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Judgment
Petitioner was a senior assistant in the J&K State Board of School Education and was posted as in charge, Text Book Depot at sub office in
Kupwara in 1989. He was charged of misappropriating text books, examination forms and syllabi, allegedly entrusted to him for sale on behalf of
the Board to the tune of Rs. 8,77,959.85 and was placed under suspension by order No. 311B of 1991 dated 20.6.1991. According to him, this
was done to silence him as he had brought a huge financial scam to the notice of the higher authorities and instead of making the bonafide inquiry
into his complaint, he was charge sheeted on 11.4.1992 and was thereafter put on show cause notice dated 20.1.1993 which was also published
in local Urdu dailies. He was then asked to face an inquiry at Jammu and to inspect records, if any, by communication dated 6.4.1993. He
thereafter filed this petition challenging his suspension but during its pendency, he was ordered to be removed from service by order No. 169B of
1994 dated 28.3.1994. He accordingly amended the writ petition to assail this order also.
Petitioner's case broadly proceeds on the complaint that his suspension from service was also bad and arbitrary and so was his removal vitiated
as it emanated from lala fide considerations and was passed in disregard of the procedure established by law and in violation of the principles of
natural justice as he was not afforded a reasonable opportunity of defending himself.
Learned counsel for petitioner, Mr. Hussain's main thrust was on the failure of the respondents to pay subsistence allowance to the petitioner
during his period of suspension disabling him from facing the inquiry and setting up of his defense. This, according to him, amounted to denial of the
principles of natural justice. He sought support for this from AIR 1973 SC 1183 and AIR 1970 Madras 155 and argued that once petitioner had
applied for subsistence allowance, which admittedly was not released in his favour from 1991, he had no means to face inquiry and to put up his
defense and this by itself was enough to vitiate the impugned order removing him from service, he, however, did not press into service the other
pleas taken including the Board Chairman's competence in initiating departmental proceedings and in dismissing the petitioner from service.
The detailed counter filed on behalf of the respondents is supported by the affidavit of Board's Chairman. It is submitted that the petitioner was
dismissed from service in accordance with law and rules. He was placed under suspension on the charge of huge embezzlement/misappropriation
of the government money and also dereliction of duty. An inquiry was conducted against him in which he was afforded reasonable opportunity of
associating and of defending himself. But, he failed. A charge sheet was served on him on 20.3.1991 to which he failed to reply within the
prescribed time limit and then a copy of this was served on him through SSP Baramulla. He again failed to respond and the statement of
allegations/chargesheet was then published in local daily newspaper on 11.4.1992. It is explained that the petitioner's reply was received through
post later and fie was afforded an opportunity to examine the relevant record and to participate in the inquiry proceedings and to present himself on
641993 before the inquiry officer. He was also served the copies of the relevant record. But, since he failed to associate with the inquiry, he was
prima facie found guilty of misappropriating the government money to the tune of Rs. 8,77,959.85. it is denied that any action against him flowed
out of any vendetta or mala fide. It is, however, admitted that he had applied for subsistence allowance which could not be released to him as he
never attended the office of the Board or concerned authority.
All that remains to be seen was whether the petitioner was denied a reasonable opportunity of being heard in the matter due to any breach of the
procedural requirements and safeguards or by non payment Constitution of India the subsistence allowance?
It goes without saying that petitioner, holding post under the State, had constitutional safeguards and guarantees available to him and that he
could be removed from services only after an inquiry and on being informed of the specific charges against him and after affording him a reasonable
opportunity of being heard. But, all this could not be stretched to give a licence to the delinquent employee to deliberately and intentionally stay
away and frustrate the Authority's endeavor to conduct an inquiry into his charge of misconduct or dereliction of duty and then to turn round in an
attempt to cash on the technicalities of legal procedure,
It is apparent on the face of the record that respondent had made all efforts to inquire into the huge embezzlement of about Rs. 9 lacs on
account of sale of text book which were admittedly under the charge of the petitioner and had proceeded in accordance with the procedure
established by law by serving the charge on him and then inviting him to face inquiry and then putting him on show causesnotice even through print
media. Nothing more was expected of them in the matter. If in spite of all that petitioner chose to shy away by catching at straw, he could not be
heard complaining of any breach of the principles of natural justice, more so, when inquiry against him related to huge embezzlement of government
money.
The nonpayment of subsistence allowance to a delinquent employee would not amount to contravention of the principles of natural justice in all
events and circumstances. It all depended upon the particular fact situation. Cases are conceivable where a suspended employee may apply for
grant of subsistence allowance and yet fail to satisfy the requirements of rules or that he may stay away from the Authority as in the present case
despite publication of notice in newspaper. Similarly an employee may strategically decide not to choose to take the subsistence allowance more
so, in cases in which he is charged of misappropriation of government money. In such a situation it cannot be said or held that nonrelease of the
subsistence allowance would cause prejudice to the suspended employee and would deprive him of arranging his defence in facing the inquiry or
resisting his removal from service.
Petitioner's reliance on AIR 1973 SC 1183 or for the matter on the judgement of the Madras High Court (AIR 1970 Madras 155) also does
not advance his case as the fact situation in these cases was different. In the first case a workman was found to have been refused subsistence
allowance which had prejudiced the projection of his defense and it was in that context that the Apex Court in the facts and circumstances of the
case, observed that he was denied the opportunity of defending himself.
The case in hand is poles apart as petitioner had not laid any foundation in this regard to project that he had satisfied all requirements for grant
of subsistence allowance and that the respondents had deliberately withheld it to push him to a corner where he could not arrange to set up his
defense and fact inquiry. He cannot accordingly complain of any denial of opportunity in this court.
That apart, it all comes to holding or otherwise of an inquiry against the petitioner. It is not that he could not be removed frown service in any
case but that he was so removable only after an inquiry or in deference to the safeguard available to him under Article 311(2) of the Constitution.
Moreover, since it is the admitted position that he had not associated himself with the inquiry, though of his own making, yet, it would be innocuous
to provide him the satisfaction effacing such inquiry once again.
Resultantly this petition is disposed off by providing as follows:
The petitioner shall approach the Competent Authority within one month from today and invite a fresh inquiry into the charges of
embezzlement/misappropriation of government money against him. On so doing, the Authority concerned may treat him under suspension and
launch requisite inquiry against him and complete it within six months in accordance with rules for which period the impugned order No. 169B of
1994 dated 28.3.1994, shall remain in abeyance. If the charges are established against him, his removal from service vide the order impugned shall
assume finality. But if he is found innocent, the impugned order shall stand quashed and the petitioner shall be reinstated in service prospectively
without any back wages. 2. Considering that the matter involved alleged embezzlement/misappropriation of government money to the tune of about
Rs. 9 lacs, about which there are conflicting versions, it would be in the public interest to direct the Senior Superintendent of Police, Crime Branch,
Srinagar to lauch an investigation into the matter and to taken steps in accordance with law to prosecute those found involved in it.
Registrar (J) to send a copy of this order to the Senior Superintendent of Police, Crime Branch, Srinagar, for necessary action.