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Judgment
Petitioner was appointed as Plant Protection Operator on 17.11.1966 in the grade of Rs.65100 under Area Development scheme by Deputy
Director of Horticulture of Kashmir Province Srinagar. Later he was transferred on 12.7.1970 and posted as such plant protection operator at
Wapzan/Marhama (Block Dachinpora) Anantnag,(Annexure p & p1). His pay and allowance was stopped rather withheld from June 1970, and
told that he had been suspended. No suspension orders were issued. The petitioner filed number of applications[representations for revoking his
suspension and release of his pay and allowance from time to time between December, 1970 to April 1992 as is indicated by Annexures p2 to p7.
Respondent No.4 asked fthe petitioner to produce the suspension order before him as same is not forthcoming from his office. He represented
before this respondent (District Horticulture Officer.District Anantnag). Thereafter,, the respondents 3 to 5, entered interse correspondence on the
subject of petitioner's suspension and the District Horticulture Officer, Anantnag, respondent No.4, sought the enquiry record and other service
record of the petitioner from respondent No.3,5 and 2 in order to finalise the suspension case of the petitioner. The annexures p9 to p19 spreading
over the period of March 94 to July 96, fully bear testimony to the fact that despite eloborate interse correspondence by the respondents, the
petitioner had been left in lurch and no steps were taken arid orders issued to reinstate the petitioner. As his grievance(s) was not redressed and on
finding that the presentations before the authorities bore no fruit, he was left with only alternative to seek judicial redressal of his grievance and for
the purpose he filed this writ petition.
it is pleaded that once the petitioner was suspended and possibly on some report of misconduct, it was obligatory on the part of competent
authority to hold and complete the enquiry and to take necessary action in the matter. The inaction of the competent authority is not completing the
enquiry and continuing the suspension of the petitioner inordinately for over 26 years, is arbitrary and illegal. Even, the petitioner was not paid the
suspension allowance despite his representations. There is no reason to continue with suspension of the petitioner when even the enquiry warranted
by Rule 31 of the J&K Civil Service (Classification,Control & Appeal) Rules, 1956, was not held. The act of invoking and continuing with
suspension of the petitioner is malafidy and amounts to punishment. The suspension is without any authority of law. On these pleaded grounds, the
petitioner prays for reinstatement, release of backwages and other consequential benefits.
Respondents have filed reply. The respondents case is that the petitioner has taken inordinately long time to approach the court and his plea of
reinstatement is solicited to be rejected on the ground of latches and long delay of 26 years in approaching the court. It is further pleaded that it is
possible that the petitioner's service might have been terminated. As the office records of the DHO Anantnag were damaged in floods and the
records of the Horticulture Assistant Sirihama Dachinpora was gutted in fire, therefore, the respondents are not in a position to verify the claim of
the petitioner that he was placed under suspension. Petitioner's appointment as plant Protection Officer and his transfer and posting in Dachinpora
Block, Annexure p2 is not refuted. The representations annexed with the petition are stated to be repetition and copies of just one representation
bearing different dates. The petitioner has been absent from duty. While under suspension, he is not entitled to salary and the petitioner should be
deemed to have abandoned his service. The onus is on petitioner to show that he was suspended and that the enquiry was not completed. The
respondents despite searcing for the records have not been able to locate the records of the petitioner's case. However, it is admitted that the
petitioner has been existing on the masterroll of the Horticulture Department till ending December 1970. But thereafter, he has disappeared from
the records of the department.
Additional Advocate General canvases that the petition suffers from latches. Petitioner has abandoned the service. He has approached the court
after about two decades. He can not be taken back in service, at such, distant point of time.
