Jammu & Kashmir High Court
Ashok Kumar vs Union Of India And Ors on 2 January, 2025
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Serial No. 30
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C) No. 3216/2023
CM No. 7780/2023
Ashok Kumar ..... Petitioner(s)
Through: Mr. Sunil Sethi, Sr. Advocate with
Ms. Rudra Sharma, Advocate
vs
Union of India and Ors. ..... Respondent(s)
Through: Mr. Vishal Sharma, DSGI.
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
JUDGMENT
02.01.2025
ORAL
1. The petitioner in the instant petition filed under Article 226 of the
Constitutions of India seeks the following reliefs:-
(a) An appropriate writ, order or direction in the nature of writ
of certiorari quashing order of suspension of the petitioner
issued by respondent No. 3 under endorsement no.
EST/PF/CBJ/ 2023/2019-2020 dated 18th September, 2023
whereby the petitioner, serving as Revenue Inspector,
Jammu Cantonment Board, Jammu Cantt., has been placed
under suspension, being totally illegal, arbitrary, without
any jurisdiction and competence.
(b) An appropriate writ, order or direction in the nature of writ
of mandamus commanding the respondents to reinstate the
petitioner back into service and allow him to perform his
duties as Revenue inspector without any hindrance,
obstruction or interruption and grant him all consequential
benefits including his regular salary and allowances.
(c) Any other relief, which this Hon’ble Court, in the facts and
circumstances of the case deems fit and proper.
2. The facts under the shade and cover of which the aforesaid reliefs
have been prayed and as are stated in the petition are that the petitioner herein
being an employee of Jammu Cantonment Board (for short the “Board” ) has to
2 WP(C) No. 3216/2023
his credit 35 years of impeccable service rendered by him with utmost dedication,
devotion and sincerity.
3. The petitioner states that he came to be falsely implicated in a
criminal case registered as FIR No. RC0042023A009 dated 13.09.2023 by
Central Bureau of Investigation Anti-Corruption Bureau, Jammu (for short,
CBI/ACB) for an alleged offence under Section 7 of the Prevention of Corruption
Act, 1988, (hereinafter referred to as the, “Act”), consequent to which, the
petitioner came to be arrested on 14.09.2023 and remained initially in the custody
of the CBI/ACB and then, under judicial custody till 06.10.2022, after which, he
came to be admitted to bail by the High Court on 06.10.2023.
4. It is being also stated that soon after petitioner came to be granted
bail by the High Court, the CBI/ACB registered yet another highly motivated and
baseless FIR bearing No. RC0042023A0010 dated 19.10.2023 against the
petitioner for the commission of offence under Section 7 of the Act, in which FIR
as well, he came to be granted bail in anticipation of his arrest by Special Judge
Anti-Corruption, (CBI Cases), Jammu in terms of order dated 27.10.2023. The
petitioner states to have challenged the FIR dated 19.10.2023 before this Court in
CRM(M) No. 1013/2023, which is pending consideration before this Court.
5. It is being further stated that service conditions of the petitioner
being an employee of the Board are governed by Cantonment Board Employees
Service Rules, 2021 (hereinafter referred to as the, “Rules of 2021”) issued vide
Notification SRO:16(E) of 2021 dated 13.10.2021 issued by Ministry of Defence,
Government of India and that in terms of Rule 9(2)(b)(i) of the Rules of 2021, an
employee is deemed to have been placed under suspension by an order of the
3 WP(C) No. 3216/2023
appointing authority with effect from the date of his detention, if he is detained in
custody, whether on a criminal charge or otherwise for a period exceeding 48
hours and that in view of the detention of the petitioner beyond 48 hours, the
respondent 3 in terms of order dated 18.09.2023 placed him under suspension.
6. The petitioner has challenged the impugned order of suspension
inter-alia on the following grounds:-
(a) That the impugned suspension order dated 18.09.2023
issued by respondent No. 3 placing the petitioner under
suspension w.e.f 14.10.2023 is totally illegal, arbitrary and
contrary to the provisions law and above all without any
competence and jurisdiction, therefore, the same deserves to
be quashed.
