Des Raj Singh vs Union Territory Of Jammu And Kashmir & Ors.

Per: - Ram Mohan Johri, Administrative Member

The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking following relief:

The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985, being aggrieved by the action of the respondents in withholding his salary with effect from February, 2015 and in not extending to him the consequential service benefits including consideration for promotion/placement as In-charge Lecturer in the discipline of Physics. Challenge has also been laid to communication No. CEOK/37691-93 dated 02.04.2021 and order/communication No. DSEJ/Legal/9610-12 dated 15.03.2021 whereby his reinstatement was sought to be made conditional upon furnishing an affidavit/undertaking.

The applicant has, inter alia, prayed for a direction to the respondents to release his salary with effect from February, 2015; to grant him the benefit of promotion/placement as In-charge Lecturer from 25.07.2019, i.e. the date from which allegedly similarly situated/junior Masters were granted such benefit, together with consequential benefits; and for setting aside the aforesaid communications dated 15.03.2021 and 02.04.2021.

The case set up by the applicant is that he was initially appointed as Teacher in the School Education Department and had been working as such with effect from 28.08.1997. After acquiring the requisite B.Ed. qualification, he was promoted as Master on 26.03.2013. He claims to have discharged his duties satisfactorily and to have maintained good academic results throughout his service.

The applicant was transferred from High School Thein, Zone Basohli, District Kathua to High School Thanda Pani, Zone Assar, District Doda in the year 2013 and joined there on 01.08.2013. Subsequently, vide Order No.121-DSEJ of 2016 dated 09.05.2016, he was transferred/repatriated to High School Thein, Zone Basohli, District Kathua. Pursuant thereto, he claims to have joined High School Thein on 14.05.2016.

The grievance of the applicant is that despite continuously discharging duties, his salary was withheld from February, 2015 onwards. According to him, apart from his normal teaching duties, he was also assigned duties in connection with Panchayat elections and during the COVID-19 period, yet his salary was not released. He claims that repeated representations made to the departmental authorities did not yield any result.

The applicant has further pleaded that on account of the aforesaid situation, his name was not appropriately dealt with for purposes of seniority/promotion and he was denied consideration for placement as In-charge Lecturer in Physics. According to him, Masters who were promoted along with him and even persons promoted as Masters subsequent to him were granted the benefit of placement as In-charge Lecturers vide Order No.251-Edu of 2019 dated 25.07.2019, whereas his case was kept out of consideration.

The applicant thereafter approached the competent authorities, including by submitting a representation dated 31.03.2021 before the Lieutenant Governor of the Union Territory of Jammu and Kashmir and a reminder dated 18.05.2021, but according to him, no effective redressal followed.

The applicant also challenges the departmental stand treating him as being under suspension. His specific case is that no lawful departmental enquiry was ever conducted against him, no charge-sheet was served upon him, no opportunity of defence was afforded and no final order imposing any penalty was ever passed.

According to the applicant, communication dated 02.04.2021 required him to furnish an affidavit duly attested by a Magistrate stating that he would not repeat the alleged wilful disobedience of orders and directions of higher authorities. He objected to the said requirement on the ground that no misconduct had ever been established against him in any disciplinary proceedings. The applicant further asserted that no enquiry officer had called upon him to participate in any duly instituted enquiry and that he had never been informed of the outcome of any such enquiry.

It is in the aforesaid circumstances that the applicant approached this Tribunal seeking release of his salary, restoration of service benefits, consideration for promotion/placement as In-charge Lecturer and quashing of the impugned communications.

The respondents have contested the OA by filing their reply. By way of preliminary objections, they have pleaded that no fundamental, statutory or legal right of the applicant has been infringed; that no cause of action has accrued to him; and that the applicant has not approached the Tribunal with clean hands.

On merits, the respondents have stated that a complaint was made against the applicant in the year 2014 regarding his alleged conduct towards a research scholar. Taking note of the seriousness of the allegations, the Chief Education Officer, Doda placed the applicant under suspension vide Order No. CEO/D/M/43281-84 dated 23.02.2015 and attached him with the office of the Chief Education Officer, Doda.

The respondents further contend that the Headmaster, Government High School, Thanda Pani relieved the applicant on 09.03.2015 with a direction to report to the office of the Chief Education Officer, Doda, but the applicant did not comply with the order until 25.06.2015. According to the respondents, a three-member committee was thereafter constituted on 16.05.2016 to conduct a detailed enquiry.

The respondents admit that the applicant was transferred by the Director, School Education, Jammu to Government High School, Thein, Zone Basohli, District Kathua vide order dated 09.05.2016. Their case, however, is that the applicant was still required to face the departmental enquiry and that he joined at Thein without being properly relieved from Doda and without completion of the relevant service formalities.

