Deputy Commissioner Has No Requisite Jurisdiction To Suspend A Gazetted Officer Belonging To The J&K Administrative Services: Jammu And Kashmir High Court
The Jammu and Kashmir High Court has recently observed that the Deputy Commissioner is not a higher authority nor has the authorization from Government to suspend a gazetted officer belonging to the J & K Administrative Tribunal.
"Being a member of the Jammu and Kashmir Administrative Service, if at all any disciplinary proceeding was to be initiated against the petitioner, the same was only within the domain of the appointing authority of the Government of Jammu and Kashmir and not the respondent No.3/ Deputy Commissioner. Admittedly, the Deputy Commissioner is not the appointing authority of the petitioner. He is not a higher authority nor is any authorization forthcoming from the pleadings on record to show that the Government has authorized him to place the petitioner under suspension", Division Bench of Hon'ble Justice Ali Mohammad Magrey and Hon'ble Justice Puneet Gupta noted.
In the present matter, the petitioner, a J&K Administrative Service member, was appointed as Junior Scale KAS Officer. On February 18, 2019, he was appointed as a Local Commissioner for demarcation of the land of the parties as per revenue record. He had to submit a report before the concerned Court. The petitioner submitted the report on August 20, 2020, but on January 16, 2021, he was suspended by the Deputy Commissioner and was placed under pending inquiry. The petitioner challenged the order dated January 16, 2021, before the learned Tribunal. Still, the Tribunal rejected the petitioner's prayer for grant of interim relief qua staying the petitioner's suspension.
The Court observed that as per Circular No.811-JK (GAD) of 2020 dated September 1, 2020, read with the third proviso to Rule 7 and with Rule 43 of the Transaction of Business of the Government of Union Territory of Jammu and Kashmir Rules, 2019, case of disciplinary action against the members of All India Services and KAS are required to be submitted to the Lieutenant Governor through the Chief Secretary which was not followed by the Deputy Commissioner while placing the petitioner under suspension.
"The Deputy Commissioner had no approval of competent authority to suspend the petitioner which resulted in the violation of the mandate of the instructions issued by the Government vide circular dated November 26, 2020.", the Bench further noted.
The Bench placed reliance on the Supreme Court judgement of State of Orissa V. Bimal Kumar Mohanty (AIR 1994 SC 2296) in which it was observed that,
“It was thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct of defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be in consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The court or the Tribunal must consider each case on its own facts and no general law could be laid down on that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office of post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending enquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the enquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or enquiry etc.”
The Court also referred to the Judgement of Coordinate Bench of Jammu and Kashmir High Court in R. S. M V. District Development Commissioner, (1986 SLJ 382) in which the Bench observed that,
“Suspension means debarring usually, for a time from any privilege, from the execution of an office or from the enjoyment of an income according to the ordinary dictionary meaning. It is a temporary privation of office or a privilege. However, by reason of mere suspension the person concerned does not lose his office nor does he suffer any degradation but he ceases to exercise the powers and to discharge the duties of the office for the time being. Though his rank remains the same, yet he cannot draw his salary during the period of suspension. The powers, functions and privileges of a civil servant during suspension remain in abeyance and he continues to be subject to the same discipline and penalties and to the same authorities as any other civil servant. Suspension under the present set up attaches a stigma to the concerned public servant and cannot be treated as a normal routine order with respect to a civil servant which allegedly does not affect his rights. A suspended civil servant loses the respect and dignity which he enjoys before such an order is passed. Suspension may not amount to punishment within the meaning of Art. 311 of the constitution of India, or within the meaning of the punishments prescribed under any rules governing service conditions of the civil servants, even then it carries a stigma with respect to the concerned civil servant definitely lowers him in the estimation of the society, his friends, relations and colleagues.”
Thus the Bench, while setting aside the order of the Administrative Tribunal and quashing the order issued by the Deputy Commissioner observed that, either the appointing authority or any authority to which it was subordinate or any other authority empowered by the Government had the powers to suspend an employee against whom an inquiry into his conduct was contemplated or pending or a complaint against him/her of any criminal offense was under investigation or trial.
Case title: Qaiser Mehmood v. The Union Territory of JK & Ors.