Gh. Hassan Marazi vs State of Jammu & Kashmir and Others

H. Imtiyaz Hussain, J.—Petitioner Ghulam Hassan Marazi is the General Manager in the Jammu & Kashmir State Forest Corporation. Vide

Government Order No. 1077-GAD of 2007 dated 11.9.2007, the Government directed his transfer and attachment with General Administration

Department till further orders. The order has been issued in the interest of smooth functioning of the State Forest Corporation and with the prior

approval of the Chief Minister/Minister incharge Forests, Ecology and Environment and Ex-officio Chairman, J&K State Forest Corporation (the

SFC). Petitioner felt aggrieved of the same and through a writ petition (SWP NO. 1813/07) filed on 19.12.2007 he has challenged the order of his

attachment on various grounds.

While the petition was pending by Order No. 381-FST of 2007 dated 19.12.2007, the petitioner has been placed under suspension with

immediate effect by the Managing Director, J&K State Forest Corporation. The petitioner has challenged the order of suspension through a

separate writ petition (SWP NO. 1848/07).

Various grounds have been taken by the petitioner to assail the order of suspension passed against him. Petitioner's main grievance is that the

attachment as well as the suspension of the petitioner has been ordered by the Chief Minister of the State for personal reasons. He states that when

he was posted as General Manager in the State Forest Corporation he received a representation from one Mustaffa Azad, Contractor (brother of

the present Chief Minister) marked by the Managing Director of the Corporation. The applicant had asked to get the trees of Compartment No.

27 & 28 Chiralla marked for extraction through Forest Department and allot the same to him. The petitioner alleges that on receiving the said

representation he rejected it out rightly on the ground that no Contractor can ask the management to mark the trees and allot same to him;

secondly a lot of work is pending execution with the said Contractor and he is not completing the said work, instead of completing the work he has

asked for relaxation of working period. The petitioner states that in the same way one Sajad Azad, Contractor (another brother of the Chief

Minister) made a representation which too was marked to the petitioner. In the representation the Contractor had asked the management to get the

trees in Compt.l2,17,18&19/Padder Kishtwar and Compt. 58,59,65/Neeru marked and take further action for allotment of the same but the

petitioner rejected this representation too. Both the representations were moved on 17.3.2007. The petitioner alleges that the brothers of the Chief

Minister got annoyed with the petitioner, in the meantime the management of the Corporation kept a huge quantity of about 30 lakh Cfts timber

available in Jammu Division and put the same to tender in April & May 2007 but the contractors of Jammu Division boycott the said tendering

process. The petitioner alleges that the main contractors of the Jammu Division are three brothers of the Chief Minister who represent the

association of the contractors, so the leading contractors did not allow the petty class contractors to participate in the tendering process and get the

work allotted in their favour. Various other allegations have also been made in the detailed petition filed by the petitioner.

Respondents 1,3 &4 have in their reply denied the averments made by the petitioner. It is stated that the management of the Forest Corporation

has never deviated from the rules and regulations, the petitioner has not been suspended due to any malafides or without any justification or reason.

He has been suspended vide SFR Order No. 381-FSt of 2007 on the basis of the findings and recommendations of a high level enquiry

committee. The Committee enquired into the act of mis-management/creation of artificial scarcity of the timber in the State and allied matters of

Forest Department. The matter was entrusted to Shri B.R. Kundal IAS, the then Financial Commissioner, Home Department vide Government

Order No. 475- FST of 2007 dated 12.9.2007. The enquiry officer has pointed certain irregularities committed by the officials of the SFC

including the petitioner as such pending enquiry the petitioner was placed under suspension.

Heard. I have considered the matter. I have gone through the pleas raised as also the annexures placed on file by the parties. I have also

considered the submissions made by the learned Counsel for the petitioner and learned Advocate General who appeared for the State.

The petitioner was transferred and attached with General Administration Department vide Order No. 1077-GAD of 2007 dated 11.9.2007.

The order reads as under:

In the interest of smooth functioning of the J&K State Forest Corporation and with the prior approval of the Hon'ble Chief Minister/Minister in

charge Forests, Ecology & Environment and Ex-officio Chairman, J&K State Forest Corporation (SFC), Shri G.H. Marazi, General Manager

(R&D), SFC is transferred and attached with General Administration Department till further orders. This order will have immediate effect.

