Jammu & Kashmir High Court - Srinagar Bench
Bashir Ahmad Mir vs State Of Jk & Ors. on 15 November, 2017
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP No. 285/2016
MP No. 01/2016
Date of Order: 15th November, 2017.
Bashir Ahmad Mir
Vs.
State of JK & Ors.
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge.
Appearance:
For the Petitioner(s): Mr Manzoor Ahmad Ganai, Advocate
For the Respondent(s): Mr A. M. Mir, Dy. AG.
i) Whether approved for reporting in Yes/No
Law Journals etc.:
ii) Whether approved for publication
in Press: Yes/No
01. In this petition, the petitioner has sought the indulgence of this Court in issuing an appropriate writ, order or direction, including the one in the nature of:
"a. Writ of Certiorari quashing the impugned order of suspension bearing order No. 2358-DSEK of 2013 dated 10-12-2013 issued by respondent No.2, in so far as it pertains to the petitioner be quashed.
b. Writ of certiorari Govt order No. 591-Edu of 2014 dated 22-8-2014, in so far as it pertains to the petitioner be quashed.SWP No. 285 of 2016 Page 1 of 7
c. Writ of Mandamus directing the respondents to reinstate the petitioner and pay him all consequential benefits right from the date these became due to him with a further direction to adjust the petitioner/ post him suitably and property commensurate with his service and status in the department.
d. Also any other appropriate writ, order or direction/ relief, which will advance the ends of justice in the present case, may be passed in favour of the petitioner against the Respondents with costs."
02. The crux of the petition of the petitioner is that the impugned order of suspension bearing No. 2358-DSEK of 2013 dated 10th of December, 2013 as also his transfer during the period of his suspension, ordered vide the impugned Government orderNo. 591-Edu of 2014 dated 22nd August, 2014, are illegal and arbitrary. The petitioner has stated that he was working as Principal, Higher Secondary School Dangerpora, Sopore, during the year 2013, when a case of the misappropriation of SSA funds came to the surface in the District, as a consequence of which, the authorities of the Education Department at the Zonal Education Office level, immediately started appropriate action/ enquiry into the matter. A report was prepared, whereunder a Committee of four members was constituted to look into the matter of misappropriation of funds earmarked for the SSA Education Programme/ Scheme. The Committee submitted its report to the Chief Education Office, Baramulla, under No. CEO/Plg/Bla/8017 dated 5th November, 2013 and the Committee reported that it was by the joint efforts and on the persuasion of the incumbent Zonal Education Officer and the Principal Higher Secondary School, Dangerpora, that an amount of Rs. 35, 36, 348/- was recovered out of total excess amount of Rs. 73,75,308/- from the involved officials. The said report was forwarded to the Director, School Education, Kashmir, by the Chief Education Officer, Baramulla, and it formed the baseline of the order of the suspension of the petitioner. The petitioner has proceeded to SWP No. 285 of 2016 Page 2 of 7 state that the Department failed to inquire into the matter in terms of the rules on the one hand and, the petitioner continues to suffer the consequences of illegal suspension, on the other hand. The petitioner moved an application/ representation before the Respondent No.2, i.e. the Director, School Education, Kashmir, requesting him to hold an enquiry into the matter. In the representation, he also stated that the excess payment drawn during the tenure of the petitioner having been recovered, there, thus, is no cause for the Respondents to continue with the order of suspension of the petitioner. The Respondents constituted an Enquiry Committee vide order No. 66 DSEK of 2014 dated 16th of January, 2014, issued by the Directorate of School Education, Kashmir, and, the Committee comprised of the Chief Accounts Officer of DSEK, OSD (IMW) of DSEK and OWD (CEW) of DSEK. The Committee came to the conclusion that the petitioner, who was incharge ZEO (Principal) alongwith other ZEOs have transgressed the basic norms of the SSA Scheme. The Committee also came with the details of the liability of the responsible officials. The petitioner is not only aggrieved of the report of the Enquiry Committee, but also of the suspension order issued by the Respondent No.2, besides his transfer from Higher Secondary School, Dangerpora to Higher Secondary School, Teetwal.
03. The Respondents have resisted and controverted the petition of the petitioner, inter alia, on the grounds that in the year 2013, misappropriation of funds surfaced in the Dangerpora zone, at a time, when the petitioner was working as Principal in the Government Higher Secondary School, Dangerpora, Sopore, holding the additional charge of Zone Dangerpora, w.e.f. March, 2012 to August, 2012. An Inquiry Committee was constituted by the Respondent No.2, i.e. the Director, School Education, Kashmir, to investigate into the matter SWP No. 285 of 2016 Page 3 of 7 and, during the course of inquiry, it was found that the petitioner had released an amount of Rs. 26, 79, 000/- as excess payment during the period the petitioner performed his duties as Incharge Drawing and Disbursing Officer of Zone Dangerpora. The petitioner was, accordingly, placed under suspension and, thereafter, he was transferred and posted as Incharge Principal of the Higher Secondary School, Teetwal. The Committee constituted by the Respondents, with a mandate to enquire into the misappropriation of SSA funds, observed that the erring officials, including the petitioner, failed to perform their duties as per rules and they have violated the basic norms of SSA Scheme by illicit drawl of the SSA civil works capital component. In the end, it has been prayed that the petition of the petitioner be dismissed with costs in the ends of justice.
