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2017 DIGILAW 945 (JK)

Gh. Mohi-ud-Din Shah v. State of J&K

2017-10-13

SANJEEV KUMAR

body2017
JUDGMENT : Sanjeev Kumar, J. 1. Pursuant to a complaint received from Vigilance Organization that the petitioner had tampered with the revenue records as also a complaint from the inhabitants of Village Rakhi Shilvat, Tehsil Sona Bari that petitioner had been indulging in acts of corruption, the Assistant Commissioner (Revenue Bandipora) vide his order No. DCB/Legal/2017/204-09, dated 15.05.2017 placed the petitioner under suspension. Consequent upon his suspension, the petitioner was attached in the office of Assistant Commissioner, Revenue, Bandipora, till the enquiry into the allegations of misconduct was completed. Aggrieved, the petitioner has filed the instant petitioner seeking inter-alia the following reliefs:- (a) WRIT OF CERTIORARI, the impugned order of suspension Bearing No. DCB/Legal/2017/204-09, dated 15.05.2017 as also the impugned order Bearing No. 100/NTS/2017, dated 22.05.2017 be quashed. (b) WRIT OF MANDAMUS or any other writ, order or direction, the respondents be commanded to allow the petitioner to perform his duties as Patwari, Shilvat/Rakhi Shilvat uninfluenced by the impugned orders dated 15.05.2017 and 22.05.2017 so as to enable him to perform his duties effectively and regularly. Upon notice, the respondents have caused their appearance but have chosen not to file reply. During the pendency of the writ petition, the petitioner moved this court through the medium of MP No. 02/2017 in which the petitioner inter-alia sought a direction to the respondents to conclude the enquiry initiated against the petitioner forthwith and also pay him his subsistence allowance with effect from date he has been placed under suspension. However, during the course of consideration of the aforesaid MP, both the learned counsels appearing for petitioner as well as respondents stated at bar that keeping in view the nature of controversy, this petition can be considered and disposed off at this stage. Consequently with the consent of the parties, petition is admitted to hearing and taken up for final disposal. In the course of arguments, the petitioner has restricted his prayer only to the effect that respondents maybe: directed to conclude the enquiry with reasonable dispatch and till the enquiry is completed, the respondents be also directed to release the subsistence allowance in favour of the petitioner as may be permissible under law. 2. I have considered the submissions made by the learned counsel for the parties and perused the record. 3. 2. I have considered the submissions made by the learned counsel for the parties and perused the record. 3. Admittedly, the order of suspension impugned in the writ petition was passed in 15.05.2017 and the same, as is apparent from the bare perusal of the order, was to remain in operation till the (inquiry was completed. It is, however, the grievance of the petitioner that right from 15.05.2017 when he was placed under suspension, the respondents have not moved an inch towards the conduct of the enquiry. Neither the petitioner has been served with any charge-sheet nor the respondents have appointed any enquiry officer to conduct alleged enquiry. He has referred to the provisions of Section 311 (Rule 31) of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956 and the instructions appended there to and submitted that once a Govt. Employee is placed under suspension pending contemplation of an enquiry into his conduct, then it is the bounden duty of the respondents to act with reasonable despatch and take effective steps to conclude the enquiry without unnecessary delay. He further submits that more than 05 months have lapsed, even the charge-sheet has not been served upon the petitioner, so far whereas the mandate of Rule 31 and the instruction appended there to is to make an endeavour to serve upon the delinquent officer a charge-sheet within a period of 03 months. Relevant portion of the Govt. Instructions appended to Rule 31 (supra) are reproduced here under: Govt. Instructions Competent authorities should endeavour to have charge-sheet filed in court in case of prosecution or served on the Govt. Servant, in case of departmental proceedings within 03 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 Govt. 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. 4. Similarly, Govt. Employee under suspension has a statutory right to subsistence allowance to be payable to the delinquent employee in terms of Article 108-A Civil Service Regulations. 4. Similarly, Govt. Employee under suspension has a statutory right to subsistence allowance to be payable to the delinquent employee in terms of Article 108-A Civil Service Regulations. The subsistence allowance it may be stated is not paid out of contract nor is it a benevolent concession given by the employer but is paid to achieve the object being that the employee during the period of suspension is not rendered destitute. Besides, it is statutorily prescribed condition of service. In the case titled O.P. Gupta vs. Union of India and Others, 1987 (4) SCC 328 , Hon'ble Supreme Court in Paragraph 15 held thus: The real effect of the order of suspension as explained by this court in Khem Chand vs. Union of India is that he continuous to be a member of the Govt. Service but is not permitted to work and further during the period of suspension, he is paid only some allowance-generally called subsistence allowance-which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the departmental enquiry is concluded within a reasonable time, affects a Govt. Servant injuriously. The very expression "Subsistence Allowance" has an undeniable penal significance. The Dictionary meaning of the word "Subsist" as given in the shorter Oxford English dictionary, Volume II at page 2171 is to remain alive as on food; to continue to exist." Subsistence means- means of supporting life especially a minimum livelihood. Although suspension is not one of the punishments specified in Rule 11 of the rules, an order of suspension is not be lightly passed against the Govt. Servant. (Relevant extract only reproduced). 5. In view of the statutory provisions adumbrated herein above and the position of law settled by the Supreme Court it can be said that petitioner has a right to ask his employer to initiate the enquiry and conclude the same with reasonable despatch and pending such conclusion ask for payment of subsistence allowance which is statutorily payable to him. The petitioner has himself given up the relief of quashing the suspension order and therefore, the validity of the order of suspension impugned in the writ petitioner is not required to be gone into these proceedings. 6. Viewed thus, this petition is disposed of by directing the respondent Nos. The petitioner has himself given up the relief of quashing the suspension order and therefore, the validity of the order of suspension impugned in the writ petitioner is not required to be gone into these proceedings. 6. Viewed thus, this petition is disposed of by directing the respondent Nos. 2 and 3 to initiate the enquiry contemplated against the petitioner, if not already initiated and serve upon the petitioner a formal charge-sheet within a period of 4 weeks from the date of receipt of copy of this judgment. The respondent Nos. 2 and 3 shall do well to appoint the enquiry officer if so warranted and conclude the enquiry proceedings within a period of two months after the receipt of reply to the charge-sheet from the petitioner. It is further ordered that pending completion of the enquiry as aforesaid, the petitioner shall be entitled to subsistence allowance as envisaged under Article 108-A Civil Service Regulations. With these observations, the writ petition along with all connected MPs is disposed of.