Later vide Order No. 381-FST of 2007 dated 19.12.2007 the petitioner has been placed on suspension. The order which is impugned by the

petitioner in the second petition, reads as under:

Whereas an enquiry has been conducted by Shri B.R. KundaL IAS, the then Financial Commissioner (Home) into the alleged irregularities in J&K

State Forest Corporation and allied wings of Forest department; Whereas the report of the enquiry has been accepted by the Hon'ble Chief

Minister on 14.12.2007, who was also the Hon'ble Chairman of J&K State Forest Corporation;

Whereas the Enquiry Officer in his report has recommended for removal of Shri G. H. Marazi, General Manager. J&K State Forest Corporation

form the service after following proper procedure; Whereas while accepting the aforesaid report, the Hon'ble Chief Minister and then chairman

J&K State Forest Corporation has directed to place Shri G.H. Marazi General Manager, J&K State Forest Corporation, presently attached with

General Administration Department, under suspension with immediate effect.

With this Order, the order of attachment dated 11.9.2007 has come to an end as the same has merged into the order of suspension. Writ

petition (SWP No. 1813 of 2007) filed by the petitioner to challenge the order of attachment has, therefore, become infructuous.

Even on merits also I do not find the order of attachment is justiciable. An order of attachment is purely an administrative order made in exercise

of administrative power. It does not carry with it any element of penalty and does not visit the employee with civil consequences as such neither the

employer is required to follow the principles of natural justice while directing attachment of an employee nor has the employee got any right to

challenge it, by means of a writ under Article 226 of the Constitution. In State of J&K and Ors. v. Mohan Lal Sharma and Anr. 2002 KLJ 117

(DB), it was held that whether to suspend a Government servant or attach him to another office is the prerogative of the appropriate authority to

decide and the court should not interfere with such decision by exercising the power of judicial review.

In the circumstances I am of the view that there are no grounds for the admission of the first petition filed by the petitioner (SWP No. 1813 of

2007) as such the same is dismissed.

The order placing the petitioner under suspension would show that the same is an outcome of an enquiry conducted by Shri B.R. Kundal, IAS

Financial Commissioner, Home into the alleged irregularities in J&K State Forest Corporation and allied wings of the Forest department. The

petitioner has placed on file the enquiry report which runs in to about 98 pages and shows that the enquiry officer has found irregularities in the

Corporation, in some of the irregularities petitioner has also been found involved, so the enquiry officer has recommended for removal of the

petitioner from service after following proper procedure.

Law relating to suspension is well settled now. A Constitution Bench of the Supreme Court in R.P. Kapur Vs. Union of India (UOI) and

Another, , laid that:

The general principle therefore is that an employer can suspend an employee pending an inquiry into his conduct and the only question that can

arise on such suspension will relate to the payment during the period of such suspension. If there is no express term in the contract relating to

suspension and payment during such suspension or if there is no statutory provision in any law or rule, the employee is entitled to his full

remuneration for the period of his interim suspension; on the other hand if there is a term in this respect in the contract or there is a provision in this

statute or the rules framed thereunder providing for the scale of payment during suspension, the payment would be in accordance therewith. These

general principles in our opinion apply with equal force in a case where the Government is the employer and a public servant is the employee with

this modification that in view of the peculiar structural hierarchy of Government, the employer in the case of Government, must be held to be the

authority which has the power to appoint a public servant. On general principles therefore the authority entitled to appoint a public servant would

be entitled to suspend him pending a departmental inquiry into his conduct or pending a criminal proceeding, which may eventually result in a

departmental inquiry against him.

The Court reiterated the above view in Balvantray Ratilal Patel Vs. The State of Maharashtra, thus:

The general principle is that an employer can suspend an employee pending an inquiry into his misconduct and the only question that can arise in

such suspension will relate to payment during the period of such suspension. It is now well settled that the power to suspend, in the sense of a right

to forbid a servant to work, is not an implied term in an ordinary contract between master and servant, and that such a power can only be the

creature either of a statute governing the contract, or of an express term in the contract itself. Ordinarily, therefore, the absence of such power

either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a

workman and even if he does so in the sense that he forbids the employee to work, he will have to pay wages during the period of suspension.

Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the order of

suspension has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to

render service and the master is not bound to pay.