(b) That impugned order dated 18.09.2023 issued by respondent
No. 3 Chief Executive officer, Jammu Cantonment is
without any competence and jurisdiction. The Chief
Executive Officer, Jammu Cantonment is the appointing
authority for non-supervisory posts as per rule 7(1) and
appointing authority for supervisory posts is the
Cantonment Board. The petitioner is substantively holding
the post of Revenue Inspector which is declared as
supervisory posts, therefore, it is the respondent No. 2-
Board alone which, as per rule 9(2)(b) (i), is the competent
authority to place the petitioner under suspension.
Exercising the powers of Board by Chief Executive Officer
without any specific delegation, renders the impugned order
dated 18.09.2023 totally illegal, arbitrary and without any
jurisdiction. On this ground alone, the impugned order
dated 18.09.2023 deserves to be quashed.
(c) That the impugned order dated 18.09.2023 is further not
legally sustainable and is liable to be quashed on the ground
that the Hon’ble Supreme Court of India in case reported as
Marathwada University V. Seshrao Balwant Rao Chavan
(1989) 3 SCC 132, has categorically held that when a statute
prescribes a particular body to exercise a powers, it must be
exercised by that body alone and not by others, unless it is
delegated. The aforesaid judgment has further been
followed by the Hon’ble Supreme Court of India in a case
reported as Rakesh Kumar Agarwala and Anr V National
Law school of India University, Bengaluru and Others
(2021) 1 SCC 539, wherein it has again been laid down that
when the Act prescribes a particular body to exercise a
power, it must be exercised only by that body and it cannot
be exercised by others, unless it is delegated. From the bare
4 WP(C) No. 3216/2023
perusal of the impugned order dated 18.09.2023 it clearly
transpires that the respondent No. 3 has not disclosed any
order or notification under which powers of the “
appointing authority” qua supervisory posts is delegated
upon him. The respondent No. 3 without there being any
delegation of powers upon him, without disclosing the
source of any such delegation has illegally and erroneously
exercised the powers which are vested with the Appoint,
Authority, which renders the impugned order highly vitiated
and without jurisdiction. On this ground also, the impugned
order of suspension of the petitioner dated 18.09.2023
having been issued by respondent No. 3 without competence
and jurisdiction, therefore, the same deserves to be quashed.
(d) That this Hon’ble Court has already set at rest the issue
with respect to issuance of suspension order by any
authority without competence and jurisdiction while
deciding writ petition WP(C) No. 222/2021 titled Qaiser
Mehmood V. Ut of J&K and Ors vide judgment dated
11.02.2021. in this case, this Hon’ble Court quashed the
suspension order of the petitioner Qaiser Mehmood,
(member of J&K Administrative Service) issued by the
Deputy Commissioner, Samba on the ground that the order
of suspension being without jurisdiction. In the instant case,
the respondent No. 3 does not have any competence and
jurisdiction, as per the scheme of the Cantonment Board
Employees Service Rules 2021 promulgated vide
notification SRO 16(E) of 2021 dated 13.10.2021, therefore,
the impugned order of suspension of the petitioner dated
18.09.2023 deserves to be quashed.
(e) That the impugned suspension order dated 18.09.2023
issued by respondent No. 3 placing the petitioner under
suspension w.e.f 14.10.2023 is further bad in the eyes of
law and is liable to be quashed on the ground that the power
of suspension should not be exercised in an arbitrary
manner and without any reasonable ground or as vindictive
misuse of power. Suspension should be made only in a case
where there is a strong prima facie case against the
delinquent employee and the allegations involving moral
turpitude, grave misconduct or indiscipline or refusal to
carry out the orders of superior authority are there, or there
is a strong prima facie case against him, if proved, would
ordinarily result in reduction in rank, removal or dismissal
from service. The authority should also take into account all
the available material as to whether in a given case, it i
advisable to allow the delinquent to continue to perform his
duties in the office or his retention in office is likely to
hamper or frustrate the inquiry. In the instant case, the
petitioner has been placed under suspension on the basis of
his detention. Detention of the petitioner came to end with
5 WP(C) No. 3216/2023effect from 06.10.2023 when he was admitted to bail. Since
the petitioner is under no detention since 06.10.2023,
therefore, the respondent No. 3 ought to have considered the
case of the petitioner for revocation of his suspension,
which has not been done till date which renders the
impugned suspension of the petitioner ex-facie illegal and
vitiated in law. On this ground also, the impugned
suspension order dated 18.09.2023 deserves to be quashed.
