Askar Hussain vs State of Jammu & Kashmir and Others

B.A. Khan, J.—What is the fate of a suspension order where the charge sheet is not served on a suspended employee within three months

from the date of order? Is it fatal for the order? This question falls for determination in this writ petition filed by the petitioner seeking quashment of

his suspension order dated August 5, 1991.

Petitioner is a chowkidar working in the Sheep Husbandry Department. He was appointed on ad hoc basis vide order dated May 8, 1988 but

is continuing on the post ever since and his case stands recommended for regularisation also.

It seems that some cash was stolen from the Director's office. A committee of officers was constituted to conduct a preliminary

inquiry/investigation in the matter. While doing so, four employees including the petitioner were placed under suspension vide order impugned

retrospectively from the date of occurrence i.e. August 1, 1991. A report (FIR No. 176/1991) was also lodged with the police wherein petitioner

was only cited as a witness and not the accused.

Petitioner's sole grievance is that respondents have not served any charge-sheet on him till date, not to speak of any enquiry having been initiated

into his conduct. It is also submitted that suspension order cannot sustain as neither any enquiry is contemplated or pending against him nor he is

involved in any criminal offence which is pending investigation or trial against him. On this basis, it is urged that suspension of the petitioner is wholly

tin-warranted and un-justified, besides being arbitrary and capricious.

In the course of hearing, Mr. Dutta LC for petitioner, argued that impugned order of suspension was liable to be quashed as respondents had

failed to serve any charge sheet on petitioner within three months from the date of order, as contemplated by Instruction No. 2 appended to Rule

31 of Classification Control and Appeal Rules, 1956 (hereinafter called the rules). The relevant Instruction reads thus:-

....Competent authority should endeavour to have chargesheet filed in the court, in case of prosecution, or served upon the Government in case of

Departmental proceedings within three months from the date of suspension. Cases in which this is not possible such authorities will report to the

next higher authority explaining the reasons 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 mode of trial or Departmental proceedings so as to reduce the period of suspension to barest minimum.

Interpreting the provision it is contended that the object of the Instruction is to reduce the period of suspension to the bearest minimum, as

would be indicative from the time-frame prescribed therein. On this reasoning it is argued that the word ""endeavour"" occurring therein be read as

shall in consonance with the spirit of the provision which be treated as mandatory and fatal for the order of suspension in case of any breach. In

other words, it is submitted that where the competent authority fails to serve the charge-sheet within the prescribed time, the order of suspension

should be deemed to be invalidated.

In reply, Mr. Lone has made two submissions. Firstly, that the Rules do not apply to temporary employees and petitioner being a temporary

employee cannot claim the benefit thereunder the secondly, that Govt. Instruction No. 2 is an executive instruction having no statutory force and

not liable to be enforced. He has referred to and relied upon Recruitment Rules for temporary Govt. employees in support of his first contention.

He, however failed to show that the Recruitment Rules excluded application of Classification Control and Appeal Rules, 1956 in case of

temporary employees. His first contention consequently fails.

His second contention also deserves to be rejected at the very threshold as it is already settled by this court that Govt. Instruction No. 2 added

by SRO; 616 of 1987 to Rule 31 of the Rules provides statutory guide-line to the main rule to regulate the mode of exercise of discretionary

power of suspension of a Govt. employee conferred by Rule 31. Therefore, it would be futile to examine whether the controversial instruction

should or should not be credited with the statutory force and whether it is required to be enforced.

While getting rid of the contentions raised by LC for respondents, it still remains to be seen whether the relevant Govt. instruction can be read

the way Mr. Dutta would want it to be read. The question that arises is whether the instruction should be held to be mandatory laying down a rigid

time frame and whether failure to adhere to the prescribed schedule can invalidate the suspension order? In my view, it does not contemplate or

envisage any such thing. All it provides for is to regulate the mode of exercise of power of suspension by laying down certain checks and balances.

The rationale behind appears to be to avoid a situation where a suspension of an employee is allowed to drag on and to become an un-ending

affair. That is why the crucial word used in Instruction is ""endeavour"". Though a time frame is provided for service of the charge sheet, it is only

intended to place a fetter on the Competent Authority lest the suspension is unduly prolonged by resort to arbitrary exercise of power. Where it is

not possible to stick to the prescribed time frame the authority has to explain reasons for the delay and conduct periodical reviews to expedite the

trial in case of involvement of a criminal offence and the departmental proceedings as the case may be.

Viewed thus, while Rule 31 confers a power on the authority to suspend an employee from service subject of course, to the satisfaction of

conditions laid down in the Rule, Government Instruction added to the Rule by SRO : 616 provides guide lines to regulate the mode of exercise of

such power. All that it seeks to achieve is a quick action against the suspended employee. Resultantly, an obligation is cast on the Competent

Authority to endeavour to have the charge-sheet filed in case of prosecution or served, in case of Departmental proceedings, on the suspended

employee within three months from the date of suspension. If for some reasons the authority is not able to do within the prescribed time, he is

required to explain reasons for the delay and at the same time to conduct the periodical reviews to expedite the disposal of the suspension case. All

this, however, does not mean that the failure of the competent authority to serve the charge sheet within three months from the date of suspension

vitiates the suspension order. But where the authority after expiry of three months fails to explain the reasons for delay in serving the charge sheet

and conducting periodical reviews to expedite the employee's suspension case, continuation of suspension in such case must be held invalid being

violative of the instructions.

Petitioner's case falls in the latter category. Despite repeated opportunities granted to the respondents they have failed to produce any record

to explain the delay in serving the charge sheet on the petitioner. They have also not stated whether any periodical review was conducted in the

case. The order of suspension naturally falls and is quashed.

I accordingly allow this writ petition and set aside the order of suspension.