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Judgment
D.S. Mahra, Member (J)
FACTS OF THE CASE:
The applicant was initially engaged as daily wager in the year 1980 and regularized as Orderly in the year 1984. He was later promoted to the post of Jr. Assistant in the year 1989. On 14.2.2002, he was terminated from service on the ground of unauthorized absence. In pursuance of the Hon’ble High Court direction dated 12.8.2015, passed in SWP No. 891/2009, he was reinstated in service vide order dated 23.4.2018, treating the intervening period as on duty, granting him all the consequential benefits, including pay and grade and the promotions. The applicant was got arrested by the Investigating Agency of Crime Branch, Jammu when he was on leave from 17.2.2021 to Page 1 of 7 28.2.2021. The applicant while working as Jr. Assistant was placed under suspension vide order dated 10.3.2021 on the ground that “Pending enquiry into the matter, Mr. Bilal Ahmad Wani, Jr. Assistant of (R&B) LRCR Division, Srinagar is hereby placed under suspension with immediate effect.”
ISSUE/QUESTION OF LAW:-
The issue for consideration before this Tribunal is :-
Whether the order of suspension passed by Respondent No. 3 is in accordance with law?
CONTENTIONS:
Learned counsel for the applicant submitted that on 17.2.2021, applicant proceeded on earned leave with station leave permission. During visit to Jammu on 22.2.2021, Inspector, Crime Branch, Jammu requested the applicant to present in the office for some assistance in an FIR 1/2020. The Crime Branch detained the applicant and seized his mobile phone. Applicant was sent to jail and on the direction of Hon’ble High Court, applicant was released. Thereafter, applicant reported for duty on 20.3.2021. His joining report was forwarded by the Executive Engineer to respondent No. 3 vide communication dated 24.3.2021 for appropriate action.
On the other hand, learned counsel for respondents submitted that applicant applied for 12 days leave which was sanctioned by the Executive Engineer. When the applicant after expiry of leave did not report for duty, Executive Engineer vide letter dated 2.3.2021, issued show cause notice to the applicant for resuming his duties and explain his position for unauthorized absence but applicant failed to give any justification. It is further stated that respondents through social media, came to know that applicant was arrested by the Crime Branch, Jammu for being involved in racket of fabricating fake contractor cards having case FIR No. 1/2020 U/s 420, 465, 466, 467, 471, 120-B of IPC registered against him in Police Station, Crime Branch, Jammu. Respondents vide order dated 9.3.2021 directed to initiate administrative action under Rule 31 of J&K CSR (CCA), 1956 against the applicant and to take up the matter with the Crime Branch, Jammu for obtaining status of Case FIR and further course of action. Thereafter , the applicant was placed under suspension with immediate effect. It is further submitted that applicant was arrested by the Crime Branch, Jammu during his leave period and has been retained in custody for 22 days continuously in a criminal charge, which is a period longer than 48 hours. The applicant was placed under suspension in light of Sub Rule 27 of Rule 31 of J&K CSR(CCA) , 1956, which is quoted below:-
“the appointing or any authority to which it is subordinate or any other authority empowered by the Government in this behalf, may place the Government servant under suspension where;
a) an inquiry into his conduct is contemplated or is pending or;
b) a complaint against him of any Criminal offence is under investigation or trial.”
REASONING /DISCUSSION:
Learned counsel for applicant submitted that in terms of mandate of law contained in Rule 31 of JK (CCA) Rules, 1956, power to place the applicant under suspension vested with the appointing authority i.e. non –applicant no. 2 whereas this order has been passed by non-applicant No. 3, who was neither the appointing authority of the applicant nor he was empowered by the Govt. in his behalf. Hence the order of suspension being without jurisdiction is obviously non-est in law and nullity, liable to be set aside by the Hon’ble Tribunal. It is further submitted that neither any charge sheet has been issued to the applicant nor he has been granted opportunity of being heard to explain his position.
