Syed Amin Tabish vs State and Others

Mohammad Yaqoob Mir, J.—Vide Govt. Order No. 464/G of 1982 dated 21.10.1982, petitioner has been appointed as Assistant

Surgeon and posted at Cherar-i-Sharief. In the service book, photocopy of which is on the records, as shown prepared by Block Medical Officer,

Cherar-i-Sharief, the date of birth of the petitioner is recorded as 30th March, 1957. In the year 2012, petitioner was posted as Professor-cum-

Medical Superintendent, SKIMS where it was noticed that the actual date of birth of the petitioner, as per matriculation certificate, is 30th March,

1956. Petitioner allegedly had taken a stand that his date of birth is 30th March, 1957 as recorded in his service book on joining pursuant to initial

order of appointment. Charge had been framed against the petitioner vis-Ã -vis manipulation of his date of birth. Response filed by the petitioner

was not found satisfactory by the Director SKIMS, therefore, an Enquiry Committee comprising of below mentioned officers was constituted:

1) Prof. Khurshid Iqbal Dar, Dean Medical Faculty (Convenor)

2) Dr. Gul Javed, Professor (Member)

3) Prof. Muhammad Maqbool, HOD Radiotherapy (Member Secretary).

At the same time petitioner was placed under suspension with immediate effect so as to remain attached with the office of Director SKIMS till

culmination of proceedings. One Dr. Reyaz Ahmad Rangrez, Associate Professor-cum-Deputy Medical Superintendent was asked to function as

Incharge HOD, Hospital Administration as is clear from order No. 110 SKIMS of 2012 dated October 11, 2012.

Petitioner not satisfied with the said order filed two writ petitions bearing SWP No. 2066/2012 and SWP No. 2173/2012. During pendency of

said petitions, an enquiry in terms of sub-rule (4) of Rule 33 of the J&K Civil Services (CC&A) Rules, 1956, was ordered vide Govt. Order No.

24 GAD(Vig) of 2013 dated 14.03.2013 where-under Shri Manoj Kumar Dwivedi, IAS, Commissioner/Secretary to Govt. Health & Medical

Education Department was appointed as Enquiry Officer. In view of this development, while disposing of the said petition, it was observed that

pending enquiry, respondents shall review the suspension order No. 110-SKIMS of 2012 dated 11.10.2012 in accordance with rules. Further, a

direction was issued to the appointed Enquiry Officer, Shri Manoj Kumar Dwivedi to conclude enquiry as far as possible within six weeks. In

compliance to the said judgement, case for review of suspension has been considered by the Committee comprising of Chief Secretary, Secretary

to Govt. GAD and Director, SKIMS who have decided that the petitioner shall continue to remain under suspension with a condition that the case

will be reviewed again on completion of enquiry.

The appointed Enquiry Officer, Mr. Manoj Kumar Dwivedi, has submitted the enquiry report on 18.05.2013 wherein at Para 13 it has been

opined that the petitioner is not in a position to avail any benefit of date of birth consider his date of birth as 30.03.1956 unless proved otherwise.

Further it has been observed that it would be prudent to reinstate the petitioner and to avail his service, which shall be in the interests of

organization. Finally has concluded that unless confusion with respect to the date of birth is clarified by the Board authorities, no misconduct can be

established.

Director, SKIMS, not satisfied with the enquiry report as submitted by Mr. Dwivedi, on 31st May, 2013, has communicated to the Chief

Secretary, State of J&K, that in view of the facts and position of the case, the records are complete, the petitioner has manipulated his actual date

of birth and service record, as such, fresh enquiry needs to be conducted in the case. Based on such communication, vide Govt. Order No. 14-

GAD(Vig) of 2013 dated 16.07.2013, Mr. Shaleen Kabra, IAS, Commissioner/Secretary to govt. Health & Medical Education Department, was

appointed as Enquiry Officer but he was transferred, as a result whereof, Govt. Order No. 50/GAD(Vig) of 2013 dated 10.10.2014 has been

issued where-under Mr. Gazanffer Hussain, IAS, Secretary to Govt. Health & Medical Education Department has been appointed as Enquiry

Officer whereas Mr. Rafiq Ahmad, Senior-Administrative Officer, SKIMS, as the Presenting Officer.

Dissatisfied with the aforesaid action, petitioner by medium of SWP No. 387/2014 challenged said Govt. Order No. 50/GAD(Vig) of 2013

dated 10.10.2013 as well as the decision taken by the Review Committee dated 20th November, 2013 where-under petitioner has been decided

to remain under suspension.

Vide order dated 28th February, 2014 passed by this Court, Govt. Order dated 10.10.2013 has been kept in abeyance. Furthermore, vide

order dated 14th March, 2014, respondents were directed to review the suspension order dated 11th October, 2012. It is during the pendency of

said writ petition, the Enquiry Officer appointed pursuant to Govt. Order No. 50/GAD(Vig) of 2013 dated 10.10.2013 submitted his report.

Meeting of the Review Committee is shown to have been held on 24th March, 2014 wrongly shown as 2013, the Enquiry Officer, Mr.

Gazanffer, is shown to have submitted enquiry report on 21st December, 2013. Both enquiry report dated 21st December, 2013 submitted by the

Enquiry Officer, Mr. Gazanffer, as well as decision of the Review Committee dated 24th March, 2014 have been challenged by the petitioner by

medium of SWP No. 819/2014.

