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2019 DIGILAW 317 (JK)

Sarwan Singh v. State of J&K

2019-06-07

SANJEEV KUMAR

body2019
JUDGMENT : Sanjeev Kumar, J. 1. Feeling aggrieved, the petitioner challenges communication of respondent No. 2 issued vide his No. ACB-FIR-02/2019-J-990-91 dated 16.01.2019 whereby respondent No. 2 has asked respondent No. 1, the Administrative Secretary of the petitioner, to initiate action against the petitioner under Government Employees (Conduct) Rules, 1971 and the Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 (hereinafter referred to as "the Rules of 1956"). The petitioner is also aggrieved of the Government Order No. 176-PW(Hyd) of 2019 dated 01.04.2019 whereby, pending enquiry into his conduct, the petitioner has been attached with the Chief Engineer, PHE Department, Kashmir till further orders and in his place one Sh. S.K. Pandita, I/C Superintending Engineer, District Leh has been asked to lookafter the work of Superintending Engineer, Hydraulic Circle Kargil and SE, PDC, Kargil till further orders. 2. Before adverting to the grounds of challenge urged in this petition, it would be appropriate to briefly notice the facts leading to the issuance of communication and order impugned in this petition. 3. The petitioner is Incharge Superintending Engineer, PHE Department and at the time of issuance of the impugned order of his attachment he was working as Superintending Engineer, Hydraulic Circle, Kargil. The petitioner claims that on the basis of his position in the seniority, he is likely to be promoted to the post of Chief Engineer in the near future. It appears that the respondent No. 2, on the basis of some complaint received against the petitioner, conducted a secret verification and found the petitioner having committed a cognizable offence under the Jammu and Kashmir Prevention of Corruption Act. Consequently, FIR No. 02/2019 dated 04.02.2019 against the petitioner was registered for commission of offence under Section 5(1)(e) read with Section 5(2) of the J&K Prevention of Corruption Act on the allegation of acquisition of huge assets both movable and immovable allegedly disproportionate to his known sources of income. The allegations contained in the FIR, if ultimately proved to be true, are so serious in nature that they may even entail termination of services of the petitioner. 4. The allegations contained in the FIR, if ultimately proved to be true, are so serious in nature that they may even entail termination of services of the petitioner. 4. As per the allegations in the FIR, some of the properties allegedly owned and possessed by the petitioner include (i) a double storied fully furnished palatial house (Ashiana) at Gandhi Nagar Extension, Jammu, (ii) a business activity in the name and style of M/s. SA Electroquip Pvt. Ltd. located at 38/4 Block G IIIrd Cross Rorad, Bargani Platinum Sahakar Nagar, Bengaluru, Karnataka, (iii) a business activity in the name and style of M/s. S.A. Automation & Communication located at 38/7 Block G IIIrd Cross Road, again at Bargavi Platinum Sahakar Nagar, Bangalore, Karnataka, (iv) Flat No. PH07 in Fortuna Sahakar Nagar near Dominos Pizza, Bengaluru Karnataka, (v) a Flat in Bhartiya City Township, Tannisantra Main Road Bengaluru, Karnataka, (vi) another business in the name and style of M/s. S.A. Automation in Plot No. 805, Sector No. 82, JLPL Industrial Area Sahibzada Ajit Singh Nagar, Mohali, Punjab, (vii) a Flat No. 30 in Employees Cooperative House Building Society Sector 68, Sahibzada Ajit Singh Nagar, Mohali, Punjab, (viii) Partnership in M/s. Shathi Flour Mill at Sarhano Kalakote in District Rajouri etc. etc. 5. While respondent No. 2 has entered the investigation of the FIR registered against the petitioner, he also wrote a communication dated 16th January, 2019 to respondent No. 1 for simultaneously initiating departmental action in terms of J&K Civil Services (Classification, Control and Appeal) Rules, 1956 against the petitioner as well. Taking cognizance of the communication of the respondent No. 2 and the enormity of the allegations contained in the FIR against the petitioner, respondent No. 1 vide Government Order impugned attached the petitioner with the Chief Engineer, PHE Kashmir till further orders. The petitioner is aggrieved and challenges both the aforesaid communication as well as government order dated 01.04.2019 inter alia on the following grounds:- (a) The impugned communication issued by respondent No. 2 is illegal, arbitrary and without any authority of law. (b) The impugned Government Order of attachment of the petitioner cannot sustain in law as the same is not traceable to any provisions of the Rule of 1956 or some other statutory Rules. (b) The impugned Government Order of attachment of the petitioner cannot sustain in law as the same is not traceable to any provisions of the Rule of 1956 or some other statutory Rules. (c) No employee can be penalised by ordering his attachment only on the ground that an FIR for his misconduct is registered with the police or Anti Corruption Bureau. (d) The impugned Government Order of attachment of the petitioner without initiating any departmental enquiry is vitiated in law. (e) By ordering attachment of the petitioner with the Chief Engineer, PHE, Kashmir, no useful purpose is going to be served either in respect of the pending investigation with the Anti Corruption Bureau or any proposed departmental action to be taken by respondent No. 1. (f) The impugned order of attachment is punitive in nature and, therefore, could not have been passed without affording an opportunity of being heard to the petitioner. (g) The impugned communication and the Government Order dated 01.04.2019 are arbitrary and mala fide aimed at denuding the petitioner of his right to seek promotion to the post of Chief Engineer. 