(f) That effect on public interest due to the employee’s
continuation in office is also a relevant and determining
factor. However, suspension order should be passed only
where there is a strong prima facie case against the
delinquent, and if the charges stand proved, would
ordinarily warrant imposition of major punishment i.e.
removal or dismissal from service, or reduction in rank etc.
The impugned suspension order runs contrary to the
aforesaid proposition of law, therefore, the same deserves to
be quashed.
(g) That in a remarkable judgment in service law
jurisprudence, the Hon’ble Supreme Court of India in case
reported as (2015) 7 SCC 291 Ajay Kumar Choudhary Vs.
Union of India and Ors has held that a government
employee cannot be kept suspended for more than three
months if not formally informed about the charges and in
any case if enquiry is not completed within 90 days the
suspension gets automatically revoked. In the instant case,
neither any enquiry into the conduct of the petitioner has
been contemplated nor any charge-sheet uptill date has
been issued and served upon the petitioner and nothing has
been done beyond suspending and attaching the petitioner,
therefore, continuation of suspension of the petitioner
becomes punitive and runs contrary to the law laid down by
the Hon’ble Supreme Court of India. The Hon’ble Supreme
Court of India in the aforesaid judgment, amongst others,
made the following important and significant observations,
which are not only imperative but are fully attracted in the
given facts and circumstances of the present case :-
“14. We therefore, direct 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 extension of the suspension.
The suspension as well as attachment of the petitioner in the
light of the observations and law laid down by the Hon’ble
Supreme Court of India law laid down by the Hon’ble
Supreme Court of India become highly illegal and contrary
to law, therefore, the same deserve to be quashed.
6 WP(C) No. 3216/2023
(h) That the suspension of the petitioner has become illegal in
view of the law settled by the Apex Court as the Apex Court
has already issued direction that the currency of suspension
should not be extended beyond three months if within this
period, the memorandum of charges/charge-sheet is not
served upon the delinquent officer/employee and if the
memorandum of charges/charge- sheet is served, a reasoned
order must be passed for the extension of the suspension. In
the present case, no charge-sheet has been issued to the
petitioner despite lapse of more than 3 months as such the
suspension order becomes illegal, therefore, the same is
liable to be revoked and the petitioner is required to be
reinstated back into service.
(i) That the suspension of the petitioner is visiting him with
penal consequences in as much as he has been placed under
suspension without any valid reason or
occasion/circumstance against him. Therefore, the action of
the respondents in not reviewing the suspension of the
petitioner is arbitrary and volatile of fundamental and
service rights of the petitioner, therefore, deserves to be
quashed.
(j) That the Hon’ble High Court of J&K and Ladakh also in
the case reported as 2015 (2) JKJ 484 titled Balbir Singh vs.
State of J&K and others has held that the prolonged
suspension by itself has the effect of causing distress and
agony to an employee. It has been further held that after an
employee is suspended, he is required to be dealt with under
rules immediately and cannot be kept under suspension for
an indefinite period. Further it has been held that though
suspension may not be a punishment but prolonged
suspension is bad as the same is repressive and causes
distress.
(k) That the petitioner has not been given his subsistence
allowance right since his suspension till date. Denial of
subsistence allowance by the respondents to the petitioner
under the given facts and circumstances of the case is aimed
at causing grave and serious prejudice not only to the
petitioner but to his family also as in the absence of
subsistence allowance, the petitioner is facing acute and
financial hardships and difficulties. If the subsistence
allowance of the petitioner is not released together with
arrears, that would offend his fundamental rights
guaranteed under the Constitution of India.
