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2018 DIGILAW 756 (JK)

Mohammad Shafi Khan v. State

2018-09-29

SINDHU SHARMA

body2018
ORDER : 1. Petitioner, an employee of the Food and Supplies Department now the Department of Consumer Affairs and Public Distribution System of the State, was posted as Store Keeper Limber Centre in the year 1989-90. He was placed under suspension by the then Assistant Director, Food & Supplies, District Baramulla vide Order No. 4016-21/ADB dated 13.02.1990. The operative part of the said order is reproduced as under:- "As such, pending enquiry and police investigation into the misappropriation/ embezzlement Sh. Mohd. Shafi Khan Store Keeper Limber Centre is placed under suspension with immediate effect." One of the copy of the order was forwarded to the Supervisor Boniyar directing him to get a particular case registered against the defaulter immediately. 2. On the basis of the report, filed by the Supervisor Boniyar, FIR No. 12 of 1990 was registered under Section 409 RPC in the Police Station, Bijhama District Baramulla. After investigation, challan under Section 409 RPC was filed in the Court of learned Munsiff Judicial Magistrate 1st Class, Uri. However, the challan was dismissed by the Court vide judgment dated 30.08.1995 holding that "charge against accused No. 1 is not proved, is therefore acquitted." 3. It is not disputed that the order of acquittal was not challenged in an appeal and it is also not disputed that no departmental enquiry was ordered. It is also an admitted fact that notwithstanding the petitioner's acquittal, his suspension was not revoked and as such, he had to file SWP No. 195/2006. It was only on the advice of the then Deputy Advocate General that the suspension order was revoked vide order dated 03.02.2007 by the Director Consumer Affairs & Public Distribution Department, Srinagar Kashmir, this was exactly after 17 years of the suspension. Regarding suspension, the order of this Court dated 07.03.2007 passed in SWP No. 195/2006 says "the suspension period of the officer shall be decided separately" relevant extract of which is extracted as follows:- "However as per the endorsement of said order to Assistant Director Baramulla, it has been observed, that 50% of petitioner's salary be recovered towards shortage for liquidation of the amount. This part of the order shall however be decided in the enquiry proposed with regard of the suspension period. Till that is done it shall stay. In view of age of the petitioner, the matter pertaining to suspension period be decided within two months." 4. This part of the order shall however be decided in the enquiry proposed with regard of the suspension period. Till that is done it shall stay. In view of age of the petitioner, the matter pertaining to suspension period be decided within two months." 4. While no such enquiry was held, the period of suspension has been decided by the impugned order dated 17.08.2010 which has been challenged by the petitioner in this writ petition on the ground that it is arbitrary being against the provisions of The Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 (for short, CCA Rules) and The Jammu and Kashmir Civil Service Regulations, 1956 (for short, CSR) and also against the directions of this Court in SWP No. 195/2006. 5. The stand of the respondents is that none of the grounds of challenge are available to the petitioner even though the petitioner was acquitted of the offence punishable under section 409 RPC as his misconduct is proved. It is also denied that the impugned order violates the provisions of the CSR. It is further the case of the respondents that the petitioner has not performed any work for the period of suspension. 6. Mr. Dar, learned counsel for the petitioner, while reiterating the aforesaid ground of challenge, has argued that treating 17 years suspension period as leave of whatever kind due tantamount to punishment without warning. He further argued that the impugned order is also in violation of the order of the Court dated 07.03.2007 passed in SWP No. 195/2006 filed by the petitioner. The said order, according to the learned counsel for the petitioner, is also in violation of the Rule-108(ii) of the CSR as has been repeatedly held by this Court. Moreover, respondent No. 2 having held that the period of suspension is to be treated as "on duty', it was arbitrarily on the part of the first respondent to direct him not to treat the petitioner on duty and respondent No. 2 was not obliged to accept such advice without appreciating the facts of this case. 7. Per contra Mr. Asif Bhat, learned Additional Advocate General appearing for the State argued that even though the petitioner has been acquitted of the charges of misappropriation/embezzlement, he is still guilty of misconduct. 