The respondents further state that communications were addressed to the Headmaster, Government High School, Thein directing the applicant to cooperate with the enquiry committee and to hand over his service book.

It is further pleaded that the Review Committee constituted by the Director, School Education, Jammu considered the matter and recommended that, as the applicant had allegedly committed wilful disobedience of the orders and directions of his higher authorities, he should be reprimanded and required to file an affidavit duly attested by a Judicial Magistrate First Class undertaking not to repeat such conduct in future.

The Review Committee further proposed that the intervening period between the date of relieving from High School Thanda Pani, Doda and joining at High School Thein, Kathua be treated as leave of the kind due. Significantly, the Committee also noticed that the applicant had remained without salary and even without suspension allowance from February, 2015 and, therefore, recommended his reinstatement subject to fulfillment of the aforesaid conditions.

Acting upon the recommendations, the Director, School Education, Jammu issued communication dated 15.03.2021 and the Chief Education Officer, Kathua thereafter issued communication dated 02.04.2021 directing compliance. According to the respondents, the applicant declined to submit the requisite undertaking and, therefore, his salary could not be released. The respondents have also taken the stand that as the applicant continued to be treated as under suspension, his name could not be forwarded for promotion/placement as In-charge Lecturer. They accordingly seek dismissal of the OA.

The applicant has filed a rejoinder controverting the stand of the respondents. He has reiterated that he has actually been performing duties and that the Department itself assigned him duties at different places, including during the COVID-19 period and Board examinations. The applicant has questioned the allegations forming the basis of the complaint and has further contended that the suspension order dated 23.02.2015 issued by the Chief Education Officer, Doda was itself subject to approval by the Director, School Education, Jammu and that the respondents have failed to demonstrate that such approval was ever accorded. The applicant has further pointed out that although a three-member committee was stated to have been constituted on 16.05.2016, the respondents have not disclosed any final outcome of the said enquiry. He asserts that no charge-sheet was served upon him and no disciplinary proceedings culminated in any finding against him. The applicant also relies upon the fact that the Director, School Education himself transferred him to Government High School, Thein on 09.05.2016 and that his joining at the transferred place was accepted. He has denied the respondents' allegation that he had "managed" his joining.

As regards the subsequent appointment of an Inquiry Officer on 10.11.2020, the applicant states that he was never summoned by the said officer, no statement or explanation was sought from him and no regular enquiry was held. He, therefore, contends that the requirement incorporated in the order dated 15.03.2021 to furnish an undertaking admitting, in substance, an alleged misconduct is arbitrary and contrary to the principles of natural justice. The applicant has accordingly reiterated his prayer for release of salary and all consequential service benefits and for consideration for promotion/placement as In-charge Lecturer.

We have heard learned counsel for the parties and carefully perused the pleadings and material available on record.

The principal question which arises for determination is whether, in the facts of the present case, the respondents were justified in treating the applicant as continuously under suspension from February, 2015, withholding his salary/service benefits for several years and making his reinstatement conditional upon furnishing an affidavit/undertaking relating to alleged misconduct which had not culminated in any established charge or penalty.

The facts reveal an unusual and disturbing state of affairs. The applicant was purportedly placed under suspension on 23.02.2015. Thereafter, despite the passage of several years, the respondents have not demonstrated before this Tribunal that any disciplinary proceedings culminated in a finding of guilt or imposition of penalty against him.

The respondents themselves state that a three-member committee was constituted on 16.05.2016. They further refer to appointment of another Inquiry Officer vide order dated 10.11.2020. However, neither the pleadings nor the material referred to before us disclose any concluded departmental enquiry, any proved article of charge or any final disciplinary order passed against the applicant.

Suspension cannot be converted into an indefinite punitive arrangement. It is ordinarily an interim measure to facilitate disciplinary proceedings. Where the employer chooses to initiate disciplinary action, such proceedings have to be taken to their logical conclusion in accordance with the applicable rules. Keeping an employee under an uncertain status for years together without concluding the proceedings cannot be approved.

There is another material circumstance which goes to the root of the matter. The respondents' own Review Committee recorded that the applicant had remained without salary and even without suspension allowance from February, 2015 and had consequently suffered considerably. The Committee itself, therefore, recommended his reinstatement. This admission substantially weakens the respondents' justification for continuation of the impugned arrangement.

Even assuming that the suspension initially had some basis, an employee under suspension cannot simply be left without the monetary benefits admissible to him under the applicable rules. More importantly, if the Department thereafter accepts and utilizes his services, denial of salary for the period of actual work requires a lawful and sustainable justification.

