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Judgment
The petitioner, through the medium of the instant petition, has assailed the validity of order bearing No. 82-JKHC of 2019 dated 2nd of August,
2019, issued by the Managing Director, J&K Handicrafts (Sales & Export) Corporation/ respondent No.1 herein, whereby and whereunder the case
of the petitioner has been rejected.
The petitioner claims that he, while working as Senior Salesman in Kashmir Government Arts Emporium at Irvin Road, New Delhi Branch of the
Corporation, came to be implicated and arrested in connection with case bearing FIR No.0038 dated 7th of August, 2016, for the commission of
offences punishable under Sections 328 and 376 of the Indian Penal Code registered by Police Station South Avenue, New Delhi, as a result whereof
the petitioner was placed under suspension in terms of order bearing No. 67 JKHC of 2016 dated 8th of August, 2016. It is stated that the petitioner
was granted bail on 27th of March, 2017 in the aforesaid said by the Court of learned Additional District and Sessions Judge, New Delhi, after the
complainant/ prosecutrix as well as other material witnesses, in their statements, denied the charges levelled against the petitioner. Thereafter, the
petitioner claims to have filed SWP No.1976/2018 challenging his order of suspension, wherein this Court, in terms of order dated 16th of April, 2019,
directed the respondents to consider the case of the petitioner for his reinstatement in service on the analogy of one similarly situated employee,
namely, Javid Ahmad Wani, Lecturer-II, Computer Engineering, Kashmir Government Polytechnic, Srinagar, who was reinstated in service in terms
of order dated 8th of October, 2013. Since, the aforesaid order passed by this Court was not implemented by the respondents, the petitioner claims to
have filed Contempt petition No.360/2019 before this Court. During the pendency of the Contempt petition, the respondents are stated to have issued
the order No.82-JKHC of 2019 dated 2nd of August, 2019, rejecting the claim of the petitioner. It is this order that has been assailed by the petitioner
through the medium of the instant petition.
Mr Syed Manzoor Ahmad, the learned counsel representing the petitioner, submitted that the impugned order is a result of non-application of mind
on the part of the respondents inasmuch as the same has been issued dehors the mandate of Rule 31(3) of the Jammu and Kashmir Classification,
Control and Appeal Rules, 1956. It is contended that the cases of the Government employees placed under suspension are required to be reviewed by
the competent authorities periodically so that steps are taken to expedite the progress of the Court/ trial/ departmental proceedings in order to reduce
the periods of suspension to the barest minimum, but, in the case of the petitioner, the respondents have not taken any review of the suspension case
of the petitioner despite lapse of more than four years from the date of issuance of the suspension order.
Objections stand filed on behalf of the respondents, wherein it is stated that the case of the petitioner was examined and considered in tune with
the directions passed by this Court on 16th of April, 2019 in the earlier Writ petition filed by the petitioner, being SWP No.1976/2018 and, upon such
consideration, the same was found to be devoid of any merit, as such, rejected.
Heard learned counsel for the parties, perused the pleadings on record and considered the matter.
At the outset, what requires to be stated herein this case is that it is well settled legal position that suspension is essentially transitory or temporary
in nature, and must perforce be of short duration. If it is for an indeterminate period or if its renewal is not based on sound reasoning,
contemporaneously available on the record, this would render it punitive in nature. Departmental/ disciplinary proceedings invariably commence with
delay, are plagued with procrastination prior and post the drawing up of the memorandum of charges, and eventually culminate after even longer
delay. Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be. The
suspended person suffering the ignominy of insinuations, the scorn of society and the derision of his Department, has to endure this excruciation even
before he is formally charged with some misdemeanor, indiscretion or offence. His torment is his knowledge that if and when charged, it will
inexorably take an inordinate time for the inquisition or inquiry to come to its culmination, that is to determine his innocence or iniquity. Much too often
this has now become an accompaniment to retirement. In this backdrop, it has been often held that the currency of a suspension order should not
extend beyond three months if within this period the memorandum of charges/ charge sheet is not served on the delinquent officer/ employee; and if
the memorandum of charges/ charge-sheet is served, a reasoned order must be passed for the extension of the suspension.
Applying the above perspective to the facts and circumstances of the instant case, the order of suspension of the petitioner cannot survive the test
of law. Much water has flown down river “Jhelum†since the date of the order of the suspension of the petitioner. A period of almost 05 years
has passed since then and no subsequent order has been issued by the respondents for extension of the suspension of the petitioner. The respondents
cannot keep the fate of the petitioner hanging like that of a “Trishunkaâ€, which is not permissible under law. The continued and unreasonably long
suspension of the petitioner has clearly become injurious to his interests and is required to be set at naught.
The cumulative effect of all that has been said and done above is that the order of suspension of the petitioner bearing No. 67 JKHC of 2016
dated 8th of August, 2016; as well as order No.82-JKHC of 2019 dated 2nd of August, 2019 rejecting the claim of the petitioner for reinstatement in
service are hereby quashed and the respondents are, by a ‘Writ of Mandamus’, directed to reinstate the petitioner into service. The respondents
shall, also, within a period of eight weeks from today, take a decision regarding the benefits of pay that have accrued to the petitioner during the period
he has remained under suspension. This order shall not be interpreted to mean that the respondents are, in any way, hampered from taking the criminal
case registered against the petitioner before the Court of competent jurisdiction to the logical conclusion as per the law governing the subject.
Writ Petition, along with connected CM(s), disposed of as above.