Employee's Suspension Period May Be Excluded Only For Calculating Back Wages, Not Promotion Or Seniority: J&K&L High Court

The High Court of Jammu & Kashmir and Ladakh has held that where a disciplinary authority directs that the period of suspension undergone by an employee would qualify for leave, increments and retirement benefits, such period must necessarily count towards the employee's regular service as well.The Court observed that exclusion of the suspension period from regular service would effectively wipe out that period from the employee's service career and amount to imposition of a second punishment without due process of law. The Court was hearing a writ petition filed by a Banking Associate challenging the decision of J&K Bank treating his suspension period as not forming part of actual service for the purpose of determining eligibility for promotion under the Seniority-cum-Normal/Screening Channel for the post of Assistant Manager. A Bench comprising Justice Sanjay Dhar observed, “… once the Disciplinary Authority in the present case has taken a decision that the period of suspension undergone by the petitioner would qualify for leaves, increments and retirement benefits, it has to be inferred that the said period would count for regular service of the petitioner as well. It is only for the purposes of back wages that the said period would not count”. Taking any contrary view, the Bench added, “would amount to serious prejudice to the petitioner, inasmuch as he would be subjected to evil consequences flowing from wiping out of the period of suspension from his past service and the same cannot be done without adoption of due process of law”.The petitioner was initially appointed as a Banking Associate on a contractual basis in 2013 for a period of two years. Upon successful completion of the contractual tenure, his services were regularised with effect from 17.12.2015 and were later confirmed after completion of probation. In October 2018, the petitioner was placed under suspension pending disciplinary proceedings and was subsequently served with a charge sheet alleging gross and minor misconduct. After the conclusion of the enquiry proceedings, the disciplinary authority imposed a minor penalty of withholding of one future increment for six months and directed the petitioner to remain cautious in future discharge of duties. While reinstating the petitioner in service through an order dated 20.12.2019, the disciplinary authority further directed that the suspension period would “not be treated as the period spent on duty” but would qualify for leave, increments and retirement benefits. Subsequently, in September 2023, the Bank initiated the promotion process from Banking Associate to Assistant Manager under different promotional channels. One of the eligibility conditions under the Seniority-cum-Normal/Screening Channel required seven years of regular service as a Banking Associate. Although the petitioner submitted his willingness for consideration, he was shown to be eligible only under the Fasttrack-cum-Merit Channel and not under the Seniority-cum-Normal/Screening Channel. The Bank informed the petitioner that since the suspension period had not been treated as duty, the said duration stood excluded while calculating his regular service, thereby rendering him ineligible under the seniority-based channel. The High Court noted that the central issue requiring determination was whether the suspension period could be excluded from regular service despite the disciplinary authority specifically directing that the same would qualify for leave, increments and retirement benefits. The Court examined Rule 90(b) of the Officers' Service Manual, 2000, which empowers the competent authority to treat a suspension period as duty for specified purposes where an employee is not fully exonerated. The Bench observed that though the petitioner had not been fully exonerated and had been subjected to a minor penalty, exclusion of the suspension period from regular service would produce severe consequences affecting his future career progression. The Court held that once the disciplinary authority itself had directed that the suspension period would count for leave, increments and retirement benefits, writing off the same period from regular service did not align with the intention underlying the disciplinary order. The Bench observed that taking a contrary view would amount to inflicting a second punishment upon the petitioner without following due process of law, which is impermissible in law.The Court relied upon the Rajasthan High Court judgment in Brij Lal Bundel v. State of Rajasthan (2006), where it was held that denial of annual increments despite treating suspension as qualifying service for pension would amount to punishing without following disciplinary procedure. The Bench also referred to the Delhi High Court judgment in Vinod Kumar v. GNCT of Delhi (2023), wherein it was observed that treating suspension as “not spent on duty” for all purposes would unfairly wipe out a substantial period of service career and impede ...

Employee's Suspension Period May Be Excluded Only For Calculating Back Wages, Not Promotion Or Seniority: J&K&L High Court

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Employee's Suspension Period May Be Excluded Only For Calculating Back Wages, Not Promotion Or Seniority: J&K&L High Court

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