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Judgment
Mr. Muzaffar Hussain Attar, J. - While agreeing with the conclusion arrived at by Hon'ble Mr. Justice Hasnain Massodi in his draft judgment,
where under the Letters Patent Appeal (LPA) has been dismissed, certain aspects appearing in the impugned judgment require to be further
clarified.
Respondent No. 1 belongs to one of the most noble callings. On the issue of his date of birth (DOB), he has locked horns with his employer and
it appears that he has made abortive attempts to thwart the enquiries initiated against him by his employer to ascertain the truth.
From the record, it appears that respondent no. 1 has, by pursuing litigations, caused delay in finalization of enquiry initiated against him.
To settle the controversy about the DOB of respondent no. 1, which issue had surfaced on a complaint of one of the doctors of the respondent
-Institute, initially, it appears, a Fact Finding Committee of the then Dean Medical Faculty and two other doctors of the respondent - Institute was
constituted. Respondent No. I was placed under suspension vide order dated 11th October, 2012 He filed two writ petitions (SWPs 2066/2012
and 2173/2012). Meanwhile Government Order No. 24/GAD (Vig) 2013 dated 14th March, 2013 was issued, where under enquiry was
instituted about the conduct of respondent no. 1 and one Shri Manoj Kumar Dwivedi, IAS, Commissioner Secretary to Government, Health and
Medical Education Department, was appointed as Enquiry Officer, rendering the constitution of Fact Finding Committee inconsequential. Enquiry
was initiated in accordance with the mandate contained in Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956
(for short Rules of 1956). The writ petitions filed by Respondent No. 1 were disposed of with the observation that the competent authority shall
review the suspension of the petitioner in accordance with the rules. The Enquiry Officer was directed to conclude the enquiry as far as possible
within six weeks. The competent authority, in compliance with orders of the Court, reviewed the case of Respondent No. 1 but deemed it proper
to keep him under suspension. It was, however, provided in the review order that the case will again be considered for review on completion of
enquiry.
Mr. Dwivedi - the Enquiry Officer, could not take the final call and make any recommendation either about exonerating the Respondent No. 1
or holding that the charges framed against him stand proved. He observed that until the issue of DOB is clarified by the Board Authorities, it cannot
be said that Respondent No. 1 has committed any misconduct. The enquiry having, thus, remained inconclusive, the Government vide Order No.
14/GAD (Vig) 2013 dated 16th July, 2013, appointed Mr. Shaleen Kasba, IAS, Commissioner Secretary to Government, Health and Medical
Education Department, as Enquiry Officer. However, on his transfer, Government order No. 50/GAD (Vig) 2013 dated 10th October, 2013 was
issued and Mr. Gazanfar Hussain, IAS, Secretary to Government, Health and Medical Education Department, was appointed as Enquiry Officer
and Mr. Rafiq Ahmad,Senior Administrative Officer, respondent - Institute, was appointed as Presenting Officer.
Respondent No. 1 challenged the order dated 10th October, 2013 as also the decision of the Review Committee dated 20th November, 2013
before the writ Court. The writ Court, on 28th February, 2014, kept in abeyance the Government order dated 10th October, 2013.
Enquiry Officer-Mr. Gazanfar, submitted Enquiry Report on 21st December, 2013, which, along with the decision of the Review Committee
dated 24th March, 2014, was challenged by Respondent No. 1 in SWP 819/2014.
The learned writ Court did not agree with the contention of Respondent No. 1 that the impugned order, where under the enquiry was ordered
to be conducted, is second enquiry. Respondent No. 1 had challenged the Government order, where under Mr. Gazanfar Hussain was appointed
as Enquiry officer on the principal ground that Mr. Dwivedi had concluded the enquiry, so second enquiry could not be ordered to be conducted
against him. The learned writ Court has rightly concluded that Mr. Dwivedi had not concluded the enquiry and enquiry conducted by Mr. Gazanfar
Hussain cannot be said to be a second enquiry. The learned writ Court, in the impugned judgment, has, inter alia, observed that the report of
Enquiry Officer is not final and same is to undergo the process of finalization ; the report of the Enquiry Officer has to be placed\before the
competent authority, which authority has to proceed the service jurisprudence and/or in the larger public interest. An employee cannot be kept
under continuous suspension without conducting a departmental enquiry into his alleged misconduct.
When the departmental enquiry is initiated to enquire into the alleged misconduct of an employee, in appropriate cases, it has to be left to the
wisdom of the competent authority to reinstate such an employee. A situation may arise where the enquiry is at the last leg and the disciplinary
authority has to take decision on the Enquiry Report. The competent authority, in such fact situation, has to be given option of reviewing the
suspension of an employee and, in all circumstances, may not be directed to reinstate the employee.
In the facts of this case, the learned writ Court has directed to consider case of Respondent No. 1 for his reinstatement. The competent
authority, otherwise also, in view of the mandate contained in rules of 1956, is duty bound to consider review of suspension of the delinquent
officer.
With the aforesaid observations, the LPA is dismissed, which is the conclusion arrived at by the Hon'ble Mr. Justice Hasnain Massodi.