The record further shows that the applicant was transferred by the Director, School Education, Jammu from Government High School, Thanda Pani, Doda to Government High School, Thein, Kathua vide order dated 09.05.2016. The applicant states that he joined there on 14.05.2016 and thereafter continued to discharge duties. The respondents have themselves referred to his joining at Thein, though they question the manner in which such joining took place.

Once the applicant's services were actually utilized by the Department after his joining at Thein, the respondents cannot, for such period, simultaneously take work from him and deny the remuneration attached to the post merely by continuing to describe him as being under suspension.

The respondents have attempted to justify continuation of the situation principally on the ground that the applicant refused to furnish an affidavit/undertaking pursuant to the decision of the Review Committee. We find this condition difficult to sustain.

If an employee commits misconduct, the prescribed course available to the employer is to institute disciplinary proceedings in accordance with the applicable service rules, furnish the employee with the allegations/charges, afford reasonable opportunity of defence and thereafter reach a conclusion in accordance with law. A requirement that the employee should furnish an affidavit undertaking not to repeat alleged wilful disobedience necessarily proceeds on an assumption that such misconduct already stands established.

In the present case, no final disciplinary order establishing such misconduct has been shown to us. The Department could not, therefore, substitute a regular disciplinary process by insisting upon an affidavit which, in effect, required the applicant to accept the premise of misconduct before restoration of his normal service benefits.

The communication dated 15.03.2021 and consequential communication dated 02.04.2021, insofar as they make reinstatement/restoration of service benefits dependent upon such an affidavit, therefore, cannot be sustained.

The matter becomes even more significant because the deprivation complained of is not merely technical. According to the applicant, salary remained unpaid for years. The respondents' own Review Committee acknowledged that he had remained without salary as well as suspension allowance since February, 2015. Salary constitutes remuneration for service rendered and cannot be indefinitely withheld merely because the administration has failed to bring disciplinary proceedings to their logical conclusion.

We are, therefore, satisfied that the applicant is entitled to appropriate monetary and service relief. However, while granting such relief, distinction has necessarily to be maintained between the period during which the applicant actually performed duties and the period, if any, during which he remained lawfully under suspension and did not discharge duties.

For the period during which the official records establish that the applicant actually performed duties and the Department accepted/utilized his services, he shall be entitled to salary and allowances admissible to the post. For any period during which he actually remained under suspension and did not perform duties, his entitlement shall be regulated under the applicable rules governing suspension and subsistence allowance. The respondents cannot leave any part of the period unregulated.

Coming now to the applicant's claim for promotion/placement as In-charge Lecturer in Physics, the applicant has specifically pleaded that Masters promoted along with him and even his juniors were granted such benefit vide Order No.251-Edu of 2019 dated 25.07.2019. The respondents have not disputed the essential fact that his case was not forwarded because he continued to be regarded as under suspension.

Once the prolonged continuation of such status and consequential deprivation of service benefits is found unsustainable, the applicant cannot continue to suffer a further adverse consequence in the matter of promotion solely on that basis.

At the same time, promotion cannot ordinarily be granted by the Tribunal merely on the basis that a junior has been promoted. The eligibility of the employee, availability of vacancy, applicable recruitment/promotion rules and other relevant service particulars have to be examined by the competent authority.

The cumulative effect of the circumstances noticed above leads us to the conclusion that the applicant has made out a case for interference by this Tribunal. An employee cannot be kept under a cloud indefinitely, deprived of salary/subsistence allowance and thereafter denied consideration for advancement in service when the employer itself has failed to conclude disciplinary proceedings and establish the alleged misconduct.

Accordingly, OA No.1654/2021 is allowed with the following directions:

We clarify that this order shall not be construed as preventing the respondents from taking action in accordance with law in respect of any legally surviving matter, if permissible under the applicable rules. However, no adverse consequence flowing from an unproved allegation can be perpetuated against the applicant merely on the basis of the earlier communications which have been interfered with herein.

OA No.1654/2021 is accordingly allowed in the aforesaid terms. There shall be no order as to costs.

The connected contempt petition no. 131/2022 has also been considered. Since the substantive dispute between the parties has now been finally adjudicated and comprehensive directions have been issued in OA No.1654/2021 for release/regularization of the applicant's service and monetary benefits, we do not consider it necessary to continue the contempt proceedings independently.

Accordingly, CP No.131/2022 is closed and the notices issued therein, if any, stand discharged. Needless to observe that the respondents are expected to implement the directions contained in the present judgment within the time stipulated herein. In case of failure to do so, the applicant shall be at liberty to avail such remedy as may be permissible to him in accordance with law.

All pending miscellaneous applications, if any, shall also stand disposed of.

No order as to costs.