Jammu & Kashmir High Court - Srinagar Bench
State Of Jk & Ors. vs Mohammad Bashir Rather on 7 June, 2018
Bench: Ali Mohammad Magrey, M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
LPA No. 237/2017
MP No.01/2017
Date of Order: 7th of June, 2018.
State of JK & Ors.
Vs.
Mohammad Bashir Rather
Coram:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
Hon'ble Mr Justice M. K. Hanjura, Judge
Appearance:
For the Appellant(s): Mr B. A. Dar, Sr. AAG with
Mr Asif Maqbool, Government Advocate.
For the Respondent(s): Mr M. A. Qayoom, Advocate with
Mr Mian Tufail, Advocate.
i) Whether approved for reporting? Yes. Per M. K. Hanjura: J;
01. Impugned in this Letters Patent Appeal is the legality of the judgment dated 22nd of September, 2017 of the learned Single Judge passed in SWP No.1562/2015, by which, the Government Order No. 859-GAD of 2015 dated 30th of June, 2015, to compulsorily retire the respondent in public interest with effect from the forenoon of 1st of July, 2015, has been quashed.
LPASW No. 237/2017 Page 1 of 2402. In analyzing the facts leading to the filing of the appeal, it needs must be said that the learned Writ Court has given a vivid account of the facts in the judgment assailed in the appeal. These are that the respondent, was posted as Incharge Tehsildar North, Srinagar, at a time when his compulsory retirement was directed by the appellant-State. The respondent pleaded before the Writ Court that the appellant-State did not consider his APRs while taking a decision to prematurely/compulsorily retire him from service. The impugned order has been passed in utter contravention of Employees Service Conditions Rules and Regulations, 1979. The respondent has further pleaded that the order of compulsorily retiring him from service is a result of the non-application of mind, inasmuch as the service record of the respondent has been excellent. It is further stated that neither any departmental enquiry has been held against the respondent nor has any adverse report been communicated to him. The decision to compulsorily retire the respondent in public interest has been taken merely on the basis of a verification report.
03. To the contrary, the appellant-State has contended that a large number of complaints containing serious allegations were received against the respondent, whereupon the matter was referred to the General Administration Department and the General Administration Department vide order dated 20th of May, 2015, directed the constitution of a Committee. The Committee took stock of the fact that the respondent's name figured in a trap case wherein he was found demanding and accepting bribe for attestation of fake mutations and tainted money was recovered from his possession. It is further contended that since the APRs LPASW No. 237/2017 Page 2 of 24 of the respondent were incomplete, therefore, the same could not be taken into consideration. It is also contended that on the basis of the conduct of the respondent which was unbecoming of a public servant, the Committee recommended to terminate the services of the respondent.
04. The relevant excerpts of the Counter Affidavit filed by the appellant- State, under the cover of which, the order impugned in the writ petition has been justified and which is attached to the record of the writ Court read as under:
"That the order of compulsory retirement is based on sacrosanct object of weeding out the deadwood in order to maintain a high standard of efficiency and initiative in the state services. Compulsory retirement as envisaged under Article 226(2) of the J&K Civil Service Regulations, 1956 is designed to infuse the administration with initiative for better administration and for augmenting efficiency so as to meet the expanding horizons and cater to new challenges faced by the State to derive speed, sensitivity, probity, non-irritative public relation and enthusiastic creativity, which can be achieved by eliminating the deadwood. In order to consider the cases of officers/officials who have indulged in corruption, enjoy bad reputation in public and have created impediments in delivery of services to the general public in a smooth and effective manner, under and in terms of Government Order No.17-GAD (Vig) 2015 dated 20-05-2015, sanction was accorded to the constitution of a committee to consider the cases of officers/officials for premature retirement. Copy of the Government order dated 20-05-2015 is placed on record as Annexure R. Perusal of the Government Order would indicate that the Chairman of the Committee was authorized to co-opt a member for assisting the committee in any particular meeting. Inspector General of Police Vigilance Organisation was co-opted as a member by the committee.
