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Judgment
Sunil Hali, J.—Order of suspension dt. 24th of June'10, passed by Respondent No. 1, and consequent adjustment of the private
Respondent No. 8 in place of the Petitioner in terms of order dt. 6th of July'10, is the subject matter of challenge in the present petition. The orders
have been challenged on the ground of mala fide.
In order to appreciate the controversy, it is important to note certain facts.
After a protracted litigation, Petitioner came to be promoted as uncharge Assistant Executive Engineer in the Rural Development Department.
He was made Incharge of the Rural Engineering Wing, Sub Division, Banihal, with territorial jurisdiction of Banihal and Ramsoo Blocks. After
taking charge of the said post, the Petitioner was directed by the Assistant Commissioner, Development, Ramban, vide his order dt. 9th of Aug'08,
to submit a detailed report regarding the works executed in the said Sub Division, more particularly in respect of Model Village Ukhral. In addition
to this, the Petitioner was also asked to conduct physical verification of the Panchayat Ghars constructed under 11th FCA as per the list provided
by the Block Development Officers of the district. On enquiry, it was found that sub standard material was used in the execution of the works.
Besides that, financial irregularities were also detected. It is further revealed from the record that certain bills which were presented to the
Petitioner for clearance did not actually reflect the work being executed on the spot. After initiation of the enquiry proceedings, the same
culminated in submitting a detailed report by the Petitioner to Director, Rural Development Department, whereby strong disciplinary action was
recommended against one Junior Engineer, then Assistant Executive Engineer, Executive Engineer and Block Development Officer/DDO, Banihal,
for using sub-standard material due to which the construction raised was damaged. It is from here that the Petitioner is said to have confronted the
other officers working in the Division and the process of allegation and counter allegation is stated to have been initiated.
As alleged in the writ petition, the officers against whom, recommendations were made for initiating disciplinary proceedings, are stated to have
managed the attachment of the Petitioner vide Government Order No. 171-RD of 2009 dt. 7th of Aug'09, which order is stated to have been
challenged by the Petitioner in SWP No. 1383/09, and the same stands stayed by this Court.
The further fact which is sought to be addressed is that Respondent No. 8, was appointed as Incharge Assistant Engineer and posted in REW
sub Division, Banihal-Ramsoo, under the Petitioner. He, however, did not join his place of posting and continued to draw his salary against the said
post. The said Respondent in connivance with Respondent No. 3, worked as Technical Officer to the Executive Engineer in the Rural Engineering
Wing, Ramban, in addition to his own duties even though, no such post was in existence. This was done in order to see that Respondent No. 8
continues to draw his salary as Assistant Engineer despite the fact that he had not joined in the concerned Sub Division.
It is further alleged that as the Petitioner did not allow the Respondents 4 to 8 to commit any more frauds, the said Respondents managed a
complaint against him from some local persons, which complaint was found to be baseless by the then Director, Rural Development and the
Petitioner was, accordingly, directed to lookafter the work of REW Sub Division, Gool, in addition to his own duties. It is stated that the above
Respondents having found that no action has been taken against the Petitioner by the higher authorities, managed two more complaints from local
persons namely Krishan Singh and Mohd Ibrahim against the Petitioner. It is further asserted in the petition that the Petitioner continued to inform
the concerned authority that the persons against whom report was submitted by him after enquiry, were not obliging the officers working in his sub
division in processing the bills submitted by them. Petitioner is also said to have informed the authority concerned about the unauthorized absence
of Respondent No. 8, as also about fictitious complaints filed against him. Having failed to get any response from the higher authorities, the
Petitioner went on leave on 21st of May'10, regarding which a communication was addressed to Respondent No. 3. It is during the said period of
leave, the impugned order of suspension has been passed against the Petitioner and consequent thereto, Respondent No. 8, has been directed to
assume the charge of Assistant Executive Engineer, REW Sub Division, Banihal, which position was held by the Petitioner prior to passing of order
of suspension. As indicated above, it is against the above orders, the present petition has been filed.
The impugned order of suspension is stated to have been passed by the Respondent No. 1, on the basis of report submitted by the Director
Rural Development Department and Additional District Development Commissioner, vide their communication dt. 25th of May'10 and 4th of
June'10. It transpires that preliminary enquiry was conducted by the aforementioned officers which necessitated the Respondent authorities to
place the Petitioner under suspension.
The contention raised by the Petitioner is that the order of suspension was intended to remove him from his present place of posting in order to
adjust Respondent No. 8 in his place as the Petitioner was not agreeing to be party with the other Respondents in their malicious designs more
particularly, in respect of clearing the fraudulent bills. It is further averred that it was only after he submitted a report against the concerned
Executive Engineer, then Assistant Executive Engineer and Junior Engineer that the process to malign him was initiated by managing frivolous
complaints against him at the behest of officials against whom, he had initially submitted a report to the authority concerned. After having failed to
pursue the Petitioner to be a part of alleged fraudulent dealings of the said Respondents, his order of suspension has been issued.
