Safia Malik

The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Rahul Bharti has set aside the suspension of a Class-IV employee of the Jammu and Kashmir Legislative Assembly Secretariat, holding that administrative action cannot be based only on criminal proceedings pending against the employee’s father because criminal liability is personal and does not pass to legal heirs. The Court was hearing a writ petition challenging a suspension order issued in connection with an FIR registered against the father under the Jammu and Kashmir Prevention of Corruption Act. Finding no allegation relating to the employee’s own service conduct, the Court quashed the suspension and directed his restoration to duty at the post from which he was suspended.

The writ petition was filed by a government employee challenging an order of suspension issued by the Jammu and Kashmir Legislative Assembly Secretariat. The suspension was affected through an order dated 11 May 2021, placing the petitioner under suspension with immediate effect. The petitioner had been appointed as a Class-IV employee in 2014 and asserted that he had discharged his duties without any adverse record relating to performance or conduct.

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The suspension was linked to the registration of an FIR in 2015 by the Vigilance Organization, Jammu, alleging commission of offences under the Jammu and Kashmir Prevention of Corruption Act, 2006. The FIR was not registered against the petitioner but against his father, who was arrested in 2017 and later released on bail. A challan was filed before the Special Judge, Anti-Corruption Court, where the criminal case was pending.

The petitioner contended that the suspension was not supported by any allegation of misconduct attributable to him and was not in conformity with the Jammu and Kashmir Civil Services (Classification, Control & Appeal) Rules, 1956. The respondents stated that departmental action had been initiated but did not place on record any formal order instituting a departmental inquiry. The suspension continued without reconsideration for a prolonged period.

The Court noted that the suspension order did not disclose any reason connected to the petitioner’s own service conduct, observing that “the order of suspension has no context relatable to the petitioner per-se in terms of discharge of his duty without any act of omission or commission relating thereto.” It recorded that the impugned order was entirely silent on the necessity or justification for placing the petitioner under suspension.

Addressing the basis of the suspension, the Court stated that “FIR No. 32/2015 registered against the petitioner’s father cannot be co-related with the petitioner’s conduct as a government employee and no culpability can be shifted unto the petitioner by reference to his father’s implication.” The Court found no material indicating involvement of the petitioner in the alleged criminal acts.

The Court further recorded that if the FIR were to form the basis of any administrative action, “the same should have happened coinciding or immediately following the registration of FIR No. 32/2015 itself and not after six years,” and held that the delayed action reflected “sheer non-application of mind.”

On the respondents’ claim of departmental proceedings, the Court observed that “no order of setting up of a departmental inquiry against the petitioner has been referred to in the entire reply,” and that the reply relied primarily on allegations against the petitioner’s father rather than any act attributable to the petitioner.

The Court reiterated a settled principle of criminal jurisprudence, observing that “penal act does/do not pass on to the legal heir/s of an accused person,” and recorded that alleged offences of the father could not justify adverse service consequences for the petitioner. It concluded that the suspension order was “utterly misconceived vitiated with malice in law if not in fact.”

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The Court ordered that “the impugned order No. LA/107-11/Adm/2021 dated 11.05.2021 passed by the Additional Secretary, Jammu and Kashmir Legislative Assembly Secretariat … is accordingly, quashed. The petitioner be restored to his service at the post from where he was suspended. The detailed order is following the order dated 31.12.2024 vide which the writ petition was ordered to be allowed as is hereby being done.”

Advocates Representing the Parties

For the Petitioner: Mr. Vikram Sharma, Senior Advocate, with Mr. Sachin Dev Singh, Advocate

For the Respondents: Mrs. Monika Kohli, Senior Additional Advocate General

Case Title: Ishant Sharma v. UT of J&K & Ors.
Case Number: WP(C) No. 2422/2021
Bench: Justice Rahul Bharti