SURAJ PARKASH vs JKSRTC AND ORS

In this petition the petitioner has prayed for a writ of certiorari quashing order No. JKSRTC/EC-1/339 dated 17.10.2012 passed by the General

Manager (Administration) JKSRTC, whereby the petitioner who was under suspension since 07.10.2003 has been reinstated with immediate effect

and the intervening period of suspension has been treated as on leave whatever is due to him. For facility of reference, operative portion of the

order dated 17.10.2012 is reproduced hereunder:-

“ Whereas the Corporation is a commercial entity and has to earn its revenue through active contribution of its work force enabling it to generate

its wages and therefore, cannot afford to pay idle wages to any of its employees.Â

Whereas the Corporation is facing financial constraints and has not been able to liquidate even the statutory liabilities of its employees.

Now, therefore, in view of the circumstances of the case, as aforesaid, Shri Suraj Parkash, Vehicle Inspector placed under suspension vide order No.

JKSRTC/MD(A)/359 dated 07.10.2003 is hereby reinstated with immediate effect. The intervening period of suspension with effect from 07.10.2003

till the date of issue of order is treated as on leave whatever is due to him.â€​

The petitioner is aggrieved of the operative portion of the order whereby the intervening period of suspension i.e from 07.10.2003 to 17.10.2012 has

been treated as on leave whatever due to him. Learned counsel for the petitioner assails the aforesaid order on the ground that the same is not legally

tenable for the simple reason that the financial constraints or crunch, which respondents-Corporation may be facing cannot be put forth as an excuse

to treat the period of suspension as on duty and pay him the wages for the aforesaid period.Â

Per contra, the learned counsel for the respondents states that the decision as to how the period of suspension of an employee who is reinstated

pending enquiry is always in the discretion of the employer and the delinquent cannot dictate his terms.Â

Considered the submission made by the learned counsel for the parties and perused the record.Â

From the perusal of the order impugned, it transpires that the petitioner was placed under suspension on 07.10.2003 pending some enquiry into his

conduct. The enquiry was not conducted with the reasonable despatch and the same remained pending for more than a decade. It is in these

circumstances that on the intervention of this Court, the respondents were directed to review the order of suspension passed against the petitioner.

This was directed by this Court vide its order dated 05.03.2007 passed in SWP No. 882/2005. The petitioner had also challenged his prolong

suspension in SWP No. 599/2012 which was disposed of as having been rendered infructuous due to the issuance of the order impugned. It would

further transpire that faced with the situation where the respondents-Corporation could not conclude the enquiry even after more than a decade, the

respondents passed the order impugned directing reinstatement of the petitioner with immediate effect. The respondents-Corporation in the order

impugned, however noted that the Corporation is a commercial entity and earns its revenue through the active contribution of its work force enabling it

to generate its wages and, therefore, cannot afford to pay idle wages to any of its employee. In the aforesaid order, the Corporation further noted

that since the Corporation was facing financial constraints and, therefore, it would not be in a position to liquidate even the statutory liabilities of its

employees. A perusal of the two paragraphs before the operative portion of the order impugned clearly reveals that the period of suspension of the

petitioner has been treated as on leave whatever due to him only persuaded by the reason that the Corporation was facing financial constraints and

therefore, would not be in a position to meet the dues of the petitioner. This in my opinion cannot be held to be a valid ground to deny the benefit of

wages for the period of suspension and paying the salary to the employee. Needless to say that an employee upon reinstatement from suspension is

not entitled as a matter of right to the salary for the period of suspension but a decision in this regard to be taken by employer must be supported by

reasons. There could be valid reasons like that the petitioner during the period of suspension was gainfully employed and had not been attending any

office where he was attached and supposed to report. Similarly, there could be another reason like that the delay in concluding the enquiry was due to

the reasons attributable to such employee. The reasons aforestated are only illustrative and not exhaustive on the matter. Therefore, the decision

backed by reasons is required to be taken for treating intervening period of suspension of the petitioner.

In that view of the matter, the petition is allowed and the order impugned is hereby quashed. The respondents however, shall be at liberty to pass

fresh order with regard to the period of suspension of the petitioner from 07.10.2003 to 17.10.2012 in accordance with law. Let an order in this regard

be passed within a period of four weeks from the date, a certified copy of this order is made available to the respondents by the petitioner.