B L MENGI Vs. STATE OF J&K

JUDGEMENT

(1.) THE prayer made in this writ petition pertains to the glaring example of bureaucracy where despite the fact that the petitioner was put under suspension on 5 -1 -1981, he has not been paid even the mere subsistence allowance admissible under Rule 108 of the Jammu and Kashmir Civil Service Regulations, 1956.

(2.) BY the order passed by Superintending Engineer, Doda District, Doda -Respondent No 3, herein the petitioner, who was working as Senior Assistant in the Irrigation Division a department of the State was put under -suspension vide Annexure A, Order No, 14 -17/Camp Kishtwar dated 5 -1 -1981 making the allegation in the order itself that the total outstanding as worked out on physical verification report against the petitioner are found to the extent of Rs 1,38,394.64 paise. The petitioner by this petition has submitted that despite notice of demand issued by him to the respondents on 12 -7 -1982, he has not been paid his salary with effect from September 25, 1980, and the suspension allowance from January 5,1981. The petition is contested by the respondents in reply affidavit, the Chief Engineer, Irrigation Department, Jammu has made an allegation that the conditions laid down in Article 108 of the Jammu and Kashmir Civil Service Regulations, 1956, (hereinafter called the rules) are not complied with by the suspended, hence he is not entitled to get the suspension allowance. He has neither presented himself in the office regularly nor filed a Certificate that he is not engaged in any other employment/business/profession or avocation during the period of suspension. It is also submitted that his pay from 14th September, 1980 onwards has not been paid due to his absence from duty and also the suspension allowance since the petitioner has failed to report himself for duty. Regarding charge -sheet, it has been submitted that the facts are elaborately mentioned relating to charge in the order of suspension impugned itself as well as the petitioner is not attending the enquiry, the departmental enquiry has been held under the supervision of the Executive Engineer, R & B Division, Kishtwar and the report stands furnished to the higher authorities on 29.11.1982. The recoveries shown against the petitioner are more or less the same as already worked out and mentioned in the impugned order. It is further submitted that no provision of Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 is violated.

(3.) HAVING heard the learned counsel for the petitioner and considering the order passed and the record including the counter filed by the respondents, it is pertinent to note that in very specific terms it has been admitted by the respondents that no suspension allowance has been paid to the petitioner for one reason or the other. It is no doubt true that the outstandings against the petitioner, which are alleged by the department are huge and alarming, which runs into thousands and even more than a lakh of rupees, but only the said allegation does not entitle the Government to with -hold the more subsistence allowance of the delinquent employee, which is the more severest type of punishment without any final result of enquiry, in consequence whereof a poor employee alongwith his family may starve. If there was any such eventuality as pleaded in counter that the petitioner himself failed to report to duty, the same should have been immediately replied in reply to the notice of demand issued by the petitioner on 12 7.82 the delivery of which has not been disputed by the respondents. Learned counsel for the petitioner could not point out any violation of the Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956 However, the fact remains that no separate charge -sheet has been issued to the petitioner except the averments made in the order of suspension itself. On perusal of the order of suspension, it also transpires that there is no mention about the fact that the petitioner shall be entitled to receive subsistence allowance according to rules, which in my opinion is a necessary import of Rule 108 ibid. If there is any allegation about the absence of the petitioner from duty, the record should have been placed by the Government for the perusal of the Court showing that the petitioner remained absent despite orders to that effect. In the rejoinder filed by the petitioner on 7.3.1983, the allegations regarding his absence are traversed by him in his affidavit. Unless the contrary is shown, I do dot find any impediment in granting relief of subsistence allowance to the petitioner in accordance with the provisions of Rule 108 of the Civil Service Regulations. Of course the requisite procedure prescribed there in about production of Certificates and that of attendance is necessary, which should be insisted upon before making the actual payment, but the initial suspension allowance cannot be refused merely on the ground of non - production of Certificate.