04. Heard and considered.
05. The communication of the Chief Education Officer, Baramulla, dated 5th November, 2013, attached to the petition as Annexure-B, states, inter alia, that it was by the joint efforts and on the persuasion of the incumbent ZEO and Principal, HSS Dangerpora, who was the DDO of the Zone from March, 2012 to August, 2012, that an amount of Rs. 35.36348 lacs was recovered from the involved officials, out of total excess payment of Rs. 73.75308 lacs (Approx.). It also states that the recovered amount has been deposited in the SSA Accounts, the details whereof are attached for ready reference. By order No. 66 DSEK of 2014 dated 16th of January, 2014, a Committee (as stated hereinbefore), came to be constituted with the direction to conduct a probe into the matter and to submit a report to the Director, School Education, Kashmir, with specific recommendations, within a period of ten days. The report of the Committee stated that the petitioner, among others, released an excess amount SWP No. 285 of 2016 Page 4 of 7 of Rs. 26,79,000/- in blatant ignorance and in not going through the bank reconciliation. They did not follow the guidelines of SSA Scheme and acted peripherally and cursorily which has resulted into a scam. The report also stated that out of the excess amount, reckoned and calculated at Rs. 84,34,450/-, withdrawn by Zahoor Ahmad Mir, Ali Mohammad Mushki, Showkat Ahmad Wani and Ghulam Rasool Najar, Headmasters, an amount of Rs. 36,38,750/- has been recovered. The report also stated that the balance amount has to be recovered from Zahoor Ahmad Peer/ Mehraj-ud-Din Shawl (Rs. 36,42,664/-) and Ali Mohammad Mushki (Rs. 11,66,894/-), Headmasters/ SEPO. The inquiry report, so framed, does not state it anywhere that any amount of recovery has to be made from the petitioner, on the basis of which, his suspension could have been ordered.
06. Be that as it may, the petitioner has been placed under suspension by order No. 2358-DSEK of 2013 dated 10th of December, 2013. No case has been registered against him for the embezzlement of the funds. No memorandum of charges/ chargesheet has been served on him and, had it been that, the Respondents would have stated so in their reply. The answer to the question whether the order of suspension can survive till infinity without adopting the course provided above (that is, in not registering a case against him or the supply of chargesheet followed by an inquiry into the matter) has been provided in the law laid down by the Supreme Court in the case of "Ajay Kumar Choudhary v. Union of India through its Secretary & Anr.", reported in "AIR 2015 SC 2389", the relevant excerpts of which read as under:
"Suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration. If it is for an indeterminate period or if its renewal is not based on sound reasoning, contemporaneously SWP No. 285 of 2016 Page 5 of 7 available on the record, this would render it punitive in nature. Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be. The suspended person suffering the ignominy of insinuations, the scorn of society and the derision of his Department, has to endure this excruciation even before he is formally charged with some misdemeanor, indiscretion or offence. His torment is his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisition or inquiry to come to its culmination, that is to determine his innocence or iniquity. Much too often this has now become an accompaniment to retirement. The Cr.P.C. of 1973 contains a new proviso to S. 167(3) which has the effect of circumscribing the power of the Magistrate to authorize detention of an accused person beyond period of 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and beyond a period of 60 dayswhere the investigation relates to any other offence. If Parliament considered it necessary that a person be released from incarceration after the expiry of 90 days even though accused of commission of the most heinous crimes, a fortiori suspension should not be continued after the expiry of the similar period especially when a Memorandum of Charges/ Charge-sheet has not been served on the suspended person. It is true that the proviso to Section 167(2) Cr.P.C. postulates personal freedom, but respect and preservation of human dignity as well as the right to a speedy trial should also be placed on the same pedestal. The Court, therefore, directed 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."
07. Applying the ratio of law laid down above to the facts and circumstances of the instant case, the order of suspension and the order of transfer of the petitioner based on such suspension cannot survive the test of law for the reason that no memorandum of charges/ chargesheet has been served on the petitioner nor has any case been registered against him from the day, the misappropriation of the Government money is alleged to have come to the fore. Much water has SWP No. 285 of 2016 Page 6 of 7 flown down the "Ganges" since the date of the order of the suspension of the petitioner. A period of almost 3 years has passed since then. The Respondents cannot keep the fate of the petitioner hanging like that of a "Trishunka", which is not permissible under law.
08. The cumulative effect of all that has been said and done above is that the impugned order of suspension bearing No. 2358-DSEK of 2013 dated 10th of December, 2013 and the Government order bearing No. 591-Edu of 2014 dated 22nd August, 2014, in so far as these relate to the petitioner are quashed and the Respondents are, by a writ of mandamus, directed to reinstate the petitioner into service. The Respondents shall also, within a period of six weeks, take a decision regarding the benefits of pay that have accrued to the petitioner during the period he has remained under suspension. This order shall not be interpreted to mean that the Respondents are, in any way, debarred from holding an enquiry into the matter against the petitioner nor shall the inference that they are hampered from launching any criminal prosecution against him be deduced and drawn from it.
09. Writ petition alongwith connected MP disposed of as above.
(M. K. Hanjura) Judge SRINAGAR November 15th, 2017 "TAHIR"
SWP No. 285 of 2016 Page 7 of 7