S.Tarlok Singh vs State of J & K

Arun Kumar Goel, J.—The petitioner has filed this writ petition with a prayer to quash the FIR No. 29/99, Police Station Vigilance

Organisation, Kashmir as also the order No. 1279Edu. of 1999 dated 20.10.1999 whereby he has been put under suspension with effect from

24.9.1999 with a further prayer to treat him as well as allow him to function as Divisional Youth Services and Sports Officer and at the same time

to release him the salary together with consequential benefits.

The petitioner was working as Divisional Youth Services and Sports Officer in Kashmir at Srinagar. According to him, it was decided by the

department of Divisional Youth Services and Sports to hold interdistrict competitions at the State level as also at the divisional level in the year

199899. Competitions in different games at the said two levels were to be held in the valley amongst the students in the age group of 14, 17 and

19 years. With a view to conduct interdistrict competitions, decision was taken regarding the divisional level in the month of June, 1998. With a

view to undertake the said exercise, the petitioner in his capacity as District Youth Services and Sports Officer, Kashmir constituted a purchase

committee consisting of Smt. Nilofer Amin, Shri Baldev Singh, Shri A.R. Tarzan, Mst. Hafeeza Hassan and Mst. Fatima. According to him, after

calling for quotation from different sports dealers, orders were placed with a dealer whose tender was the lowest i.e. M/s. M.D.F. Enterprises.

Different items as detailed in paragraph5 of the petition were purchased from the said firm, the total value whereof was Rs. 81,733. According to

him, these were received vide bill (Ann. C) and were entered in the stock register by the Store Keeper, Shri Mushtaq Ahmed.

According to the petitioner, the items purchased were all consumable being Medals, Shields and other sports goods, were in fact partly

consumed in the tournament in question, which according to him took place. In this behalf, he refers to Annexures D to G placed on record.

Regarding left over items, he states that those remained in the custody of respondent5, Mushtaq Ahmed, as he was working as Jr. Asstt. in the

office of the petitioner and was holding the charge of the stores. The said respondent5 was transferred to Kupwara on his promotion as Senior

Assistant, but he failed to hand over the charge of left over items to Muneer Ahmed, Jr. Asstt. Vide Annexure H', the petitioner asked his District

Youth Services and Sports Officer to look into the matter and call for explanation of respondent5. Not only this, but the petitioner asked the said

officer not to draw the salary of respondent5 till he clears the queries. Since this respondent failed to do the needful, as such, he was suspended.

He filed writ petition bearing No. 26/84 as well as OWP no. 1157/88. Subsequently, on enquiry, it was found that respondent5 had embezzled

Rs. 1592/ and was censured vide Annexure J.

What the petitioner has tried to show from the above facts is that all purchases were made properly and in a regular manner, that too by

properly constituted purchase committee. Part of the purchased articles were consumed and rest were with the Store Keeper (respondent No. 5)

as such, there was nothing untoward or otherwise on his part. Whether it was in fact so or not, will be dealt with hereinafter. On the basis of

communication received from Commissioner Vigilance Organisation, J&K, Srinagar, FIR No. 29/99 came to be registered at Police Station

Vigilance Organisation, Kashmir. For ready reference, contents of this FIR are extracted herein below :

In the matter of letter No. FIR KG 33/991393 dated 18.5.1999 together with connected documents received from Commissioner of Vigilance,

J&K Srinagar, it is revealed that S. Tarlok Singh, Divisional Youth Services and Sports Officer in active conspiracy with subordinate officials and

supplier have effected the purchase of sports items without adhering to the requisite codal formalities, besides the purchases effected have neither

been accounted for which is indicative of the fact that the sports items have not been purchased and fake/fictitious documents have been prepared

to indicate the drawal of Rs. 81,733. Acting in this manner the accused Tarlok Singh, Divisional Youth Services and Sports Officer by abuse of his

official position and in active conspiracy with his subordinates officials has conferred undue benefit upon the supplier and has caused corresponding

loss to the State exchequer which warrants registration of a case under the provision of P.C. Act. Accordingly, case is registered under Section

5(2) P.C. Act, 2006 r/w 120B RPC in Police Station Vigilance Organisation, Kashmir against the above mentioned accused and investigation of

the case is entrusted to Shri Mohd. Yousuf Mir., Dy. SP VOK.