(l) That the petitioner has already filed a detailed
representation before respondent no.3 on 01.11.2023 for
revocation of his suspension order, but till date neither the
said representation has been considered nor any order
thereupon has been passed.
7 WP(C) No. 3216/2023
(m) That viewed from any angle, the impugned suspension of
the petitioner is totally illegal, arbitrary, contrary to the
provisions of law and above without any competence and
jurisdiction, therefore, the same deserve to be quashed.
7. Upon coming of this matter for consideration before this Court in the
first instance on 17.12.2024, the Court, while issuing a notice to the respondents,
directed the respondents to consider the representation of the petitioner irrespective
of the pendency of the petition and on subsequent dates of hearing, provided
opportunities to the respondents to file objections to the petition, which till last date
of hearing i.e. 31.12.2024 have not been filed, as a consequences whereof, the right
to file the same came to be closed.
Heard learned counsel for the parties and perused the record.
8. Learned counsel for the petitioner while making his submissions in
tune with the contentions raised and grounds urged in the petition, would contend
that the impugned order is legally unsustainable and is liable to be quashed, more
so, in view of the fact that the charge-sheet arising out of FIR No.
RC0042023A009 dated 13.09.2023 in connection with the petitioner came to
arrested and placed under suspension stands presented before the Special Judge
(Anti-Corruption) CBI cases, Jammu on 07.12.2023 and as such, the continuous
suspension of the petitioner pursuant to the impugned order would not serve any
purpose, more so, that the petitioner is reaching to the age of superannuation on
28.02.2025, upto which time, it is unlikely and highly improbable that the trial in
the charge-sheet (supra) would be concluded before the trial Court.
9. On the contrary, Mr. Sharma, learned DSGI, appearing counsel for
the respondents would submit that notwithstanding the closure of the right of the
respondents for filing objections to the petition, the respondents had laid a motion
8 WP(C) No. 3216/2023
along with objections today itself under CM No. 90/2025, before this Court and
would pray for considering the said objections in opposition to the petition. While
opposing the submission made by the learned counsel for the petitioner, the
counsel for the respondents would contend that the order under challenge stands
issued validly and legally against the petitioner in accordance with the law and
that the petitioner has committed a gross misconduct of accepting bribe, resulting
into his arrest in FIR bearing No. RC0042023A0010 dated 19.10.2023, which
stands challaned before the competent Court. The learned counsel would further
contend that the plea of the counsel for the petitioner that on the account of filing
of the charge-sheet, inasmuch as, the superannuation of the petitioner in near
future would not clothe him with any right to seek quashing of the order of
suspension.
10. Having regard to the aforesaid position obtaining in the matter and
with the consent of the appearing counsel parties the instant petition is taken up
for final disposal, at this stage and the application bearing CM No. 90/2025
(supra) filed by the respondents accompanied with the copy of objections and
furnished by Mr. Vishal Sharma, learned DSGI are taken on record.
11. In the said objections, it is being contended by the respondents that
the petitioner came to be suspended by respondent 3 herein in exercise of the
power vested in him under Rule 9(2)(i) of the Rules of 2021 in view of the
detention of the petitioner upon his arrest on 14.09.2023 by the CBI/ACB, while
stating further that the representation submitted by the petitioner against his
suspension came to be considered by the Board, which on 17.09.2024, opined and
9 WP(C) No. 3216/2023
decided to continue with the suspension of the petitioner stating lastly that the
petitioner is not entitled to any relief much less thereto prayed in the petition.