6. The respondent No. 1 has filed its objections and has opposed the writ petition of the petitioner on the ground that the Government Order impugned is fully justified keeping in view the serious allegations of acquiring massive wealth by the petitioner, which is ex facie disproportionate to his known sources of income. It is claimed that the petitioner has been attached with the Chief Engineer, PHE, Kashmir not only on the ground that an FIR into his misconduct is pending investigation before respondent No. 2 but also on the ground that a full-fledged departmental enquiry against the petitioner is also contemplated. The allegations of arbitrariness and mala fide have also been denied. 7. Having heard learned counsel for the parties and perused the record, I am of the view that the challenge of the petitioner to the impugned communication as also to the Government Order dated 01.04.2019 is grossly misconceived. Indisputably, the petitioner is facing investigation in FIR No. 02/2019 for a very serious allegation of amassing wealth disproportionate to his known sources of income. 8. It is not true that mere pendency of investigation and registration of FIR is no ground to place a government servant under suspension. Indisputably, the petitioner is facing investigation in FIR No. 02/2019 for a very serious allegation of amassing wealth disproportionate to his known sources of income. 8. It is not true that mere pendency of investigation and registration of FIR is no ground to place a government servant under suspension. That apart, even independent of the FIR and acting solely on the basis of the allegations that have surfaced against an employee, the department is competent to hold a departmental enquiry/disciplinary enquiry against the delinquent government servant. This power of the employer is independent of the power of the police and the Anti Corruption Bureau to register FIR and investigate the allegations. The delinquent employee may ultimately be acquitted by the Court of law on finding that the prosecution could not prove the guilt of the delinquent employee beyond reasonable doubt but he can be penalized in the disciplinary proceedings, which are decided on the basis of preponderance of probabilities. The standard of proof required in a criminal case is much higher than what is required in the disciplinary proceedings. Having said that, it is trite that pending enquiry into the allegation of misconduct of delinquent employee, the appointing authority or any other authority to which the appointing authority is subordinate or any other officer specially empowered can place the delinquent employee under suspension (see Rule 31 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956). The delinquent government servant can be placed under suspension in the following circumstances:- a) When an enquiry into his conduct his contemplated or is pending; or (b) When a complaint against him of any criminal offence is under investigation or trial; or (iii) When a Government Servant is put in custody whether on a criminal charge or otherwise for a period longer than 48 hours. 9. From a plain reading of Section 31 of the Rules of 1956, it is clear that a delinquent officer against whom a departmental enquiry is either contemplated or pending can be placed under suspension. He can also be suspended, if complaint against him of any criminal offence is under investigation or trial. 10. Viewed thus, there should be no doubt that the petitioner who is facing investigation in a criminal offence and against whom a departmental action is also contemplated could have been very well suspended by respondent No. 1. He can also be suspended, if complaint against him of any criminal offence is under investigation or trial. 10. Viewed thus, there should be no doubt that the petitioner who is facing investigation in a criminal offence and against whom a departmental action is also contemplated could have been very well suspended by respondent No. 1. As a matter of fact, respondent No. 1 has shown leniency in the matter and instead of placing the petitioner under suspension, has only attached him with the Chief Engineer, PHE Srinagar. This is apparently done by respondent No. 1 by having recourse to the Government instruction No. 1 to Rule 31 of the Rules of 1956, inserted vide SRO 616 dated 20.09.1978 which inter alia provides as under:- "For example where continuance in office of a Government servant is considered likely to prejudice, investigation, trial or enquiry or his continuance is considered likely to subvert the discipline in the office in which he works, the purpose can be achieved if he is transferred to some other station or office as the case may be rather than to place him under suspension. Like-wise if such a Government servant would like to proceed on leave that might be due to him and if the authority concerned thinks that such a step would not be inappropriate, there should be no objection to leave being granted instead of suspending him. Similarly, in case where a Government servant has unauthorisedly absented from duty, the proper course is to initiate action against him under Article 128 of Jammu and Kashmir Civil Service Regulations and not to place him under suspension."