Penal Acts Do Not Pass On To Legal Heirs: J&K&L High Court Quashes Employee’s Suspension Based On Father’s Alleged Offence

A writ petition was filed by a Class-IV employee of the Jammu and Kashmir Legislative Assembly Secretariat, who had challenged an order suspending him from service which had been ordered in connection with a criminal case registered against the petitioner’s father under the provisions of the Jammu and Kashmir Prevention of Corruption Act, despite there being no allegation of wrongdoing against the petitioner himself.

A Bench of Justice Rahul Bharti held, “Penal act does/do not pass on to the legal heir/s of an accused person is the basis of criminal jurisprudence. If the petitioner’s father was allegedly found to be involved in acts of omission or commission amounting to offence under section 5 of the J&K Prevention of Corruption Act, Svt. 2006, the same does not mean that the petitioner is to be perceived, projected, painted and put to bad treatment as being delivered to him in the form of the impugned suspension order.”

Senior Advocate Vikram Sharma appeared for the Petitioner and Senior AAG Monika Kohli appeared for the Respondents.

Background

The petitioner had been appointed to the post of Class-IV employee in the Legislative Assembly Secretariat in 2014 and asserted that throughout his tenure he had discharged his duties diligently and without any adverse remarks or disciplinary issues. In 2015, the Vigilance Organisation, Jammu, registered an FIR against his father alleging offences under the Prevention of Corruption Act. The petitioner’s father was arrested in 2017, subsequently released on bail, and a challan was later filed before the Anti-Corruption Court at Jammu, where the criminal proceedings continue to remain pending.

Notwithstanding the fact that the FIR had been registered in 2015 and the petitioner had continued in service without blemish, the respondents placed him under suspension only in May 2021 through an order issued by the Additional Secretary of the Jammu and Kashmir Legislative Assembly Secretariat. The impugned suspension order did not attribute any act of omission or commission to the petitioner in relation to his official duties. Instead, it merely referred to the initiation of “Simultaneous Departmental Action (RDA)” arising out of the criminal case against his father.

Aggrieved by the suspension, the petitioner approached the High Court, contending that the order was arbitrary, illegal, and without jurisdiction, as it did not satisfy the conditions laid down under the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. He further submitted that the suspension was founded solely on allegations against his father and was wholly unrelated to his own conduct or service performance.

Finding

The High Court found that it failed to disclose any misconduct attributable to the petitioner and did not demonstrate how his continuance in service could be said to be prejudicial to public interest. The Court observed that the suspension order was unreasoned and did not meet the statutory contingencies required under the CCA Rules for placing a government servant under suspension.

The Bench also noted that although the respondents claimed that a regular departmental enquiry had been initiated against the petitioner, no formal order constituting such an enquiry had been produced or even referred to in their reply filed in January 2022. The Court remarked that the respondents’ pleadings were replete with legal citations but, on facts, rested entirely on allegations made against the petitioner’s father, which were legally irrelevant for the purpose of initiating service action against the petitioner.

The Court further observed that even assuming the FIR against the petitioner’s father had any bearing, the suspension order was passed almost six years after the registration of the FIR, which clearly reflected non-application of mind and arbitrariness on the part of the authorities. The failure of the respondents to periodically review or reconsider the suspension, despite the passage of time and absence of any incriminating material against the petitioner, was also taken note of by the Court.

The Court held, “This Court holds the impugned order No. LA/107 11/Adm/2021 dated 11.05.2021 passed by the Additional Secretary, Jammu and Kashmir Legislative Assembly Secretariat, utterly misconceived vitiated with malice in law if not in fact which warrants quashment and is accordingly, quashed. The petitioner be restored to his service at the post from where he was suspended. ”

Cause Title: Ishant Sharma v. UT Of J&K & Ors.

Appearance:

Petitioner: Senior Advocate Vikram Sharma and Advocate Sachin Dev Singh

Respondents: Senior AAG Monika Kohli