12. Before proceedings further in the matter, it would be pertinent to
refer to the Rule position occupying the field in the instant matter. S.R.O No. 16
(E) dated 13.10.2021 (supra) issued by the Ministry of Defence, Government of
India provides for the Cantonment Board Employees Service Rules of 2021 and
Rule 9 of the Rules of 2021 being germane and relevant to the controversy is
reproduced hereunder:-
“Rule 9 (1). The officer Commanding -in Chief, the Command may, if in
his opinion the number of employees employed or proposed to
be employed by the Board or the salary assigned by the Board
to any such employee is excessive, require the Board to reduce
any number of such employees or the amount of such salary as
the case may be, within such time as he may fix and the Board
shall, subject to the provisions of sub-rule(1) of rule 8 and of
any lawful contract between the employee and the Board,
comply with such requisition.
Provided that reasonable opportunity shall be given to the
Board to show cause in writing why such reduction should not be made.
(2)(a) the appointing authority may place an employee under
suspension-
(1) where a disciplinary proceeding against him is contemplated or is
pending; or (ii) where a case against him in respect of any criminal
offence is under investigation, inquiry or trial;
(b) an employee shall be deemed to have been placed under suspension
by an order of appointing authority-
(i) with effect from the date of his detention, if he is detained in
custody, whether on a criminal charge or otherwise for a period
exceeding forty-eight hours;
(ii) with effect from the date of his conviction, if in the event of a
conviction for an offence he is sentenced to a term of
imprisonment exceeding forty-eight hours and is not forthwith
dismissed or removed or compulsory retired consequent to such
conviction.
(c) where a penalty of dismissal, removal, or compulsory retirement
from service imposed upon an employee under suspension is set
aside in appeal or on review under these rules and the case is
remitted for further enquiry or action or with any direction, the
order of his suspension shall be deemed to have continued in force
on and from the date of the original order of dismissal, removal or
compulsory retirement and shall remain in force until further
orders.
(d) where a penalty of dismissal, removal or compulsory retirement
from service imposed upon an employee is set aside or declared or
10 WP(C) No. 3216/2023rendered void in consequence of or by a decision of a court of law
and the disciplinary authority, on consideration of the
circumstances of the case, decided to hold a further inquiry against
him on the allegations on which the penalty of dismissal, removal
or compulsory retirement was originally imposed, the employee
shall be deemed to have been placed under suspension by the
Appointing Authority from the date of the original order of
dismissal, removal or compulsory retirement and shall continue to
remain under suspension until further orders:-
Provided that no such further inquiry shall be ordered unless it
is intended to meet a situation where the court has passed an order
purely on technical grounds without going into the merits of case.
(e) (i) an order of suspension made or deemed to have been made under
this rule shall continue to remain in force until it is modified or
revoked by the authority competent to do so.
(ii) Where an employee is suspended or is deemed to have been
suspended (whether in connection with any disciplinary proceedings
or otherwise) and any other disciplinary proceedings are
commenced against him during the continuance of that suspension
the authority competent to place him under suspension may, for
reasons to be recorded by him in writing, direct that the employee
shall continue to be under suspension until the termination of all or
any such proceedings.
(iii) an order of suspension made or deemed or deemed to have been
made under this rule may at any time be modified or revoked by the
author which made or is deemed to have made the order or by any
authority to which that authority is subordinate.”
As is manifest from above, Rule 9(2)(b)(i) provides that an employee
shall be deemed to have been placed under suspension by an order of appointing
authority with effect from the date of his detention, if he is detained in custody
whether on criminal charge or otherwise for a period exceeding 48 hours.
Rule 9 Sub-Rule 2(e)(i) also provides that an order of suspension
made or deemed to have been made under this Rule shall continue to remain in
force until it is modified or revoked by authority competent to do so and that for
the reasons by the competent authority in writing, direct that the employee shall
continue to be suspension until termination of all or any of such proceedings. The
Rule further provides that an order of suspension made or deemed to have been
made under this Rule may at any time be modified or revoked by the authority
11 WP(C) No. 3216/2023
which made or is deemed to have been made the order or by authority to which
that authority is subordinate.
13. Having regard to the above rule position, inasmuch as, the facts and
circumstances of the case, the moot question that would beg for consideration of
this Court would be as to whether the impugned order could be reviewed by this
Court in exercise of the power of the judicial review or not.