It is equally well settled that an order of interim suspension can be passed against the employee while an inquiry is pending into his conduct even

though there is no such term in the contract of appointment or in the rules, but in such a case the employee would be entitled to his remuneration for

the period of suspension if there is no statute or rule under which it could be withheld. In this connection it is important to notice the distinction

between suspending the contract of service of an officer and suspending an officer from performing the duties of his office on the basis that the

contract is subsisting. The suspension in the latter sense is always an implied term in every contract of service. When an officer is suspended in this

sense it means that the Government merely issues a direction to the officer that so long as the contract is subsisting and till the time the officer is

legally dismissed he must not do anything in the discharge of the duties of his office. In other words, the employer is regarded as issuing an order to

the employee, because the contract is subsisting, the employee must obey.

In V.P. Gidroniya Vs. The State of Madhya Pradesh and Another, , another Constitution Bench of the Supreme Court held that:

The general principle is that if the master has a power to suspend his servant pending an inquiry into his misconduct, either in the contract of service

or in the statute or the rules framed thereunder governing the service, an order of suspension passed by the master has the effect of temporarily

suspending the relationship of master and servant with the consequence that the servant is not bound to render service and the master is not bound

to pay any wages during the period of suspension. Such a power to suspend the contract of service cannot be implied and therefore, if in the

absence of such a power in the contract, statute or rules, an order of suspension is passed by the master it only forbids the servant to work without

affecting the relationship of master and servant, and the master will have to pay the servant's wages.

The Apex Court in another case The Government of India, Ministry of Home Affairs and Others Vs. Tarak Nath Ghosh, , held:

When serious allegations of misconduct are imputed against a member of a Service normally it would not be desirable to allow him to continue in

the post where he was functioning. If the disciplinary authority takes note of such allegations and is of opinion after some preliminary enquiries that

the circumstances of the case justify further investigation to be made before definite charges can be framed, it would not be improper to remove the

officer concerned from the sphere of his activity inasmuch as it may be necessary to find out facts from people working under him or look into

papers which are in his custody and it would be embarrassing and inopportune both for the officer concerned as well as to those whose duty it was

to make the enquiry to do so while the officer was present at the spot. Such a situation can be avoided either by transferring the officer to some

other place or by temporarily putting him out of action by making an order of suspension Government may rightly take the view that an officer

against whom serious imputations are made should not be allowed to function anywhere before the matter has been finally set at rest after proper

scrutiny and holding of departmental proceedings. Rule 7 is aimed at taking the latter course of, conduct. Ordinarily when serious imputations are

made against the conduct of an officer the disciplinary authority cannot immediately draw up the charges: it may be that the imputations are false or

concocted or gross exaggerations of trivial irregularities. A considerable time may elapse between the receipt of imputations against an officer and

a definite conclusion by a superior authority that the circumstances are such that definite charges can be levelled against the officer. Whether it is

necessary or desirable to place the officer under suspension even before definite charges have been framed would defend upon the circumstances

of the case and the view which is taken by the Government concerned.

The Supreme Court in U.P. Rajya Krishi Utpadan Mandi Parishad and Others Vs. Sanjiv Rajan, , held that:

Ordinarily when there is an accusation of defalcation of monies the delinquent employees have to be kept away from the establishment till the

charges are finally disposed of. Whether the charges are baseless, malicious or vindictive and are framed only to keep the individual concerned out

of the employment is a different matter. But even in such a case, no conclusion can be arrived at without examining the entire record in question

and hence it is always advisable to allow disciplinary proceedings to continue unhindered.

From the charge-sheet it is clear that the allegations against the first respondent are grave inasmuch as they indicate that the amounts mentioned

therein are not deposited in the bank and forged entries have been made in the pass-book and the amounts are shown as having been deposited.

In the circumstances, the High Court should not have interfered with the order of suspension passed by the authorities. In matters of this kind, it is

advisable that the concerned employees are kept out of the mischiefs range. If they are exonerated, they would be entitled to all their benefits from

the date of the order of suspension.

In State of Orissa Vs. Bimal Kumar Mohanty, , it was observed that:

It is thus settled law that 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 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 inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry 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

inquiry etc. But as stated earlier, 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 service pending inquiry or contemplated inquiry 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 inquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office

while facing departmental inquiry or trial of a criminal charge.

