J&K High Court | Suspension Period Spent in Gainful Private Practice to Be Treated as Leave, No Salary Payable | ‘Censure’ Penalty Quashed for Breach of Natural Justice
Safiya Malik
The High Court of Jammu & Kashmir and Ladakh Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar, in a judgment delivered on 29 July 2025, quashed the imposition of censure upon a government doctor while upholding the treatment of his suspension period as leave. The Court recorded that the punishment of censure, although a minor penalty, was imposed in violation of principles of natural justice since the delinquent doctor was not provided with the full enquiry report to enable an effective representation. At the same time, the Bench held that the decision to treat the suspension period as leave was correct and legally sustainable in view of the factual circumstances. With this, the writ petition filed by the Union Territory was disposed of in part, upholding the Tribunal’s finding with respect to censure and modifying its finding regarding suspension.
The matter arose from an incident dating back to 16 August 2006 when the respondent doctor, serving as B-Grade Specialist in Surgery at District Hospital Anantnag, conducted a gallbladder surgery upon a female patient. The patient unfortunately died the same evening between 8:30 p.m. and 9:00 p.m. Allegations of negligence surfaced, leading to disciplinary proceedings. The doctor was placed under suspension on 19 August 2006 by virtue of Order No. EST/DHA1399-1402. To investigate the incident, the petitioners constituted an Enquiry Committee on 17 August 2006 with the specific condition that a Senior Specialist Surgeon from a district other than Anantnag was to be co-opted.
The Enquiry Committee conducted its proceedings without including the mandated Senior Specialist Surgeon. Upon conclusion, the Committee attributed the patient’s death to what it termed the overconfidence of the respondent doctor, who allegedly undertook surgery on a high-risk case, and to deficiencies in post-operative care by duty doctors. Based on the Committee’s report, a show-cause notice dated 13 June 2008 was issued requiring the respondent to explain why his services should not be terminated. Simultaneously, a notice was published in a newspaper proposing withholding of two increments. The respondent submitted detailed replies to both notices.
The competent authority, after considering his replies, imposed the penalty of “censure” and directed that the suspension period would be dealt with separately. Later, by a separate order, the suspension period was treated as on leave. Aggrieved, the doctor approached the High Court by way of a writ petition, which came to be transferred to the Central Administrative Tribunal, Srinagar, and registered as TA No. 1019/2021.
The Tribunal examined the rival contentions. It was the stand of the petitioners that the doctor had been found negligent by the Enquiry Committee and that the penalty of censure was appropriate considering the dereliction of duty. The respondent, however, contended that he had been denied fair opportunity since the entire enquiry report had not been furnished to him. The Tribunal found that the proceedings suffered from procedural irregularities, particularly the absence of the required Senior Specialist Surgeon in the Committee and the failure to provide the entire report to the respondent. It also observed that issuance of two simultaneous notices proposing different punishments created confusion and prejudice. Consequently, by its order dated 7 February 2023, the Tribunal quashed the orders imposing censure and treating the suspension period as leave.
Challenging the Tribunal’s decision, the Union Territory and others filed the present writ petition before the Division Bench of the High Court of Jammu & Kashmir and Ladakh.
The Bench observed that the Enquiry Committee was constituted with a specific requirement to associate a Senior Specialist Surgeon from outside the district of Anantnag. “Undisputedly, the Enquiry Committee did not include a Senior Surgeon Specialist as required by the Director, Health Services vide Order dated 17th August 2006.”
The Court further recorded that the respondent was not furnished with the complete enquiry report. “It is also not in dispute that the enquiry report in its entirety was not provided to the respondent-doctor so as to enable him to file an effective reply.” The Bench noted that despite the respondent’s written request pointing out his inability to reply without access to the entire report, only the conclusions of the Committee were given to him.
The Court considered the statutory framework under the Civil Services (Classification, Control and Appeal) Rules, 1956. Rule 35 requires that before imposition of a minor penalty, the delinquent must be given adequate opportunity to make a representation. The Bench stated: “The adequate opportunity of making representation would be defeated if the entire material relied upon by the disciplinary authority for proposing a penalty is not provided to the delinquent.” The judgment further recorded: “The enquiry report in the instant case is an elaborate one and contains the fact-finding exercise undertaken by the committee, however, for the reasons best known to the petitioners, only the concluding portion of the report was provided to the delinquent which necessarily impacted his right of making an effective representation.” The Court found it notable that the petitioners ignored the respondent’s clear communication regarding his inability to reply effectively without the complete report.
On the aspect of the penalty of censure, the Division Bench held: “For these reasons, we are one with the Tribunal that the impugned order of imposition of censure, though a minor penalty, was in violation of the principles of natural justice.” The judgment thus confirmed the Tribunal’s quashing of the censure.
Turning to the treatment of the suspension period, the Bench took a different view from the Tribunal. It observed that as a B-grade Specialist Surgeon, the respondent could not be expected to remain idle during suspension. The Court recorded: “There is also material on record indicating that during the period of suspension, the respondent was gainfully employed by way of private practice. Otherwise also, it is unreasonable to expect a doctor, who is a specialist in surgery, to remain idle for the entire period of suspension.” The Bench concluded: “Treating the period of suspension as duty and granting him full salary would be tantamount to unjust enrichment of the respondent. Otherwise also, by treating the period of suspension as on leave wouldn’t put the respondent to any substantial financial loss.”
Based on its findings, the Court partially allowed the writ petition. It stated: “For the foregoing reasons, this petition is partially allowed only to the extent that Order No. 621-HME of 2010 dated 27th December 2010, treating the period of suspension of the respondent as leave, is held to be valid and in consonance with law.” Simultaneously, it upheld the Tribunal’s quashing of the censure order: “However, the judgment of the Tribunal quashing Order No. 309-HME of 2009 dated 27th July 2009, whereby the punishment of censure was imposed upon the respondent, is upheld.”
The Court also addressed the suspension order itself, noting: “The order No Est/HAD/1399-1402 dated 19th August 2006 had otherwise been rendered infructuous upon the passing of Order No. 621-HME of 2010 dated 27th December 2010 and, as such, was not required to be quashed.” Concluding, the Bench disposed of the petition with the stated modifications.
Advocates Representing the Parties
For the Petitioners: Mr. Waseem Gul, Government Advocate
For the Respondents: Mr. G. N. Sofi, Advocate
Case Title: Union Territory of Jammu and Kashmir and others v. Dr. Bilal Ahmad
Case Number: WP(C) No. 353/2024
Bench: Justice Sanjeev Kumar, Justice Sanjay Parihar