In addition to the above assertions made by the Petitioner, it is further averred that the appointing authority has passed the order in a mechanical
manner without taking into consideration the gravity of the misconduct sought to be enquired into or investigated and the nature of evidence placed
before the said authority. The order, it is stated, has been passed without application of mind and itself reflects malice in law as the intent and
purpose in exercising this power was to achieve the collateral purpose.
The other contention raised is that since the Petitioner has been litigating in the courts for redressal of his grievance for which various writ
petitions have been filed by him and it was only because of intervention of the court that he was given promotion and other consequential benefits,
the Respondents nursed a grudge against him and on the basis of the same, the present has been passed.
The stand of the Respondents is that Petitioner was placed under suspension on the basis of adverse reports submitted against him by the
Director Rural Development Department and the Additional District Development Commissioner, Ramban, who conducted preliminary enquiries
into the complaints against the Petitioner. It is further contended that in furtherance of order of suspension, the article of charges have been served
upon him and an enquiry into the matter has been initialed. It is further averred that the Petitioner is a compulsive litigant and also in the habit of
filing complaints against other officers of the department. Reference in this regard has been made to various annexures placed on the record of the
writ petition wherein Petitioner has been consistently writing against his other colleagues doubting integrity of every person. He has tried to create a
holy-ghost only to overcome his shortcomings. His behaviour is unbecoming of an officer and is more interested in finding faults with others than his
own conduct. It is under these circumstances stated that there is no malafide on the part of authority concerned in passing the orders impugned.
12.I have heard learned Counsel for the parties and perused the record.
The power of the court in the matters of suspension is confined only to two aspects:
(i) if the said order is without jurisdiction and
(ii) if it is actuated, by mala fide considerations.
It is not in dispute that the order has been passed by the competent authority. The Petitioner, as noticed above, has challenged the order of
suspension on the ground of mala fide.
The power to place a Government servant under suspension is reiterated by Rule 31 of the Jammu & Kashmir Civil Services (Classification,
Control and Appeal) Rules, 1956 (here-in-after called the Rules of 1956). In the present case, Rule 31 (a) of the said Rules is required to be
discussed. The said rule envisages that if an enquiry is contemplated or is pending, a person can be placed under suspension.' The word
contemplation"" means giving thoughtful consideration. Implied in such an expression is the fact that by that process, the appointing authority has
applied its mind in respect of the allegations of misconduct leveled against a Government servant. The satisfaction in this respect has to be derived
by the said authority to place the said government servant under suspension. It is not necessary that the process or the material on the basis of
which such a satisfaction is arrived at, is required to be there in the order of suspension.
Suspension connotes an action by which a Government servant is debarred for a particular point of time to function or to draw the privileges of
a government servant. The object of this deprivation is to remove the said employee from controlling the position which could impair upon the
investigation/enquiry contemplated against him. The other aspect which could weigh with the authority in addition to what has been stated above is
that an impression should not go to the members of the service that dereliction of duty would pay fruits and the offending employee could get away
even pending enquiry without any impediment or to provide him with an opportunity to scuttle or impede the process of enquiry pending against
him. It is also important to note that even during the pendency of an enquiry against an employee involving public scandals, he can be placed under
suspension.
Suspension admittedly, is not a punishment but it does impair the reputation of a government servant. The power, function and the privilege of a
civil servant during suspension remain in abeyance. It also adds a stigma to the concerned public servant and as such, cannot be treated as a
normal routine order which does not affect his rights. During suspension, the said employee continues to draw salary at a lower scale without doing
any job. The instances are also there where order of suspension is allowed to continue for a longer period of time resulting in harassment of the
concerned employee and this results due to delay on the part of the authority concerned in not concluding the enquiry against the said employee.
The order of suspension has always to be in public interest. It is also not an administrative order and has to be passed after taking into
consideration the gravity of misconduct sought to be enquired into and the nature of evidence available before the appointing authority. What
emerges from the aforementioned discussion is:
a/That an order of suspension can be passed, if an enquiry is pending or contemplated against a government employee;
b/That if the nature of allegation or charges being faced by the said employee are relatable to public scandal;
c/That where the preliminary enquiry into the allegations reveals a prima facie case justifying criminal or departmental proceedings which are likely
to lead to the dismissal or conviction of the concerned employee;
d/That the suspension must be a step towards ultimate result of the enquiry.
It is pertinent to mention here that primarily the object of placing a government servant under suspension is to remove him from the place where
he is posted so as to allow the enquiry to be conducted without any impediment or without the civil servant being causing any hurdles in such an
enquiry.