The committee held its deliberations on 21-05-2015. Record note of the meeting of the committee would reveal that the committee considered the mandate of Article 226(2) of the Jammu & Kashmir Civil Services Regulations and 'OM No : GAD(Vig.) 19-Adm/2010 dated 25-10-2010, which envisages screening of the record of the LPASW No. 237/2017 Page 3 of 24 employees, before making recommendations for premature retirement. The records regarding involvement of Government employees in corrupt practices were placed before the Committee. The cases of trap, where employees were found demanding and accepting the bribe, and the cases relating to disproportionate assets beyond the known sources of income were also placed before the Committee. In, addition, cases in which FIRs have been registered and the investigation is either underway or has been completed, were also placed before the Committee. Consequent to the extensive discussions in respect of each case, the Committee decided to have further deliberations in the next meeting which was decided to be held on 25-05-2015. On 25-05-2015, the Administrative Secretaries of the concerned Departments were co- opted as members with regard to cases pertaining to the department. The committee decided cases of each department separately. Inputs with regard to service particulars were obtained from Administrative Department. It was found by the Committee that in some cases the details are incomplete. It Was accordingly decided that the Administrative-Secretaries shall provide the necessary details at the earliest. The committee also observed that Annual Performance Reports of the Officers/Officials is also required to be examined. The matter was posted for further discussion for 11th June 2015. On 11-06-2015, the Committee deliberated upon the charges against each employee. The Committee also examined the available APRs of the officials/officers. It was observed that the APRs are either not available or incomplete. The Committee further observed that while assessing the performance of officials/officers, the concerned authorities have not taken cognizance of the registration of FIRs or conduct of investigation. In this view of the matter, the Committee advised concerned Administrative secretaries present in the meeting to furnish the remaining information/inputs about the concerned employees and decided that the same would be placed before the Committee in its next meeting.
The Committee finally met on 26-06-2015 and amongst others, considered the case of the petitioner. The Committee on consideration of the record observed that the petitioner does not enjoy good reputation in the public due to his consistent conduct over a period of time. The Committee noticed that a trap was laid against petitioner then Patwari Halqa Brain Nishat, Srinagar. The petitioner was found demanding and accepting bribe of Rs. 5000/- from the complainant Mr. Abdul Ganl Bhat for issuance of Fard-e- Intikhab in respect of the land belonging to the complainant situated at Brain Nishat, Srinagar. Accordingly, an FIR No. 24/2002 U/S LPASW No. 237/2017 Page 4 of 24 5(2) of Jammu and Kashmir Prevention of Corruption Act, Svt, and 2006 r/w 161 RPC P/S VOK was registered against the petitioner. The petitioner was caught red handed in the trap proceedings and the tainted money was recovered from his possession. The investigation of the case was concluded as proved and the competent authority after applying its mind to the facts and circumstances of the case, vide Government Order No. 22-GAD(Vig) of 2003 dated 25.07.2003 accorded sanction to the prosecution of the petitioner. The copy of W Government Order dated 25.07.2003 is placed on record as Annexure R-1. The committee also noticed that the petitioner was placed under suspension by the Divisional Commissioner, Kashmir vide order No. 623-DIVK-E-2013 dated 14.10.2013, pending formal enquiry on the basis of serious charges against him reflected in Audit Inspection Report, as a result of comparative analysis of number of mutations, attested during 2011 viz-z-viz 2012, a huge difference was noticed, which is indicative of the fact that the misappropriation of revenue realization would definitely have been of phenomenal scale and suppression of mutation fees and other revenue service charges could not be ruled out in the audit. Copy of audit report dated 07.10.2013 is placed on record as Annexure R-2. Simultaneously, vide communication dated 04.13.2013 from Commissioner of Stamps, a fact came in the notice of the department that the petitioner had attested mutations on oral gifts/hibazabani at such a phenomenal scale and devised it a means for evasion of the stamp duty. Communication dated 04.10.2013 is placed on record as Annexure R-3. Based on above communications, the DC, Srinagar was advised to conduct preliminary enquiry in the matter. In compliance of which DC, Srinagar reported that the petitioner as I/C Tehsildar North, Srinagar has passed orders himself on 1292 mutations on the basis of oral gifts of land measuring 1787k-07Marlas-226sft which has resulted into evasion of stamp duty to the extent of Rs. 18.87 crores, causing huge loss to state exchequer. Hiba Zabani attested by the petitioner constituted about 95.17% of total mutations attested by him during his tenure as Tehsildar (North), Srinagar. Copy of the report is placed on record as Annexure R-4. Accordingly, a full- fledged departmental enquiry in the matter was ordered vide Order No.624/DIVK-E-2013 dated 14.10.2013. Copy of the order dated 14.10. 