Babu Ram Sharma @APPELLANT@Hash State And Ors

1 In this writ petiton, the petitioner has prayed for the following reliefs:

(a)Writ of Certiorari, quashing the order No.441 dated 10-11-2015, whereby the petitioner was placed under suspension with immediate effect.

(b) Writ of Mandamus directing the official respondents to re-instate the petitioner with immediate effect.

(c) Writ of Mandamus commanding/directing the official respondent No.3 to release the subsistence allowance in favour of petitioner w.e.f date of Suspension and;

(d) Writ of Mandamus, directing the official Respondent No. 4 and 5 to release the pending salary, DA arrears as per 6 th pay commission w.e.f 7-02-2013 to 10-12-2015;

2 Briefly stated, the facts leading to the filing of this petiton as gatherable from the pleadings of the parties are that the petitioner was appointed as Class- IV in the Department of Education in the year 1980 and was subsequently promoted to the post of Jr. Assistant in the year 1994 and Sr. Assistant in the year 2013. Vide order dated 14-02-2013, respondent No.2 adjusted the petitioner in the office of respondent No.5 and respondent No.3, vide order dated 17.02.2014, directed respondent No.5 to relieve the petitioner to report to his original place of posting with immediate effect. It is contended that respondent No.1 without any provocation and without there being any act of mis-conduct on the part of the petitioner, placed him under suspension vide Government Order dated 10.11.2015. The aforesaid order was, however, communicated to the petitioner on 22.11.2016 i.e a year after passing of the order impugned.

3 Learned counsel for the petitioner submits that the order impugned was passed pending enquiry into the conduct of the petitioner, but no enquiry till date has been initiated by the respondents nor the petitioner has been served with any charge-sheet. No Enquiry Officer has been appointed by the respondents. He, thus, submits that as a matter of fact, no enquiry is contemplated and the order impugned has only been issued to punish the petitioner.

4 The respondents have filed their objections and have taken a stand that the order impugned was necessitated to hold an enquiry into the conduct of the petitoner. It is stated that the Director School Education, Jammu ordered transfer and posting of Sr. Assistants of District Rajouri during the year ending 2015 and the petitioner, who was working as Sr. Assistant in the office of ZEO Donghi was transferred and posted in the office of ZEO, Manjakote. The petitioner joined the office of ZEO Manjakote on 17.02.2016, but did not provide his service book or LPC to the office of ZEO Manjakote. The ZEO, Manjakote, however, drew his salary up to October 2016 on the basis of self attested pay particulars submitted by the petitioner which was not a valid drawal of salary of an employee and was completely contrary to the Civil Service Regulations and the Financial Code. It is submitted that while the petitioner was working as Sr. Assistant in the office of ZEO, Donghi from 2009 to 2015, he deliberately avoided to complete and maintain the accounts related to cash books for which the Vigilance Organization also initiated a preliminary verification. It is further submitted that the respondents constituted a Committee for thorough audit of the accounts of the office of ZEO Donghi and the said Committee, upon audit, has reported that an amount of Rs.15,72,041.00 was drawn by the petitioner during the tenure of Sh. Mulak Raj, Ex. ZEO Dhonghi and Rs.16,90,939.00 during the period of Smt. Neelam Kumari and Raja Munir Hussain Khan, Ex ZEO's.

5 In view of the aforesaid allegation of embezzlement of money by the petitioner, it is stated that an enquiry into his conduct was contemplated and this contemplation of enquiry became the cause for issuance of order impugned. The respondents, however, have fairly conceded that the enquiry into the matter has not been proceeded further and the petitioner has not been charge-sheeted so far.

6 I have heard learned counsel for the parties and have perused the record. It is not in dispute that the order impugned in this petition was passed as far back as on 10.11.2015 and the same was communicated to the concerned authorities including the petitioner only on 22.11.2016. More than two years have elapsed, the respondents have not initiated any enquiry into the matter nor the petitioner has been served with any charge sheet.

7 In these circumstances, prolongation of suspension period beyond two years can only be viewed as punitive which is not sustainable in law. The issue, which has arisen in this petition for determination, was considered by this Court in the case of Ghulam Mohammad Mir and anr vs State and ors, 2017 (II) SLJ, 1996 wherein this Court, after threadbare discussion of the provisions of J&K Civil Services (Classification, Control and Appeal), Rules 1656, particularly Rule

31 and the Government Instructions appended thereto, in para 8, held thus:

"8. The Government Instructions are indisputably statutory in nature and inserted in the Rule by virtue of SRO 616 dated 20th September 1978. Bare perusal of the aforesaid Government Instructions, it would transpire that an officer, who is placed under suspension, is entitled to ask that the inquiry into his conduct is initiated or conducted with reasonable diligence or the matter (criminal proceedings), if any, be investigated with reasonable dispatch. It is further provided in the Government Instructions that if such steps are not taken within reasonable time and suspension is unnecessarily prolonged, this would amount to vesting in the authority a total arbitrary and unfettered power of placing its officers under suspension and distress for indefinite duration. Further as is clearly delineated in the Instructions, suspension order would be bad if the same is not followed by charge-sheet and inquiry within reasonable time. It is further provided that if purpose of preventing government servant from prejudicing the investigation, trial or inquiry by his continuance in the offence, could be achieved by transferring him to other station or office rather than resorting to suspension, the resort to suspension may not be advisable. The guidelines provide several safeguards against in- discriminatory use of power of suspension by employer. The Government Instruction no.2 (supra) further provides that competent authority should endeavour to have charge sheet filed in the Court in case of prosecution or served on the government servant in case of departmental inquiry, within a period of three months from the date of suspension and the case in which it is not possible, the authority concerned shall report the matter to next higher authority explaining the reasons for delay. It is further provided that the cases, where government servants are under suspension for longer period, should be reviewed by the competent authority periodically to see that steps would be taken to expedite the progress of the court trial/departmental proceedings, as the case may be, so as to reduce the periods of suspension to barest minimum. From the provisions of Rule 31 and the Government Instructions 1&2, it is explicit that power of suspension cannot be exercised to achieve oblique purpose of punishing employee without following due process of law. The suspension of an employee is resorted to only to facilitate unhindered and fair inquiry into alleged misconduct committed by such employee but if such suspension is unnecessarily prolonged and object for which it was resorted to, is not achieved and no inquiry into conduct of such employee is initiated with reasonable dispatch, the order of suspension would become punitive and susceptible to challenge, being violative of Article 14 and 16 of the Constitution of India. [See: 1997 (4) SCC 328 O.P. Gupta v. Union of India and SLJ (1987) J&K 333 Vijay Kumar v. State of J&K]."

8 In view of the settled legal position adumbrated in the aforesaid judgment, the order impugned in this petition cannot be sustained because the respondents have failed to initiate enquiry by issuing any charge sheet with promptitude and have not done so even after lapse of three years from the date of issuance of order impugned.

9 In view of the foregoing and following the judgment rendered in the case of Ghulam Mohammad Mir's case (supra), I find merit in this petition and the same is accordingly allowed. The order impugned is quashed. The respondents shall reinstate the petitioner immediately and in any case, within a period of four weeks from the date certified copy of this order is made available to them. The period of suspension, however, shall be determined on the conclusion of the enquiry, if initiated and completed by the respondents. It is, however, made clear that in case the enquiry is not initiated and completed within a period of three months from today, the petitioner shall be deemed to be in service from the date he was placed under suspension with all consequential benefits. The subsistence allowance of the petitioner, however, if pending, would also be released within eight weeks from today.

10 Disposed of as above along with connected IA.