Shamsher Singh Manhas vs Jammu Municipal Corporation

Sanjay Dhar, J

The petitioner has challenged the enquiry proceedings initiated against him vide order dated 31.05.1992 issued by Administrator, Jammu Municipality. Besides this, the petitioner has sought a direction upon respondent No. 1 to treat him in service having been illegally deprived of his right to serve against the post of Junior Assistant right from 31.03.1992. A further direction has been sought upon the respondents to release all consequential benefits including the arrears of salary from 31.03.1992, in favour of the petitioner.

Briefly stated, case of the petitioner is that in the year, 1992, while he was serving as Junior Assistant in the Jammu Municipal Corporation, an order came to be passed, whereby he was purportedly asked to report to Sh. S. P. Bakshi, the then Standing Counsel of Jammu Municipality. According to the petitioner, no such order was ever served upon him, as such, he continuously and regularly kept attending his duties and drawing his salary from the office of Executive Engineer. It has been submitted that at the relevant time, Sh. P. G. Dhar Chakraborti was holding the charge of Administrator Jammu Municipality as also the charge of Vice Chairman, Jammu Development Authority, and the petitioner was locked in a litigation with respondent Jammu Development Authority in respect of his ancestral property. It is being alleged that Sh. Chakraborti, in his capacity as Vice Chairman, JDA came to know about it and a report was prepared by the JDA against the petitioner in which allegations of land grabbing were levelled against him. Accordingly, the petitioner was placed under suspension in terms of order dated 31.03.1992 and Sh. R. K. Khajuria, Horticulture Officer was appointed as the enquiry officer.

It seems that the petitioner did not appear before the Enquiry Officer on the ground that he is not feeling well and produced a medical certificate issued by Dr. S. D. Bassi. The Administrator of Jammu Municipality vide his communication dated 14.10.1992 asked Principal, Government Medical College, Jammu to subject the petitioner to medical examination through a medical board as he doubted the authenticity of the certificate issued by Dr. S. D. Bassi. According to the petitioner, no such medical board was ever constituted and he was not examined by the medical board. On 07.11.1994, the petitioner issued a legal notice to Administrator, Jammu Municipality, whereby a request was made to the said authority to rescind the suspension order, as according to the petitioner, the same has been passed on the basis of concocted allegations.

It has been alleged by the petitioner that no enquiry was conducted against him, but the Enquiry Officer seems to have submitted some reports holding the petitioner guilty of the charges though no formal charge-sheet was ever served upon him. It has also been submitted that on the basis of the report of the enquiry, show cause notice dated 24.09.1997 was issued by the Executive Officer, Jammu Municipality to the petitioner asking him to explain as to why his services should not be dispensed with. The petitioner is stated to have submitted his reply to the show cause notice vide communication dated 25.10.1997 but thereafter nothing has been heard by him in the matter.

The petitioner has challenged the action of the respondents on the ground that the same is contrary to the principles of natural justice. It has been submitted that no enquiry has been conducted against the petitioner nor any charge sheet was served upon him. According to the petitioner, not even the suspension allowance was paid to him. It has also been contended that till date the respondents have not conveyed anything to the petitioner as regards the fate of his service.

The contesting respondent i.e., Jammu Municipal Corporation has filed reply to the writ petition in which it has been submitted that the petitioner was transferred vide order dated 02.12.1991 from Engineering Section and was attached to the office of S. P. Bakshi, Advocate, Standing Counsel for the Jammu Municipality (now Corporation). It has been submitted that the petitioner was relieved on 07.12.1991 and directed to report to Mr. S. P. Bakshi but Sh. Bakshi vide his letter dated 28.03.1992 conveyed that the petitioner has not reported to him.

It has been further alleged by the respondent that vide letter dated 30.03.1992, Secretary, Jammu Development Authority intimated that the petitioner has illegally raised a plinth on J. D. A. Land in Janipur and he is also involved in various cases of land grabbing in Toph Sherkhania, Paloura and Janipur areas. In view these facts, the petitioner was placed under suspension in terms of order dated 31,03,1992 and was attached with the office of the Administrator, Jammu Municipality. An enquiry was instituted against the petitioner, but despite repeated notices, he did not cooperate with the Enquiry Officer on the ground that he is suffering from hypertension. According to the respondents, the petitioner was in sound physical health and the medical certificate produced by him was not genuine. Accordingly, a request was made to the Principal, Government Medical College, Jammu to constitute a medical board for examining the petitioner. It has been submitted that the petitioner did not appear before the Medical Board and because of this, the Enquiry Officer observed that the petitioner was avoiding the enquiry.