2013 is placed on record as Annexure R-5. On the basis of preliminary enquiry, following report by the Divisional Commissioner, the case was also referred to the Vigilance Organization by the Government for detailed investigation. The verification in the matter is being conducted by the organization under No. SLK-45/2013 and is under probe. The committee also LPASW No. 237/2017 Page 5 of 24 took into consideration the report of the Revenue Department that the Annual Confidential Reports (ACR's) of the petitioner are not available. Document evidencing the fact is placed on record as Annexure R-6. It I essential to state here that the Divisional Commissioner, Kashmir vide communication dated 04.06.2015 conveyed that APRs of last five years of tile petitioner have not been initiated. Document evidencing the fact is placed on record as Annexure R-7. The Committee took note of the fact that the petitioner while holding a lower post in the Revenue Department was caught red handed while demanding and accepting bribe in lieu of the issuance of fard-e-intikhab in favour of the complainant and was also found involved in serious charges of evasion of stamp duty, amounting to Rs. 18.187 crores, which resulted in huge loss to the state exchequer. The petitioner attested 95.17% mutations out of total mutations attested by him as I/C Tehsildar North on Oral Gifts (Hibazabani), which has caused huge loss to the state exchequer. This act of the petitioner was deliberate and wilful, in order to procure personal benefits and cannot be justified by any stretch of imagination. The Petitioner is a habitual offender and involved in corrupt practices, thereby, substantiating the fact the he has outlived his utility to the public. Having regard to the material placed before the Committee, the Committee came to the conclusion that the petitioner is generally known to have bad reputation and laws caught red handed while demanding and accepting bribe" and found involved in corrupt practices for his personal gains; The Committee, therefore, recommended for retirement of the petitioner in public interest under Article 226(2) of J&K CSR. The recommendations so made were accepted by the competent authority which culminated into issuance of the impugned order. The impugned order as such is legal and in accordance with law and has been issued after complying with all legal formalities. The writ petition as such is legally misconceived, untenable and without any merit and in sequel thereto merits dismissal."
05. Mr. Dar, the learned Senior Additional Advocate General, representing the appellant-State, has argued that the APRs of the respondent were incomplete, therefore, the same could not be taken into consideration. It is further submitted that a Committee was constituted which considered the case of the respondent individually. It is further submitted that the order of the compulsorily retirement is not penal in LPASW No. 237/2017 Page 6 of 24 nature as the respondent shall be entitled to all service benefits. It is also submitted that on the basis of the material available on record, the Committee opined that the respondent has accumulated assets beyond the known sources of his income and the opinion with regard to his integrity was formed on the inputs received from various sources. It is also submitted that the powers under Article 226(2) of the Regulations flow from Article 310 of the Constitution of India and the respondent has no legal right to continue in employment up to the age of superannuation. It is further submitted that it is within the domain and power of the State Government to compulsorily retire an employee in public interest in exercise of power under Article 226(2) of the Regulations and the employee has no vested right to continue. It is also submitted that the decision to compulsorily retire the respondent is a bonafide one and no malafides can be attributed to the State. It is further submitted that the scope of judicial review with regard to the decision of an employer to compulsorily retire an employee in public interest is limited and is confined to cases where the order is passed on no evidence or suffers from the vice of non-application of mind or is totally perverse. It is also argued that the Government has to perform a multitude of tasks in order to implement various measures of public interest, and the paramount aim is of providing clean and effective administration to the people of the State. In order to make the administration effective, a periodic review of all the Officers is taken up by the Government, the aim and the object being to encourage honest and efficient Government servants and, simultaneously, to weed out the inefficient and corrupt officers from the services in the public interest.
