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2016 DIGILAW 150 (JK)

Rakesh Kumar Pargal v. State

2016-03-29

DHIRAJ SINGH THAKUR

body2016
JUDGMENT : Dhiraj Singh Thakur, J. 1. The petitioner challenges the order dated 25.2.2016 whereby he has been placed under suspension based upon a complaint received from the President's Secretariat, Rashtrapati Bhawan, New Delhi and the Governor's Secretariat, Raj Bhawan, Jammu. According to the order impugned, pending an enquiry into the complaints regarding embezzlement, misappropriation, possession of disproportionate assets and negligence, the petitioner has been placed under suspension and attached with the directorate of CAPD till further orders. 2. The order impugned is questioned on the ground that the same was based upon an anonymous complaint and could not have been so entertained as the same was contrary to the Circular No. 22-GAD (Vig) of 2015 dated 10.7.2015. 3. The second ground on which the order impugned is challenged is that one Harbhajan Singh-Respondent No. 4 had consistently in the past been making frivolous complaints against the petitioner from time to time. It was further urged that respondent No. 4 was also involved in a mob attack against the officers of the CAPD department, leading to registration of an FIR in which his name subsequently also figured and that the said respondent always tried to blackmail the petitioner by filing frivolous complaints. 4. It was stated that finally a compromise was arrived at between the petitioner and the said respondent, which was reduced in the shape of a written document, which is on record, according to which, both the parties, had decided to withdraw the complaints filed against each other and to put an end to false litigation initiated at each others' behest. In furtherance of the said agreement, an affidavit is also stated to have been sworn, which also forms Annexure-H to the petition. 5. In this background, it was asserted that the complaint might have been forwarded to the President of India as also the Governor of the State, which resulted in the petitioner's suspension. 6. Finally, it was urged that the order of suspension was contrary to the provisions of Rule 31 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 and Government Instruction No. 1 appended thereto. 7. Heard learned counsel for the petitioner. 8. It is by now well settled that suspension is not a punishment. It simply means that no work is to be taken from the employee during the period of his suspension. 7. Heard learned counsel for the petitioner. 8. It is by now well settled that suspension is not a punishment. It simply means that no work is to be taken from the employee during the period of his suspension. While the relationship of employer and employee continues yet employee is temporarily deprived of his privilege to work in the office. In such a situation, he continues to retain his lien on the permanent post held by him. 9. In Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup and Ors., AIR 1957 SC 82 the Apex Court while dealing with the issue held as under: "18.........The suspension, however, would not be a punishment by itself. The ordinary dictionary meaning of the word "punish" is "to cause the offender to suffer for the offence" or "to inflict penalty on the offender" or "to inflict penalty for the offence".........." 10. In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr., AIR 1999 SC 1416 , the Apex Court held as under: "26. To place an employee under suspension is an unqualified right of the employer. This right is conceded to the employer in service jurisprudence everywhere. It has even received statutory recognition under service rules framed by various authorities, including Govt. of India and the State Governments. (See: for example, Rule 10 of Central Civil Services (Classification, Control and Appeal) Rules. Even under the General Clauses Act, this right is conceded to the employer by Section 16, which inter alia, provides that power to appoint includes power to suspend or dismiss." 11. In Union of India & Anr. v. Ashok Kumar Aggarwal, Civil Appeal No. 9454 of 2013, the Apex court while placing reliance upon State of Orissa v. Bimal Kumar Mohanty, AIR 1994 SC 2296 held as under:- 8. In State of Orissa v. Bimal Kumar Mohanty, AIR 1994 SC 2296 , this Court observed as under:- "......the order of suspension would be passed taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of evidence placed before the appointing authority and on application of the mind by the disciplinary authority. Appointing authority or disciplinary authority should consider.........and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. Appointing authority or disciplinary authority should consider.........and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law should be laid down in that behalf......In other words, it is to refrain him to avail further opportunity to perpetuate the alleged misconduct or to remove the impression among the members of service that dereliction of duty will pay fruits and the offending employee may get away even pending inquiry without any impediment or to provide an opportunity to the delinquent officer to scuttle the inquiry or investigation to win over the other witnesses or the delinquent having had an opportunity in office to impede the progress of the investigation or inquiry etc. It would be another thing if the action is actuated by mala fide, arbitrarily or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The Authority also should 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." 