MOHD. RAFIQ Vs. STATE OF J AND K

JUDGEMENT

(1.) In a criminal case, Appellant, a Government employee, was arrested on February 27, 2007, and was released from custody on bail on March 5, 2007. He was, therefore, in custody for more than 48 hours. He was suspended for being in custody for a period more than 48 hours, with effect from the date he was arrested. This order of suspension was passed about eight months from the date he was released from custody on bail.

(2.) In a writ petition, the Appellant contended that suspension with retrospective effect is not good in law. The learned Judge, who dealt with the writ petition, noticed Rule 31 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, which Rule deals with suspension, and held by noticing Sub-rule (2) thereof that, by virtue thereof, the Appellant by a fiction of law stood suspended, the moment Appellant remained in custody for more than 48 hours and, accordingly, there was no retrospective suspension of the Appellant.

(3.) In present appeal, the Appellant is contending that Sub-rule (1) of Rule 31 of the said Rules vests power to suspend in the authority mentioned therein and provides under which circumstances the authority can use the power to suspend. The Appellant is contending that such a suspension order can also be revoked in terms of Sub-rule (3) of the said Rule. Appellant is contending that there is no provision in Rule 31 of the Rules as to when and how the deemed suspension under Sub-rule (2) of the said Rule can be revoked. Appellant, therefore, contends that the deemed suspension, as mentioned in the Sub-rule (2) of the said Rule, should be deemed to be suspension only for the period the Government servant is detained in custody.