LPASW No. 237/2017 Page 7 of 24Whileas, various incentives and awards are given to honest and efficient officers/officials, recourse is taken to the provisions of Article 226(2) and (3) of the Jammu and Kashmir Civil Services Regulations, 1956, for the removal of such Government officials from the State services, who have become deadwood on account of their indulging in inefficient and corrupt practices. The order of compulsory retirement passed in the case of the respondent is based on the object of weeding out the deadwood from the State services. Article 226(2) of the Jammu and Kashmir Civil Services Regulations is designed to infuse the administration with initiative for better administration and for augmenting the general efficiency so as to meet the expanding horizons and cater to the new challenges faced by the State to provide sensitivity, probity, non-irritative public relation and enthusiastic creativity, which can be achieved by eliminating the deadwood. The Committee noticed that the respondent figures as an accused in FIR No. 24/2002, registered at Police Station VOK, for the commission of offences punishable under Section 5(2) of the J&K Corruption of Prevention Act, Svt., 2006 read with Section 161 of the Ranbir Penal Code (RPC), and therefore, recommended for the retirement of the respondent in public interest under Article 226 (2) of the Jammu and Kashmir Civil Services Regulations. The recommendations so made were accepted by the Competent Authority, as a consequence of which, the aforesaid order by which the respondent was compulsory retired, was issued. It has been, argued that the order is legal. It is in accordance with law. The learned writ Court has not appreciated the matter in the right perspective. The order impugned is based on wrong assumption and LPASW No. 237/2017 Page 8 of 24 presumption of law and is, as such, legally misconceived, untenable, without any merit, and, in sequel thereto, merits to be set aside.
06. Per Contra, Mr Qayoom, the learned counsel for the respondent, has argued that the FIR cannot form the sole basis and the bedrock of passing an order of compulsory retirement. It has to be weighed, judged and tested on the scales of the other material in the shape of APR etc. which have been given a complete goby in the instant case, and therefore, the order of compulsory retirement of the respondent cannot with stand the scrutiny of law. He has also contended that the judgment of the writ court is based on the canons of law and is the outcome of a proper appreciation of the facts involved in the case. It cannot be tinkered with or called in question and to cap it all the petitioner has already been acquitted of the charges levelled against him in the FIR that formed the baseline of the order directing his compulsory retirement.
07. Heard and considered.
08. Before adverting to the entire gamut of controversy raised in this appeal, it will be profitable to quote the relevant excerpts of the judgment of the learned writ Court here in below, verbatim: -
"Learned counsel for the parties have disputed that the legality or otherwise of the mutations made by the petitioner, therefore, it is not necessary for this Court to deal with the aforesaid issue as admittedly the respondents had initiated inquiry into the alleged mutations carried out by the petitioner which appears to be pending. The submissions made by the learned AAG that there was enough material on record before the Committee is not borne out from the proceedings of the Committee, therefore, same sans substance. Similarly, the contention made on behalf of the LPASW No. 237/2017 Page 9 of 24 respondents that the Annual Confidential Reports have not been attested by the competent authority deserves to be rejected in view of the Government order dated 09/11/2001 which provides for writing of the Annual Confidential Reports. As per the aforesaid Government authority the revenue authority and the deputy commission has signed Annual Confidential Reports for the year 2010-2011 and 2011-2012. The audit report could not have been form the basis for compulsory retirement of the petitioner as the findings in the audit report are yet to be enquired into and the findings recorded in the audit report have been seriously disputed by the petitioner.
In view of the preceding analysis, the impugned order dated 30.06.2015 is hereby quashed and the respondents are directed to reinstate the petitioner in services and to accord him all consequential benefits within a period of one month from the date copy of this order is served on the respondent. In result the writ petition is allowed."
09. What requires to be stated, at the outset, is that the case of the appellant is that the Committee, while considering the case of the respondent, came to the conclusion that the respondent did not enjoy good reputation in the public and, in addition, the respondent, indulged in corrupt practices. It is the specific case of the appellant- State that the "Annual Performance Reports" of the respondent were not considered by the Committee in the matter of passing the order directing the compulsory retirement of the respondent. While recording the order of his compulsory retirement, the bottom layer of the order quashed by the writ court is the alleged involvement of the respondent is the verification in the FIR detailed hereinbefore, buttressed with his general reputation which, it is stated, was unbecoming of a Government servant.