The counsel for the petitioner submits, that petitioner was duly appointed under the orders of the Competent authority as plant Protection
Operator on 07.11.1966 vide order Annexurep and was later transferred to Marhama Dachinpora Block on 12.03.1970. He was given pay and
allowance in the grade of Rs.65100, as such. Plant Protection Operator (for short PPO), right through ending May, 1970. His status as such
employee is even confirmed by the letter of District Horticulture Officer Anantnag, addressed to Director of Horticulture. J&K Govt. Srinagar
(129395 Esrt. dated: 15.09.1994 Annexure p13). The District Horticulture Officer, Anantnag has acknowledged that the petitioner had been
working in the department at Sirhama as such, PPO and his name existed on the establishment till 12/1970, though after 6/1970 he was shown
under suspension. After December 1970 his name was struck of from acquittance roll without any reason. The service records of the petitioner in
terms of this letter is with Dy.Director Horticulture, Srinagar. The copies of acquittance roll of pay bills (annexure p14) also bear testmony to this
position. From other record, like annexure p12, it is shown that on some complaint against the petitioner,PPO, there was correspondence with the
concerned quarters regarding complaint and suspension of the petitioner. If the respondents have failed to hold and complete the enquiry, the
petitioner can not be faulted for this inaction of the department, more so when the petitioner a simple villager has been making repeated
representations for being released the pay and that the department awoke to his representations only in October, 1993 and still took no action
from October, 1993 to July, 1996, notwithstanding interse correspondance of respondents. Petitioner finally realising and finding that the
competent authority is not going to take any effective action and is allowing the matter to lingeron from day to day, month to month and year to
year, without any result at the cost of petitioner's mental and physical health, came up with this petition to seek redressal of his grievance(s) and
protection of his rights. In the facts and circumstances, the petitioner can not be said to have come to the court belatedly and the case can not be
thrown out on the respondents specious plea of so called latches.
From record, it is admitted position that petitioner was appointed initially on 07.12.1966, as PPO in the grade of Rs.66100 under the orders of
Deputy Director Horticulture, Kashmir Province, Srinagar. He joined the duties and worked as such, PPO. He was then transferred to Dachinpora
Horticulture Block. He worked there also till ending June, 1970. His pay was stopped by the then Dy.Director Horticulture, Respondent No.3. On
his representation District Horticulture Officer Anantnag took up the matter with the Deputy Director of Horticulture Srinagar/Budgam, in March
1994, requesting him to supply records of petitioner's case to his office for processing of his suspension case. The District Horticulture Officer has
admitted that the petitioner was placed under suspension for some alleged misconduct. It is stated that during this period the delegation of powers
of appointments/suspension were with Dy.Director Horticulture, Srinagar. The Dy.Director Horticulture Srinagar showed his inability to locate the
record (annexure p10). The District Horticulture Officer,Anantnag took up the matter again with Deputy Director Horticulture,Anantnag/Pulwama
for locating and supplying him, the record of the petitioner's case ( annexure p11). The DHO Anantnag, further corresponded with the Horticulture
Assistant Serihama and intimated him that as the old records of the office of District Horticulture Office.Anantnag have been destroyed in the
floods during 1979, therefore, on checking his record, he would make available to DHO A nantnag, the copies of various orders referred in the
letter to enable the latter to process the reinstatement case of the petitioner. This letter Annexure p12, shows that the charge sheet allegations of
corruption and meterial and documents relevant to such charges against the petitioner, were forwarded to Horticulture Assistant, Sirhama under
various Nos from 01.07.1970 to 17.07.1970. This document in any case supports the petitioner's allegation than after his appointment and transfer
to Sirhama Dachinpora Block, he was placed under suspension in 1970. It further speaks of some domestic Enquiry being conducted in which
charge allegations etc. were addressed to Horticulture Assistant Sirhama for service on petitioner. Then again the letter bearing No:129395/Estt.
