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The Disciplinary Proceedings Holding A Similar Set Of Charges Cease To Exist If The F.i.r Lodged Is Quashed In The Court Of Law: The High Court Of Jammu & Kashmir And Ladakh

Esha Goyal ,
  13 May 2024       Share Bookmark

Court :
The High Court of Jammu & Kashmir And Ladakh
Brief :

Citation :
WP (C) 81/2023 c/w CCP (S) 149/2023

Case title:

Jasvinder Singh Dua vs. UT of Jammu & Kashmir and Others

Date of Order:

30th April 2024

Bench:

Single Judge Bench lead by Hon’ble Justice Javed Iqbal Wani

Parties:

Petitioner/Appellant:- Jasvinder Singh Dua 

Respondents:- 1. Union Territory of Jammu and Kashmir 

                         2. Commissioner/Secretary to Govt.

                         3. Sh. Hasmat Ali Yauto

SUBJECT

The controversy at hand is in association with the prolonged suspension of the Petitioner who was serving the Corporation. An F.I.R was instituted against him and his uncle by the Anti-Corruption Bureau stating the petitioner was appointed to his post based on malpractices and gained promotions on the same basis. The F.I.R was quashed by The High Court but his suspension was continued by the Corporation. 

IMPORTANT PROVISIONS

THE CONSTITUTION OF INDIA

Article 226: The High Court has been empowered to issue writ petitions within its limit of territorial jurisdiction to any person, body or even state authorities for the enforcement of fundamental rights guaranteed in Part III of the constitution. 

The petition is inclusive of 5 writs which are

  1. Writ of Habeas Corpus 
  2. Writ of Mandamus
  3. Writ of Certiorari
  4. Writ of Prohibition 
  5. Writ of Quo-Warranto 

J&K PREVENTION OF CORRUPTION ACT,

Section 5(1)(d):-  The section covers the acts of criminal offence/misconduct and any advantage obtained by the public servant in relation to his/her position or illegal conduct for the purpose of advantage of others or himself/herself. 

Section 5(2):-  The prescription of the punishment in terms of criminal offence or misconduct found on the end of the public servant who is found guilty of such act. 

OVERVIEW

  • The petitioner was appointed as the Junior Engineer (Civil) in the J&K Small Scale Industries Development Corporation Limited  (for short “the Corporation”) and was regularised. 
  • He was then given frequent promotions for which he was given various positions in the industry along with other employees.
  • The government issued frequent orders of transfer for him and his last transfer allotted him the post of Managing Director J&K Handicrafts (S&E) Corporation
  • An F.I.R was lodged by the Anti-Corruption Bureau against the petitioner and others  u/s5(1)(d) read with section 5(2) of the J&K Prevention of Corruption Act. 
  • The F.I.R. imposed allegations on the petitioner, his uncle and another employee (who is now deceased) for being engaged in acts of corruption in the earlier engagements with the Corporation and being involved in dubious practices for promotional prospects. 
  • The F.I.R. was challenged by the petitioner and his uncle stating that he was not the only person appointed by the means but other individuals were similarly given the position in the Corporation. It was clarified that his uncle held the position of General Manager and had no power to employ the petitioner. 
  • The Court allowed the petition and the F.I.R. imposed against the petitioner was quashed considering the appointment was done on an ad hoc basis and there was no involvement of the petitioner's uncle in his career prospects. 
  • Moreover, it was observed by the court of law during the investigation proceedings held by the Corporation, that the allegations did not have any incriminating material or evidence in support, declaring the rules of theirs to be vague. 
  • The lodging of F.I.R. concluded with the suspension of the petitioner and was served with a “Statement of Articles of Charges” and “Statement of Imputation” in support of the said Articles of Charges respectively. 
  • Aggrieved to which the petitioner using the writ petition implored  the below-stated reliefs

Certiorari 

  1. Quashing the order of suspension of the petitioner which has been lasting for 3 years without any concrete evidence and remains to be reviewed as per rules. 
  2. Quashing the order of suspension given by respondent 2 as not being competent to pass the order and lacking jurisdiction.
  3. Quashing the impugned "Statement of Articles of Charges" and "Statement of Imputation in support of the Articles of Charges" which was framed against and conveyed to the petitioner as the same has been quashed by the Court in charge. 

Mandamus

  1. To Command and direct the impugned orders passed by the respondents to be invoked and releasing the beneficial funds for the damage caused in favour of the petitioner. 