10. The State of Jammu and Kashmir has enacted a specific provision for dealing with the compulsory retirement of the public servants in the LPASW No. 237/2017 Page 10 of 24 Civil Services Regulations of the State, with the ultimate aim of weeding out the corrupt and inefficient public servants and, at the same time, to prevent its use as a weapon of a penalty. It requires the formulation of an opinion to the effect that it is in public interest to do so. The said provision, known as Article 226 (2) of the Civil Services Regulations, reads as follows:
"226 (2): - Notwithstanding anything contained in these Regulations Government may, if it is of the opinion that it is in the public interest to do so, require any Government servant other than the one working on a post which is included in Schedule II of these Rules, to retire at any time after he has completed 22 years/44 completed six monthly period of qualifying service or on attaining 48 years of age; provided that the appropriate authority shall give in this behalf a notice (in one of the forms prescribed in annexures A and B hereto as the case may be), to the Government servant at least 3 months before the date on which he is required to retire or 3 months of pay and allowance in lieu of such notice. Such a Government servant shall be granted pensionary benefits admissible under these rules on the basis of qualifying service put in by him on the date of such retirement."
11. It will not be impertinent to state that in the exercise of the power of compulsory retirement vested in the Government under Article 226 (2) of CSR based on reason, justice, fairness and a just analysis, the Government has issued instructions in terms of SRO 246 dated 30th June, 1999 and these have to be read in conjunction with the Article 226 (2) of the CSR. These are as under:
"Government Instructions: Levels at which screening should be conducted for Non-Gazetted Employees.
(i) At the Non-Gazetted level, a Screening Committed comprising of the Head of the Department and two other Senior Officers of the Department to be nominated by the concerned Administrative Department should conduct the review. The Screening Committee LPASW No. 237/2017 Page 11 of 24 should screen the cases of all concerned persons and forward its recommendations to the Administrative Department for further follow up action in terms of Art. 226 (2) of J&K CSR. This review should be done regularly, preferably twice every year in the months of January and July each. The review should be conducted by the cadre controlling Administrative Department which controls the service to which the concerned Government servant belongs irrespective of where he may be working at the relevant time.
However, if the employee is working in a different department then the Screening Committee should consist of at least one Senior Officer from the department in which the Government servant is/was working at the relevant time.
(ii) The review should, normally be initiated around six months before the officer/official attains the prescribed age or completes the prescribed service. A separate register can be maintained for keeping a watch on the time schedule for such review.
(iii) The final decision in the matter for Non Gazetted staff should rest with Administrative Department, which should take a final decision based upon the report of the Screening Committee. This should be done within a period of three months of receipt of report from the Screening Committee. The gist of the final decision can be recorded in the service book of the employee.
(iv) The decision of the Administrative Department implies a decision by the concerned Minister of the Department on file. Hence, he can review his own decision in the form of considering representations made by the concerned employees against the initial decision pertaining to premature retirement in the interest of natural justice.
Norms to be followed by the Screening Committees in cases of Non Gazetted Employees.
(i) The Annual Performance Report of the Non-Gazetted Employees are not normally written very carefully nor are they fully available in a large number of cases. The Screening Committee should, therefore, consider the entire service record including all material and relevant information available on record about the employees before coming to any conclusion.
(ii) The Government employees whose integrity is doubtful should be retired. For the purpose of establishing that the integrity of the Government servant is doubtful, the following information/records could be considered: * Number and nature of complaints received, if any, against the Government servant pertaining to doubtful integrity or corruption. * Number and nature of various audit paras pending, if any, against the Government servant in which concerned Government servant is found to be involved. * Number and nature LPASW No. 237/2017 Page 12 of 24 of vigilance cases pending inquiry, if any, against the Government servant. * Adverse entries in the APRs concerning doubtful integrity, if any. * Number and nature of departmental inquiries/preliminary inquiries, if any, which are going on against the concerned Government servant. * Number and nature of administrative censure/ warnings/punishment pertaining to corruption/doubtful integrity against the Government servant, if any. * General reputation of the employees."
