Jammu & Kashmir High Court - Srinagar Bench
Mohammad Maqbool Bhat vs State Of J&K Through on 27 July, 2015
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP No. 1642 of 2014 CMP Nos. 2583 of 2014 & 01 of 2015 Mohammad Maqbool Bhat, age 50 years, S/O Ghulam Ahmad Bhat R/O Handwara Kashmir. Petitioners State of J&K through Commissioner/ Secretary to Government, PHE, I&FC Department, Civil Secretariat Srinagar/ Jammu. Chief Engineer, Kashmir PHE Department, Srinagar. Superintending Engineer, Hydraulic Circle Kupwara, H/Q Handwara. Executive Engineer, PHE Division, Handwara. Executive Engineer, Hydraulic Division, Bandipora. Respondents !Mr. M. A. Qayoom, Advocate ^Mr. Jehangir Iqbal Ganai, Advocate General Mr. Irfan Andleed, GA.,Advocate Honble Mr. Justice N. Paul Vasanthakumar, Chief Justice Honble Mr. Justice Hasnain Massodi, Judge Date: 27/07/2015 : J U D G M E N T :
N. Paul Vasanthakumar, CJ
1. By consent the writ petition was posted before the Division Bench and is heard.
2. The petitioner has filed this writ petition praying to quash the order of suspension dated 02.06.2014 and for direction to continue in service as Senior Assistant in the office of respondent no.4 or in the alternative all other persons who were working on the posts of Executive Engineer, Assistant Executive Engineer and Junior Engineer etc. be also placed under suspension and everyone be treated alike before law in terms of Article 14, 16 and 21 of the Constitution of India.
3. Insofar as the alternate prayer made by the writ petitioner is concerned, Mr. Jehangir Iqbal Ganai, the learned Advocate General, has submitted that after investigation of the case registered in FIR 91 of 2014 under Sections 5(2) of the Prevention of Corruption Act read with Sections 409/467/468, 120-B RPC on the file of Police Station Handwara, the Executive Engineer, Assistant Executive Engineer and the Junior Engineer have also been placed under suspension after they were arrested. It is stated that the investigation of the case is in progress. It is also stated that the writ petitioner was arrested on 18.03.2015 and he was granted bail on 03.04.2015.
4. Insofar as the first prayer of the writ petitioner seeking to quash the order of suspension is concerned, while the writ petitioner was working as Senior Assistant in the office of the Executive Engineer, PHE Division Handwara during the year 2013-2014, a Committee was constituted to probe into the execution of works and submission of utilization of material pursuant to the direction issued by this Court in PIL no. 16/2014. In the said PIL, this Court, noticing registration of FIR no. 91/2014, directed the SSP Crime Branch Kashmir to expedite the investigation and the said investigation is stated to be in progress. During the contemplation of the investigation and enquiry the writ petitioner was placed under suspension. The said order has been challenged and an interim order was granted by this Court.
5. Respondents have stated that the writ petitioner is the main architect of the fraud and embezzlement and during the course of investigation he was arrested and he is now facing the criminal action. The alleged discrimination pleaded by the writ petitioner is also not available as other persons were also suspended as stated supra.
6. The learned counsel appearing for the petitioner argued that the writ petitioner is not responsible for any fraud or embezzlement and the suspension order issued against him be quashed or at least the respondents may be directed to review the order of suspension under Rule 31 of the Jammu and Kashmir Civil Services ( Classification, Control and Appeal) Rules, 1956.
7. The learned Advocate General submitted that the writ petitioner is involved in fraud and embezzlement of government money and he has been suspended pending investigation/ contemplation of enquiry and there is no illegality in the order of suspension.
8. We have considered the rival submissions as well as the order impugned.
9. It is not in dispute that the writ petitioner is accused of fraud and embezzlement of the government money and he is also one of the accused in FIR 91/2014. He was arrested on 18.03.2015 and remanded to judicial custody and came out only after bail which was granted 03.04.2015. In such circumstances the petitioner cannot contend that there is no justification in placing him under suspension pending contemplation of enquiry. It is the contention of the respondents that the investigation conducted so far has revealed that an amount of Rs. 86,00,900/-plus Rs. 62,95,053/- has been found drawn fraudulently/ dishonestly by abuse of official position by the public servants and later misappropriated. A further sum of Rs. 20, 34, 623/- drawn on account of non-existent works has also been misappropriated. Thus the writ petitioner is facing a very serious allegation of fraud and misappropriation of government money and he is facing allegations of corruption while discharging his functions as a government servant along with others.
10. The issue as to whether a Government servant facing allegations of fraud and misappropriation of government money, when suspended, can pray for revoking/quashing the order of suspension as a matter of right is the issue to be answered in this writ petition.