Sd/

Sr. Superintendent of Police

Vigilance Organisation,

Kashmir.

Thereafter, it is admitted case of the petitioner that he was admitted to ad interim bail vide Annexure`L' and has also been put under suspension

vide Annexure`M', Government order No. 1279Edu. of 1999 dated 20.10.1999. In the aforesaid background, petitioner claims that FIR is liable

to be quashed as also the order of suspension against him revoked. Since FIR does not disclose any offence against the petitioner, as such no

action can be taken against him on the basis thereof.

The respondents were put to notice and thereafter writ petition was admitted on 13.7.2000. Counter has been filed on behalf of respondent4 to

which rejoinder is filed by the petitioner.

The stand of the respondent is that after registration of the case, the matter has been investigated and during its course, the documents were

seized as detailed in para`B' at page2 of the counter. According to him, the petitioner had not recorded any reason for inviting dasti quotations

instead of inviting tenders as required under the rules in force at the relevant point of time. Respondent further alleges that no approval of the officer

concerned is recorded at the comparative statement for acceptance of the lowest rate. On the basis of the evidence collected, oral as well as

documentary, it is made out that the petitioner in active conspiracy with the other accused had defrauded the State exchequer in drawing the bills to

the extent of Rs. 81,733/ on the basis of fake bill. Sports items were never entered in the stock register nor were said to have been received by the

Government. Besides this, a sum of Rs. 50,000/ was received by the petitioner for conducting Youth Festival at Budgam (Srinagar). Instead of

utilising this amount for the purpose, the same was deposited by him (petitioner) in his saving bank account No. 11233 of J&K Bank Ltd., Moving

Sectt. Branch, Srinagar. This fact came to the light during the course of investigation. According to respondent4, on the basis of material on record

collected during the course of investigation, which is complete, a prima facie case under Section 5(2) P.C. Act, 2006 BK read with Section 109

and 120B RPC is made out against all the accused persons, as such present writ petition is not maintainable. Plea of mala fide is specifically denied

by the respondent and at the same time, it is pleaded that in case purchase committee had approved lowest rate, it would have recorded so on the

comparative statement, which is not there. The Supplier M/s. M.D.F. Enterprises in conspiracy with the petitioner and other accused persons for

abetting the offence, is another ground set up to defeat the claim of the petitioner. Respondent further states that duplicate bills with contradictory

and inflated amounts have been seized from the records. What is sated in paras 7 and 9 of the counter makes an interesting reading in the instant

case which is extracted below :

Contents of paragraph No. 7 are denied as incorrect. The items referred by the petitioner in the paragraph, though shown in the bill, to have been

received and entered at pages No. 117 and 119 of the Stock Register were ""in fact never delivered to the Department and the stock register does

not bear any such entry as is referred by the petitioner in the paragraph."" Both these pages are blank in the stock register. The whole stock register

does not bear any such entry as to the receipt of the items by the department. Sh. Mushtaq Ahmed respondent No. 5 too has been found involved

in the conspiracy with which the accused have been charged in the present case.

Contents of paragraph 9 are denied as incorrect. Neither were the items referred to in the paragraph received in the department nor is the

petitioner right in alleging that all the items were not utilised in toto. Mushtaq Ahmed at the time of his transfer too had not reflected the receipt of

aforesaid items in the stores while handing over the charge.

Thus, respondents have prayed for dismissal of the writ petition.

