Hem Raj vs State of Jammu and Kashmir

T.S. Doabia, J.—An order of suspension passed against the petitioners is being challenged in these two writ petitions.

The order of suspension has been placed on record as annexure P1. This was passed on 30th of May 1997. This pertains to 10 persons. The

name of the two petitioners figure at serial No. 6 and 10. As the challenge is being made on similar grounds, therefore, it has been thought apt to

dispose of the two petitions by this common order.

The facts in SWP No: 937 of 1997 are as under:

The petitioner at present is working as Section Officer in the office of Dy. Commissioner Kathua. The vigilance department conducted a raid on

the residential premises occupied by the petitioner. This happened on 24th of May 1997. The respondent authorities formed a prima facie view

that the assets in the possession of the petitioner are disproportionate to the known sources of his income. A case was accordingly registered

under Section 5(2) of the Prevention of Corruption Act of Samvat 2008 (as applicable to the State of Jammu and Kashmir). Further investigations

were taken in hand. Pending investigation by the Vigilance Organisation of the state of Jammu and Kashmir, the concerned Administrative

Department of the State formed a view that two petitioners and eight other persons should not be associated with the day to day duties which they

were performing as Government servants. It was in these circumstances, the order Annexure P1 came to be passed. This has been passed in

exercise of the powers conferred on the State Government in terms of Rule 31 of the Jammu and Kashmir Civil Services (Classification, Control

and Appeal) Rules, 1956 (hereinafter referred to as the Rules). The petitioner submits that the order in question does not take notice of the

Government instructions which have been issued with a view to guide the authorities regarding the method and manner in which the power of

suspension has to be exercised. As above is the main thrust of the arguments raised by the learned counsel for the petitioner, it would be apt to

notice aforementioned rules alongwith the Government instructions. These appear in the compilation ""Service Laws in Jammu and Kashmir"" by

Hakim Imtiyaz Hussain at page 442. The Rule 31 is 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 enquiry into his conduct is contemplated or is pending or

b) a complaint against him of any criminal offence is under investigation or trial.

(2) A Government servant who is detained in custody whether on a criminal charge or otherwise, for a period longer than fortyeight hours shall be

deemed to have been suspended by the appointing authority under this rule.

(3) An order of suspension under subrule (1) may be revoked at any time by the authority making the order or by any authority to which it is

subordinate.

(4) Where a penalty of dismissal or removal from service imposed upon a Government servant under suspension is set aside in appeal or on review

under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to

have continued in force on and from the date of original order of dismissal or removal and shall remain in force until further orders.

(5) Where a penalty of dismissal or removal from service imposed upon a Government servant is set aside or declared or rendered void in

consequence of or by a decision of a Court of land and the competent authority on a consideration of the circumstances of the case, decides to

hold a further inquiry against him on the allegations on which the penalty of dismissal or removal was originally imposed, the Government servant

shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal or removal and

shall continue to remain under suspension until further orders.

Government instructions are as under:

Government Instruction (1) : An officer on suspension entitled to ask that the matter should be investigated with reasonable diligence and charges

should be framed within reasonable period of time and if such steps are omitted then it would imply that the authorities are vested with a total

arbitrary and unfettered power of placing its officers under disability and distress for an indefinite duration. The suspension order is bad if it is not

followed by chargesheet and enquiry within a reasonable time.

It has been observed that on occasions the power under the aforesaid rule is being invoked on unjustifiable grounds or on mere suspicion of

misconduct before prima facie case has been established.

It may be appreciated that frequent resort to suspensions even at slightest provocation is not only unwarranted but also counterproductive. Besides

affecting morale in the service it puts avoidable strain on the public exchequer by way of subsistence allowance for no work done. Public interest

should be the guiding factor in deciding whether or not a government servant should be placed under suspension or whether such action should be

taken even while the matter is under investigation and before a prima facie case has been established. It is, therefore, imperative that the discretion

vested in the authorities should be exercised with due care and caution after taking all the factors into account.

