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Judgment
D.S. Mahra, Member (J)
The fact of the case is that the applicant is working as Assistant Engineer in the respondents department and was posted in REW Division, Boniyar wherein the applicant was arrested by ACB Baramulla. The applicant is aggrieved by the suspension order dated 2.9.2022 by which the applicant has been placed under suspension on the basis of an FIR and subsequent arrest in the said FIR. It is also submitted that the suspension has continued beyond three months without any charge sheet being issued against the applicant by the respondents. It is submitted by the learned counsel for the applicant that since the pendency of an FIR before ACB cannot formulate the basis for placing the applicant under suspension, therefore the suspension order is to be quashed and the applicant is to be reinstated with all consequential benefits. It is also submitted that in terms of the provisions of rules, the department is under obligation to make a periodic review of the suspension after a gap of three months, but that review has not been made till date and the suspension order in the case of the applicant has been passed more than three months ago. Hence the applicant has filed the present OA seeking the following reliefs :
“8.1 An order or direction, seeking quashment of order, 30I-PW(R&B) of 2022 dated 2.9.2022 by virtue of which the applicant has been placed under suspension forming Annexure A/1 to the OA.
8.2 An order or direction directing the respondents to reinstate the applicant in services and release all consequential benefits in his favour, further direct the respondents to explain that why the representation dated 3.12.2022 seeking reinstatement of the applicant has not been decided till date.
8.3 An order or direction seeking passing of the identical judgment that has been passed in OA No. 778/2022, OA No. 1088/2022.
8.4 Any other order or direction which the Hon’ble Court may deem fit and proper in the given facts and circumstances of this case may also be issued in favour of the applicant and against the respondents, the same would be in consonance with law and justice.”
Learned counsel for the applicant has placed reliance on the judgment passed by the Hon’ble Supreme Court in the case of Ajay Kumar Choudhary –vs- UOI & Ors. [(2015) 7 SCC 291]. He has submitted that the case of the applicant is squarely covered by the judgment passed in the case of Ajay Kumar (supra) since it is settled position of law that the suspension of an employee is not a punishment, but once it is prolonged suspension, it suffers from the flavor of punishment and on that ground the impugned order of suspension is liable to be quashed and set aside. He has also placed reliance on the judgment passed by this Tribunal in the case of Mohammad Ashraf Reshi –vs- UT of J&K, Gh. Mohammad Bhat –vs- UT of J&K and Munshi Masood –vs- UT of J&K where this Tribunal has set aside the suspension orders. It is further submitted that the applicant has filed numerous representations before the respondents, but the same were not considered.
Learned counsel for the respondents is present.
It is a fact that the applicant has been suspended on 2.9.2022 and till date the respondents have neither issued any charge sheet nor reviewed the suspension. Hon’ble Supreme Court in the case of Ajay Kumar Choudhary (supra) has clearly laid down that an order of suspension cannot be continued after expiry of 90 days when a memorandum of charges/charge sheet has not been served on the suspended employee. The instant case is squarely covered by the judgment of Hon’ble Apex Court in the case of Ajay Kumar Choudhary (supra). The operative portion of the aforesaid judgment is as follows:
“14. We, therefore, direct 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; if the Memorandum of Charges/Charge sheet is served a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the concerned person to any Department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognize that previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us.”
Since no charge sheet has been served upon the applicant nor the suspension has been reviewed, the impugned order of suspension 30I-PW(R&B) of 2022 dated 2.9.2022 is liable to be quashed.
Hon’ble High Court of Jammu & Kashmir and Ladakh at Srinagar in WP(C) No. 361/2023 (UT of J&K and Others –vs-Munshi Masood) which was filed against the order passed by this Tribunal in OA 1088/2022 has observed as follows :
“In view of the above, this appeal is allowed and the order impugned passed by the Central Administrative Tribunal Srinagar Bench is set aside and a direction is issued to the Chief Engineer KPDCL, who has passed the order of suspension of the petitioner to review the same having regard to the fact that more than a year has passed since the petitioner was placed under suspension and the investigating agency has not been able to present the challan/charge sheet in the Court. He shall also take note of the fact that even the departmental proceedings against the petitioner have yet not been initiated. He shall consider the entire issue in the light of the government instruction appended with the Rule 31 vide SRO 616 dated 20th September, 1978 and pass a speaking order within a period of six weeks from the date of copy of the judgment is served upon him.”
Keeping in view the facts of the case and judgment of Hon’ble High Court in the case of UT of J&K and Others –vs- Munshi Masood (supra), the concerned respondent who has passed the order of suspension against the applicant is directed to review the same having regard to the fact that 90 days’ period has expired since the date of issuing the suspension order and the investigating agency has not been able to present the charge sheet. He will also take note of the fact that even the departmental proceedings have not yet been initiated against the applicant. He is directed to consider the entire issue in the light of the government instruction appended with the Rule 31 vide SRO 616 dated 20th September, 1978 and pass a speaking order within a period of six weeks from the date of receipt of the copy of this order.
With the above observation, the OA is allowed. There will be no order as to costs.