In the rejoinder, the stand of the petitioner is that the office, who has sworn the affidavit, is not duly authorised to do so. According to him, all

codal formalities were observed. He does not dispute that the petitioner had invited dasti quotations for sports items, but this was necessary

keeping in view the urgency and circumstances whereunder per force this had to be done. However, he, Mr. A.R. Tarzan, Mst. Hafeeza and Mst.

Fatima were also the members of the purchase committee. According to him, the documents seized during the investigation do not make out a case

against the petitioner as alleged and similar is his stand regarding nonentry of the sports goods in stock register, which he has not denied. Another

plea set up is that the Investigating Officer has not recorded the statements of Mst. Nilofer, Baldev Singh, Shri A.R. Tarzan, Mst. Hafeeza and Mst

Fatima under Section 161 Cr.P.C. It may be noted that though their statements are there on record under Section 161 Cr.P.C., but in case of

some, they do not find mention in the zimnis, i.e. the daily diaries. Mr. Singh tried to explain that this is an omission on the part of Investigating

Officer and does not effect the merit of his case. Nothing is being said here. Parties are free to urge the matter before the trial Court. In this view of

the matter petitioner says that there is no legal evidence which can be used against the petitioner to sustain what is alleged in the FIR or on the

investigation undertaken by the Investigating Officer subsequently. Regarding the deposit of cheque of Rs. 50,000/ in his personal account, the

petitioner alleges that this was issued in his personal name as such it was deposited in his saving account without any animus muchless intention to

usurp the same.

In the aforesaid circumstances, Mr. K.S. Johal, learned Counsel for the petitioner submitted that no case is made out either on the basis of

allegations made in the FIR or on the basis of evidence oral as well as documentary collected by the Investigating Agency. Therefore, FIR, as well

as suspension order are liable to be quashed. According to him, purchase of items and their consumption is clearly made out from the statements

Annexures `D' and `E' attached with the petition and consumption of such articles which were purchased vide AnnexureC also stands established

from the certificate issued by the District Youth Services and Sports Officer, Budgam, Pulwama and Baramulla. So far participants who were

awarded these Medals etc. are concerned, reliance is placed by Shri Johal (Annexure G), list of champions of 1998.

With a view to sustain his plea that Mushtaq Ahmed who had done mischief as noted hereinabove, he placed reliance on order (Annexure H)

dated 10.5.1999 issued by the petitioner. At the same time with a view to further butress this submission, Mr. Johal placed relaince on

Annexure`J', order passed by the Directorate General Youth Servies and Sprots, Old Secretariat, Srinagar on 16.7.1999 against respondent5.

Thus, he has prayed for allowing this writ petition. All these pleas on the other hand, have been controverted by Mr. J.P. Singh, learned

Counsel for respondents 3 and 4. He steated that whatever the petitioner is stating, may be a good defence, after the challan is put up in court in

accordance with law, but in no case, can be made a ground for allowing this writ petition. According to him, investigation of the case is compelte

and the challan is going to be produced shortly in court after receipt of the sanction. He further submitted that the investigation undertaken by the

Vigilance Organisation on the basis of impugned FIR reveals that a prima facie case is made out. With a view to satisfy, Mr. J.P. Singh, learned

Counsel for official respondents was directed to produce the original investigating file. He has produced the same. From the file it is clearly made

out that Sh. M.Y. Mir, Dy. Superintendent of Police was authorised to file the counter affidavit/objections on behlaf of Vigilance Organisation.

So far plea of Mr. Johal learned Counsel for the petitioner that from the FIR as weell as subsequent investigation, no case is made out in

concerned, if it is accepted, the court has no option but to allow this writ petition and quash the FIR as well as the order of suspension. Reference

in this behalf can be madee to the decision in State of West Bengal and others v. Swapan Kumar Guha and others, reported in AIR 1982 SC 949,

wherein it has been held that in the event of FIR not disclosing a cognizable offence, the High Court was justified in quashing the FIR. Similarly, in

State of Haryana and others v. Ch. Bhajan Lal and others, 1993(2) SCT 217 (SC) : AIR 1992 SC 604 , this position has been reiterated, wherein

it has been held as under :

In the background of the interpretation of the various relevant provisions of the Code under Chapter CIV and of the principles of law enunciated

by this Court in a series of decisions relating the exercise of the extra ordinary power under Article 226 or the inherent powers under Section 482

of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power

could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to

lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad

kinds of cases wherein such power should be exercised.

Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their

entirety do not prima facie constitute any offence or make out a case against the accused.

Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence

justifying an investigation by the police officers under Section 156(1) of the Code except under an Order of a Magistrate within the purview of

Section 155(2) of the Code.

Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the

commission of any offence and make out a case against the accused.

Where the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is

permissible by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

Where the allegations made in the FIR or complaint are so absurd and inherent improbable on the basis of which no prudent person can ever

reach a just conclusion that there is sufficient ground for preceding against the accused.

Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceedings is

instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act,

providing efficacious redress for the grievance of the aggrieved party.

Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive

for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

The petitioner filed this writ petition on 9.2.2000, after eight months of registration of FIR, when the investigation in question was in progress.

The investigation file clearly suggests that it cannot be said to be a case which is groundless and or is covered by the decisions referred to

hereinabove, which were relied upon by the learned Counsel for the petitioner. The State of Tamil Nadu v. Thirukkural Perumal, 1996(4) SCT

226 (SC) : 1995(2) Supreme Courts 449 , while allowing the petition, it was held as under :

This appeal arises out of an order by a learned Single Judge of the High Court of Judicature at Madras on 9.11.1993 in Criminal Original Petition

No. 8730 of 1992, Crl. M.P. No. 4794 of 1992 and Crl. M.P. No. 6765 of 1992. The learned Judge quashed the First Information Report,

Crime No. 246 of 1992 of PS Tallakulam, in so far as the respondent is concerned as also the criminal proceedings emanating therefrom against

him.

We have gone through the order of the learned Single Judge and heard learned Counsel for the parties.

M.S.K. Shanmugovol Chettiyar lodged a first information report at P.S. Tallakulam against the respondents alleging commission of offences under

Sections 147/148/342/323/395/506(ii) and 109 IPC. Investigation was taken in hand and some evidence was collected by the investigating

agency. The respondent filed a petition under Section 482 Cr.P.C. in the High Court and by the impugned order the petition was allowed and the

proceedings emanating from Crime Case No. 246 of 1992 (supra) were quashed. From a bare perusal of the order of the learned Single Judge it

appears that while quashing the proceedings, reliance has been placed upon some evidence collected by the investigating agency during the

investigation. The approach of the learned Single Judge in relying upon such evidence, which is yet to be produced before the trial Court to quash

the criminal proceedings in Crime Case No. 246 of 1992 (supra) was not proper. The power of quashing FIR and criminal proceedings should be

exercised sparingly by the Courts. Indeed, the High Court has the extraordinary or inherent power to reach out injustice and quash the first

information report and criminal proceedings, keeping in view the guidelines laid down by this Court in various judgments [reference in this

connection may be made with advantage to State of Haryana v. Bhajan Lal (supra)] but the same has to be done with circumspection. The normal

process of the criminal trial cannot be cut short in a rather casual manner. The court is not justified in embarking upon an enquiry as to the reliability

of genuineness of the allegations made in the FIR or the complaint on the basis of the evidence collected during investigation only while dealing with

a petition under Section 482 Cr.P.C. seeking the quashing of the FIR and the criminal proceedings. The learned Single Judge apparently fell into an

error in evaluating the genuineness and reliability of the allegations made in the FIR on the basis of evidence collected during the investigation. The

order of the learned Single Judge cannot, therefore, be sustained. This appeal succeeds and is allowed. The impugned order of the High Court is

hereby set aside.