dated: 15.09.1994 ( Annexure p13) addressed to Director Horticulture, J&K, Govt. Srinagar by District Horticulture Officer Anantnag shows that
the District Horticulture Officet, shows that the District Horticulture Officer has found from his old records that the petitioner was working in the
department from 1968 to 1970 as PPO at Sirhama. He had been even paid salary upto ending May 1970, but was not paid salary, thereafter,
though he figured even thereafter on the Acquittance roll of the department,' with entry ""pay withheld under suspension"". Even copies of the
Acquittance Roll thereto, form part of letter. He further complains to the Director that despite his letters to the Dy. Director, Horticulture Srinagar
and Pulwama, the history of the case has not been given to him. Even, the Horticulture Assistant Sirhama has failed to give him the record on the
supposed ground that the records were not available with him as the records of the Horticulture Assistant Sirhama were gutted in fire. The District
Horticulture Officer, Anantnag, has clearly stated that the nature of the case of petitioner suggests that the punitive action taken against the
petitiorier.needs to be probed as the District Horticulture Officer Anantnag has failed to redress petitioner's grievance for want of records, during
last 24 years. All this can be seen from Annexure p13. The communication of Horticulture assistant Dachinpora, referred above, is also on record (
annexure p15). The Horticulture Assistant Dachinpora, in this communication has unequivocally and clearly stated that to his knowledge the
poetitioner has been attending his office of and on during the suspension period. The District Horticulture Officer Anantnag again took up the
matter with the Director Horticulture Srinagar in August, 1995, wherein, besides giving the details and history of the petitioner's case, it is stated
that the records of this case have been lost and destroyed due to heavy floods in the past and gutting of the records, it is further communicated that
service book of the petitioner may not have been received by the D.H.O's office at the time of transfer of service records of the employees from
the office of Dy. Director Horticulture, Srinagar in the year 197172 and therefore, the service book is not with him and the definite cause for not
taking back the petitioner in service can not be given, besides, the District Horticulture Officer has shown his inability to provide any record and
documents in the case to the Director Horticulture.
All this should suffice at least to conclude that after petitioner's initial appointment as PPO and his transfer to Sirhama Dachinpora, his name
existed as such, employee in the graded post of the Horticulture Department of the State. He was paid last for May, 1970. Thereafter, his name
existed in records, but was shown under suspension. Articles of charge and other documents regarding the charge of misconduct of petitioner were
passed on to Assistant Horticulture Officer, Sirhama in July, 1970. It also shows that some enquiry was being conducted against the petitioner for
misconduct. Neither the suspension order nor the outcome of the enquiry has seen the light of the day. The Horticulture Officer, Anantnag
attributes its inability to produce the record due to some floods in which records were destroyed way back in 1979. The Horticulture assistant of
Dachinpora states that the records were gutted in fire and the Deputy Director Horticulture Sridnagar shows its inability to collect the record for
the reason that is is not forthcoming from its records.
Once the respondents through their correspondence and annexures make out and admit the above position, is it not for the respondents to show
what happened to the enquiry and what was the result of such enquiry. The respondents can not avoid the responsibility to show and place before
the court not only its version of the case, but also how the petitioner's suspension case was dealt with and what was the outcome of the enquiry
and what was the decision of the competent authority. Simply forgetting the matter and not looking to this vital aspect of the case would not
absolve the respondents of their duty to account for their inaction or failure to act in the matter. The matter can not be slept over. It is primary
responsibility of the department to have taken the enquiry to its logical conclusion. The contention that the case surfers from latches is not well
found. Petitioner has placed on record copies of at least 15 representations between December, 1970 and April, 1992, wherein the petitioner has
been presenting before the department and his officers from time to time to settle his case and to release his pay and allowance, but of no avail, it is
only in October, 1993, that the District Horticulture Officer Anantnag took the first step and startd communicating with other respondents on the
subject till July, 1996. Yet it bore no result and the dpetitioner was finally convinced that as his grievances would not be redressed and had no way
except to move the court, as such, he filed the writ petition.
Merely, because, the respondents have in their reply mentioned that there was no presentation and suspected the petitioner of not having
represented in the matter or of not having made presentations genuinely, can not lead to the conclusion that the presentations as also the copies and
other documents on record would not suffice to carry forward the petitioner's case, moreso, when the authanticity of the documents has not been
denied or refuted on record.
The competent authority can not be said to be clothed with total arbitrary or unfettered power in placing its employees under distress of
suspension for an indefinite duration. The suspension can not be justified when for decades the result of the enquiry or the charge sheet forwarded
for service on petitioner has not brought forth any result. The prolonged suspension in such circumstances results in the agony to the employee, an
employee under rules can not be kept or continued under suspension for an indifinite period. Such a course is punitive in nature and effects the very
livelihood of the suspended employee and his dependents. If despite his representations the authority(s) continue his suspension for unreasonabley
long period, obviously such action of theirs is arbitrary, unjust and unfair. Though suspension pending enquiry is not perse penal in nature, but if it
continues for an unreasonably long and indifinite period without the decision of the enquiry in employee's misconduct, seeing the light of the day, it
definitely would amount to punishment.