...................... 11. The extract of the government instruction reproduced herein above is apparently a provision contained in the Rules of 1956 which provides for transfer/attachment of a delinquent employee rather than placing him under suspension. The expression 'transferred to some other station or office' is wide enough to comprehend the attachment and posting in some other office or station other than where the delinquent employee is posted at the relevant point of time and this attachment, as observed above, can be in lieu of suspension. This may also be necessitated to prevent the delinquent employee to subvert the discipline in the office in which he works. 12. This may also be necessitated to prevent the delinquent employee to subvert the discipline in the office in which he works. 12. In view of the explicit provision of Rule 31 of the Rules of 1956 read with government instructions, it cannot be said that the Government order whereby the petitioner has been attached by respondent No. 1 is without jurisdiction or without any sanction of law. As already observed going strictly by Rule 31 of the Rules of 1956, it was a fit case for placing the petitioner under suspension but respondent No. 1, in its discretion, has chosen to attach the petitioner in the office of Chief Engineer, PHE Srinagar rather than placing him under suspension. The attachment of the petitioner in the office other than the office he was holding at the time of passing of the impugned order, cannot, by any stretch of reasoning, be held to be punitive in nature. It is necessary to facilitate free and fair enquiry into the allegations of misconduct against him as also to facilitate the investigation in the FIR registered by respondent No. 2. 13. The argument of the learned senior counsel appearing for the petitioner that mere filing of FIR against the delinquent officer is not enough to place him under suspension is without any substance in the face of explicit provisions of Rule 31 of the Rules of 1956, which unequivocally provide that Government servant facing investigation can also be placed under suspension. Equally untenable is the contention of the learned senior counsel appearing for the petitioner that without taking steps for holding disciplinary enquiry, the petitioner could not have been attached. Answer to this contention also lies in Rule 31 of the Rules of 1956. A delinquent officer/employee can be placed under suspension or attached in lieu thereof even when an enquiry into his conduct is only contemplated. It is because of this reason as also the explicit rule position, I am not inclined to accept the contention of the learned senior counsel for the petitioner that the order impugned whereby the petitioner has been attached is vitiated in law. 14. Allegations of mala fide made by the petitioner are too vague and general to be accepted. Neither proof of the allegations are given in the writ petition nor the person against whom these allegations are made is arrayed as party respondent. 14. Allegations of mala fide made by the petitioner are too vague and general to be accepted. Neither proof of the allegations are given in the writ petition nor the person against whom these allegations are made is arrayed as party respondent. So far as communication of respondent No. 2 dated 16.01.2019, impugned in this petition, is concerned, I do not find any illegality in it. The petitioner does not deny that on the basis of a complaint, respondent No. 2 conducted a secret enquiry to verify the allegations. It is in this secret enquiry, the allegations levelled in the complaint filed against the petitioner were found to be prima facie established. This led to the registration of FIR and commencing of investigation against the petitioner. Rule 31 of the Rules of 1956 mandates that a person who is facing investigation of a criminal charge may be suspended by the competent authority. No illegality is committed by respondent No. 2 by bringing the factum of registration of FIR and investigation into criminal offence against the petitioner to the notice of respondent No. 1 so as to facilitate latter to initiate appropriate action in the matter. 15. There should be no dispute with regard to the fact that power to be exercised by the competent authority under Rule 31 of the Rules of 1956 is independent and can be exercised even when there is no communication by respondent No. 2. The communication of respondent No. 2 impugned in this petition is nothing more than information with regard to the registration of the FIR and commencement of investigation into criminal offence against the petitioner by respondent No. 2. 16. For the foregoing reasons, I find no merit in this writ petition and the same is, accordingly, dismissed.