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Judgment
Permod Kohli, J.—SWP No. 03 of 2003. Petitioners 1 to 4 were placed under suspension vide impugned order No. 125458/SFC/KW
dated 28.12.2002 passed by the Divisional Manager, Ext. West, SFC Division, Kishtwar and attached to the Divisional Office with a direction to
attend the Inquiry Officer as well as to the Police Officers conducting the inquiry. Petitioner No. 5 was attached vide aforesaid Order. All of them
were working in Compartment No. 47/UDIL of Circle, Kishtwar.
SWP No. 04 of 2003. Petitioners 1 to 10 who were posted in Compartments Nos. 79, 80 and 91/Udil were placed under suspension whereas
petitioner No. 11 was attached to the Divisional office vide impugned order No. 1259.70/SFC/K dated 28.12.2002 passed by Divisional
Manager, Ext. SFC West Division Kishtwar, with a further direction to remain attach to the Divisional Office and to associate with the inquiry as
well as Police Officers.
SWP No. 100 of 2003. Petitioner was placed under suspension pending inquiry and final investigation vide impugned order dated 25.01.2003
and attached with the Divisional Office passed by respondent No. 3. This order has been passed pursuant to respondent No. 2's Order No.
3235/RM/SFC/D dated 24.01.2003 which is also impugned in this petition. Petitioner was working in Compartment No. 16 ac/Jai.
All the writ petitioners in the above petitioners were suspended in relation to fire incidents in their respective Compartments. Though, certain
allegations have been made to demonstrate that fire incident was on account of militant activities but the main ground urged in all these petitions is
that the order passed by the Divisional Manager is incompetent, as said officer had no competence to suspend the petitioners. Powers of
respondents 2 and 3 being the Regional Manager and Divisional Manager to suspended the petitioners have been contested and specific averments
been made in this regard in grounds (b) and (d) of the writ petitions. What is urged is that the said respondents are neither appointing authority nor
they have been authorised by the appointing authority to suspend the petitioners, hence there is violation of Rule 31(1) of the J&K Civil Services
(Classification, Control and Appeal) Rules, 1956 as applicable to the Corporation.
Though, separate replies have been filed in all the petitioners, however, contents thereof are the same. In the objections filed by respondents,
specific averments made in the writ petitions in respect to the competence of the respondents to suspend the petitioners, have not been dealt with
and replied. No other material has been placed on record to show that the Divisional Manager who has passed the impugned orders was
empowered or competent under rules to suspend the petitioners. Said officer admittedly is not the appointing authority of the petitioners. Rule
31(1) of J&K Civil Services (Classification, Control and Appeal), Rules 1956 reads as under :
31(1). The appointing authority or any authority to which it is subordinate or any other authority empowered by the Government in this behalf may
place a Government servant under suspension where
(a) an inquiry into his conduct is contemplated or is pending; or
(b) a complaint against of any criminal offence is under investigation or trial.
This Rule empowers only the appointing authority to which he is subordinate or any other authority empowered by the Government to suspend
the employee. Respondents 2 and 3 are admittedly not the appointing authority nor they are authority superior to the appointing authority. No
authorization has been placed on record and even pleaded in the reply to satisfy the requirement of Rule 31(1) of J&K Civil Services
(Classification, Control and Appeal), Rules 1956. The suspension of the petitioners is clearly ordered by incompetent person and thus without
jurisdiction. Similar question was considered by this court in R.C. Puri v. State of J&K and ors reported in 1977 KLJ 117, wherein this Court held
as follows :
It is elementary that an order of suspension is required to be passed by the appointing Authority or its superior Authority or the delegated
Authority. In the present case, the appointing Authority of the petitioner admittedly is the Government. It is not anybody's case that the
Government had delegated its power to suspend to the Commissioner/Secretary or that he was the Government. The Government conducts its
business according to a set of Rules called the ""Business Rules"" according to which an action has to go through providing channels to fructify into a
Govt. Order. For suspending a gazetted officer, such action requires the approval of the council of Ministers/Administrative Council or perhaps by
the Minister/Advisor in whom the power is delegated.
It is argued by learned counsel for the respondents that suspension is not a punishment and therefore, court should not be interfered at this stage.
There is no dispute with the proposition sought to be projected. However, contract of service cannot be allowed to be suspended in violation of
law. When law prescribed a procedure or empowers a particular Authority to initiate action, it can only be done in the manner prescribed under
law. The suspension by incompetent person is impermissible. This is in clear contravention of Rule 31 of J&K (Classification, Control and Appeal)
Rules, 1956, hence not sustainable. Court in exercise of its power of judicial review is required to prevent any abuse of power.
For the aforesaid reasons, these petitions are allowed and orders impugned in these petitions are hereby quashed to the extent of suspension
only, however, attachment of the petitioners shall continue. Notwithstanding the quashment of suspension, Competent Authority is at liberty to
examine the question of suspension and pass appropriate orders.