The High Court has ruled that only the appointing authority or a higher authority to which such appointing authority is subordinate or an authority empowered by the government has the powers to place an employee under suspension where an inquiry into his conduct would be pending.
Setting aside the Central Administrative Tribunal (CAT) Jammu bench’s order that had upheld the suspension of a junior scale KAS officer by the Deputy Commissioner Samba, a division bench of Justice Ali Muhammad Magrey and Puneet Gupta held that CAT had erred in placing the officer under suspension that too without the approval of the competent authority in the government.
The court also quashed the order dated 16 January 2021 issued by the Deputy Commissioner, Samba, placing the petitioner under suspension saying the authority was without jurisdiction.
However, the court made it clear that its order would not preclude the competent authority in the government to take any action, as may be warranted under the law.
“Deputy Commissioner, admittedly, is not the appointing authority of the petitioner. He is not a higher authority nor has any authorisation been placed on record to show that the government has authorised him to place the petitioner under suspension,” the court said.
Pointing out that the petitioner being a member of the Jammu and Kashmir Administrative Service, the court said that if at all any disciplinary proceeding was to be initiated against him, the same was only within the domain of the appointing authority of the Jammu and Kashmir government and not the Deputy Commissioner.
Besides, the court said, the government in the GAD in terms of circular dated 26 November 2020 had already issued instructions to all the Administrative Secretaries and HODs to ensure that the disciplinary proceedings, if any, proposed against the members of Jammu and Kashmir Administrative Service were initiated only after following due process and with the prior approval of the competent authority.
The court observed that the order dated 16 January 2021 whereby the petitioner was placed under suspension indicated that no approval of the competent authority was sought by the Deputy Commissioner for placing the petitioner under suspension.
Citing rules, the court said that the cases of disciplinary action against the members of the All India Services and KAS were required to be submitted to the Lieutenant Governor through the Chief Secretary.
The court said that this too was also not followed by the Deputy Commissioner Samba while issuing the suspension order.
Advocate S S Ahmad on behalf of the petitioner QaiserMehmood argued before the court that he was appointed as junior-scale KAS officer in terms of a government order issued in 2012 by Commissioner Secretary GAD.
He said that the Deputy Commissioner Samba had no authority to place him under suspension during his posting as Tehsildar, Bari Brahmana as he was not his appointing authority.
The moot question for consideration before the court in the plea was whether the Deputy Commissioner Samba had the requisite jurisdiction or authority to place the petitioner under suspension.