It has been submitted that since the petitioner was engaged in grabbing of State land, as such, all these instances were incorporated in the impugned show cause notice in 24.09.1997. According to the respondents, the petitioner did not attend his office from the year 1992, which shows that he has abandoned his service. The respondents have also contended that the petitioner has approached the court belatedly in laying challenge to the impugned show cause notice dated 24.09.1997 therefore, the writ petition is liable to be dismissed on this ground alone.

I have heard learned counsel for the parties and perused the record of the case.

The petitioner was placed under suspension in terms of order dated 31.03.1992. As per the said order, the petitioner despite being attached to the office of Sh. S. P. Bakshi, Standing Counsel, Jammu Municipality in terms of order dated 02.12.1991, did not join the said office and he did not even apply for leave of his absence from duty. The suspension letter further goes on to record that the petitioner has illegally raised plinth on the land of JDA at Janipur and is involved in land grabbing cases in Toph Sherkhania, Paloura and Janipur areas. The documents on record further show that in terms of impugned show cause notice dated 24.09.1997, the petitioner has been asked to show cause within 30 days as to why his services should not be dispensed with. The show cause notice reads as under:

“Whereas Sh. Shamsher Singh, Jr. Asstt. placed under suspension vide Administrator Jammu Municipality Jammu’s order No: MJ/Estt/603-7 dated 31-3-1992 for non compliance of transfer order issued vide No: MJ/Estt/7992-95 dated 2-12-1991,

Whereas to hold enquiry into non compliance of orders Sh. Shamsher Singh was attached with the office and Sh. R. K. Khajuria, H.O. was appointed as Enquiry Officer,

Whereas enquiry could not be conducted as application dated 28-04-1992, 13-05-1992 , 21-07-1992 and 25-09-1992 requesting deferring of holding of enquiry on the plea of being unwell in support which a Medical Certificate issued by Dr. S. D. Basi was submitted to the Enquiry Officer.

Whereas Administrator, Jammu Municipality vide letter No: PS/175 dated 14-10-1992 requested Principal Medical College, Jammu to constitute a Medical Board to medically examine Shri Shamsher Singh and he was asked to get a Medical Certificate from the said Board.

Whereas the ailment (Hypertension) could not be established shed for over two years as Sh. Shamsher Singh did not attend the Medical Board even when, on his request the letter addressed to the Principal Medical College, Jammu bearing No: PS/175 dated 14-10-1992 was provided to him.

Whereas the Enquiry Officer has observed that for one reason or the other Sh. Shamsher Singh deciding the enquiry.

Whereas vide his No: VC/JDA/583/P dated 30-03-1992, Secretary, JDA and subsequently in response to Inquiry Officer’s No: 45/P/95 dated 19-06-1995, the V.C. JDA vide his No: JDA/446/310 Dated 05-08-1995 and Inquiry Officers No: 95/P/97 dated 09-04-1997 V.C. JDA’s No: 446/801 dated 17-04-1997 were categorical that Shri Shamsher Singh was engaged in Govt. land grabbing case.

Whereas Sh. Shamsher Singh took the stand that there was a dispute between him and JDA over a piece of prime land at Janipura Cpp. Bhawani Nagar and the case was decided in his favour in the Court of Law. But on the contrary the record (Orders of the Courts) produced by him established beyond doubt, that he had grabbed land, as per his admission in the said case and therefore lost the case in the Court.

Whereas as per assertions of V.C. JDA in most unequivolent terms, it had stated that Sh. Singh was an active colonise managing Bhawani Builders and that whole of Bhawani Nagar was Government land grabbed and sold by him.

Whereas by his own admission before the I.O. he has expressed that he was not interested in service but wanted to resign after receiving arrears of pay pertaining to the suspension period.

Whereas as per Enquiry Officers report the following charges have been established against him:-

1) That he was guilty of not obeying orders of the Competent Authority.

2) That he was involved in a Government Land grabbing case.

3) That he was no longer interested in employment of Jammu Municipality as he had business interest to look after.

Now, therefore in Light of the above , he is hereby given a final opportunity as required under law, to show cause within 30 days, as to why his services should not be dispensed with. In case nothing is heard within the stipulated period of 30 days, it shall be presumed that he has nothing to say in the matter and action as warranted under law shall be taken against him.

This issues with the approval of the Administrator Jammu Municipality.”

From a perusal of the show cause notice, it appears that the Enquiry Officer has concluded that the petitioner was guilty of not obeying orders of the competent authority and that he was involved in Government land grabbing cases. It has also been concluded by the Enquiry Officer that the petitioner is no longer interested in employment of Jammu Municipality as he has his own business interests to look after.