12. By an addendum to these instructions, the Government in the General Administration Department issued an Office Memo bearing No.OM No. GAD (Vig) 19-Admn/2010 dated 25th October, 2010. The Instructions issued by the Government in terms of SRO 246 dated 30th June, 1999, supra, as is repeated here, have to be read as a part of Article 226 (2) of CSR, in addition to the aforesaid Memo issued by the GAD. These are meant to be followed by the Screening Committee both in vigour and rigour while evaluating the cases of the officers forwarded to them for taking a decision with regard to their compulsory retirement. The norms laid down above make it succinctly clear that the Screening Committee, while analyzing the cases of the employees for compulsory retirement and while considering that the integrity of a Government servant is doubtful, has to base its view on a variety of factors. These are the number and nature of complaints received, if any, against the Government servant pertaining to his doubtful integrity or corruption; the number and nature of various audit reports pending, if any, against such government servant; the number and nature of vigilance cases pending enquiry, if any; adverse entries in APRs concerning doubtful integrity, if any; the number and nature of departmental enquiries, preliminary enquiries etc.; the number and nature of administrative censures/warnings/punishments pertaining to corruption LPASW No. 237/2017 Page 13 of 24 or doubtful integrity and, lastly, the general reputation of employees. It is only on accord of consideration to the factors aforesaid that the Government can formulate an opinion as to whether or not, the Government servant whose case is under scrutiny before it, is or is not, a person of doubtful integrity and that his continuance in service is highly prejudicial to the smooth functioning of the administration and the public interest. The decision to compulsorily retire a Government servant has to be, as a matter of necessity, based on the strength of the above guidelines and the principles of law evolved from time to time in a catena of judicial pronouncements. In this regard, it will be profitable to quote the observations of the Supreme Court made in Paragraph Nos. 8 and 18 of the case titled "Swaran Singh Chand v. Punjab State Electricity Board & Ors.", reported in "(2009) 13 SCC 758", which read as under:
"8. It is further more well settled that when the State lays down the rule for taking any action against an employee which would cause civil or evil consequence, it is imperative on its part to scrupulously follow the same. Frankfurter, J. in Vitarelli v. Seaton [359 US 535] stated: "An executive agency must be rigorously held to the standards by which it professes its action to be judged.... Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword."
"18. In a case of this nature the appellant has not alleged malice of fact. The requirements to comply with the directions contained in the said Circular Letter dated 14-8-1981 were necessary to be complied with in a case of this nature. Non- compliance wherewith would amount to malice in law (See Govt. Branch Press v. D.B Belliappa (1979) 1 SCC 477, S.R Venkataraman v. Union of India (1979) 2 SCC 491 and P. Mohanan Pillai v. State of Kerala (2007) 9 SCC 497). Thus, when an order suffers from malice in law, neither any averment as such is required LPASW No. 237/2017 Page 14 of 24 to be made nor strict proof thereof is insisted upon. Such an order being illegal would be wholly unsustainable."
13. The view, as propounded above, has been repeated and reiterated by the Supreme Court in the case of "Madhya Pradesh State Cooperative Dairy Federation Ltd. & Anr v. Rajnesh Kumar Jamidar, reported in "(2009) 15 SCC 221", Paragraph No. 43, of which assumes significance in the case at hand and it reads as follows:
"43. It is now a well settled principle of law that the employer would be bound by the rule of game. It must follow the standard laid down by itself. If procedures have been laid down for arriving at some kinds of decisions, the same should substantially be complied with even if the same are directory in nature. ........."
14. It will also be relevant to refer to the observations made by the Supreme Court in the case titled "M.S. Bindra v. Union of India & Ors., reported in "(1998) 7 SCC 310", Paragraph No. 13 of which is reproduced below, verbatim:
"13. While reviewing this case from the next angle for judicial scrutiny, i.e., want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials, no reasonable man would reach such a conclusion. While evaluating the materials, the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim "nemo firtrepenteturpissimus" (no one becomes dishonest all of a sudden) is not unexceptional but still it is a salutary guideline to judge human conduct, particularly in the field of administrative law. The authorities should not keep their eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of "doubtful integrity", it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly LPASW No. 237/2017 Page 15 of 24 sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label "doubtful integrity".
15. In the case of "State of Gujrat v. Umedbhai M. Patel, reported in "(2001) 3 SCC 314", the Supreme Court, at Paragraph 11 of the judgment, excogitated definite principles of law relating to compulsory retirement and these are as follows: -
"11. The law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarized thus:
(i) Whenever the service of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest. (ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution. (iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer. (iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order. (v) Even uncommunicated entries in the confidential record can also be taken into consideration. (vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable. (vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer. (viii) Compulsory retirement shall not be imposed as a punitive measure."
