Authority entitled to appoint Govt employee entitled to suspend too: CAT

Srinagar, May 3:  The Central Administrative Tribunal (CAT) here Friday held that an authority entitled to appoint a public servant would be entitled to suspend too pending a detailed inquiry into his conduct or pending a proceeding.

In a judgment passed in response to a related plea, a bench of Judicial Member M S Latif also held that the purpose of placing an employee under suspension was only aimed at forbidding him from discharging the duties of office or post held by him or her.

“It (suspension) is to refrain the concerned employee to avail the further opportunity to perpetuate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee may get away even pending enquiry without any impediment or to provide an opportunity to the delinquent employee to scuttle the enquiry or investigation to win over the witnesses or the delinquent to impede the progress of the investigation or enquiry etc,” the tribunal said. “Suspension is not a punishment.”

The court made these observations in response to a plea by a Patwari, Arshid Hussain Ahangar, who was ordered to take an assignment about election-related matters in addition to his charge as Patwari in Chattarhama, with an additional charge of Patwar Halqa Khimber.

In keeping with a circular dated August 11, 2017, issued by the office of the Financial Commissioner, J&K, the official was required to be available at his place of posting at least two days a week every Monday and Thursday.

For “dereliction of duty” he was placed under suspension by the Chief Electoral Officer, Jammu, vide order dated April 5, 2024, for the reason that he did not attend his office on Mondays and Thursdays.

Aggrieved by the order of suspension, Ahangar challenged the same before the tribunal.

Ahangar’s counsel, Advocate Sheikh Mushtaq contended that the official continued to be under the Administrative Control of his primary employer that is Financial Commissioner (Revenue) and the Chief Electoral Officer not being the appointing authority of the Patwari lacked competence to place him under suspension.

He argued that the order could not have been passed without conducting any inquiry besides it being not in conformity with Rule 31 of J&K Civil Services (Classification, Control and Appeal) Rules, 1956.

“The circular has been issued by the competent authority – Financial Commissioner and the applicant being under his control, is statutorily required to abide by and follow the circular in letter and spirit,” he said.

He argued that the official on the one hand was required to follow the circular and perform his duties against the post which he was substantively holding in Patwari Halqa Chattarhama with additional charge of Patwar Halqa Khimber and at the same time was required to attend the additional work related to election assignments.

“The impugned order of suspension is, therefore, unjustified and contrary to the fact situation rendering it liable to be quashed,” he said.

In response to the contention that principles of natural justice were violated on the part of the respondents in not providing an opportunity to be heard before issuing the suspension order, the tribunal said: “The same stands already answered in the light of Rule 31 of the J&K CS (CCA) Rules 1956. An examination of the rule reveals that it does not contain any condition which would prevent the competent authority from exercising the power of suspension unless the employee is heard as the suspension is not a punishment.”

As regards the contention that the suspension has been passed with oblique motive and backed by malice, the tribunal said: “The same cannot be countenanced at this stage as in law if malafides are alleged against the authority, that authority has to be arrayed as a party by name to enable that authority to put forth his position. The same having not been done, as such, at this stage this plea cannot be taken note of.”

Finally, the tribunal directed the respondents to review the suspension of the applicant, as already sought by him vide representation dated April 8, 2024, and pass appropriate orders by the law within four weeks from the date of receipt of a copy of this order.

The tribunal said: “However, this order shall not preclude the competent authority from initiating or proceeding with any enquiry strictly by rules and the law.”

In the meanwhile, it said, the applicant should also be given his subsistence allowance as warranted under the law.