7. Per contra Mr. Asif Bhat, learned Additional Advocate General appearing for the State argued that even though the petitioner has been acquitted of the charges of misappropriation/embezzlement, he is still guilty of misconduct. The moot question for consideration is why the suspension order dated 13.02.1990 was not reviewed by the authority higher to the Assistant Director, Food & Supplies Baramulla, yet another question of equal importance is why the suspension order was not revoked immediately after he was acquitted of the charges punishable under Section 409 RPC by the Trial Court on 30.08.1995 and finally why no domestic enquiry was held despite the orders of this Court dated 07.03.2007 passed in SWP No. 195/2006. 8. Article-31 of the CCA Rules, which provides for suspension reads 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. (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 making the order or by any 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) Where a penalty of dismissal or removal from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of law and the competent authority a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal or removal was originally imposed, the Government servant shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal or removal and shall continue to remain under suspension until further orders." 9. Neither of the conditions spelt out in Sub-Rule (a) and (b) were satisfied to justify the suspension of the petitioner because neither enquiry was contemplated nor it was pending as no inquiry was ever ordered. Similarly no complaint of any criminal offence was pending investigation. The absence of either of the ground notwithstanding, the petitioner was placed under suspension so his suspension was unjustified. 10. Be that as it may, a copy of the order of suspension was forwarded to the Deputy Director, Food & Supplies Srinagar, who failed to exercise his statutory duty under Sub-Rule (3) of Rule-31 of CCA Rules which says that "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 whom he is subordinate." 11. This was a serious lapse on the part of the then Director Food & Supplies. However, what prevented the respondents to revoke the suspension after the Court of learned Munsiff, JMIC, Uri dismissed the challan vide order dated 30.08.1995 has not been explained. The suspension order dated 13.02.1990 was revoked only vide order dated. 03.02.2007 after nearly 17 years and, that too, on the advice of learned Deputy Advocate General as is evident from the last two paras of the order dated 03.02.2007, which are extracted below:- "Whereas M.A. Wani Dy. Advocate General vide his letter under reference has communicated that the Hon'ble Court has directed to revoke the suspension order. Now, therefore, in compliance of the directions of the Hon'ble High Court and in view of representation, Mr. Mohd. Shafi Khan I/c Storekeeper is reinstated. He will report to Assistant Director Baramulla for further duties. The suspension period of the official shall be decided separately." 12. Now, therefore, in compliance of the directions of the Hon'ble High Court and in view of representation, Mr. Mohd. Shafi Khan I/c Storekeeper is reinstated. He will report to Assistant Director Baramulla for further duties. The suspension period of the official shall be decided separately." 12. Thus, it was only after SWP No. 195/2006 was filed, the respondents woke up from slumber and reinstated the petitioner but again the period of suspension was not decided for more than three years. However, the impugned order dated 17.08.2010 was passed by respondent No. 2, who is head of the department and had earlier written a letter dated 01.09.2007 to respondent No. 1, and had proposed as under:- "As stated above the SK has remained under suspension for 17 years and the whole suspension period obviously is not covered as leave whatever kind due on the date of his reinstatement. The treatment of suspension period of 17 years as leave shall be against the natural justice and he shall suffer irreparable loss. Now, therefore, in view of the facts stated above it is requested and recommended that period of prolonged suspension in favour of Shri Mohd. Shafi Khan may kindly be ordered to be treated as