16. The law is that the order of compulsory retirement, taken under the safety valve of public interest, could not be treated as a major punishment and that Article 311 (2) of the Constitution could not be invoked, as the employee concerned was no longer fit in the public interest to continue in service and, therefore, he can be compulsorily retired. On an analysis of the principles laid down above, the order of compulsory retirement can be LPASW No. 237/2017 Page 16 of 24 subjected to judicial scrutiny, if the Court is satisfied that the order is passed (a) mala fide; or (b) that it is based on no evidence; or (c) that it is arbitrary - in the sense that no reasonable and prudent man would form such an opinion on the given material, in which case it falls under the category of an order termed to be perverse in the eyes of law. For framing an opinion to compulsorily retire a public servant, there should be some material on record to support and fortify it, as otherwise, it would amount to arbitrary or colourable exercise of power and, therefore, the order could be challenged on the grounds that the requisite opinion was based on no evidence or had not been formed or the decision was based on collateral grounds or that it was an arbitrary decision.
17. Taking an overall view of the matter, the bottom line of the order of compulsory retirement of the respondent is his conduct and the registration of the verification of an FIR against him. Whether the compulsory retirement of the respondent could have been directed under the facts and circumstances of the case is the moot question that requires to be determined here in this petition? The answer to this question is provided at Paragraph No. 27 of the judgment rendered by the Supreme Court in the case of "State of Gujarat v. Suryakant Chunilal Shah", reported in "1998 (9) Supreme 150" and "(1999) 1 SCC 529", which, for the convenience of ready reference, is reproduced herein below, verbatim et literatim:
"27. The whole exercise described above would, therefore, indicate that although there was no material on the basis of which a reasonable opinion could be formed that the respondent had outlived his utility as a government servant or that he had lost his efficiency and had become a dead wood, he was compulsorily retired merely because of his involvement in two criminal cases LPASW No. 237/2017 Page 17 of 24 pertaining to the grant of permits in favour of fake and bogus institutions. The involvement of a person in a criminal case does not mean that he is guilty. He is still to be tried in a court of law and the truth has to be found out ultimately by the court where the prosecution is ultimately conducted. But before that stage is reached, it would be highly improper to deprive a person of his livelihood merely on the basis of his involvement. We may, however, hasten to add that mere involvement in a criminal case would constitute relevant material for compulsory retirement or not would depend upon the circumstances of each case and the nature of offence allegedly committed by the employee."
18. The view taken by us in the preceding paragraph is further fortified by a series of decisions of this Court rendered in various appeals involving similar questions of law and the facts as are involved here in this appeal. A cue can be had in this behalf from the law laid down in the case of "State of Jammu and Kashmir Vs. Abdul Majid Wani", bearing LPASW No.95/2017, the relevant extracts of which are detailed below: -
"21. That being so, the contention of learned Advocate General that the Government is competent to formulate an opinion with regard to compulsory retirement of a public servant solely on the basis of registration of an FIR or a criminal case, under certain set of facts and circumstances like apprehending the public servant demanding and accepting bribe red handed in a trap laid for the purpose, cannot be accepted.
22. The other contention of learned Advocate General that apart from the criminal case registered against the respondent under the Jammu and Kashmir Prevention of Corruption Act, the Screening Committee also took into consideration that the respondent did not enjoy a good reputation due to his consistent conduct over a period of time, is equally devoid of any merit. First of all, as admitted by the learned Advocate General that there was no material before the Committee to come to such a satisfaction and secondly, even if it is accepted, as contended by the learned Advocate General, that the assessment of the Committee was on the basis of spoken reputation, in that eventuality also, it was mandatory for the Committee to have spelt out the same in the minutes of meeting conducted for the purpose.
23. In response to the query put by this Court, the learned Advocate General fairly conceded that there is no such observation or LPASW No. 237/2017 Page 18 of 24 finding recorded by the Committee nor is there any communication of any controlling officers of the respondent speaking about the reputation of the respondent. In the absence of such material on record and even the observations about the conduct of the respondent, it can safely be held that such observations made by the Committee were only as a matter of routine and just to lend justification to the otherwise unsustainable order of compulsory retirement of the respondent.