For example continuance in office of a Government servant is considered likely to prejudice investigation, trial or enquiry or his continuance is

considered likely to subvert the discipline in the office in which he works, the purpose can be achieved if he is transferred to some other station or

office as the case may be rather than to place him under suspension. Likewise if such a Government servant would like to proceed on leave that

might be due to him and if the authority concerned thinks that such a step would not be inappropriate, there should be no objection to leave being

granted instead of suspending him. Similarly, in case where a Government servant has unauthorisedly absented from the duty the proper course is

to initiate action against him under article 128 of Jammu and Kashmir Civil Service Regulations and not to place him under suspension.

The following circumstances may, however, be considered appropriate to place a Government servant under suspension:

(i) Where the continuance in office of the Government servant will be against the wider public interests e.g., if there is public scandal and it is

considered necessarily to place the Government servant under suspension to demonstrate the policy of the Government strictly with officer

involved in such scandals.

(ii) Where a preliminary enquiry into allegations made has revealed a prima facie case justifying criminal or departmental proceedings which are

likely to lead to his conviction or and dismissal, removal or compulsory retirement from service other than under Article 266(2) of Jammu and

Kashmir Civil Service Regulations.

(iii) Where the public servant is suspected to have engage himself in activities prejudicial to interest of the security of the State.

Government Instruction (2) : Competent authority should endeavour to have chargesheet filed in Court, in case of prosecution or served on the

Government servant, 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 reason for delay.

The cases of Government servants under suspension should be reviewed by the competent (sic) periodically to see that steps could be taken to

expedite the progress of the Court trial/departmental proceedings, so as to reduce the periods of suspension to barest minimum.

The learned counsel for the petitioner has also placed reliance on a Cabinet decision said to have been taken on 7th of Sept. 1981. It is stated

that whenever a case is registered under the Prevention of Corruption Act, then this decision has also to be kept in view. The relevant portion of

the order on which reliance is being placed be also noticed at this stage. This reads as under:

With a view to improving the working of the Vigilance Organisation it is hereby ordered that:

Investigation of every corruption case shall be completed by the vigilance organisation within three months from the date of registration of the case.

Where there is a delay for reasons beyond the control of the Investigating Officer, he shall submit a statement to the Chief Minister (Vigilance)

Home Department (Vigilance) after every 15 days explaining the cause of delay. It shall be the responsibility of the Investigating Officer to avoid

delay and in the event of the Government being satisfied that the cause of delay is attributable to the Investigating Officer, he shall be subject to

disciplinary action.

It is submitted that the Vigilance Organisation of the State conducted a raid on the residential premises of the petitioner. The opinion formed by

the respondentauthorities was that the residential house of the petitioner located at Subash Nagar, is having a market value of Rs. 20 lacs. This

valuation according to the petitioner is far away from reality. It is further submitted that the investigation which is being conducted with regard to the

ownership of the petitioner in a shopping complex located at SarwalPatoli road is also based on vague and indefinite material. It is further stated

that whatever deposits are there with the Central Coop. Bank, Super Bazar Jammu are in the name of the wife of the petitioner. With regard to the

land which is located at Roop Nagar and Thater Housing Colony in Jammu, it is stated that the petitioner has no concern with it. According to him

this property is not owned by the petitioner.

It is further stated that there very facts were examined earlier also. The respondentauthorities went into depth with regard to the assets owned

and possessed by the petitioner; the allegations were found without any basis. It is accordingly submitted that respondents are not within their rights

to re examine the matter. What is sought to be projected is that if the respondents are again permitted to give a fresh look to the matter, it would

put the petitioner to double jeopardy. This according to the petitioner is hit by spirit of what is contained in Article 20 of the Constitution of India.

It is also stated that the instructions noticed above are not being followed. In particular it is stated that even though the order of suspension came

to be passed in the month of May 1997, the respondentauthorities have not taken any step with a view to abide by the guidelines which have been

evolved by the Government.

