), by filing FIR against him with the Police Station Bandipora vide communication No. DCB/245 of 2007 dated 27-07-2009, initiating the departmental enquiry, framing charge against him, placing him under suspension, followed by his attachment with the office of the Director Colleges, Kashmir which course of action was not taken kindly by the Under Secretary to the Government, Higher Education Department as is deduced from his communication forming annexure (D) to the writ petition reproduced hereunder: "Government of Jammu and Kashmir Civil Sectt. Higher Education Department. To The Principal, Govt. Degree College, Bandipora. No: EC-Coll/NGK/GN/07 Dated:09-01-2008 Subject:- Charge sheet and relieving of Sh. Mohd Amin Sheikh, Chowkidar. Reference:- His Joining report dated 07-01-2008. Madam, In reference to your No: GCB/PF/265 dated: 31-12-2007 whereunder you have served a charge sheet against Sh. Mohd Amin Sheikh, Chowkidar (presently under suspension) and relieved him to report in the office of Director Colleges. In this connection I am directed to say that you were supposed to obtain the reply to charge sheet from him and thereafter to take up the matter with the administrative department and not to relieve him being not competent for such action. Accordingly Sh. Mohd Amin Sheikh, Chowkidar is relieved forthwith with the directions to report back to the College. After obtaining the reply to the Charge sheet from Sh. Mohd Amin Sheikh, Chowkidar, you may take up the matter with this Department. Yours faithfully, Sd/- Under Secretary to Govt., Higher Education Deptt. Encl: one leave. Copy to Sh. Mohd Amin Sheikh, Chowkidar, for compliance". 2. It is the above said communication which appears to have prompted the learned Single Judge to pass the interim directions dated 18-09-2008 and 04-12-2008, requiring the respondents in the writ petition (appellants herein) to allow the Chowkidar, writ-petitioner to perform his duties and to release his salary. Being aggrieved, hence this LPA and by consensus of the learned counsel for the parties, the writ petition is taken up for final disposal, 3. Being aggrieved, hence this LPA and by consensus of the learned counsel for the parties, the writ petition is taken up for final disposal, 3. A glance at the record reveals that the writ-petitioner chowkidar has, unauthorizedly, extracted money from the students of the college under the guise and pretence of examination fee, which he did not deposit with the college, leaving the students high and dry, consequently subjecting the Principal to the wrath of the students on the one hand for the alleged mischief of the writ-petitioner chowkidar and on the other, the Under Secretary virtually condemned the Principal and asked her to allow the petitioner Chowkidar to function, that too, under an intimation to the writ petitioner as is evident from the endorsement recorded on the letter, suggesting its issuance at the instance of the writ petitioner, fall out being, a restraint placed on the Principal from implementing her order. The communication depicts that the Principal is powerless to take action against the delinquent official unless she is permitted by the Under Secretary, notwithstanding the fact that the Principal has the power to refer the matter to the police for investigation. She also has the power to frame the charge against the petitioner Chowkidar and place him under suspension. What is wanting in law is the power of the Under Secretary to restrain the Principal from exercising her statutory power. It is heartening to notice that the Principal approached the Court by medium of this LPA instead of complying with the illegal direction of the Under Secretary, a stand in the best interests of the State. Examining the communication of the Under Secretary on the touch stone of the rules, we are of the considered opinion that its contents prima facie tantamount to transgression of limits and abuse of power, yet we choose to refrain from taking its cognizance on judicial side to leave the respondents free to set their house in order. 4. Reverting to the facts of the case. Having noticed that a report (FIR) has been filed against the petitioner Chowkidar and the departmental enquiry has also been initiated, the order of suspension has to remain uninterfered with. Nevertheless petitioner chowkidars claim for subsistence allowance shall have to be considered on the touch stone of the rules. 5. 4. Reverting to the facts of the case. Having noticed that a report (FIR) has been filed against the petitioner Chowkidar and the departmental enquiry has also been initiated, the order of suspension has to remain uninterfered with. Nevertheless petitioner chowkidars claim for subsistence allowance shall have to be considered on the touch stone of the rules. 5. We have also noticed that the Principal has asked the petitioner Chowkidar to report to the Director Colleges, Kashmir. Such action of the Principal needs to be appreciated in the light of the fact that when continuance of an erring Government servant in an office is likely to prejudice the investigation or enquiry initiated against him/her, in such eventuality, the competent authority is within its powers to keep such officer/official at any other place/office. Apparently, order of attachment is passed to achieve that laudable object and there is nothing bad with it but difficulty for the Principal is that the Director Colleges office is not under her direct control, therefore modification of the order by the Principal to that extent is called for if attachment is still the requirement. We may hasten to add that in such cases the least that is expected of the high ups is to help their subordinate officers to inculcate sense of accountability, responsibility in the erring officials and to impose discipline on them which is absolutely lacking in the case on hand. 6. Situated thus interim directions dated 18-09-2008 and 04-12-2008 are vacated. Writ petition is settled in the light of observations made hereinabove along with CMPs. As a corollary, LPA succeeds. Disposed of. Order to be communicated by the Registry to the Principal Secretary/ Commissioner to the Government, Education Department, and the Principal Government College Bandipora.