11. Admittedly the writ petitioner is one of the accused in FIR 91/2014. He was arrested and confined to judicial custody for more than 15 days. The investigation is yet to be over. He has been suspended in terms of Rule 31 (1) of the J&K CCA Rules, 1956. The said Rule reads as follows:-
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 inquiry into his conduct is contemplated or is pending; or
(b) a complaint against him of any criminal offence is sunder investigation or trial.
12. Under sub-rule (3) of Rule 31 of the J&K CCA Rules, 1956, the suspension can be revoked by the authority who placed the Government employee under suspension. The said sub-rule reads as under:-
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. The said sub-rule is an enabling provision giving discretion to the authority to revoke the suspension after review.
13. The Honble Supreme Court in the decision reported in (1997) 4 SCC 1 ( Allahabad Bank and another v. Deepak Kumar Bhola) allowed the appeal against the order of the Allahabad High Court which quashed the order of suspension of a Bank employee who was facing criminal offences involving moral turpitude. In the decision of Honble the Supreme Court reported in (2000) 5 SCC 88 (State of Madhya Pradesh and ors v. Ram Singh) in paragraph nos. 8, 9 and 10 it is held thus:-
8. Corruption in a civilized society is a disease like cancer, which if not detected in time is sure to maliganise the polity of country leading to disastrous consequences. It is termed as plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as Royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence shaking of the socio-economic-political system in an otherwise healthy, wealthy, effective and vibrating society.
9. The menace of corruption was found to have enormously increased by first and second world war conditions. The corruption, at the initial stages, was considered confined to the bureaucracy who had the opportunities to deal with a variety of State largesse in the form of contracts, licences and grants. Even after the war the opportunities for corruption continued as large amounts of Government surplus stores were required to be disposed of by the public servants. As consequence of the wars the shortage of various goods necessitated the imposition of controls and extensive schemes of post-war reconstruction involving the disbursement of huge sums of money which lay in the control of the public servants giving them wide discretion with the result of luring them to the glittering shine of the wealth and property. In order to consolidate and amend the laws relating to prevention of corruption and matters connected thereto, the Prevention of Corruption Act, 1947 was enacted which was amended from time to time. In the year 1988 a new Act on the subject being Act No.49 of 1988 was enacted with the object of dealing with the circumstances, contingencies and shortcomings which were noticed in the working and implementation of 1947 Act. The law relating to prevention of corruption was essentially made to deal with the public servants, as understood in the common parlance but specifically defined in the Act.
10. The Act was intended to make effective provision for the prevention of bribe and corruption rampant amongst the public servants.
14. Whether a person can claim revocation of suspension before the culmination of the proceedings on the ground that suspension is being prolonged, was considered by Honble the Supreme Court in the decision reported in (2003) 6 SCC 516 (Union of India v. Rajiv Kumar) . In paragraph 29 it is held thus:-
29. Another plea raised relates to a suspension for a very long period. It is submitted that the same renders the suspension invalid. The plea is clearly untenable.
The period of suspension should not be unnecessarily prolonged but it plausible reasons exist and the authorities feel that the suspension needs to be continued, merely because it is for a long period that does not invalidate the suspension.
15. In the decision reported in 2009 (1) Supreme 458 (Surain Singh v. State of Punjab), Honble the Supreme Court considered the seriousness of corruption in public service and in paragraph 7 held thus:-
7. Day in and day out the gigantic problem of corruption in the public servants is on the increase. Large scale corruption retards the nation- building activities and everyone has to suffer on that count. Corruption is corroding like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralizing the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post. (See: Swatantar Singh v. State of Haryana (1997 (4) SCC 14) and State of M.P. v. Shambhu Dayal Nagar (2002 (1) SCC 1).
16. Thus it is evident that a government servant who is facing allegations of corruption/fraud/misappropriation while discharging official duties, can be placed under suspension to preserve the purity in the administration.
17. In this case the petitioner was placed under suspension by order dated 02.06.2014 when inquiry into his conduct was contemplated as per Rule 31 (1) of the CCA Rules. In the prevention of corruption case registered against him and others investigation is going on and they were arrested and released on bail after 15 days of custody and unless the finality of the proceedings is reached the revocation of suspension as a matter of right cannot be claimed. However, if the competent authority is of the view that suspension order needs to be revoked on proper review, it can be done provided the public interest is not put to prejudice.
18. There is no merit in the writ petition and the same is dismissed. No costs.
(Hasnain Massodi) (N. Paul Vasanthakumar)
Judge Chief Justice
SRINAGAR
27.07.2015
Anil Raina, Secy