Ghulam Mohammad Mir And Another vs State Of J&K; & Others on 15 September, 2017

[Cites 6, Cited by 3]

Jammu & Kashmir High Court - Srinagar Bench

Ghulam Mohammad Mir And Another vs State Of J&K; & Others on 15 September, 2017

1. Through the medium of this petition, petitioners have called in question order of respondent no.8, issued vide Forest Order no.33 of 2015 dated 10th June 2015, whereby petitioners have been placed under suspension till final outcome of old encroachment case of Comptt 3/Bla. The order impugned is challenged by petitioners on the ground that same is punitive in nature and has been issued only to harass petitioners and therefore cannot sustain. It is also contended by petitioners that order impugned was passed pursuant to some complaint filed by unidentified civil society of Baramulla, alleging therein that father of petitioners had illegally occupied forest land measuring 20 Kanals 04 Marlas under Khasra no.692/1, situated at village Zandfaran, without even providing an opportunity to petitioners to explain their position.

2. Learned counsel for petitioners has submitted that though the order of suspension was passed as far back on 10th June 2015, no charge-sheet has been served upon petitioners even SWP no.1363/2015 Page 1 of 11 after lapse of more than two years. Petitioners, besides claiming their innocence in the alleged encroachment of forest land by their father, have also placed on record several documents including decree of civil court to indicate that even father of petitioners cannot be said to be in illegal possession of forest land. Learned counsel has further submitted that on the basis of some enquiry conducted by Deputy Director, Forest Protection Force, it was ex parte in nature and without associating petitioners, the impugned order was passed. The attention of this Court was also drawn to endorsement of respondent no.8 of the copies of suspension order to the different authorities with his adverse observations against petitioners. Mr Bhat, in particular, has referred to endorsement of copy of order impugned to Principal Chief Conservator of Forests, Kashmir, in which respondent no.8 has strongly recommended for award of major penalty of termination of services of petitioners. By referring to remarks and observations made by respondent no.8, while endorsing copies of impugned order to different official in the hierarchy of the Forest Department, learned counsel submits that order impugned was not passed to facilitate any enquiry contemplated by him, but was only aimed at harassing them by throwing all norms to wind. In short, learned counsel for petitioners argues that order impugned is against spirit of Rule 31 of J&K Civil Services (Classification, Control and Appeal) Rules 1956, (for short "Rules of 1956"), which authorises the appointing authority or any authority to which SWP no.1363/2015 Page 2 of 11 it is subordinate or any other authority empowered by the Government in this behalf to place a government servant under suspension, where an inquiry into his conduct is contemplated or pending or a criminal complaint against him or any criminal offence is under investigation or pending trial. He, therefore, submits that though as is apparent from the order impugned the inquiry into conduct of petitioners, was shown to be contemplated but due to the fact that even after lapse of more than two years, petitioners have not been served with the charge-sheet, goes a long way to show that the order impugned has been passed by way of punitive measure and not to facilitate any contemplated inquiry. He has, therefore, prayed for quashing of order of suspension, impugned in the petition.

3. On being put to notice, respondents have filed their objections. Order impugned has been sought to be justified on the ground that the same being in consonance with the Rule 31 of Rules of 1956, has been passed to facilitate an inquiry into conduct of petitioners, which at the relevant point of time was contemplated. It is submitted by respondents that petitioners being employees of Forest Department, were enjoined in law to protect the forest land, but they instead facilitated encroachment of land measuring 20 Kanals 04 Marlas by their father. It is urged that petitioners have committed serious misconduct, for which they are liable to be punished after holding appropriate inquiry into their conduct as envisaged under Rules of 1956. It is submitted by SWP no.1363/2015 Page 3 of 11 respondents that suspension order is not punishment and therefore, petitioners were not required to be heard and it was enough if an inquiry was contemplated to be initiated, the petitioners could have been placed under suspension. It is submitted that since allegations against petitioners were very serious, which required detailed inquiry, petitioners were placed under suspension, so as to prevent them from scuttling the inquiry or interfering with the same by being in the office. However, with regard to pointed query put by this Court, whether petitioners have been served with charge sheet and inquiry contemplated to be conducted has been initiated, there is no answer from learned counsel for respondents.

4. From perusal of reply affidavit filed by respondents it can be safely gathered that no inquiry into conduct of petitioners has been initiated, nor have petitioners been served with any charge sheet. The fact finding inquiry conducted by Deputy Director, Forest Protection Force, as claimed by respondents, was material good enough to place petitioners under suspension.

5. Heard learned counsel for parties and perused the record.

6. Before appreciating contentions of counsel appearing for parties, it would be appropriate to reproduce relevant extract of Rule 31 of Rules of 1956:

"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 SWP no.1363/2015 Page 4 of 11 inquiry into his conduct is contemplated or is pending; or (b) a com plaint 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 forty-eight hours shall be deemed to have been suspended by the appointing authority under this rule.

(3) An order of suspension under sub-rule (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 the 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 law 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."