In R. C. Puri v. State of J&K and Ors. 1997 KLJ 117, it was held by this Court that:

It also deserves notice that suspension of an employee results in putting him off the service and slashing down his salary. Therefore, even if it may

not be punishment technically but it leads to certain adverse consequences to the employee. Accordingly an order of such suspension cannot be

passed in a routine-and mechanical manner arbitrarily. It is required to be passed on an application of mind by the competent authority and within

the boundaries of the Rules which provide for such suspension in case of a contemplated inquiry or in case of an investigation or trial of an offence

against him. Since a number of considerations are required to go into the decision, it is the competent prescribed Authority alone who can suspend

an employee. No other authority can do first and then seek the approval of the competent authority which action would be exposed to the charge

of non-application of mind. Therefore, no post facto sanction can cure the defect of a suspension order passed by the incompetent authority.

In G. A. Ganie v. State of Jammu & Kashmir 1997 SLJ 133 (SB), it was held that it is not necessary for the authority passing a suspension

order to give reasons for the suspension in question when the inquiry is contemplated or is pending. It was further held that it is also not necessary

for the authority to record his satisfaction on the order that a prima facie case was established against the official being placed under suspension.

All what is required is that the authority must have applied its mind and given its thoughtful consideration to the contemporaneous record of

allegations before passing of the order. The Court held:

Government instructions appended to Rule cannot be said to override the absolute power of the employer to place government servant under

suspension. In fact these instructions are by way of guidelines which have a directory value. The instructions are that suspended officer can ask for

a speedy investigation. Charges should be framed within reasonable period of time. The suspension order loses its legal weight when it is not

followed by a charge sheet and enquiry within a reasonable time. Exercise of power of suspension should not be made on unjustifiable grounds,

like mere suspicion of misconduct and before establishment of a prima facie case. Frequent resort to suspension on slight provocation would not

be made and where the official's deprivation of certain office can be ensured by a transfer, the power of suspension may not be resorted to.

However, the same guidelines lay down that the following circumstances may make it justifiable for the government to place an official under

suspension: (i) where the continuance of the official will be against public interest: (ii) where preliminary enquiry into allegations reveal a prima facie

case justifying a criminal or departmental proceeding which are likely to lead into a punishment, (iii) when serious negligence and dereliction of duty

resulting in loss to the government is reported.

A Division Bench of this Court in case of Mohammad Sikander Bhat v. State of Jammu & Kashmir reported in 1989 SLJ 141 has already laid

down the proposition of law in respect of non justiciability of government instructions which do not relate to conditions of service. On that analogy,

these government instructions do not have a binding force particularly as against Rule 31 (a) itself. However, even if latter part of these guidelines

are seriously noticed, it knocks out the case of the petitioner. This is so because, all the three conditions spelled out in these guidelines reproduced

above enable the government to place a government servant under suspension.

In State of J&K and Ors. v. M. Anwar Hussain and Ors. 1999 SLJ 84 (DB), it was held that:

From the perusal of the decision of the Supreme Court of India, V.P. Gidroniya Vs. The State of Madhya Pradesh and Another, it becomes

apparent (i) that the employer is within its rights to suspend a government servant when an enquiry into his conduct is contemplated of is pending,

(ii) when a complaint against him of any criminal offence is under investigation or trial, (iii) that the order of suspension is normally not to be

interfered with in the exercise of judicial review. The exception to the above rule can be (a) when an order is mala fide, or (b) where the order is

not passed by the competent authority.

An employer thus has the power and jurisdiction to place an employee under suspension. Suspension order is generally issued when the

disciplinary proceedings against the employee are contemplated or have started. Supreme Court has in Tarak Nath Ghosh 's case (supra) citing

Halsbury's Laws of England, III edn, (P 518) observed:

'Suspension' according to the Oxford Dictionary means ""the action of suspending or condition of being suspended; the action of debarring or

state of being debarred, esp. for a time, from a function or privilege; temporary deprivation of one's office or position"".

A master can, subject to the contract of service, ask his servant not to render any service without assigning any reason but this would not be by

way of punishment and the master would have to pay the servant his full wages or remuneration in such an eventuality. As Halsbury puts it:

Whether or not the master has power to suspend a servant during the duration of the contract of service depends upon the construction of the

particular contract. In the absence of any express or implied term to the contrary, the master cannot punish a servant for alleged misconduct by

suspending him from employment and stopping his wages for the period of the suspension.