Both the petitions i.e. SWP No. 387/2014 and SWP No. 819/2014 are taken up together for final disposal.

Contention of the petitioner is that second enquiry could not be ordered as has been done in terms of Govt. Order No. 50/GAD(Vig) of 2013

because earlier appointed Enquiry Officer, Mr. Dwivedi, had concluded the enquiry.

In fact, Mr. Dwivedi, in his enquiry report, had concluded that unless confusion with respect to date of birth of the petitioner is not clarified by

the Board authorities, misconduct cannot be established, which means enquiry was not concluded, therefore, further enquiry or fresh enquiry

cannot be said to be second enquiry. Contention, as such, is repelled.

The report submitted by the Enquiry Officer, Mr. Gazanffer, appear to have certain shortcomings i.e. the important aspect as to who was

responsible for recording date of birth of the petitioner as 30.3.1957 on the first page of the service book and under what circumstances same had

been recorded at the time of initial appointment of the petitioner by Block Medical Officer, Cherar-i-Sharief. The first page of service book of the

petitioner apparently does not contain any insertions or interpolations. The Enquiry Officer was required to look into the said aspect. More so

when the petitioner had stated that while travelling in Delhi he lost the briefcase carrying his all certificates regarding which FIR in Delhi Police

Station has been registered long back. Furthermore, it was to be ascertained as to who was supposed to be in custody of the service book. The

date of birth of the petitioner appears to be 30th March, 1956. On the basis of the date of birth recorded as 30.03.1957, allegedly petitioner has

not as yet gained any benefit.

Be it as it is, the report of the Enquiry Officer is not final. It has still to undergo the process of finalization. The competent authority is now

required to supply copies of the enquiry report and the relevant records to the petitioner so as to enable him to explain his position. Only thereafter

final decision has to be taken i.e. as to whether petitioner is guilty of any misconduct. If yes, then whether penalty, if any, major or minor, shall be

warranted. The report, as such, at this juncture cannot be interfered with.

Various allegations have been levelled by the petitioner as against various authorities so as to show that the action again him has been initiated

on the basis of bias. Since final decision is yet to be taken by the concerned authorities on the basis of enquiry report, therefore, it would not be

appropriate at this stage to comment on those allegations, so are left open to be agitated and looked into in appropriate proceedings, if required,

after the final decision is taken by the competent authority on the basis of enquiry report of the Enquiry Officer, Mr. Gazanffer.

The most astonishing aspect of the case is that the allegation against the petitioner is that he has manipulated the date of birth. Firstly, at the time

he joined his date of birth as 30.03.1957 in the service book, apparently is recorded by Block Medical Officer, Cherar-i-Sharief, same does not

appear to carry any interpolation or insertion. How can same mistake or mischief be attributed to the petitioner, is a star question which has

remained to be looked into.

Again an important position i.e. petitioner has not so far availed any benefit on the basis of the date of birth recorded as 30.03.1957 because

he has not as yet reached the age of superannuation even on the basis of date of birth i.e. 30.03.1956 even if he would have availed any benefit,

still continued suspension is unwarranted.

Is it not disturbing that the petitioner, a doctor of the rank of Professor, has been kept under suspension for a long period of over two years,

could not his service be utilized for the betterment of the hospital administration or for other hospital activities. By keeping him under suspension,

no purpose is served except loss to the State exchequer. Rules provide that there shall be periodical review of suspension of an employee, which

has a benign object to be advanced. The allegation against the petitioner is not such which would in any manner warrant him to be kept away from

discharge of his sacrosanct duties. In the given facts and circumstances coupled with the allegations as levelled against the petitioner, there could be

no case for keeping him under continuous suspension. He is not involved in any kind of moral turpitude, embezzlement or any loss caused to the

Medical Education Department or the Institute. His continuous suspension is absolutely in breach and violation to the object of the rule prescribing

periodical review of suspension of an employee. Such type of suspension is operating as punishment to the petitioner and loss to the State

exchequer.

Enough is enough. The observation and recommendation of the earlier appointed Enquiry Officer, Mr. M.K. Dwivedi, should have been

respected. Same reads as under:

it would be prudent to reinstate the petitioner, he being a Professor, is a senior faculty member, therefore, his reinstatement would be in the

interests of organization.

Continued suspension of the petitioner shall be totally inconsistent with the object of periodical review of the suspension.

In the background of the facts and circumstances, as referred above, this petition is disposed of with the following directions:

a) The respondent authorities shall immediately consider petitioner's case for reinstatement without any further loss of time and pass appropriate

orders thereon within ten days.

b) The respondent authorities on the basis of enquiry report as submitted by the Enquiry Officer appointed in terms of Govt. Order No.

50/GAD(Vig) of 2013 shall proceed in the matter in accordance with rules by furnishing copy of the enquiry report and by giving him appropriate

opportunity to defend the findings of the Enquiry Officer and then to take final decision as shall be warranted under law. Right is reserved to the

petitioner to re-agitate as against the final order, if any, passed against him by the competent authority.

Both the petitions are, accordingly disposed of. The record as produced by learned counsel for the respondents be returned to him.