It is the case of the petitioner that he was never associated with the enquiry and no charge sheet was ever served upon him. In view of the stand taken by the petitioner, the contesting respondent was directed to produce record relating to enquiry by this Court. In this regard, repeated directions have been issued by this Court. On 07.04.2016 a direction was issued to the Executive Officer of the Jammu Municipal Corporation to appear in person with all files relating to the case of the petitioner. This direction was repeated on 16.04.2016 and 26.09.2023. Ultimately, on 17.10.2023, learned counsel appearing for respondent No. 1 submitted that the relevant record is not available with the respondents. This means that the respondents have not maintained the record relating to the enquiry of the petitioner. The non-production of the record relating to the enquiry invites an adverse inference against the respondent Municipal Corporation. Thus, the contention of the petitioner that neither any charge sheet was served upon him nor he was associated with the enquiry proceedings appears to be well founded. The contesting respondent has not only failed to rebut this contention of the petitioner by not producing the record, but has not even produced the memo of charges and the copy of enquiry report that is stated to have been served upon the petitioner. In such circumstances, there is no option for this Court but to draw the inference that the respondent-Municipal Corporation has not conducted the enquiry into the allegations levelled against the petitioner, nor any charge sheet has been served upon him.

The matter does not rest here. The respondents after serving show cause notice upon the petitioner proposing punishment of his dismissal from service have not taken the matter to its logical conclusion by imposing any punishment upon the petitioner, who had duly responded to the show cause notice. Thus, even if it is assumed that the respondents have conducted disciplinary proceeding against the petitioner, still then it is clear that they have not concluded the said proceeding by passing a final order in such proceedings. The respondents have not even made a whisper about the fate of the enquiry and the show cause notice in their reply to the writ petition.

Apart from the above, the petitioner has stated that he has not even been paid the suspension allowance during the period of his suspension. This assertion of the petitioner has also gone un-rebutted meaning thereby the petitioner has not been paid suspension allowance all these years. During the course of hearing, it has been submitted by learned counsel for the petitioner that the petitioner has attained the age of superannuation in the year, 2016 and this assertion of the learned counsel for the petitioner has not been disputed by the respondents which means that the petitioner has already been superannuated from service. Thus, even upon retirement of the petitioner, the respondents have not concluded the disciplinary proceedings against him.

The respondent-Municipal Corporation is governed by the provisions of Jammu and Kashmir Classification Control and Appeal Rules, 1956 (hereinafter to be referred as the CCA Rules). As per Rule 33 of the said Rules, a major penalty cannot be imposed upon a member of civil service unless he has been informed in writing of the grounds on which it is proposed to take action and he has been afforded an adequate opportunity of defending himself. It further provides that the grounds on which it is supposed to take action have to be reduced in the form of definite charges which are to be communicated to the person charged together with a statement of allegation on which each charged basis. Thereafter, the person charged has to be given an opportunity to file his written statement of his defence and if he does not admit the charges, an enquiry has to be held in which he has to be given right to cross examine the witness and to give evidence in defence.

In the instant case, there is nothing on record to show that the memo of charges has been framed against the petitioner or that he has been asked to put in his defence. There is nothing on record to show that as to whether any witnesses have been examined by the enquiry officer and whether the petitioner has been given an opportunity to cross examine the witnesses. This could have been ascertained by having a look at the record relating to the enquiry but unfortunately respondents have not maintained the said record. Therefore, it has to be presumed that requirements of Rule 33 of CCA Rules have not been complied with by the respondents.

So far as contention of the respondents that the petitioner did not cooperate with the Enquiry Officer is concerned, there is nothing on record to support this assertion. Even otherwise, if the petitioner was not cooperating with the Enquiry Officer, it was incumbent upon the Enquiry Officer to record the evidence in exparte. In the absence of the record, it cannot be stated that this procedure was followed by the Enquiry Officer.

Rule 33 of the CCA Rules makes it obligatory upon the competent authority to supply a copy of the proceedings of enquiry to the person charged and to afford him opportunity to show cause within a reasonable time as to why proposed penalty should not be imposed upon him. In the instant case since respondents have not maintained the record of the enquiry therefore, there was no question of providing copy of the record of the proceeding to the petitioner. Even the impugned show cause notice does not indicate that copy of the record of the proceedings has been annexed thereto. Thus, requirement of Rule 34 of the CCA Rules has also not been followed by the respondents.