This means that the authority should be satisfied of prima facie case for taking action on the basis of complaint received or of the report of an

enquiry or investigation. If having regard to the nature of the charges and the circumstances of the case, the authority which initiates the disciplinary

proceedings is satisfied that it is necessary or desirable to place under suspension the employee against whom any such proceedings are

contemplated, such employee can be placed under suspension. The employer is entitled to place an employee under suspension even before the

definite charges are communicated to him when preliminary enquiry or investigation has been made into his conduct.

In P.R. Nayak Vs. Union of India (UOI), an officer was found guilty by the Court of the Parliamentary Committee on public undertaking and

the Commission of Enquiry gave interim report that there was prima facie case against him and he was suspended. It was held by the Supreme

Court that the entire gamut of disciplinary proceedings embrace the preliminary enquiry into allegations, a prima facie opinion as a result thereof

and formal enquiry against the employee.

Suspension is not a punishment but a disciplinary matter in aid of disciplinary proceedings. It is only a temporary deprivation of office or

privilege. Employee's rank remains the same though his powers, functions and privileges remain in abeyance. Even if ultimately suspension results in

forfeiture of pay and allowances for the period of suspension, it does not amount to reduction in rank although, it incidentally visits the employee

with civil consequences. The provisions of Art 311 of the Constitution are not, therefore, attracted. Reference in this behalf may be made to

Mohammad Ghouse Vs. State of Andhra, .

In Sumer Chand Khajuria v. State and Ors. 1990 JKLR 427, it was held that:

Suspension only deprives and debars the government servant from the discharge of his duties as such government official in the interest of

administration and to prevent the abuse of his position but does not, in any way, amount to his having been removed from the service. Removal

from service has to be distinguished from suspension from service. The suspended employee continues to remain bound by the Service Rules and

under obligation to follow them till he is removed from service. A corresponding obligation is, therefore, cast upon the administration to treat the

suspended employee in service of the Government and confer upon him such benefits to which he would have been entitled had the order of

suspension not been passed against him. Revision of grades in a benefit conferred upon the State employees which cannot be denied to a

particulars employee only on the ground of his suspension. Depriving the suspended employee of the salary benefits to which the other employees

similarly situated are entitled, may amount to punishment not permissible under the service rules applicable without holding a proper enquiry and

may amount to punishment under those rules.

Suspension is thus an incident of service. As a result of suspension, an employee does not lose his office nor does he suffer any degradation or

reduction in rank. His rank remains the same and in lieu of his pay and allowances he is given allowance called as 'subsistence allowance.' The

employee, during the period of suspension continues to be subject to the same discipline under the same authorities under whom he was working

before suspension. The immediate effect of an order of suspension may be that, he Mill not be permitted to work but he continues to remain bound

by the service discipline.

From this it can be concluded, as has been held by the Punjab High Court in Dr. Partap Singh Vs. The State of Punjab, that the order

suspending an employee pending enquiry is partly an administrative order Since Article 311 of the Constitution is not applicable to an order of

suspension, no opportunity need be afforded to the employee to explain or show cause why he should not be placed on suspension. Order of

suspension, as is noticed above, can be passed by the competent authority if it is satisfied that the charges alleged are not wholly groundless and

the suspension of the employee pending enquiry was required. It is thus the satisfaction of the competent authority and the High Court while

exercising power under writ jurisdiction will not go into the question whether the suspension order was based on some material or not. As has been

held by a Full Bench of Patna High Court in Bhup Narian Jha v. State of Bihar (1984) 2 SLR 572 (Pat) (FB), the facts forming the basis of order

of suspension during the pendency of departmental enquiry would not be examined by the High Court under Article 226. An order of suspension

can be challenged on limited grounds like lack of jurisdiction, malafides and violation of statutory provisions.

In A.N. Rama v. State of J&K AIR 1962 J&K 68, this Court held that suspension pending enquiry is not a penalty and is only an incident of

the disciplinary proceedings depending upon the view the authority takes of the gravity of the alleged misconduct. Similarly in Ghulam Nabi Mir v.

State of J&K and Ors. 1990 KLJ 32(DB), it was held that once a Govt. servant is suspended pending inquiry into his conduct, suspension is

presumed to be fulfilling the caution of public interest and courts will refrain to interfere unless it is established that such order is without jurisdiction

or on mala fide grounds or short of reference to inquire into his conduct.

