BASHIR AHMAD Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioner by this writ seeks to quash the Government Order No. 76 -E of 1974 dated 16 -3 -1974 of respondent No. 2. imposing on him the punishment of withholding of 3 increments for a period of three years having the effect of postponing the future increments and treating the period of his suspension as leave without pay.

(2.) THE petitioner was working as Senior Assistant in General Department under Respondent No. 2, On an allegation made by one Ali Mohd Mir of Tehsil Chadura against him that he had committed an act of corruption, the petitioner was placed under suspension. An enquiry was held and as a result of the said enquiry the respondent passed the above -mentioned order. The petitioner has challenged the impugned order on the ground: - 1. That the allegation does not constitute an act of corruption and did not merit suspension of the petitioner. It also does not merit the imposition of punishment as it was a mere transaction of loan and did not amount to any misconduct on his part. 2. No enquiry has been held and if at all there was any, it was held at the back of the petitioner. 3.The petitioner was not afforded an opportunity to examine the complainant and also to produce defence by which he could prove his innocence.

(3.) Appearing for the petitioner Mr. S. L. Koul has submitted that the case of the petitioner would fall under rule 33 and not under rule 35 of the Rules of 1956. According to him rule 33 applies to the present case as the petitioner has been awarded punishment, which is equal to that of reduction of the petitioner to a lower stage in time scale. According to him withholding of 3 increments for period of 3 years having the effect of postponing future increments should be construed as a punishment of reduction to a lower stage in time scale. In other words the argument is that the petitioner has been awarded major punishment within the meaning of rule 33.The effect of withholding of 3 increments is that the petitioner would be reduced to a lower post in time scale for 3 years as he cannot claim any increment for all these years and this will automatically reduce him to a lower stage in time scale in future which is a major punishment. On this assumption it is urged that as there was no enquiry held as required by rule 33 therefore, the order of punishment stands vitiated. The petitioner, it is contended, was not informed in writing of the grounds on which it was proposed to take action. He was not afforded adequate opportunity to defend himself. The ground ion which action was proposed to be taken was not reduced to the form of a definite charge and was not communicated to the petitioner. He was not asked to put any written statement and was not heard in person. Under rule 33, he was entitled to cross -examine the witnesses and to give evidence in person; but this was never done and allowed.