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2015 DIGILAW 10 (JK)

Balbir Singh v. State of J&K

2015-02-05

TASHI RABSTAN

body2015
JUDGMENT : Tashi Rabstan, J.:- 1. Through the medium of this petition, the petitioner, Master in Government High School, Sarore, is seeking quashing of Order No. CEOJ/2690-94 dated 23.04.2010 issued by the Chief Education Officer, Jammu, respondent No. 4 herein, whereby he has been placed under suspension. He is also seeking a direction to the respondents to reinstate him and release all the monetary as well as other consequential service benefits in his favour. The brief resume of the case is that when the petitioner was posted as a Master in Govt. High School, Sarore, he was placed under suspension vide Order No. CEOJ/2690-94 dated 23.04.2010, impugned herein, on the ground that he was allegedly involved in leakage of question papers of 10+2 and Matriculation of the year 2010. Consequently, the then Principal, SRML Higher Secondary School, Jammu (Sh. Joginder Singh) was appointed as an Inquiry Officer to conduct inquiry and furnish the report/recommendations to respondent No. 4 before 26.04.2010 positively. It is contended that the said Inquiry Officer neither associated the petitioner nor was any show cause notice ever served upon him despite the lapse of more than two years, nor was the suspension order reviewed after the period of three months. Thus, it is contended that the order impugned is not only in utter violation of Rule 31 of Civil Services (Classification, Control and Appeal) Rules, 1956, but the same is also bad in law. It is Contended that his reputation has been polluted by implicating him in a false and frivolous case for no fault of him as he was not involved in the alleged paper leakage scam. It is also contended that he was posted as a Superintendent to conduct regular paper at Centre No. 136, Shiksha Niketan, Jeewan Nagar, Jammu, whereas the alleged scam occurred in another Centre. 2. Upon notice, respondents filed the objections justifying the suspension of petitioner on the ground that he was found involved in the leakage of 10th class examination and he remained behind the bars from 20.04.2010 to 19.05.2010. It is contended by them that they have yet not charge sheeted the petitioner. It has also been contended by them that the Inquiry Officer has clearly found the involvement of petitioner in the leakage scam. 3. Heard learned counsel for the parties and perused the record. 4. It is contended by them that they have yet not charge sheeted the petitioner. It has also been contended by them that the Inquiry Officer has clearly found the involvement of petitioner in the leakage scam. 3. Heard learned counsel for the parties and perused the record. 4. The specific stand of learned Senior counsel for petitioner is that the Inquiry Officer neither issued any show cause notice to him nor was his suspension ever reviewed by the respondents in terms of Government Instructions to Rule 31 of CCA Rules, when the fact of the matter is that the petitioner was placed under suspension in April 2010. 5. A copy of order dated 01.09.2014 passed by the learned Special Judge, Anti Corruption, Jammu, which was taken on record of this petition vide order dated 16.10.2014, reveals that nothing was found against the petitioner on the basis of closure report submitted by the concerned police. 6. Further, a perusal of Sub Rule (1) of Rule 31 of CCA Rules would show that a Government servant can be placed under suspension where an inquiry into his conduct is contemplated or is pending, or, where a complaint against him of any criminal offence is under investigation or trial. In terms of sub-rule (3) of Rule 31, 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. 7. It would be relevant to reproduce Government Instructions (2) to Rule 31 of CCA Rules, 1956 hereunder: "(2) Competent authorities should endeavor 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 reduce the periods of suspension to barest minimum." 8. The objections filed by the respondents seem to be just a formality only for the sake of objections. The objections filed by the respondents seem to be just a formality only for the sake of objections. Nothing concrete has been said by them as to what steps they have taken or what sort of inquiry they have conducted after the petitioner was placed under suspension. The petitioner was placed under suspension in April 2010 and till date neither any show cause notice or charge-sheet was issued to him nor any inquiry as warranted under the CCA Rules was conducted. It is also not borne out from the objections or from the pleadings of learned counsel for respondents as to whether the petitioner was afforded an opportunity of hearing before passing the suspension order or not. Even the respondents have failed to periodically review the suspension of petitioner in terms of Government Instructions (2) to Rule 31 of the CCA Rules, to see that what steps could be taken to expedite the progress of the court trial/departmental proceedings, so as to reduce the periods of suspension to barest minimum. Further, Government Instructions (1) to Rule 31 of CCA Rules provide that if the matter is not investigated with reasonable diligence and charges are not framed within reasonable period, 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, and the suspension order would be bad in law. The suspension must be a step-in-aid to the ultimate result of the investigation or inquiry. The authority must keep in mind public interest of the impact of the delinquent's continuation in office while facing departmental inquiry or a trial of a criminal charge. 9. In State of H.P. v. B.C. Thakur, (1994) SCC (L & S) 835, the Apex Court held that where for any reason it is not possible to proceed with the domestic enquiry, the delinquent may not be kept under suspension. It would be relevant to reproduce the relevant part of the judgment herein: "(3) The respondent had been under suspension for nearly two years on the date of the Tribunal's order and another year has elapsed since then. Setting aside the suspension order in this situation, particularly when no substantial progress in the disciplinary proceedings has been made as yet, does not, therefore, call for any interference." 10. Setting aside the suspension order in this situation, particularly when no substantial progress in the disciplinary proceedings has been made as yet, does not, therefore, call for any interference." 10. The Apex Court in Gurpal Singh v. High Court of Judicature of Rajasthan 2012 (13) SCC 94, has also held as under:- "33. In O.P. Gupta case, this Court emphasized the principle that any order which would cause adverse civil consequences, can only be passed upon observance of the rules of natural justice. There is, therefore, insistence upon requirement of a "fair hearing". It was also emphasized that long, continued suspension affects the government servant injuriously, Since the order of suspension entitles the government employee only to "subsistence allowance", resulting in penal consequences, it should not be lightly passed. The Court also emphasized that the expression "life" does not merely connote animal existence or a continued drudgery through life. These are all well-known principles of law. We only make a reference to the same, since the cases have been cited." 11. Admittedly, the concerned police filed the closure report before the trial Court on the ground that no evidence was found against the petitioner. Learned trial Court also while accepting the same exonerated the petitioner of the charges framed against him. But, despite that, the respondents neither initiated any departmental inquiry nor revoked his suspension order. The respondents seem to have remained in deep slumber for more than four years after having suspended the petitioner. The prolonged suspension by itself has the affect of causing distress and agony to an employee. After an employee is suspended, he is required to be dealt with under rules immediately and cannot be kept under suspension for an indefinite period. Though suspension may not be a punishment, but prolonged suspension is bad as the same is repressive and causes distress. In the given circumstances, the suspension order of petitioner cannot be allowed to stand. 12. In view of the above discussion, the petition filed by the petitioner is allowed and the order of his suspension is quashed, with a direction to the respondents to reinstate the petitioner and allow him all consequential benefits. Connected CMAs, if any, accordingly stand disposed of.