In R.S. Manhas v. District Development Commissioner 1986 SLJ 382, it was, however, held that suspension may not amount to punishment

within the meaning of Art.311 of the Constitution of India, or within the meaning of the punishments prescribed under any rules governing service

conditions of the civil servants, even that it carries a stigma with respect to the concerned civil servant and definitely lowers him in the estimation of

the society, his friends relations and Colleagues. The Court therefore, observed that the order of suspension can be challenged and the Court has

the right to set it aside, if it is proved that the order of suspension is

(a) in violation of any statute

(b) Contravenes any statutory rules

(c) is the result of malafide exercise of power by the superior authority

(d) is motivated for extraneous Considerations

(e) is by itself in the given circumstances of a case as a measure of punishment

(f) or has been passed by a person other than the one authorised to suspend even without getting such an order confirmed by the competent

authority.

As noticed above, main plea raised by the petitioner to impugned the order of suspension is malafides on the part of respondent:2

Mr. Bhat learned Counsel for the petitioner has vehemently pleaded that the order of suspension is the result of vengeance which the said

respondent has developed for the petitioner due to the fact that the petitioner did not accommodate the respondents' brothers, who are the

contractors doing forest work. He has in this behalf referred to Annexure P-2 (Letter and application of Gh. Mustafa Bhat), Annexure P-3 (Letter

of Sajad Ahmed Batt), Annexure P-4 (Representation of S.F.C Working Contractors, Jammu Province), Annexure P-5(Minutes of the Meeting

held with SFC Contractors on 29-4-2007), Annexure P-6 (Letter of Commr/Secretary to Govt., Forest Department to the Managing Director,

J&K State Forest Corporation, Srinagar and Letter of the Under Secretary to HCM to the Commissioner/Secretary to Govt., Forest

Department), Annexure P-7 (Resolution dated 30-4-2007 of State Forest Corporation Contractors), Annexure P-8 (Detailed note of the

Petitioner on the representations of SFC Contractors of Jammu Province) and other annexure placed on file by the petitioner. He has also referred

to the pleas raised in and the annexures placed on file alongwith the supplementary affidavit filed on 19-2-20088. He has placed reliance on these

documents to show that the brothers of the Chief Ministers wanted some favours but the petitioner refused to grant any concession to them. Due to

this they got annoyed with the petitioner and filed a representation directly to the Chief Minister and also boycotted the tendering process for 30

lakh CFTs of timber available in Jammu Division. Broadly stated, the petitioner's allegations are that the Chief Minister acted mala fide in placing

the petitioner on suspension. The petitioner alleges that in the discharge of his duty he was fearless and he declined to give concessions to the

brothers of the Chief Minister. It is said that the Chief Minister therefore wreaked his vengeance on the petitioner.

On consideration of the matter I do not find any force in the submissions of Mr. Bhat. On perusal of the annexure placed on file I am not

satisfied that the facts alleged by the petitioner have got any nexus with the decision of the authorities to place the petitioner on suspension. The

applications/representations were filed by the Forest Contractors (brothers of the Chief Ministers) in the month of March,2007 and the report on

the representations of the Forest Contractors was given by the petitioner in the month of May,2007 while as attachment of the petitioner was

ordered in the month of September,2007. Even after the attachment, the petitioner was not placed under suspension by the Chief Minister but the

same was ordered in the month of December, 2007.I find due weight in the objections of the respondent and the submission of learned Advocate

General that the decision regarding allotment of work are taken by the management of the Corporation collectively and not individually and it was

not only in the hands of the petitioner, in the capacity as General Manager (R&.D), to grant or to decline allotment of work. Therefore, the

question of anyone getting annoyed with the petitioner on account of decision taken collectively by the management does not arise.

Resolution of the Contractors (Annexure P-7) and Representation filed by the Forest Contractors of Jammu Province (Annexure P-8) no

where shows that the contractors had any grievance with the petitioner. They have not mentioned his name nor have they complained of any of the

action of the. petitioner. So the apprehensions of the petitioner that all these representations were moved against him and this became the cause of

annoyance of the Chief Minister do not appear to be correct.

The fact that the petitioner was placed under suspension by the Chief Minister only after getting the enquiry report establishes beyond any

measure of doubt that the petitioner's allegations imputing mala fides against the Chief Minister are baseless.