7. From the perusal of Rule 31, it is abundantly clear that the power of suspension can be invoked by competent authority when an inquiry into conduct of an employee is either contemplated or pending or some complaint against him of any criminal offence is under investigation or trial. From the perusal of pleadings of the parties, particularly the Reply filed by respondents, it is crystal clear that nothing more has been done by respondents after placing petitioners under suspension. Both the petitioners were placed under suspension on 10th June 2015 not in contemplation of any inquiry into their conduct, but pending finalisation of some old encroachment case of Comptt 3/Bla. Admittedly, petitioners have not been associated with any such case SWP no.1363/2015 Page 5 of 11 pending investigation before some authority. Even the authority before whom old encroachment case is pending, is neither indicated in the reply affidavit nor same is discernible from the order impugned. Be that as it may, the fact remains that even after lapse of more than two years, the inquiry into alleged misconduct of petitioners has not been initiated, no charge sheet has been served upon petitioners, nor inquiry as envisaged under Rule 31 has been initiated or conducted by respondents. At this stage, it would be relevant to refer to Government Instructions, appended to Rule 31, which reads thus:

"Government instructions. -(1) An officer on suspension is 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 charge sheet 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 more 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 morable in the services it puts avoidable stain on the public exchequer by way of subsistence allowance for non-work done. Public interest should be the guiding factor in deciding whether or nor 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, where 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. Like- wise 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 in appropriate, there should be no objection to leave being SWP no.1363/2015 Page 6 of 11 granted instead of suspending him. Similarly, in case where a Government servant has unauthorisedly absented from 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 scandals and it is considered necessary to place the Government servant under suspension to demonstrate the policy of the Government to deal strictly with officer involved in such scandals.

(ii) where a preliminary enquiry in to 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 226 (2) of the Jammu and Kashmir Civil Service regulations. (iii) where the public servant is suspected to have engaged himself in activities prejudicial to the interest of the security of the State. (iv) serious negligence and dereliction of duty resulting in loss to the Government.

Government Instructions (2). - Competent authorities should endeavour to have charge-sheet 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 authorities 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.

8. The Government Instructions are indisputably statutory in nature and inserted in the Rule by virtue of SRO 616 dated 20th September 1978. Bare perusal of the aforesaid Government Instructions, it would transpire that an officer, who is placed under suspension, is entitled to ask that the inquiry into his conduct is initiated or conducted with reasonable diligence or the matter (criminal proceedings), if any, be investigated with reasonable dispatch. It is further provided in the Government Instructions that if such steps are not taken within reasonable time and suspension is SWP no.1363/2015 Page 7 of 11 unnecessarily prolonged, this would amount to vesting in the authority a total arbitrary and unfettered power of placing its officers under suspension and distress for indefinite duration. Further as is clearly delineated in the Instructions, suspension order would be bad if the same is not followed by charge-sheet and inquiry within reasonable time. It is further provided that if purpose of preventing government servant from prejudicing the investigation, trial or inquiry by his continuance in the offence, could be achieved by transferring him to other station or office rather than resorting to suspension, the resort to suspension may not be advisable. The guidelines provide several safeguards against in- discriminatory use of power of suspension by employer. The Government Instruction no.2 (supra) further provides that competent authority should endeavour to have charge sheet filed in the Court in case of prosecution or served on the government servant in case of departmental inquiry, within a period of three months from the date of suspension and the case in which it is not possible, the authority concerned shall report the matter to next higher authority explaining the reasons for delay. It is further provided that the cases, where government servants are under suspension for longer period, should be reviewed by the competent authority periodically to see that steps would be taken to expedite the progress of the court trial/departmental proceedings, as the case may be, so as to reduce the periods of suspension to barest minimum. From the provisions of Rule 31 and the Government SWP no.1363/2015 Page 8 of 11 Instructions 1&2, it is explicit that power of suspension cannot be exercised to achieve oblique purpose of punishing employee without following due process of law. The suspension of an employee is resorted to only to facilitate unhindered and fair inquiry into alleged misconduct committed by such employee but if such suspension is unnecessarily prolonged and object for which it was resorted to, is not achieved and no inquiry into conduct of such employee is initiated with reasonable dispatch, the order of suspension would become punitive and susceptible to challenge, being violative of Article 14 and 16 of the Constitution of India. [See: 1997 (4) SCC 328 O.P. Gupta v. Union of India and SLJ (1987) J&K 333 Vijay Kumar v. State of J&K].

9. The aforesaid issue with regard to justification of prolonged suspension in absence of initiation of any departmental inquiry came up for consideration before the Supreme Court in case titled Ajay Kumar Choudhary v. Union of India (2015) 7 SCC 291. Para 21 of the judgement, which is relevant in the context of the present controversy reads thus:

"We, therefore, direct that the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of Charges/Chargesheet is not served on the delinquent officer/ employee; if the Memorandum of Charges/Chargesheet 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 SWP no.1363/2015 Page 9 of 11 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."

10. What is stated by the Supreme Court in the aforesaid judgement is part of the Statute - Rule 31, in the shape of Government Instructions 1&2. Indisputably, and rightly not controverted by respondents by not producing any record, that the inquiry against petitioners has not been initiated so far by serving upon petitioners the charge-sheet even after lapse of more than two years after the order of suspension was passed. Besides, the order impugned on the face of it, appears to be actuated by malice in law, in that, respondent no.8 while endorsing copy of order of suspension to the forest authorities has even gone to the extent of prejudging the issue and recommended punishment of termination of services against petitioners. This speaks about the mind of respondent no.8, who has passed the order of suspension arbitrarily and essentially to punish petitioners without following due process of law. Order impugned has, thus, clearly outlived its utility, having remained in force for more than two years, without there being any inquiry initiated or conducted into conduct of petitioners and therefore, the same, in view of law laid down by the Supreme Court, cannot sustain. Order SWP no.1363/2015 Page 10 of 11 impugned is, therefore, quashed. It is, however, made clear that merely because order of suspension of petitioners is quashed, the petitioners are not absolved of their liability to be subjected to inquiry by respondents in accordance with law. In case respondents having material and choose to proceed against petitioners in the departmental inquiry and serve upon them the charge-sheet, they will be at liberty to post petitioners at some appropriate place, so as to prevent them from prejudicing, interfering or scuttling investigation or inquiry, if any, to be conducted by respondents. Disposed of.

( Sanjeev Kumar ) Judge Srinagar September 14, 2017 Ajaz Ahmad SWP no.1363/2015 Page 11 of 11

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Jammu & Kashmir High Court - Srinagar Bench