To top it all, the respondents have not concluded the enquiry by passing final order of imposing penalty upon the petitioner. Admittedly the petitioner has now attained the age of superannuation way back in the year 2016. The question that falls for determination is as to whether the respondents can pass an order imposing penalty upon the petitioner at this stage. The question is no longer res integra. There is a catena of judgments of this Court and the Supreme Court which provide that the proceedings cannot continue beyond the date of superannuation. In this regard reference can be made to the judgment of this Court in Jugal Kishore Sharma vs Union Territory of J&K and others, WP(C) No. 2400/2021, decided on 21.05.2022. In the aforesaid case, it has been held that if no enquiry was initiated and conducted during the time, employee remained in service, no such enquiry could be conducted post his retirement. The Division Bench of this Court, while dealing with the submission of State Counsel that the State has power to hold an enquiry even after retirement of a Government service in the face of the provisions contained in Article 168-A of the Civil Services Regulations observed as under:

“7. A bare perusal of the provisions (supra) would show that the provisions apply only to cases where loss is occasioned by an officer, which is found in judicial or departmental proceedings due to negligence or fraud of such an officer during his service.

In the present case, in our opinion , the said provision would not apply. Moreover, the provision does not envisage a situation where an enquiry could be conducted in regard to the date of birth of the petitioner post his retirement…….”

Again, the Supreme Court in the case of Bhagirathi Jena v. Board of Directors, G. S. F. C, (1999) 3 SCC 666, has held that disciplinary enquiry after retirement in the absence of any provision cannot be held. It was further held that once a person is retired from service, there was no authority vested with the employer for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the employee. The Court went on to hold that in such situation it must be held that enquiry had lapsed and the employee was entitled to full retiral benefits on retirement.

In the face of aforesaid legal position, it is clear that once an employee superannuates and if departmental enquiry is still pending against him, the same would lapse, unless there is a specific provision to the contrary. In the instant case, there is no specific provision that would empower the respondents to continue the disciplinary proceedings against the petitioner even after his retirement. The only provision available with respondents is Article 168-A of the CSR. As already noted hereinabove, a Division Bench of his Court in Jugal Kishore Sharma’s case(supra), has, after noticing the provisions contained in Article 168-A of CSR, held that the said provision applies only to cases where loss is occasioned by the act of the officer or where the loss is occasioned to the Government by the negligence or the fraud of the officer. In the instant case the allegation against the petitioner is that he has remained unauthorizedly absent from duty and that there are cases of land grabbing against him. Thus, even if the allegations levelled against the petitioner are assumed to be correct, still then no loss has been caused to the respondent-Corporation by such actions of the petitioner. Thus, the respondent Corporation cannot continue the enquiry proceedings against the petitioner beyond the date of his superannuation nor can it recover any amount from service benefits.

There is yet another aspect of the matter which is required to be noticed. The petitioner has been placed under suspension in the year 1992 and till the date of his superannuation, he has not been paid any suspension allowance. Non-payment of suspension allowance has been viewed very seriously by this Court and the Supreme Court and in appropriate cases this entails quashment of the enquiry proceedings. In Ajay Kumar Choudhary vs Union of India and others (2015) 7 SCC 291, the Supreme Court while dealing with this aspect of the matter has observed as under:

“14. We, therefore, direct that the currency of a suspension order should not extend beyond three months if within this period the Memorandum of Charges/Chargesheets is not served on the delinquent officer/employee; if the Memorandum of Charges/Chargesheet is served a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the concerned person to any Department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defense. We think this will adequately safeguard the universally recognized principle of human dignity and the right to speedy trial and shall also preserve the interest of the Government in the prosecution.

We recognize that previous constitution benches have been reluctant to quash proceedings on the grounds of delay, and to set time limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us.”

From the afore-going position of law, it is clear that once suspension gets prolonged it amounts to punishment and if suspension is coupled with non-payment of suspension allowance, it puts a lot of stress and deprives the employee of his wages for the period of suspension. Such conduct of the employer depicts casualness and non-seriousness on its part in taking the departmental proceedings to its logical conclusion and in providing succour to the employee during the period of his suspension. On this ground also, the disciplinary proceedings initiated against the petitioner are liable to be quashed particularly, when petitioner has not been paid the suspension allowance from the year, 1992 till he attained the age of superannuation in the year 2016.

For all what has been discussed hereinabove, the writ petition is allowed. The impugned show cause notice and the proceedings initiated against the petitioner are quashed. The respondents are directed to pay all the service benefits and retiral benefits to the petitioner within a period of three months from the date a copy of this judgment is served upon them.