Orders No: 1077-GAD of 2007 and NO; 381-FST of 2007 read with the Government Order No: 475-FST of 2007 dated 12.9.2007 would

show that after the petitioner was attached with the General Administration Department, the Government constituted a high level enquiry committee

comprising of Sh. B.R. Kundal, Financial Commissioner, Home to enquire into the alleged irregularities in the State Forest Corporation, including

the creation of artificial scarcity of timber in the State. Thus while taking action against the petitioner the respondents have acted very cautiously

and have got the matter enquired into.

In his report, the enquiry officer has stated, that during 2006-07 the SFC had 18.68 lakh Cft of timber in its commercial sale depots. Out of

this 16.50 lakh Cft was sold by open auction of the total volume sold in the auctions, 1.52 lakh Cft. were sold in Pathankot Depot. The SFC

dumped 3.63 lakh Cft in its fair price depots out of which 1.44 lakh Cft was sold and 2.19 lakh Cft remained unsold. This shows that there was no

shortage of timer with the SFC. The Enquiry Officer has found that despite this scarcity of timber was created. From this it has been concluded

that there has been gross mismanagement in the SFC which led to the situation of scarcity of timber especially in the towns located in 'C' zone. The

Enquiry Officer has pointed out certain irregularities in the Corporation. Some of the irregularities have been attributed to the petitioner also.

The petitioners Counsel denies all these allegations and states that the enquiry officer has not arrived at the correct conclusions while examining

the matter and has without any sufficient material, reasonable ground and plausible cause indicted the petitioner. He has taken me through various

portions of the report to show that the findings arrived at are devoid of any substance.

I fear the contentions of Mr. Bhat cannot be accepted as it does not fall within the jurisdiction of this Court to look into the correctness or

otherwise of the findings of the enquiry officer, while exercising the powers of judicial review. The Court cannot sit as a Court of appeal, over the

findings. The High Court cannot, in the exercise of its writ jurisdiction, consider whether an order suspending a Government servant as or was not

based on proper and sufficient material. The findings of the enquiry officer are under consideration of the authorities. The authorities have made it a

basis to place the petitioner on suspension. Under the rules the respondents have to conduct a regular enquiry into the matter. The petitioner will

get sufficient opportunity, during the said enquiry, to meet the findings of the enquiry officer. The report cannot be made basis by the respondents

to impose any penalty on him unless he is given due opportunity to contest the allegations.

While going through the report I find the enquiry officer has found not only the petitioner and other high officials of the SFC involved in the

irregularities and mismanagement but has also found that in most of these matters Forest Minister concerned has given his approval and has

remained associated in such decisions. For example while concluding that there was gross mismanagement in the SFC which led to the situation of

scarcity of timber and this appears to have been exploited by the MD,SFC and GM, the enquiry officer has observed that Minister In charge

Forest has all along remained associated in such decisions. Similarly while dealing with the issue of allotment of works on Amani basis, the enquiry

officer has found that allotment of works on amani basis was made without following proper procedure as laid down by the Board of Directors of

SFC. While concluding the enquiry officer has, found that work which was required to be allotted to petty mates were allotted to proxy

workers/relatives of big contractors with the approval of the Minister-in-Charge. While dealing with irregular promotions also the enquiry officer

has found that these promotions bear approval of the Forest Minister. There are other findings and observations also which need immediate

considerations of the Government and require appropriate action in the matter. Enquiry Officer has while dealing with the matter looked into the

whole issue in depth and circumspectly. Lot of labour has been put in by him while holding the enquiry. He has also recommended various actions

in the matter and it is expected that swift action will be taken by the Government in the matter not only against the officials and officers but against

all those who are found involved in the matter.

From the above discussion I am of the view that placing the petitioner under suspension on the basis of Kundal Committee report itself shows

that the action is not the outcome of any vengeance or malice on the part of respondent no:2 towards the petitioner on the basis of the allegations

levelled by the petitioner. The action is based on the report. There is no averment in the petition to show that the report has been filed under the

influence or on the asking of the respondent No. 2. The petitioner alleges that the enquiry committee was constituted by the respondent no:2 but its

mere constitution would not mean that he in any way influenced the findings of the committee. Thus 1 could not find a ground of malafide was made

out.

In the circumstances 1 do not find any force in the present petition which is hereby dismissed. Order accordingly.