Prohibito 

  1. To restrain the respondents from proceeding with any investigation procedure further concerning the case which was initiated in the year 2020 and to take any further action arising out of the same concern. 

ISSUES RAISED

The issues which were framed by the Hon’ble High Court are 

  1. Whether the writ petition is maintainable in the given case?
  2. Whether the government that owns and controls the Corporation is empowered to order suspension and punish its employees?
  3. Whether the quashing of F.I.R. affect the departmental proceedings based on similar and same allegations?

ARGUMENTS ADVANCED BY THE PETITIONER 

The counsel appearing on behalf of the petitioner stated that despite quashing the impugned F.I.R. in this case, the departmental investigation is still initiated against him. continuing his suspension is unjust. 

ARGUMENTS ADVANCED BY THE RESPONDENT

The respondents, through their counsel, filed their reply refusing the basis of the petition.

  • They stated that the enquiry was initiated based on a letter issued by the Anti-Corruption Bureau and hence he was placed under suspension in terms of Rule 31 of the J&K Civil Services (Classification, Control and Appeal) Rules of 1956 (for short “the Rules of 1956”).
  • The enquiry report for the allegation was presented in front of The Hon’ble High Court which recommended a penalty to be imposed on the petitioner as his basic appointment was on corrupt practice. 
  • The Rules of 1956 also mandated the removal of the petitioner from the post. 
  • The defence of prolonged suspension was given by the respondents stating the allegation to be of grave nature requiring a lot of time to investigate. 
  • The respondents maintained that the Criminal Proceedings are not subjected to running parallel to the disciplinary actions for such allegations. 

JUDGEMENT ANALYSIS

The Hon’ble High Court of Jammu & Kashmir and Ladakh considering the given issues had its views which stated as follows

ISSUE 1

  • The above said Corporation is different from the Government body incorporated under The  Companies Act, 2013 and has its own rules and regulations for service governing its employees. 
  • The service conditions were governed by the Rules 1977 where Chapter 6 had prescriptions regarding conduct, discipline and appeal whereas Chapters 64 and 65 talked about misconduct and penalty to be imposed simultaneously.  
  • Chapter 66 on the other hand covered suspension of the employee which included the clause of pay scale being between R. 2000 to 3800.
  • The allegation in the present case is on the petitioner who is a Managing Director. 
  • In terms of clause 78 (V) of the Articles of Association of the Corporation, The Board of Directors holds the authority to penalise and suspend the petitioner and not the government body. 
  • On reliance on Rule 65 of the Rules of 1977, it was observed that the penalty cannot be imposed unless the appointing authority (or body empowered on its behalf) finds the ground for imposing such penalty after ensuring that the employee was given a chance to be heard. Such authority holds the power to determine the quantum of the punishment as well. 
  • The Rules 1977 imposes the application of the governmental law in the grey area of the said Rules. 
  • On application of the Rules 1977, the respondents lack the authority to issue the impugned order 

ISSUE 2 

  • The objective of the Criminal proceedings is different from the departmental proceedings where one focuses on the punishment of the offender and the other imposes the penalty on the service employee for his delinquency based on the rules of the working organisation. 
  • As even admitted in the submissions of the respondents, it is clear that both the proceedings were not simultaneous to each other. The disciplinary action was already initiated against the petitioner by the letter issued by the Anti-Corruption Bureau which led to the registration of the F.I.R
  • The verdict for quashing the F.I.R. was already given by The Court of Law maintaining the petitioner was not guilty and initiating the disciplinary action with the same subject matter would be acting against the word of The Court. 
  • Maintaining its view based on the case precedent “Ram Lal versus the State of Rajasthan [(civil appeal no. 7935 of 2023) ], The Hon’ble High Court maintained the principle law mandated to be laid down in the present case. 

Hence, The Hon’ble High Court of Jammu & Kashmir allowed the petition while stating that the disciplinary proceedings in this case cannot be continued as it possesses similar and identical charges/allegations. 

CONCLUSION

 The Case Analysis deepens the acknowledgement of the word of The Court Of Law. The decision pronounced is not just limited to a single application but requires to be implemented pragmatically. The person cannot be punished in any scenario wherein he is considered innocent by the judicial proceedings. The case had descriptively distinguished the Criminal Proceedings from the Disciplinary Proceedings while establishing that in case of the similarity or identical allegation or charges composed which intersect both, the path determined in the Criminal Proceedings shall be maintained above all. 
 

 
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