Sanjay Pandita @APPELLANT@Hash State And Ors

1 Government Order No.60-Edu of 2010 dated 27.01.2010, whereby the petitioner, teacher in the Migrant Cell, Jammu was placed under

suspension, is under challenge in this petition. As is apparent from the perusal of the order impugned, the petitioner was posted as teacher in the

Migrant Cell, Jammu, but, instead of reporting for duty in the Migrant Cell, it is alleged that he started working in some private institution in Pune and

was there for the last six years. Further allegation discernible from the order impugned is that the petitioner was absent from duty, but his salary was

being drawn from the Migrant Cell in connivance with some officials in the Migrant Cell. Be that as it may, the fact remains that the petitioner was

placed under suspension pending enquiry into the matter which was to be conducted by the Director School Education, Jammu.Â

2 The order impugned has been challenged by the petitioner, inter alia, on the ground that the order of his suspension was passed more than eight

years back, but the respondents have not initiated any enquiry into the matter. Prolonged suspension, it is urged, amounts to punishment and the same

cannot be awarded in breach of principles of natural justice. The respondents have filed their reply to the writ petition in which they have justified the

suspension of the petitioner on account of his absence from duty. It is stated that the petitioner after his appointment as teacher on 22.05.1998 was

posted in Camp Higher Secondary School Nagrota Jammu, but was subsequently allowed to draw migrant leave salary from the office of Chief

Accounts Officer, Migrant Cell Education Jammu. It is claimed that the petitioner continued to withdraw his leave salary till he was placed under

suspension. It is further submitted in the reply filed by the respondents that the petitioner did not report for duty even after the order of suspension was

passed despite having been served with a notice at his home address. The respondents have also claimed that the petitioner had been working in some

private institution in Pune for the last six years and was simultaneously withdrawing his salary from the Migrant Cell. However, there is no whisper

in the reply as to whether the enquiry as envisaged in the order impugned was conducted and with what result.Â

3 This Court, on 19.05.2010, had directed respondent No.2 to disclose the material on the basis of which it has been alleged that the petitioner has

been working in some private institution in Pune. There is no response given by the respondents in compliance to the aforesaid order of this Court.

Even on 25.05.2018, this Court granted a week’s time to the respondents to get instructions with regard to the status of the enquiry, if any,

initiated or pending against the petitioner. No response in this regard has been submitted. However, learned counsel appearing for the respondents

fairly stated that despite his communication he has not been provided with any material with regard to the status of enquiry, if any, initiated or pending

against the petitioner.

4 Having heard learned counsel for the parties and perused the record, I am satisfied that the order of suspension of the petitioner which was

passed way back on 27.01.2010 has been continued for more than eight years without holding any enquiry for facilitation of which the order impugned

was passed.Â

5 From the perusal of the order impugned, it is apparent that the petitioner was placed under suspension pending enquiry into his unauthorized absence

from duty. The enquiry should have been initiated and concluded within a reasonable time. As is clearly provided in Government Instructions (i)

appended to Rule 31 of the Jammu and Kashmir (Classification, Control and Appeal) Rules, 1956, an officer on suspension is entitled to ask that the

matter should be investigated with reasonable diligence and charges should be framed within a 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 charge sheet and enquiry within a reasonable time. Similarly, in

Government Instructions (ii) appended to the aforesaid Rule, it is clearly provided that in case of departmental proceedings, a charge sheet ought to be

served upon the delinquent within three months from the date of suspension There is further provision in the aforesaid Rule for periodical review of

the suspension order by the competent authority.Â

6 In the instant case, the petitioner was placed under suspension eight years back and there is nothing brought on record by the respondents that any

enquiry into the matter is initiated or that the charge sheet on the petitioner has been served. In the absence of initiation of any enquiry contemplated in

the order impugned, the suspension of the petitioner cannot be prolonged for an indefinite duration. It is well settled that prolonged suspension without

holding an enquiry is punitive and, therefore, cannot sustain unless procedure in conformity with the principles of natural justice is followed before

subjecting a person to such punishment. Whether the petitioner was entitled to receive salary as migrant without reporting for duty to the place where

he was posted or whether the petitioner had actually abandoned his Government job and taken up private employment in Pune or elsewhere are the

matters which could have been subject matter of enquiry. Nothing prevented the respondents to initiate such an enquiry, serve upon the petitioner a

charge sheet and conclude the same so as to find out truth in the allegations leveled against the petitioner.

7 In these circumstances, in the absence of such enquiry, permitting the respondents to continue the suspension of the petitioner would be wholly

unjustified.

8 Hon’ble the Supreme Court as also this Court has time and again reminded the Government and its authorities not to prolong the suspension of

the delinquent employee without holding enquiry into the misconduct alleged against such employee under suspension. It is well settled that an order

of suspension is not an order imposing punishment on a person, but is an order made against him to facilitate a free and fair enquiry into the matter and

to suspend the relationship of master and servant during the course of aforesaid enquiry. But many a times, it has been observed that the suspension is

resorted to on a slight provocation and the contemplated enquiry does not commence even for years together. As a matter of fact, suspension is

resorted to as a substitute for punishment and not for the purpose, it is envisaged in the Rules (supra). To such abuse of power, this Court cannot

remain mute spectator.

9 In the backdrop of aforesaid, I find that the instant case is a case of sheer abuse of power by the authority concerned who has kept the petitioner

under suspension for eight years without even serving upon him a charge sheet. The enquiry as contemplated in the order impugned has not proceeded

even an inch. Several opportunities were granted to the respondents to indicate the status of enquiry, but no response was given. In these

circumstances, this Court is left with no option but to presume that the petitioner was placed under suspension when there was no enquiry

contemplated against him and if the same was contemplated, it has not proceeded even an inch despite lapse of more than eight years. Viewed

from any angle, order impugned cannot be justified and the same deserves to be quashed.Â

10 Accordingly, this writ petition is allowed and the order impugned dated 27.01.2010 is quashed. The petitioner shall be re-instated forthwith. Nothing

said hereinabove in this order would prevent the respondents from holding an enquiry against the petitioner as contemplated in the order impugned. If

the respondents decide to hold an enquiry against the petitioner even at this stage, it is made clear that the same shall be initiated and concluded within

a period of two months from the date certified copy of this order is made available to them. Decision with regard to the period of suspension of the

petitioner shall, however, depend upon the outcome of the aforesaid enquiry. It is further made clear that in case the enquiry is not initiated and

concluded within the aforesaid period, the petitioner shall be deemed to be on duty even during the period of suspension and would be entitled to all

consequential benefits. Needless to say that if the respondents have already initiated an enquiry against the petitioner and is pending, the same shall

also be concluded within the aforesaid period.

The writ petition is disposed of as above.Â