12. The relevant provisions dealing with suspension of employees in the State of Jammu and Kashmir is Rule 31 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 (hereinafter to be referred to as CCA Rules), which envisages as under: "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. (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 to which it is subordinate. (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 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).............." 13. A reference to the aforementioned Rule would, thus, make it clear that undoubtedly the Govt. retains with itself the power to place an employee under suspension where an enquiry into his conduct is contemplated or pending, which power is conceded to by the counsel for the petitioner. However, overwhelming emphasis was placed by the learned counsel on Govt. Instructions appended with the said regulation, which emphasized the need for the appropriate authority to exercise the power to place an employee under suspension with due care and caution after taking all the factors into account as invoking the said power on mere suspicion of misconduct before even a prima facie case could be established has the tendency of lowering the morale of an employee, leading to his disinterest and discouragement. 14. According to the instructions appended to Rule 31 of the CCA Rules, the following circumstances have been 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 interests, e.g. if there is public scandal and 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. (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. 15. It was in the light of the aforementioned instructions and in particular Instruction (ii) that the learned counsel for the petitioner urged that before placing the petitioner under suspension, a preliminary enquiry into the allegations was required to be conducted to see as to whether this was a case fit enough for departmental proceedings or not, which according to him was not done. 16. The argument that because there was no preliminary enquiry, the order of suspension is to be rendered illegal and contrary to Rule 31 of the CCA rules, in my opinion, does not hold any merit because holding of a preliminary enquiry is only one of the four situations in which an order of suspension can be passed. 17. The second ground urged was that the order of suspension was contrary to Circular dated 10.7.2015 inasmuch as no action could be taken based upon an anonymous complaint irrespective of the nature of the allegations made in the said complaint. 18. Needless to say that reliance is being placed on a circular, which has no statutory force or flavour and cannot be enforced. In any case, there is nothing on record to suggest that complaint filed before the President of India was an anonymous complaint and that it carried no particulars of the complainant. An employer has every right to look into the allegations of mis-conduct or misdemeanors of its employees if otherwise the allegations are verifiable. 19. In the present case, allegations have been leveled against one of the private respondents, who is an outsider, to assert that the mischievous complaint has been filed by him, yet there are no mala fides alleged against the official respondents, who ordered the suspension of the petitioner. 19. In the present case, allegations have been leveled against one of the private respondents, who is an outsider, to assert that the mischievous complaint has been filed by him, yet there are no mala fides alleged against the official respondents, who ordered the suspension of the petitioner. To presume at this stage that the order of suspension was passed without any application of mind and to quash such an order would in fact prevent the official respondents from enquiring into the facts, which are otherwise verifiable with a view to arrive at the truth. 20. In Secretary to Govt., Prohibition and Excise Department v. L. Srinivasan, (1996) 3 SCC 157 , the Apex Court deprecated the action of the Tribunal in setting aside the order of suspension and the charges at the threshold and held as under: "......Suffice it to state that the Administrative Tribunal has committed grossest error in its exercise of the judicial review. The member of the Administrative Tribunal appears to have no knowledge of the jurisprudence of the service law and exercised power as if he is an appellate forum de hors the limitation of judicial review. This is one such instance where a member had exceeded his power of judicial review in quashing the suspension order and charges even at the threshold. We are coming across such orders frequently putting heavy pressure on this Court to examine each case in detail. It is high time that it is remedied". For the reasons mentioned above, I find no reason to persuade myself to interfere with the order of suspension impugned in the present petition. The petition is found to be without merit and is accordingly dismissed along with connected MP(s), if any.