Deputy Commissioner not competent to place a member of the Jammu and Kashmir Administrative Service, under suspension | J&K High Court

High-Court-of-J&K
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  • Post published:February 18, 2021
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In a significant Judgment, a Division Bench of the J&K High Court comprising its First Puisne Judge Justice Ali Mohammad Magrey and Justice Puneet Gupta today set aside order dated February, 3, 2021 passed by Central Administrative Tribunal (CAT), Jammu Bench and also quashed Order No.DCS/Misc/2021/964-69 dated January, 16, 2021 passed by the Deputy Commissioner, Samba whereby Tehsildar Bari Brahmana Qaiser Mehmood had been placed under suspension.

After hearing Advocate Sheikh Shakeel Ahmed with Advocate Sheikh Najeeb appearing for the petitioner whereas Senior AAG S.S. Nanda appearing for the Union Territory of J&K, the Division Bench headed by Justice Ali Mohammad Magrey while allowing the writ petition filed by Qaiser Mehmood held that “the Deputy Commissioner, Samba, admittedly, is not the appointing authority of the petitioner. He is not a higher authority nor has any authorization being placed on record to show that the Govt. has authorised him to place the petitioner under suspension. The Judgment relied upon by CAT, Jammu Bench titled Dr. Bilquees V/s State of J&K & Ors while declining interim relief to the petitioner vide order dated February, 3, 2021 being distinguishable in facts, is not applicable to the facts and circumstances of the case in hand”.
Advocate Sheikh Shakeel Ahmed during the course of arguments submitted that the Learned CAT Jammu Bench fell in error in appreciating the true intent and spirit of Rule 31 of J&K Classification, Control and Appeal Rules, 1956 which contemplate that it is the appointing authority or any authority to which the appointing authority is subordinate that can place a Govt. Servant under suspension and the petitioner who is a Junior Scale KAS Officer and his appointing authority was Govt. of J&K in the General Administration Department and DC Samba had no powers to place the Tehsildar Bari Brahmana under suspension.
Advocate S.S. Ahmed further submitted that the Central Administrative Tribunal (Jammu Bench) also failed to appreciate the scope of Circular No.32-JK (GAD) of 2020 dated November, 26, 2020 as well as Govt. Order No.811-JK (GAD) of 2020 dated September, 1, 2020 wherein it is clearly laid down that cases regarding disciplinary action against KAS Officers are required to be placed before Hon’ble the Lieutenant Governor through the Chief Secretary and any order/act without the approval of the competent authority, in this behalf, besides being legally untenable, may lead to Administrative Complicacies as well. He further submitted that although all these issues were raised before the Tribunal but the Learned Tribunal did not appreciate the controversy in its true and correct perspective, but has passed the impugned order in hot haste thereby declining stay of the suspension order.
However, Senior AAG S.S. Nanda appearing on behalf of U.T. Administration submitted that DC Samba had the requisite authority to pass the order of suspension in relation to the petitioner. He further submitted that matter stands already considered by the Central Administrative Tribunal in the proceedings initiated by the petitioner resulting in rejection of prayer for grant of interim relief.
After considering the submissions of both the sides, the Division Bench headed by First Puisne Judge observed that the moot question that arises for consideration is whether DC Samba had the requisite jurisdiction/authority to place the petitioner, a Gazetted Officer belonging to J&K Administrative Services, under suspension.
The DB after placing reliance upon Rule 31 as well as the Circular No.32-JK (GAD) of 2020 dated November, 26, 2020 as well as Govt. Order No.811-JK (GAD) of 2020 dated September, 1, 2020 and catena of Supreme Court Judgments on the subject observed, “It is the appointing authority or any authority to which it is subordinate or any other authority empowered by the Government, in this behalf, that has got the powers to place an employee under suspension where an enquiry into his conduct is contemplated or is pending or a complaint against him/her of any criminal offence is under investigation or trial.” The DB further said in the instant case the Deputy Commissioner admittedly is not the appointing authority of the petitioner nor a higher authority and had no authorization by the Government to place the petitioner under suspension”.
The DB while parting with the Judgment further observed that given the above position obtaining in the matter, “We are of the view that the Learned Tribunal has clearly erred in holding that the respondent No.3/DC Samba had the requisite jurisdiction to place the petitioner, a Member of the J&K Administrative Service, under suspension, that too without approval of the competent authority in the Government. That being so, the order dated 03-02-2021 as passed by the Learned Tribunal is set aside. Consequently the OA filed by the petitioner before the Learned Central Administrative Tribunal Jammu Bench is allowed and the order dated 16-01-2021 issued by the respondent No.3/DC Samba placing the petitioner under suspension, being without jurisdiction is hereby quashed. We, however, make it clear that this order shall not preclude the competent authority in the Government of the U.T. of J&K to take any action, as may be warranted under law.
With these observations/directions the DB disposed of the writ petition alongwith all connected Civil Miscellaneous Application.

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