on duty less by the period of leave whatever kind due to him." 13. The impugned order dated 17.08.2010 has been passed by respondent No. 2 on the advice of respondent No. 1 as is evident from the last three paras of the said order, which are extracted below:- "Whereas, the Adm. Department Vide letter dated 03.07.2008 instructed to decide the period of suspension on the merits and facts of the case in terms of standing provisions of J&K Classification Control and Appeal Rules viz-a-viz the Jammu & Kashmir CSRs. Whereas, subsequently the Adm. Deptt vide letter No. CA&PD/Estt/63/2005 dated:09/2005 and Circular No. 02-CA&PD of 2009 dated 27.10.2009, instructed not to treat the period of suspension as on duty in respect of officials involved in embezzlement/ misappropriation of food grains. Now, therefore, in view of above, the period of suspension in favour of Mohd. Shafi Khan is hereby ordered to be treated as on leave whatever kind due to him." 14. Now, therefore, in view of above, the period of suspension in favour of Mohd. Shafi Khan is hereby ordered to be treated as on leave whatever kind due to him." 14. Respondent No. 2 has failed to decide the suspension period in terms of letter dated 03.07.2008 in terms of the CCA Rules but was quick to act as per letter dated 27.10.2009 without understanding the expression "instructed not to treat the period of suspension as on duty in respect of officials involved in embezzlement/misappropriation of food grains." Involved in embezzlement/misappropriation means that the official has been found guilty either by the Court or department after article of charge have been formulated, inquiry held and he was given an opportunity to defend himself. While the petitioner stands acquitted by the Court of learned Munsiff, Judicial Magistrate 1st Class, Uri. no departmental enquiry was ever held, therefore, his involvement in the embezzlement/misappropriation of food grains was only an allegation which could not be proved in the Court. It is admitted that till date, no enquiry has been held, so letter dated 27.10.2009 has no application to the petitioner's case. If that be the case, as it really is, the petitioner is entitled to be treated on duty under Article 108(B) which reads as under:- "(i) When a Government servant who has been dismissed, removed, compulsorily retired before attaining the age of superannuation, or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specific order:- (a) Regarding the pay and allowance to be paid to such Government servant for the period of his absence from duty. (b) Whether or not the said period shall be treated as a period spent on duty. (ii) Where the authority mentioned in sub-rule (i) is of opinion that the Government servant has been fully exonerated or in the case of suspension, that it was wholly unjustified, the Government servant shall be given the full pay and allowances to which he would have been entitled had he not been dismissed, removed, compulsorily retired before attaining the age of superannuation or suspended, as the case may be. The period of absence from duty shall be treated as period spent on duty." 15. The period of absence from duty shall be treated as period spent on duty." 15. The scope of Article 108(B)(ii) of the Jammu and Kashmir Civil Service Regulations, 1956 has been considered by the Hon'ble Division Bench of this Court in State of J&K and Others vs. Saij Singh, 2014 (3) JKJ 342 holding that:- 8. Clause (ii) of Article 108-B of CSR enjoins upon the authority that if a Government servant has been exonerated or if the suspension was wholly unjustified, the said Government servant shall be given full pay and allowances to which he would have otherwise been entitled to. 9. Where an employee is suspended on a criminal charge but on conclusion of the trial or appeal arising out of a conviction if any, he is exonerated, and the authority does not return a specific finding that the suspension was justified, the employee is entitled to full pay or allowances to which he would otherwise have been entitled to. Such an employee cannot be asked to remain without pay for the period of his suspension and he is to be treated as on duty. Reliance in this behalf can be placed on Ghulam Nabi vs. State of J&K, AIR 1996 J&K 27 and Gh. Ahmad Shah vs. State of J&K, SWP No. 2523/2012 decided on 17.03.2014. 