Mohammad Shafi Dar vs Sate of J&K and others

Indulgence of this court has been sought by the petitioner through this writ petition under Article 226 of the Constitution for issuing a writ of

certiorari quashing suspension order No.18Edu of 1996 dated 2.1.1996 to the extent it pertains to the petitioner; and for mandamus commanding the respondents 1 and 2 to treat the period of suspension of the petitioner from 2.1.1996 to 31.10.1996 as on duty and reckon the same for purposes of pensioner benefits; for commanding the same respondents to release the pay along with other consequential benefits in favor of the petitioner from 2nd January, 1996 to 31st October 1996. Other relief's claimed are for the issuance of directions to respondents 1 and 2 to process the case of the petitioner for postpensioner benefits and to finalize the pension case of the petitioner in the shortest possible time.

The facts from which this petition emanates are that the petitioner was working as Zonal Education Officer to which status he was raised in 1995.

He was posted as Zonal Education Officer, Bidder when, suddenly, on some unknown allegations, he along with some other persons, was placed under suspension on 2.1.1996. He continued to be under suspension till he retired on 31.10.1996. No enquiry has been conducted. No charge sheet has been framed against him, despite his representations.

Respondents were noticed. Shri Qadiri appears for respondents 1 and 2 and Shri Naik for respondent No. 3. Writ petition was filed oh 29th July,

1997. Respondents despite repeated directions have failed to file the replyaffidavit, so the case was ordered to be listed for hearing by another

bench of this court. Till now the position is unchanged. No counter has been filed so far.

Heard learned counsel for the parties. Learned counsel for the petitioner has rightly contended that the facts exhibited in the writ petition be treated as uncontroversial, because there is nothing on the record from the other side in rebuttal thereto. He has argued that the relief's claimed by the petitioner in the writ petition be granted against the respondents in favor of the petitioner. Mr. Qadiri has contended that even if the enquiry has not been started, or the charge sheet has not been framed against the petitioner so far, the writ petitioner cannot claim exoneration on this fact alone.

He submits that he has no objection if some more time is given to the respondents to conduct the enquiry, failing which appropriate order be

passed.

It is an admitted fact that in January 1995 petitioner was suspended. Immediately after the suspension, ordinarily be should have been charge

sheeted. The allegations should

Have openly been brought on record, which were leveled against the petitioner. That has not been done. The authorities remained silent. For the

last about 3 years, they have not been able to come up with any allegation against the petitioner on which he was suspended. They have not been able to initiate the enquiry. They have shown their utter arbitrariness in placing the petitioner under suspension and have not bothered to initiate the enquiry or complete it within his service period. The petitioner has retired in October 1996. So far conscience of the respondents has not pricked them to come forward and decide the case of the petitioner. It is a fact that Rule 31 of the Classification, Control and Appeal Rules empowers the competent authority to place the delinquent official under suspension on two grounds: (i) if an enquiry is pending or is contemplated; or (ii) if there is a complaint against him of any criminal offence under investigation or trial. But this power is not unfettered. Rule making authorities have made it incumbent on the competent authority to frame charge sheet within a reasonable time if the person is suspended and it has been made clear that if charge is not framed, enquiry is not initiated, then it would imply that the authorities are vested with totally arbitrary and unfettered power of placing its officials under disability and distress for indefinite duration. No reason has been assigned so far as to why the charge has not been framed against the petitioner. There is not even a whisper from the other side as to what are the allegations against the petitioner, because reply affidavit

has not been filed.

Counsel for the respondents, Mr. Qadiri could not spell out anything except that some time be given to the respondents to initiate the enquiry, if

they choose to do so. In such circumstances, as mentioned above, a delinquent official cannot be left at the mercy of the authorities who slept over the matters for indefinite period. There could be no hesitation to the court to exonerate the petitioner in such circumstances and come to the rescue of the petitioner in the circumstances in which he has been involved. But, however, a suggestion has come from the Additional Advocate General seeking some time to come forward for conducting the said enquiry, I make the following order.

For these reasons, therefore, the writ petition is disposed of by directing the respondents to make a proper enquiry under Classification, Control

Rules, 1956, if they choose to do so, against the petitioner and complete it up to 31st August, 1999, failing which the petitioner will be deemed to be exonerated from all charges, his period of suspension shall be treated as on duty and emoluments for such period shall be given to the petitioner.

His pension case be processed immediately and be completed within 2 months' time failing which Accountant General, respondent No.3, shall be liable to pay the interest on pensioner benefits at the rate of .12%.

No order as to costs.