The petitioner further submits that:

i) If the charges are not framed within a reasonable time, then a conclusion can be arrived at that the authorities are making use of the power in an

arbitrary manner.

ii) that as per the Government instructions, an officer can be placed under suspension only if an opinion is formed that the public interest requires

such an action to be taken. It is stated that in the order Annexure P/1 the fact that this consideration was taken note, is not apparent.

iii) That by the above order, the action taken has put the petitioners to undue humiliation and this should not be permitted to be perpetuated.

As per the counsel for the petitioners some steps were required to be taken. In any case these should now be taken. These steps are:

i) that the investigation should be completed within a reasonable time.

ii) the charges should also be framed within a reasonable time.

The facts in writ petition No. 1585 of 1997 may also be noticed at this stage:

The petitioner is an Assistant Conservator of Forests. A raid was conducted on the residential premises. This happened on 24th of May 1997. As

the assets which were found in the possession of the petitioner were beyond the known sources of income of the petitioner, a case under Section

5(2) of the Prevention of Corruption Act of Samvat 2008 stands registered. FIR No. is 26/97. The petitioner submits that whatever is owned and

possessed by the petitioner stands duly explained to the respondentauthorities. In addition to the above, information was also given that the wife of

the petitioner is also employed. It is stated that she is having a salary of Rs. 8000/ per month. If this factor is taken into consideration, then it would

become apparent that the known sources of income of the petitioner are not disproportionate and, therefore, the action taken against the petitioner

suffers from some vice as is said to be present in the case of Hem Raj.

Learned counsel for the petitioner further submits that a case was registered against the petitioner earlier also. Investigation was held. Nothing

material was found against the petitioner. Therefore, second attempt made by the respondentauthorities is not bona fide. The petitioner further

submits that questionnaire has since been issued to the petitioner and the reply has been given to the same on 11th of June 1997. It is stated that

full and complete explanation has been given to the respondentauthorities. The fact that they have not framed any chargesheet is being highlighted

with a view to stress that no case is made out against the petitioner. Besides placing reliance on Cabinet decision, the learned counsel for the

petitioner submits that once an explanation is given, then as per the instructions, the governmental authorities are bound to take an exercise with a

view to review the case of the petitioners visavis suspension. It is submitted that sufficient time has elapsed. Therefore, respondentauthorities should

have reviewed the matter. The fact that no such action has been taken for almost one year is highlighted. It is accordingly stated that the entire

action of the concerned authorities is with a view to harass the petitioner.

It be seen that in writ petition No. 937 of 1997, an interim order was passed staying the operation of suspension order. The State preferred an

appeal against the interim order. The Letter Patent Appeal Bench dismissed the appeal. The State has further gone before the Supreme Court of

India. In the Special leave petition, further operation of the order by which Annexure P/1 was stayed, has been ordered to be kept in abeyance.

Learned counsel for the State submits that the power to suspend is a power which is inherent with the employer. Unless and until it is shown

that power has been exercised mala fide or for extraneous considerations, this court is not to exercise judicial review over such matter. It is further

stated that the matter is under investigation and if the petitioners are permitted to join their duties at this stage, it would hinder the investigations.

On general principles, the Government, like any other employer, has a right to suspend a Government servant. In V.P. Gindroniya v. State of

M.P., AIR 1970 SC 1494, the Supreme Court of India explained the three categories of suspension as follows:

Three kinds of suspension are known to law. A public servant may be suspended as a mode of punishment or he may be suspended during the

pendency of an enquiry against him, if the order appointing him or statutory provisions governing his service provide for such suspensions. Lastly,

he may merely be forbidden from discharging his duties during the pendency of an enquiry against him which act is also called suspension. The right

to suspend as a measure of punishment as well as the right to suspend the contract of service during the pendency of an enquiry are both regulated

by the contract of employment or the provisions regulating the conditions of service. But the last category of suspension referred to earlier is the

right of the master to forbid his servant from doing the work which he had to do under the terms of the contract of service or the provisions

governing his conditions of service at the same time keeping in force the master's obligations under the contract. In other words, the master may

ask his servant to refrain rendering his service but he must fulfil his part of the contract.