We clarify that nothing said hereinabove or by the learned Single Judge of the High Court in the impugned judgment shall be construed as any

expression of opinion on the merits of the case, expressly or impliedly, and the trial Court shall deal with the case uninfluenced by any of the

observations made by the High Court or by this Court.

In Channaveera Gowda v. Sanne Gowda and others, JT 1999(10) SC 482, it was held as under :

The complainant assails the order of the High Court passed in exercise of its jurisdiction under Section 482 Cr.P.C. quashing the order of the

Magistrate issuing process. On the basis of an enquiry by the Investigating Officer on a final form being filed, the complainant filled the protest

petition. The Magistrate treated the same as a complaint and after examining the complaint and the two witnesses, took cognizance and directed

issuance of process. The accused persons moved the High Court under Section 482. The High Court by the impugned order reviewing the

evidence of the witnesses examined on behalf of the complainant came to hold that they are not reliable and therefore, the High Court interfered

with the order of the Magistrate issuing process. It is this order which is being assailed in the present appeal.

The learned Counsel for the complainantappellant herein contends that at this stage it was not permissible for the High Court to exercise its inherent

jurisdiction under Section 482 Cr.P.C. to assess the reliability of the evidence and therefore, the impugned order cannot be sustained. We find

sufficient force in the submission of the learned Counsel. A bare look at the impugned order would indicate that the High Court has tried to decide

the matter as the trial Court assessing the evidence which obviously is not permissible within the jurisdiction conferred under Section 482 Cr.P.C.,

which ought to be exercised only when the court comes to the conclusion that otherwise there would be an abuse of the court. In the aforesaid

premise we set aside the impugned order of the High Court and direct that the Magistrate would proceed with the criminal proceeding as

expeditiously as possible. The appeal is disposed of accordingly.

In Maratt Rubber Ltd. v. J.K. Marattukalam, JT 2000(4) SCC 387, while setting aside the order of the High Court, where parties were also

litigating in civil litigation, it was held as under :

This appeal is directed against the judgment of Karnataka High Court quashing a criminal proceeding instituted by the complainantcompany

alleging that the accusedrespondent, who was former Director of the Company committed offence under Section 630 of the Indian Companies Act

by continuing to utilise the property, that was given to him as a Director notwithstanding the fact that he has ceased to be a Director of the

Company since 1991. It transpires from the records of this proceeding that in 1992, the respondent Society filed a civil suit for a declaration that

he continues to be the Director of the Company Maratt Robber Ltd. and obtained an interim order therein, but the same suit ultimately was

dismissed for default on 2.1.1995. An application for restoration also has dismissed. There is no material to indicate as to whether the respondent

has taken any further steps in that proceeding. The present complaint was filed after the dismissal of the said suit of 1992, and on the basis of the

allegations made in the complaint, cognizance had been taken under section 630 of the Companies Act. The accusedrespondent appeared before

the learned Magistrate and filed an application under Section 245 praying for discharge. The gravamen of the allegations in the application for

discharge was that civil suit being pending in different forums it would not be appropriate for the criminal court to proceed with the complaint case.

The Magistrate, however, came to the conclusion that pendency of civil suit will not be a bar either in institution or proceeding with the criminal

complaint. Once the allegation made in the complaint petition make out an offence in which cognizance has been taken, we fail to understand as to

how an application could be filed under Section 245 of the Code of Criminal Procedure. When a complaint is filed, the Magistrate after examining

the complainant on oath and the witnesses produced by him, if comes to the conclusion that a prima facie is made out, then he takes cognizance of

the offence and directs issuance of process. If the Magistrate thinks that further enquiry is necessary, he can postpone issuance of process and

either enquire into the case himself or direct further investigation to be made for the purpose of deciding whether or not there is sufficient ground for

proceeding, as provided in Section 202 Cr.P.C. If ultimately on consideration of the statements of the complainant and his witnesses and the result

of inquiry or investigation (if any) under Section 202 Cr.P.C. the Magistrate is of the opinion that there is no sufficient ground for proceeding, he