Examining the present case in the context of what has been stated above, following circumstances emerge which led to the suspension of the
Petitioner:
i/that immediately after taking over the charge of the post of Assistant Executive Engineer, Banihal, the Petitioner was entrusted with an enquiry
against the then Executive Engineer, Assistant Executive Engineer and Junior Engineer in respect of various works executed in the area concerned;
ii/that a report was submitted by the Petitioner against the aforementioned officers after they were found remiss in performance of their official
duties;
iii/that a complaint was filed by the officials of the Rural Development Department along with some locals persons of the area against the Petitioner;
iv/the conduct of the Petitioner in addressing communications leveling allegations of misconduct against all the Respondents unmindful of the fact
that he was bound by some discipline in this behalf;
v/that the nature of allegations as enquired by the Director Rural Development Department and Additional District Development Commissioner,
Ramban, were found to be of such nature, which would construe to be a public scandal or prima facie found to have disclosed such facts which
would result in departmental enquiry and is going to lead to dismissal of the Petitioner or his removal from service.
The appointment of the Petitioner as Enquiry Officer to look into the work executed in the areas concerned more particularly in respect of
Model village Ukhral, seems to have set to motion the events in the present case. On the report submitted by the Petitioners, two officers namely
S/Sh Gul Hassan Kraipak, Block Development Officer, Banihal and Rashpal Singh, Junior Engineer, then Incharge Model Village Thethar,
Banihal, were placed under suspension vide Government Orders dt. 24th of Sept'09. However, their suspension was later revoked on the
recommendation of the Director Concerned.
It is also on record that a complaint was filed against the Petitioner by the Assistant Commissioner Development, Ramban, Block Development
Officers, Banihal and Ramsoo, as also by some locals of the area in which following things were mentioned:
a/that the Petitioner has launched a false campaign against the officers of the Rural Development Department that he will be got killed by the
militants;
b/that he is in habit of writing complaints against his superior officers and entering into unnecessary correspondences;
c/that he is not invariably found at the place of his posting.
The first set of enquiry was launched against the Petitioner by Constituting an Enquiry Committee headed by the Additional Secretary to the
Government, Rural Development Department. The Committee was to enquire the matter regarding the complaint filed by one Krishen Singh
against the Petitioner. In the report submitted by the said Committee, it was observed that:
i/the complainant could not prove the charges against the Petitioner regarding the bribe/commission accepted by him; ii/the Petitioner has not
performed his duties fairly and with dedication, and thus, needs to be dealt with in accordance with the standing instructions;
iii/the Block Development Officer, Ramsoo, has mislead the Inquiry Committee by producing different work order copies in respect of works in
question, and therefore, actions is required to be taken against him as per rules;
iv/That the Block Development Officer, Banihal, has not followed the proper procedure of accounting and an explanation should be called from
him in this regard.
The second set of complaint was addressed by the Director Rural Development, Jammu, to the Secretary to Government, Rural Development
Department. The said Complaint reveals:
a/that the Petitioner has given 100% test check on work done bills whereas only 75% test check has been recorded on the measurement book;
b/that the Petitioner has not established his office at Banihal.
However, another report was addressed by the Additional District Development Commissioner, Ramban, to the District Development
Commissioner, Ramban. In the said report, it was mentioned that:
a/despite completion of work, payment has not been made to Krishan Singh;
b/the complaint against the Petitioner that he has demanded Rs. 5000/- as bribe, has not been proved by the complainant;
c/the Petitioner is a big stumbling block in the smooth functioning of the department;
d/he does not visit and inspect the works which are executed in far flung areas located in the sub division;
e/the Petitioner did not technically verify the steel trusses supplied by the SICOP, Jammu, on the orders of the Directorate of Rural Development
Department, Jammu, resulting in lapse of funds under BRGF.
While taking recourse to place the Petitioner under suspension, reliance has been placed on two reports submitted by the Director, Rural
Development Department and Additional District Development Commissioner, Ramban. No cognizance seems to have been taken on the report
submitted by the Additional Secretary to the Government, referred to above. After issuance of the suspension order, the Article of charges was
served upon the Petitioner on 6th of Sept'10, which reveals that reliance has been placed on the report submitted by the aforementioned two
officers. After going through the Article of charges, it is revealed that:
a/while giving 100% test check on the work done bills, the Petitioner has recorded only 75% test check on Measurement Book and this has been
done in contravention of financial powers;
b/the Petitioner is a big stumbling block in the smooth functioning of the Department;
c/he does not physically visit the areas within his jurisdiction;
d/the Petitioner did not technically verify the steel trusses supplied by the SICOP, Jammu.
These, in essence, are the subject matters of enquiry in the present case.