The basic idea underlying the root word ""suspend"" and all its derivatives is that a person in the service of the Government while holding an

office and performing its functions or holding a position or privilege, should be interrupted in doing so and debarred for the time being from further

functioning in the office or holding the position or privilege. He is intercepted in the exercise of his functions or his enjoyment of the privilege and

put aside as it were for a time and excluded during the period from his functions or privileges.

A Government servant can be placed under suspension pending a criminal charge against him although no departmental proceedings are

initiated against him at the time. It is equally well settled that an order of interim suspension can be passed by the Government while a departmental

enquiry is pending against him even though there is no such term in the contract or service rules. See R.P. Kapoor v. Union of India, AIR 1964 SC

787.

Thus suspension can be ordered pending departmental enquiry. Suspension of a Government servant pending departmental enquiry into

allegations against his conduct is resorted to for facilitating enquiry. Suspension pending departmental enquiry is something temporary and does not

involve punishment. It means a temporary deprivation of the officer's functions or the right to discharge his duties but does not amount to any

lowering down or reduction of his rank or status. Nor does he cease to be a member of the Government service. The real effect is that though he

continues to be a Government servant, he is not permitted to work and is paid only a `subsistence allowance' which is less than the salary and

allowances to which he would have been entitled but for the suspension. Suspension pending enquiry is an administrative and not a quasijudicial

order. It is not necessary to make any enquiry into the charges of misconduct or to obtain the explanation of the Government servant before

making such order. It can be made if the authority concerned on getting a complaint, considers that the alleged charge does not appear to be

groundless, that it requires enquiry and that it is necessary to suspend the Government servant pending the enquiry.

The rules also authorise suspension pending criminal proceeding against a Government servant, as soon as an accusation or investigation connected

with his position as Government servant is made or he is arrested.

From the perusal of the Rules quoted above and the decisions of the Supreme Court of India, it becomes apparent:

i) That the employer is within its rights to suspend a government servant when an enquiry into his conduct is contemplated or 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) Where an order is mala fide, or

b) Where the order is not passed by the competent Authority.

In the present case, the State Government has taken a bona fide decision to place the petitioners under suspension, As the cases under

Prevention of Corruption Act have since been registered, investigation is in progress, the association of the petitioners at the this stage with their

official work and permitting them to come in contact with the public, may not be conducive to the system of executive administration. It has not

been indicated that the order has been passed out mala fide consideration. Therefore, the exceptions indicated above, are not available in the

present case. Therefore, no valid challenge can be made to order of suspension, which is the subject matter of these two writ petitions.

The argument that the matter has already been looked into and this fresh exercise has been taken with a view to harass the petitioners and this

would lead to subjecting the petitioners to double jeopardy, may also be examined.

Article 20 or the spirit behind it, would be applicable only where a person has been convicted and the State Administration seeks to start a

fresh enquiry or investigation into the same matter.

In the present case, the position is entirely different. Merely because earlier the matter was investigated, would not be a ground to scuttle the

investigation which is now in progress.

With regard to the argument raised visavis the nonobservance of instructions referred to above, all that is being observed is that these

instructions are not justiciable. Reference in this regard be made to a Division Bench judgment of this court in the case reported as Mohammad

Sikander Bhat v. State of Jammu and Kashmir, 1989 SLJ 141. This decision was considered by this court in the case reported as 1997 SLJ 133,

G.A. Ganie v. State of Jammu and Kashmir. The relevant observations made in para 14 are as under:

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.

The net result is that these petitions are found to be without merit.

The respondentauthorities, would however, have a periodical review and be guided by the guidelines laid down by the Government in this

regard. The State Administration would see to it that the petitioners are not placed under suspension without any valid reason for unduly long

period. If there is a justification to initiate criminal proceeding, then steps be taken in this regard without delay. As indicated above, the

Governmental would take notice of the instructions issued by it and which have been noticed in this order.

These petitions which were admitted and taken up final disposal with the consent of the parties as indicated above are otherwise found without

merit and are dismissed, with no order as to cost.

Petitions dismissed.