shall dismiss the complaint as provided under Section 203 Cr.P.C. Obviously, in the case in hand, the Magistrate did not think it proper to dismiss

the complaint on the material produced by the complainant and took cognizance of the offence and issued process. That apart, we are in

agreement with the view of the learned Magistrate that mere pendency of a civil proceeding before any civil Court will not be a ground for quashing

of the criminal proceeding or not to frame a charge against an accused, even if the assertions in the complaint petition together with the materials

produced by the complainant would constitute an offence. After the Magistrate rojected the prayer of the accused, the matter was carried to the

High Court by invoking the powers of the High Court under Section 482 of the Code of Criminal Procedure. The High Court by a very lengthy

judgment went into civil suit filed by the parties as well as observations/directions given by the civil Court in some of those cases and came to the

conclusion that this is a fit case where the inherent powers of the High Court should be invoked, as otherwise it would be a case of miscarriage of

justice. In exercising the powers under Section 482, the High Court considered some observations made by the civil Court in a suit for injunction

filed by the companycomplainant, to the effect that the property in question had not been delivered to the accused as a Director of the company

and on that basis quashed that proceeding. It has been repeatedly held by this Court that the power of High Court under Section 482 Cr.P.C.

should be sparingly and cautiously exercised and only when the court on consideration, comes to a conclusion that otherwise it could be a case of

abuse of process of court or that there will gross miscarriage of justice. In a case instituted on complaint, the High Court was possibly not entitled

to look to the several documents purported to have been filed by the accused in several civil proceedings, and rely on some orders/observations

made thereunder. A bare scrutiny of the impugned judgment would indicate that the High Court has thought, as if it is trying the case, and thereafter

weighing the materials it has come to a conclusion one way or other. This is certainly in excess of the jurisdiction conferred on the High Court

under Section 482 of the Code of Criminal Procedure. In that view of the matter, we have no hesitation to come to the conclusion that the High

Court by the impugned order has exceeded its jurisdiction vested under Section 482 Cr.P.C. in quashing the criminal proceedings. We, therefore,

set aside the impugned order of the High Court and direct that the complaint proceeding should proceed in accordance with law. The appeal is

disposed of. Needless to mention, we have not expressed any opinion on the merits of the C.C. No. 1254/1995.

In Lalmuni Devi v. State of Bihar and others, 2001(1) R.C.R.(Criminal) 228 : Judgments Today 2001(1) SC 150 , again it was held that :

Mr. Sinha submitted that the impugned order was unsustainable. He submitted that facts make out a civil wrong as well as a criminal liability. He

submitted that merely because civil action can be taken does not mean that a criminal complaint is not maintainable. In support of his submission he

relied upon the case of Trisuns Chemical Industry v. Rajesh Aggarwal and others, reported in JT 1999(6) 618. In this case, the agreement

between the parties contained an Arbitration Clause. This court held that merely because the dispute could be referred to arbitration it was not an

effective substitute for a criminal prosecution when the act also made out an offence.

On the other hand, Mr. Singh submitted that the alleged acts have made out no case for taking cognizance. He submitted that at the highest the

remedy would lie in a civil court only. He relied upon the cases of State of Haryana v. Bhajan Lal, reported in JT 1990(4) SC 650 : 1991(1)

R.C.R.(Criminal) 383 : 1992 Supp.(1) SCC 335 and Mr. K. Ramakrishna and others v. State of Bihar and another, reported in JT 2000 Supp.

(1) SC 53 . In these cases it is held that inherent powers can be exercised to quash proceedings to prevent abuse of the process of law and to

secure ends of justice. It had been held that where the allegations in the FIR do not constitute the alleged offence or where the offence is not

disclosed in the complaint or the FIR frivolous criminal litigation could be quashed.