16. Since respondent No. 2 has not given reasons to justify the petitioner's suspension, therefore, the petitioner is entitled to be treated as on duty for the entire period. The only other question requiring consideration is that the amount allegedly deposited by the petitioner during his suspension period. It is admitted that an amount of Rs. 18,500/- has been deposited by the petitioner. Whether the deposit was voluntarily act of the petitioner, for this, the best evidence is letter dated 01.09.2009 (Annexure-E) written by respondent No. 2 to respondent No. 1. Relevant extract of which is extracted as under:- "The SK represented for reinstatement which has been delayed for want of enquiry report and non liquidation of government outstanding. As reported by Chief Accounts Officer, the SK has liquidated Rs. 18,500/- in 12/1999, leaving a outstanding balance of Rs. 71780/-. The Hon'ble Court of Judicial Magistrate 1st Class, Uri acquitted the accused in the FIR vide judgment dated 30.08.1995. No appeal has been filed as reported by Dy. Director Prosecution vide his No. 2-Pros-95/1752 dated 19.08.1996. As reported by Chief Accounts Officer, the SK has liquidated Rs. 18,500/- in 12/1999, leaving a outstanding balance of Rs. 71780/-. The Hon'ble Court of Judicial Magistrate 1st Class, Uri acquitted the accused in the FIR vide judgment dated 30.08.1995. No appeal has been filed as reported by Dy. Director Prosecution vide his No. 2-Pros-95/1752 dated 19.08.1996. The I/C SK was repeatedly directed to liquidate the outstanding amount. He has filed a writ petition in the Hon'ble High Court. Mr. M.A. Wani, Dy. Advocate General vide his letter No. 193-28 dated 22.01.2007 communicated that the Hon'ble Court has directed to revoke the suspension order. In compliance of the directions of the High Court and in view of the representation, Mr. Mohd. Shafi Khan I/C SK has been reinstated on 03.02.2007." 17. It is admitted that the petitioner filed SWP No. 195/2006 which was decided on 07.03.2007 with the following directions:- "However as per the endorsement of said order to Assistant Director Baramulla, it has been observed, that 50% of petitioner's salary be recovered towards shortage for liquidation of the amount. This part of the order shall however be decided in the enquiry proposed with regard of the suspension period. Till that is done it shall stay. In view of age of the petitioner, the matter pertaining to suspension period be decided within two months." 18. Therefore, the recovery of the amount was subject to the outcome of the enquiry and the enquiry was to be conducted within a period of two months from the date of order dated 07.03.2007. It is admitted that no enquiry was ever ordered, except filing the FIR on the basis of which the accused was tried and finally acquitted. However, even after acquittal and without holding departmental enquiry, the petitioner was being repeatedly asked to deposit Rs. 71,780/- since had deposited Rs. 18,500/- in 12/1999, so he filed SWP No. 195/2006 which was decided on 07.03.2007. This was admitted by respondent No. 2 in his letter dated 01.09.2007, who, calculated the amount is not disclosed, as no enquiry was ever held. It is, thus, clear that the petitioner was not heard, therefore, no such recovery can be made without hearing the petitioner. 18,500/- in 12/1999, so he filed SWP No. 195/2006 which was decided on 07.03.2007. This was admitted by respondent No. 2 in his letter dated 01.09.2007, who, calculated the amount is not disclosed, as no enquiry was ever held. It is, thus, clear that the petitioner was not heard, therefore, no such recovery can be made without hearing the petitioner. Thus, the demand made was void in view of the law laid down by the Hon'ble Supreme Court in Nawabkhan Abbakhan vs. State of Gujarat, AIR 1974 SC 1471 , but we do hold that an order which is void may be directly and collaterally challenged in legal proceedings. An order is null and void if the statute clothing the administrative tribunal with power conditions it with the obligation to hear, expressly or by implication. Beyond, doubt, an order which infringes a fundamental freedom passed in violation of the audi alteram partem rule is a nullity. Since the petitioner was not heard as no enquiry was conducted, therefore, an amount of Rs. 18,500/- already deposited is the result of coercive action. This amount may, thus, be refunded. 19. In view of the above discussion, this petition is allowed. The order impugned is quashed and the respondents by a writ of mandamus are directed to treat the petitioner on duty for the entire period of suspension, pay him salary and also consider him for promotion as and when due from the date his juniors were promoted.