Mohd. Rafiq vs State and Others

Nirmal Singh, J.—After hearing learned Counsel for the petitioner and perusing the record, I am of the opinion that no case is made out

warranting interference by this Court.

Petitioner while his posting as Naib Tehsildar Railways, Udhampur, was arrested by the Vigilance department on 27th of Feb' 07, on the ground

that he demanded and accepted illegal gratification. The amount of illegal gratification was recovered from the petitioner. Thereafter, petitioner vide

order dt. 4th of May' 07, was attached in the office of Deputy Commissioner, Udhampur, w.e.f. 6th of March' 07. Vide impugned order dt. 24th

of Oct'07, the respondent No. 2 as recommended by respondent No. 3-Divisional Commissioner, Jammu, ordered suspension of the petitioner

retrospectively from the date he was-arrested i.e. 27th of Feb' 07. It is this order which is the subject matter of challenge in the present petition.

The grievance of the petitioner is that the aforesaid order passed on 24th of Oct'07, could not have been given retrospective effect from 27th of

Feb' 07. It is contended that the appointing authority has no power to suspend an employee with retrospective effect In support of the said

submission, the learned Counsel for the petitioner has relied upon a judgment passed by this Court reported in AIR 1964 J & K 14, D.N. Ganju v.

State of Jammu and Kashmir.

I have considered the above submission of Mr Surinder Singh, learned Counsel for the petitioner but find the same without any substance.

Rule 31 of Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, deals with the suspension of a Government

servant. The said Rule is relevant and is being reproduced below:

(1) The appointing authority or any authority to which it is subordinate or any other authority empowered by the Government in this behalf,

may place a Government servant under suspension where:

(a) an inquiry into his conduct is contemplated or is pensing; or

(b) a complaint against him of any criminal offence is under investigation or trial.

(2) A Government servant who is detained in custody whether on a criminal charge or otherwise, for a period longer than forty eight hours shall be

deemed to have been suspended by the appointing authority under this rule.

(3) An order of suspension under Sub-rule (1) may be revoked at any time by the authority making the order or by any authority to which it is

subordinate.

(4) Where a penalty of dismissal or removal from service imposed upon a Government servant under suspension is set aside in appeal or on review

under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to

have continued in force on and from the date of the original order of dismissal or removal and shall remain in force until further orders.

(5) Where a penalty of dismissal or removal from service imposed upon a Government servant is set aside or declared or rendered void in

consequence of or by a decision of a Court of law and the competent authority a consideration of the circumstances of the case, decides to hold a

further inquiry against him on the allegations on which the penalty of dismissal or removal was originally imposed, the Government servant shall be

deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal or removal and shall

continue to remain under suspension until further orders.

A perusal of Sub-clause (2) of the aforesaid provision makes it clear that a Government servant can be placed under suspension if he has been

detained for a period longer than 48 hours. It is not the case of the petitioner that he was detained less than the said period. Therefore, the

competent authority was well within its rights to pass order of suspension with retrospective effect. So far as other clauses of the aforesaid rule are

concerned, the suspension order in that case, if passed, would be effective from the date it is passed. If an employee has been detained for a

period more than 48 hours on a criminal charge, then after the passing of the said period, there would be a deemed suspension and the competent

authority, in this regard, may or may not pass an order on the said date or may suspend such an employee by a subsequent order with

retrospective effect as has been done in the present case.

Even otherwise, an order of suspension passed against a delinquent official is not a punishment. The employer while passing an order of

suspension, takes into account the conduct of the said official regarding non-devotion to his duty, integrity, discipline, impartiality and sense of

propriety and during the period of suspension, the employee remains as a member of the service concerned except that he is not allowed to

perform the official duties till an enquiry is completed against him. In the case in hand, it is not the case of the petitioner that he has been wrongly

involved into the alleged misconduct. The only plea taken is that the order of suspension has been passed retrospectively. As indicated above, the

petitioner was arrested by the Vigilance Organization but the petitioner has not mentioned that he was detained for a period less than 48 hours.

Therefore, the authorities in this case, as indicated above, were well within their rights to pass an order of suspension against the petitioner w.e.f.

the date he was detained.

In view of the above, this petition is found to be without merit and is dismissed.

At this stage, Mr Surinder Singh, learned Counsel for the petitioner submitted that for the last about eight months, the respondents have not

completed the investigation and the charge sheet against the petitioner has not been filed.

In this regard, a direction is given to the Vigilance department of the State to complete the investigation within a period of three months and put

up the challan after getting sanction from the competent authority. On presentation of the challan, the court below will conclude the trial within a

further period of three months.

Registry is directed to send a copy of this order to the Vigilance department. Otherwise, as indicated above, this petition shall stand dismissed.