Learned counsel for respondents submitted that vide letter dated 2.3.2021, respondents have issued show cause notice to the applicant to explain the position in view of his unauthorized absence but applicant has failed to do so. It is further stated that applicants has suppressed the material fact that he was arrested by the Crime Branch in FIR No. 1/2020 U/s 420, 465, 466, 467, 471, 120-B of IPC registered against him in Police Station, Crime Branch, Jammu and was retained in custody for 22 days continuously which is a longer than 48 hours. Respondents vide order dated 9.3.2021 directed to initiate administrative action under Rule 31 of J&K CSR (CCA), 1956 against the applicant and to take up the matter with the Crime Branch, Jammu for obtaining status of Case FIR and further course of action. Since an enquiry in a criminal charge is pending against the applicant, applicant was placed under suspension in light of Sub Rule 27 of Rule 31 of J&K CSR(CCA) , 1956. The Criminal proceeding before the competent court of law is pending. The applicant is under suspension. He is being paid subsistence allowance sanctioned by the respondent No. 3 vide order dated 8.6.2021. The case of the applicant is reviewed by the respondents periodically but still it has not been revoked. It is further stated that applicant at no point of time after his arrest till joining back to his duties revealed or disclosed or intimated his office/ authority/DDO about his arrest and Fir registered in Crime Branch Jammu thus does not reported and concealed his arrest to his DDO/ Superior officer , thus failure on part of the applicant has to be regarded as suppression of material facts and is liable to disciplinary action on this ground alone, apart from the action that may be called for on the outcome of the Police case against him, as per Govt. of India decision vide MHA letter No. 39/59/54-Est (A) dated 25.2.1955. It is further stated that applicant applied for release/ sanction of subsistence allowance duly forwarded by Executive Engineer R&B LRCR Division vide No. LRCR/ ESTAB/604-06 dated 4.5.2001 to non-applicant (3) which was sanctioned in his favour vide this office No.SE/CRP/ESTB/2168-69 dated 8.6.20021 as per Rule -108 (A) of J&K CSR. It is further stated that applicant put forth an application for revocation of his suspension before the respondent No. 2 i.e. Chief Engineer PWD (R&B) Kashmir which was endorsed vide No. CE/RBK/ADM/ 22738 dated 21.9.2021 to non applicant No. 3 with the direction to obtain latest status of his case FIR from Crime Branch Jammu and to furnish a detailed report .The matter was accordingly taken up with Crime Branch Jammu vide this Office No.SE/R&B/PS/Vig/ 7828-29 dated 18.11.2021, for furnishing status of Case FIR No. 1/2020 which is still awaited and in absence of which, it has not been felt prudent to revoke his suspension as being involved in a racket of fake fabrication of contractor cards. The matter has been again taken up with the Crime Branch, Jammu by non-applicant no.3 vide his office No. SE/R&B/CRP/PS/VIG/ 10566-67 dated 15.2.2022 for expending the submission of latest status report of the case along with criminal charges against the applicant so that final charge sheet can be finalized by the competent authority for disciplinary action under rules. Central Vigilance Commission’s Circular instruction Vide No.8.7.2018 issued under endorsement No. 99/VGL/087-389176 dated 31st July 2018 and relying upon which, the departmental proceedings were put on hold and shall be initiated immediately according to law after receipt of status report from Crime Branch so that the departmental disciplinary proceedings and criminal proceedings go simultaneously in sync with each other. Learned counsel for respondents further stated that an interim charge sheet stands issued vide Office No. SC/CRP/10385-87 dated 10.2.2022 read with corrigendum No.SC/ CRP/CC/Estb./ 10420-22 dated 11.2.2022. It is further submitted that reply to interim charge sheet from the applicant was received by the non-applicant No. 3 on 14.2.2022 wherein the applicant could not justify his unauthorized absence from duties besides admitted concealment of his arrest and detention for 22 days to immediate authority and examination, the reply made by the applicant have been found vague and non plausible and accordingly rejected, vide office No. SE/R&B/ CRP/PS/10693-96 dated 17.2.2022 and disciplinary action as warranted under law has been recommended to the Competent authority against the applicant vide SE/R&B/ CRP/PS10697 dated 17.2.2022. It is also submitted that the Department of Public Works (R&B) deals with creation and maintenance of Public infrastructure through e-tending in which participating eligible bidders by way of competitive bidding are allotted works. One of the eligibility for participating in tendering process is a contractor card and the instant case of fabricating fake contractor cards can defeat the whole process of allotting works through competitive bidding with possible financial implications and loss to public exchequer. Hence, respondents prays that the O.A. deserves to be dismissed.
CONCLUSION:
In view of the above discussion and documents on record, the suspension of the applicant is as per rules and has been passed by the competent authority/ respondent No. 3. He is being paid subsistence allowance as per rules. The respondents are hereby further directed to review the suspension of the applicant and get the latest report with regard to the Criminal proceedings and take a decision.
With this observations, the O.A. is dismissed. No order as to costs.