There could be no dispute to the proposition that if the complaint does not make out an offence it can be quashed. However, it is also settled law

that facts may give rise to a civil claim and also amount to an offence. Merely because civil claim is maintainable does not mean that the criminal

complaint cannot be maintained. In this case, on the facts, it cannot be stated, at this prima facie stage, that this is a frivolous complaint. The High

Court does not state that on facts no offence is made out. If that be so, then merely on the ground that it was a civil wrong the criminal prosecution

could not have been quashed.

Now coming to challenge to the order of suspension, in State of Orissa v. Bimal Kumar Mohanty, 1994(2) SCT 625 observed that normally

the courts are not expected to interfere with the orders passed by the administrative authorities and the courts would not interfere with such interim

orders. Exception carved out to this Rule was if the discretion vested in the authorities and the Tribunal is misused or exercised in excess beyond

its scope without any justification, in such cases court would be justified in interfering with such orders. It was further observed that where an

employee is placed under suspension on serious allegations of misconduct, Tribunal will not be justified to interfere directing the authorities not to

suspend the employee without the leave of the Tribunal. Thus the appeal of the State of Orissa was allowed and the order of the Tribunal was set

aside thereby upholding the suspension order.

Even otherwise a government servant can always be put under suspension in the absence of departmental proceedings but pending a criminal

charge against him (see AIR 1964 SC 787, R.P. Kaur v. Union of India).

It may be noted in the context that besides the suspension order being punitive, other two grounds are there to question the same are, where it

is passed mala fide or is not passed by a competent authority. Otherwise an employer is within his legal authority to proceed further in situations

referred to under Rule 31 of JK CCS (CCA), Rules, 1956.

To similar effect is a decision of this Court passed in SWP No. 713/99 : 2001(4) S.C.T. 808 titled Lekh Raj v. State of J&K and another and

other connected cases, decided on 31.12.1999 on the question of suspension as well as quashing of FIR where both the pleas were rejected on

examination of materials in all the cases.

As already observed, at this stage it cannot be said that this is a case of no evidence so as to file challan in the Court below. May be that the

petitioner is able to persuade the court that there are no grounds for framing of charge. So far reference to affidavits in the rejoinder and other

factors are concerned, suffice it to say that it may come handy to him in his defence or may be that he files those documents before framing of

charges, after he is summoned by the court on filing of the challan. In this behalf it may also be observed that all these are disputed questions of

facts, which cannot be gone into in proceedings under Article 226 of the Constitution of India read with Section 103 of the Constitution of the

Jammu and Kashmir, nor the claims of the parties based on such docuemnts, are to be looked into in the present proceedings. Exception to all this

is that on the basis of the materials which are there on the investigation file, if still it is found that they do not even call for filing of the challan, this

court shall have no option but to allow the writ petition. At the risk of repetition, it may be observed that this is not the situation.

So far matter relating to suspension is concerned, it is observed that respondents 1 and 2 will regularly go on reviewing the case of the

petitioner every three months and take a concisous decision whether it is necessary to continue his suspension or not. Reason being that a person

like the petitioner has to be paid all along when he is under suspension and in case the same is revoked, rest of moentary benefits have also to be

allowed without any work being taken from such an employee. In this behalf, it is felt that interest of justice will be well served if a direction is

issued to respondents 1 to 2 to have first review of the order of suspension of the petitioner on or before 10.6.2001, and thereafter they shall keep

reviewing his case every three months and take a decision whether suspension needs to be continued further or not.

No order point is urged.

Looking to the overall circumstances of this case and subject to directions regarding review of suspension of the petitioner, there is no merit in

this writ petition at this stage, which is accordingly dismissed without any order as to costs. Record produced by Shri J.P. Singh, Advocate has

been returned to him in court. It is clarified that any observation in this judgment is meant only for deciding this writ. As and when challan is put up

in court, trial Court would examine the same as per law, without being in any manner influenced from what has been said in this judgment.

CMP No. 187/2000

No orders, in view of the order passed in main writ petition. CMP stands finally disposed of.