Looking to the above allegations, one cannot draw a conclusion that the charges are of such a nature which have the trappings of a public
scandal. I say so because the allegations of bribe were held to be not proved against the Petitioner by the different authorities, who had enquired
the matter. It is also important to mention that no reliance has been placed on the enquiry conducted by the Additional Secretary to the
Government, who has indicted the Petitioner only on account of his lack of dedication in execution of works in the sub division.
The appointing authority or the disciplinary authority when seeks to suspend an employee pending enquiry or contemplated enquiry, has to
satisfy itself that:
a/the charges of misconduct are grave;
b/there is defalcation of funds; or
c/there are serious acts of omission and commission.
The satisfaction in this respect as to whether a Government employee is to be kept under suspension or not is of the appointing authority or the
disciplinary authority. The court cannot, in such a situation, substitute its own views. The consideration should be accorded looking to the gravity of
the alleged misconduct or the nature of the allegations of the delinquent employee. The intent and purpose of placing a government servant under
suspension is to refrain him from availing further opportunity to perpetrate the alleged misconduct or to remove the impression among the members
of the service that dereliction of duty, would pay fruits and the offending employee could get away even pending enquiry without any impediment or
to prevent the delinquent employee to scuttle the enquiry or investigation or to win over the witnesses or to provide him the opportunity to impede
the progress of the investigation or enquiry. Such a consideration must depend upon the facts and circumstances of each case. However, where
suspension is actuated by malafide, arbitrary or for achieving an ulterior purpose, interference can be done. At the end of it, the continuance of an
officer in the office, facing departmental enquiry, has to be co-related to the affect it has on the public interest at large. Reliance in this regard can
be placed on a judgment of the Apex Court reported as State of Orissa Vs. Bimal Kumar Mohanty, . What was observed by the Apex Court in
the above case, may be noticed as under:
Normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or
pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension
would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the
evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary
authority should consider the above aspects 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 could be laid down in that behalf. Suspension is not a punishment but is only one way of forbidding or disabling an employee to
discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct
or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away
even pending enquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the enquiry or investigation or to win
over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or enquiry etc. Each case must
be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the
continuance of the delinquent employee in serving pending enquiry or contemplated enquiry or investigation. It would be another thing if the action
is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or enquiry.
The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental enquiry or
trial of a criminal charge.
While analyzing the aforementioned principles, it has to be seen whether in the present case, the suspension of the Petitioner is justified.
The history of the case, as noticed above, reveals that lot of acrimony has been generated both by the Petitioner and Respondents in this case.
Petitioner has been exchanging and leveling allegations of misconduct against the officers under whom he was working. The voluminous
correspondences exchanged by the Petitioner leveling charges of misconduct are visible from the record. He seems to have forgotten that he is
bound by some discipline and a code of conduct. He has flouted the same with impunity.
The role of Respondents, in the present case, can also not be said to be above board. The complaint filed by some of the Respondents along
with the residents of the area, speaks about the volume of their conduct. The report submitted by the Enquiry Committee, is also a factor pointing
towards the conduct of some of the officers including the Petitioner. It is also being noticed that the orders of suspension have been revoked in
case of some of the officers against whom charges of misconduct were found. Nothing is visible from the record as to on what basis, this has been
done in their case. These are some of the areas where the court was called upon to decide the controversy. However, I would not like to enter into
this arena as to who prompted whom in the present case.
The only controversy which subsists now is whether the Petitioner's order of suspension is justified or not. As already discussed here-in-above
that the allegations leveled against the Petitioner prima-facie, are not of such a grave nature where there has been defalcation of funds or serious
acts of omission and commission. The further fact Which has brought to the notice of the court is that the Petitioner stands transferred from Banihal
Sub Division to Ramnagar. This factor has also to be weighed by the Respondents while considering as to whether the order of suspension of the
Petitioner is allowed to be continued or not.
As already discussed here-in-supra, the order of suspension has not to be passed as a measure of administrative exigency but the same has to
be done after taking into consideration the gravity of misconduct sought to be enquired into or investigated depending upon the nature of evidence
placed before the appointing authority. These aspects are required to be considered before placing a government servant under suspension. Even
though, the charge sheet has been served upon the Petitioner, no Enquiry Officer as on date, has been appointed to hold the enquiry. Nothing has
been placed on record in this behalf. As a matter of fact, nothing prevented the Respondents to complete the enquiry during this period. The delay
in concluding the enquiry as also the gravity of the charges of misconduct are the relevant factors for the purposes of determining as to whether
suspension of an employee can be allowed to continue.
Since the matter is required to be considered by the Respondents after taking note of the above facts, I direct the authority concerned to
reconsider the matter regarding the suspension of the Petitioner keeping in view the observations made above and pass appropriate orders in this
behalf. Let this exercise be completed within a period of six weeks from the date, a copy of this order is made available to the authority concerned
by the Petitioner. Till then, the interim order dt.23rd of July'10, shall continue to operate.
Disposed of accordingly along with connected CMPs.