14. It is settled position of law that the word “suspension” refers to that
states, when an employee temporarily is debarred by his employer for the time
being from performing his official functions or enjoying certain privileges. When
an employee is placed under suspension by an employer, during the period of
suspension, the employee is essentially kept away from exercise of his official
functions and enjoyment of those privileges. The main purpose of placing an
employee under suspension by his employer is temporary and is not a permanent
feature envisaged for the purposes of completing an enquiry or trial in respect of
the conduct of an employee.
The Apex Court in case titled as State of Orissa V/s Bimal Kumar
Mohanty AIR 1994 Supreme Court 2296 has, inter-alia, held that it would not
be as an administrative routine or an automatic order to suspend an employee, but
it should be on consideration of the gravity of the alleged misconduct or the
nature of allegations imputed to the delinquent employee and that the suspension
must be a step in aid to the ultimate result of the investigation or inquiry and that
the authority must keep in mind public interest of the impact of delinquents
continuation in office while facing the departmental enquiry or trial of a criminal
charge.
12 WP(C) No. 3216/2023
The Apex Court in case titled as “Union of India v/s Ashok Kumar
Agarwal reported as 2013(16) SCC 147, has held that while summarizing the
concept of suspension, that suspension, order can be passed by the competent
authority considering the gravity of the alleged misconduct i.e. serious act of
omission or commission and the nature of evidence available and it cannot be
actuated by mala fide, arbitrariness, or for ulterior purpose and that effect on
public interest due to the employees‟ continuation in office is also a relevant and
determining factor and that facts of each case have to be taken into consideration
as no formula of universal application can be laid down in this regard while
further clarifying that the suspension order should be passed only where there is
strong prima facie case against the delinquent and the charges if proved, would
ordinarily warrant imposition of major punishment i.e. removal or dismissal from
service, or reduction in rank etc.
The Apex Court in case titled as Jayrajbhai Jayantibhai Pael Vs.
Anilbhai Nathubai Patel & Ors. reported in (2006) 8 SCC page 200 has held
that the power of judicial review may not be exercised qua an administrative
decision unless the same is illogical or suffers from procedural impropriety or it
shocks the conscience of the Court in the sense that it is in defiance of logic or
moral standards, but no standardized formula, universal applicable to all cases,
can be evolved and that each case has to be considered on its own facts,
depending upon the authority that exercises of the powers, the source, the nature
or scope of power and the indelible effects it generates in the operation of law or
affect the individual or society and though judicial restraint, „albeit‟ self-
recognized, is the order of the day, yet an administrative decision or action which
13 WP(C) No. 3216/2023
is based on wholly irrelevant consideration or material or excludes from
consideration the relevant material or it is so absurd that no reasonable person
could have arrived at it on the given material may be struck down.
The Apex Court in case titled “Ajay Kumar Chowhdary V/s Union
of India through Secretary reported in (2015) 7 SSC 291, at paras 11, 12, 20 and
21 has held as under:-
“11. 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 available on the
record, this would render it punitive in nature.
Departmental/disciplinary proceedings invariably
commence with delay, are plagued with procrastination
prior and post the drawing up of the memorandum of
charges, and eventually culminate after even long delay.
12.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 formally charged with
some misdemeanour, 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. Indubitably, the
sophist will nimbly counter that our Constitution does not
explicitly guarantee either the right to a speedy trial even
to the incarcerated, or assume the presumption of
innocence to the accused, But we must remember that
both these factors are legal ground norms, are inextricable
tenets of Common Law jurisprudence, antedating even
the Magna Carta of 1215, which assures that -” We will
sell to no man, we will not deny or defer to any man either
justice or right”. In similar vein the Sixth Amendment to
the Constitution of the United States of America
guarantees that in all criminal prosecutions the accused
shall enjoy the right to a speedy and public trial.
20. It will be useful to recall that prior to 1973 and accused
could be detained for continuous and consecutive period
of 15 days, albeit, after judicial scrutiny and supervision.