In 1988,SLJ,J&K 493, it has been observed that after the suspension of an employee, enquiry should be held as soon as possible and in case it is
prolonged without any rhyme or reason, it amounts to punishment an employee without any cause and thereby the suspension can not be justified.
In Mangat ram and Anr. v/s Sardar Maharban Singh and others (1987)4,SCC, it has been laid down that there is no presumption that the
Government always acts in a just and fair manner, suspension in a case like the one before their Lordships where the departmental Enquiry was
protracted over a period of 20 years and the employee was placed under suspension for a period of nearly 11 years, it was observed that the
action can not , but be said to be actuated by malafidies. The suspension in such a case tantamounts to imposition of penality. Such course is
repugnant to the principles of natural justice and fair play in action.
In Khem Chand's case, in 1958SCR 1080, it was held that the real effect of order of suspension is that the suspended employee continues to be
the member of the Government service, but is not permitted to work and further during the period of suspension, he is paid only some allowance,
generally called subsistence allowance. There is no doubt that the order of suspension, unless the enquiry is concluded within the reasonable time,
effects employee injuriously and continuance of the suspension order may in appropriate case amount to punishment.
The contention of the counsel for the respondents that the petitioner having abandoned the service, can not be taken back in service, is, in the
facts and circumstances of this case, devoid of any force. The petitioner was placed under suspension and an enquiry into his conduct was
contemplated and even indicated to be pending. He made representations. The respondents have interse correspondanded on the subject, yet
petitioner's suspension case was at no point of time settled. The suspension automatically debarred him from performing of any of the official
functions attached to the graded post of PPO and has also deprived him of enjoying certain previleges, which he would have enjoyed as an
employee of an active service. The suspension does not put an end to an employees services or the relationship of employee and employer
between the petitioner and the respondentGovernment is not over. During the period of suspension or pending enquiry, the petitioner is very much
a Government servant. He continues to be the member of the service and the order of suspension does not constitute his removal from his service,
nor it amounts to his dismissal, he contines to be a public servant, though temporarily barred to perform and discharge his duties. He is not
supposed to attend his office for discharge of his official duties during his suspension, notwithstanding, that he is to remain present at the places of
his posting or some other place subsequently directed by the competent authority.
In consonance with above principle, the respondent No.3 Horticulture Assistant Dachuinpora, has placed on record that the petitioner
attended his office during the suspension period (annexure p15). Even, the interese correspondence reveals the attendance of the petitioner at the
office(s) of the Horticulture department during the years of his suspension period. The record of the earlier periods thereto is no more available
with the department. In such circumstances, it can not be said that the petitioner has abandoned the post and, therefore, is not entitled to any relief.
In result, for the aforesaid reasons, the writ petition succeeds, so far as risntatement of the petitioner on regular basis is concened. At admission
stage, this court on 09.09.1996, has already issued directions to the respondents to alow the petitioner to resume duty as plant protection
Operator with the Horticulture Department and the petitioner is reinstated and working as Plant Protection Operator.
The petitioner having succeeded in the writ petition, above interim direction merges with the final relief which follows hereafter as under:
The writ of mandamus is issued to the respondents of reinstating the petitioner and treating him on regular duty as Plant Protection Operator of the
Horticulture Department of District Anantnag. However, having regard to the facts and circumstances of this case, and enabling provisions of law,
including Article 108B(i) of J&K CSR, it is left to the competent authority to pass specific orders regarding the pay and allowance to be paid to
the petitioner, during the period of his suspension and how this period of suspension is to be treated towards the service span of the petitioner, It is
hoped that the competent authority shall take final decision in the matter with reasonable expeditious despatch and the disturbing trend of
inordinately delaying such matters is stemed at least in this case, in the interest of maintaining discipline in the service and to escape the charge of
unfair and arbitrary treatment of the employee.
Disposed of accordingly.