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2016 Supreme(J&K) 311
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Dhiraj Singh Thakur, J.
Rakesh Kumar Pargal - Appellant
Vs.
State and Ors. - Respondents
SWP No. 467 of 2016 & MP No. 1 of 2016
Decided On : 29-03-2016
Advocate Appeared:
For the Appellant : S.S. Ahmed
The distinction between suspension and punishment, the criteria for placing an employee under suspension, and the need for caution and consideration of public interest when exercising the power to suspend an employee.
Headnote:
Suspension - Employee Rights - Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 - Rule 31
Fact of the Case:
The petitioner challenges the order of suspension based on an anonymous complaint alleging embezzlement, misappropriation, possession of disproportionate assets, and negligence. The petitioner also argues that the suspension was contrary to the Circular No. 22-GAD (Vig) of 2015 and that the complainant had a history of filing frivolous complaints.
Finding of the Court:
The court emphasized that suspension is not a punishment but a temporary deprivation of work privileges. It cited relevant case law to support the distinction between suspension and punishment. The court also discussed the provisions of Rule 31 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, and the government instructions appended to the rule, emphasizing the need for caution and consideration of public interest when placing an employee under suspension.
Issues: The issues included the validity of the suspension based on an anonymous complaint, the history of frivolous complaints by the complainant, and the compliance with Rule 31 and government instructions.
Ratio Decidendi: The court held that suspension is not a punishment and discussed the criteria for placing an employee under suspension as per Rule 31 and government instructions. It emphasized the need for caution and consideration of public interest when exercising the power to suspend an employee.
Final Decision: The petition was found to be without merit and dismissed.
Dhiraj Singh Thakur, J.
1. The petitioner challenges the order dated 25.2.2016 whereby he has been placed under suspension based upon a complaint received from the President's Secretariat, Rashtrapati Bhawan, New Delhi and the Governor's Secretariat, Raj Bhawan, Jammu. According to the order impugned, pending an enquiry into the complaints regarding embezzlement, misappropriation, possession of disproportionate assets and negligence, the petitioner has been placed under suspension and attached with the directorate of CAPD till further orders.
2. The order impugned is questioned on the ground that the same was based upon an anonymous complaint and could not have been so entertained as the same was contrary to the Circular No. 22-GAD (Vig) of 2015 dated 10.7.2015.
3. The second ground on which the order impugned is challenged is that one Harbhajan Singh-Respondent No. 4 had consistently in the past been making frivolous complaints against the petitioner from time to time. It was further urged that respondent No. 4 was also involved in a mob attack against the officers of the CAPD department, leading to registration of an FIR in which his name subsequently also figured and that the said respondent always tried to blackmail the petitioner by filing frivolous complaints.
4. It was stated that finally a compromise was arrived at between the petitioner and the said respondent, which was reduced in the shape of a written document, which is on record, according to which, both the parties, had decided to withdraw the complaints filed against each other and to put an end to false litigation initiated at each others' behest. In furtherance of the said agreement, an affidavit is also stated to have been sworn, which also forms Annexure-H to the petition.
5. In this background, it was asserted that the complaint might have been forwarded to the President of India as also the Governor of the State, which resulted in the petitioner's suspension.
6. Finally, it was urged that the order of suspension was contrary to the provisions of Rule 31 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 and Government Instruction No. 1 appended thereto.
7. Heard learned counsel for the petitioner.
8. It is by now well settled that suspension is not a punishment. It simply means that no work is to be taken from the employee during the period of his suspension. While the relationship of employer and employee continues yet employee is temporarily deprived of his privilege to work in the office. In such a situation, he continues to retain his lien on the permanent post held by him.
9. In Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup and Ors., AIR 1957 SC 82 the Apex Court while dealing with the issue held as under:
"18.........The suspension, however, would not be a punishment by itself. The ordinary dictionary meaning of the word "punish" is "to cause the offender to suffer for the offence" or "to inflict penalty on the offender" or "to inflict penalty for the offence".........."
10. In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr., AIR 1999 SC 1416, the Apex Court held as under:
"26. To place an employee under suspension is an unqualified right of the employer. This right is conceded to the employer in service jurisprudence everywhere. It has even received statutory recognition under service rules framed by various authorities, including Govt. of India and the State Governments. (See: for example, Rule 10 of Central Civil Services (Classification, Control and Appeal) Rules. Even under the General Clauses Act, this right is conceded to the employer by Section 16, which inter alia, provides that power to appoint includes power to suspend or dismiss."
11. In Union of India & Anr. v. Ashok Kumar Aggarwal, Civil Appeal No. 9454 of 2013, the Apex court while placing reliance upon State of Orissa v. Bimal Kumar Mohanty, AIR 1994 SC 2296 held as under:-
8. In State of Orissa v. Bimal Kumar Mohanty, AIR 1994 SC 2296, this C