The code of Criminal Procedure, 1973 contains a new
proviso which has the effect of circumscribing the power
of the Magistrate to authorise detention of an accused
person beyond a period of 90 days where the investigation
relates to an offence punishable with death, imprisonment
14 WP(C) No. 3216/2023for life or imprisioemnt for a term of not less than 10
years, and beyond a period of 60 days where the
investigation relates to any other offence, Drawing
support from the observations contained of the Divisions
Bench in Raghubir Singh V State of Bihar and more so of
the Constitution Bench in Antulay, we are spurred to
extrapolate the quintessence of the proviso to Section
167(2) Crpc, 1973 to moderate suspension orders in cases
of departmental/disciplinary enquiries also. It seems to us
that 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/charges-sheet has not been
served on the suspended persons. It is true that the proviso
to Section 167(2) CrPC postulates personal freedom, but
respect and preservation of human dignity as well as the
right to a speedy trial should be also be placed on the same
pedestal.
21. We, therefore, direct that the currency of a suspension
order should next extend beyond three months if within
this period the memorandum of charges/charges-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. As in the case in hand, the Government is free
to transfer the person concerned 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 recognized
principle of human dignity and the right to speedy trial
and shall also preserve the interest of the Government in
the prosecution. We recognize that the 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.”
15. Keeping in mind the aforesaid position of law and reverting back to
case in hand, it is an admitted fact that the petitioner herein came to be placed
under suspension on 18.09.2023. It is also not in dispute that charge-sheet stands
filed before the Court of Special Judge Anti-Corruption, (CBI Cases), Jammu on
15 WP(C) No. 3216/2023
07.12.2023 in connection with the case whereunder the petitioner herein was
detained and consequently placed under suspension. It is also not in dispute that
charges till date have not been framed therein the said charge-sheet against the
petitioner by the said Court. It is not being disputed by the respondents herein that
the petitioner is superannuating in the month of February, 2025. Indisputably, the
petitioner has remained under suspension for a period of more than one year by
now and is reaching to his age of superannuation next month. Having regard to
the said undisputed facts, the question would be as to whether the principle of
law laid down by the Apex Court in case of Ajay Kumar Choudhary (supra)
would be extendable and applicable to the case of the petitioner qua the impugned
order of suspension.
16. This Court is not oblivious of the position of law that the scope of the
judicial review in the matter of suspension of an employee is limited and that the
matter of suspension, its continuation or revocation is the exclusive domain of the
employer, yet the principles of law laid down by the Apex Court in Ajay Kumar
Choudhary (supra) cannot be over looked having regard to the peculiarity of the
facts and circumstances of the case in hand, more particularly, having regard to
the fact that the petitioner has remained under suspension for more than a year
and that no departmental enquiry parallel to the filing of the charge-sheet has
been initiated by the respondents against which would get prejudice by
termination of the suspension of the petitioner and also that the petitioner is
superannuating in the next month. Under the aforesaid circumstances, the interest
of the respondents could be adequately safe-guarded by directing the attachment
of the petitioner instead of continuing him under suspension moreso when the
16 WP(C) No. 3216/2023
respondents have not specified any period thereof either in the initial order of
suspension or the order of review which is claimed to have been passed by the
respondents upon representation filed by the petitioner.
17. In view of what has been observed, considered and analysed above,
this Court deems it desirable and appropriate to quash the impugned order of
suspension in that, the continuation of same would not serve any purpose as the
petitioner is retiring next month and instead direct the respondents to attach the
petitioner in the office without assigning him duties of any nature till his
superannuation.
18. Ordered accordingly,
19. The judgment relied upon by the counsel for the respondents in view
of the above pale into in significance.
20. Disposed of along with all connected application(s).
(JAVED IQBAL WANI)
JUDGE
Jammu
02.01.2025
Javid Iqbal
Whether the order is speaking? Yes/No
Whether the order is reportable? Yes/No
Javid Iqbal
2025.01.07 16:07
I attest to the accuracy and
integrity of this document
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