24. Corruption, no doubt, is a menace, eating into the vitals of our society. An employee, who is found to have indulged in such practice, has to be dealt with iron hands. Such a public servant, if found guilty, has to be punished and shown the door but not compulsorily retired allowing him to get away with all the retiral benefits. The compulsory retirement provision has been enacted to achieve a different purpose, i.e., to weed out inefficient and corrupt public servants whose continuance in service is prejudicial to public interest. This, however, has to be adjudicated upon on the basis of the work and conduct of the employee during his whole service career though attaching more importance to his work and conduct during last some years preceding his compulsory retirement. This power based on the pleasure doctrine of the sovereign should not be used for collateral purpose. The Supreme Court as well as different High Courts of the country including this Court have laid down broad principles from time to time which were summarized by the Supreme Court in the case of Umedbhai M. Patel's case (supra)."
19. Applying the ratio of law laid down above to the facts of the instant case, resort to the practice which has been followed by the State in directing the compulsory retirement of the respondent is neither warranted nor justified. Such a practice cuts at the very root of the basic tenets and the elements of the age-old adage and axiom of law that a person accused of an offence is presumed to be innocent unless and until his guilt has been proved. The State has applied this principle in the reverse, perhaps, labouring under the belief that the maxim of law is that every person is presumed to be guilty unless and until he proves his innocence. It is only on the culmination of the trial that if the charges are proved against the accused and, as a consequence thereto, he is convicted and sentenced, that LPASW No. 237/2017 Page 19 of 24 such an opinion can be framed. The whole exercise has been conducted on the basis of the verification of his involvement of the respondent in criminal cases. If the contention, as propounded by the State, that the involvement of the respondent came into limelight in verification report and, therefore, he was shown the door is accepted, the meaning that will flow from it is that a presumption will be drawn against each public servant facing the charges of corruption that in the ultimate analysis, he will be convicted for the offence(s) levelled against him, as a corollary to which, he will lose his service. Such hypothesis or supposition cannot be countenanced in law and, had it been so, it would have formed the basic structure of the rule itself, that such acts of omission and commission will lead to the presumption that the employee has a doubtful integrity or conduct unbecoming of a public servant.
20. Judicial review of an order of compulsory retirement, passed not by way of any punitive measure but for cleansing the administration of inefficient and corrupt public servants without attaching any stigma, has been the subject matter of adjudication in several cases before the Supreme Court as well as in this Court. It would be relevant to refer to the observations made by the Supreme Court at Paragraph No. 13 of the case titled "M. S. Bindra v. Union of India & Ors., reported in "(1998) 7 SCC 310", which is reproduced hereunder:
"13. While reviewing this case from the next angle for judicial scrutiny, i.e., want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials, no reasonable man would reach such a conclusion. While evaluating the materials, the authority should not altogether ignore the LPASW No. 237/2017 Page 20 of 24 reputation in which the officer was held till recently. The maxim "nemofirutrepenteturpissimus" (no one becomes dishonest all of a sudden) is not unexceptional but still it is a salutary guideline to judge human conduct, particularly in the field of administrative law. The authorities should not keep their eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of "doubtful integrity", it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label "doubtful integrity".
21. Looking at the instant case from the above perspective, an important facet which cannot be lost sight of, is that the Committee has given a complete go by to the Regulation 226(2) of the J&K CSR read with the instructions (provided hereinbefore) buttressed to it in considering his compulsory retirement. These lay great emphases and spell out the need and demand to consider the entire service record of the public servant available in the shape of APRs, service book, personal file giving the details of the complaints received against him from time to time and so on and so forth. While considering the desirability of the retention or otherwise of a public servant, whose conduct has come under a cloud, a criminal case registered against him can be considered on the parapet and the bulwark of the chain of the documents/service particulars, as stated hereinbefore. But to say that an FIR or a verification report can form the sole basis to retire a public servant compulsorily is neither in tune nor in line with the scheme and mandate of Article 226(2) of the J&K CSR read LPASW No. 237/2017 Page 21 of 24 with the guidelines supra and the judicial pronouncements holding the ground. Taking such a view that a verification report/FIR only will form the basic structure of an order of compulsory retirement of a public servant will be repugnant and averse to the very concept and object of compulsory retirement. In order to attach a semblance of fairness to such an order, the entire service record of a public servant, more significantly the service record of the previous years preceding the decision, has to be assessed and evaluated. These cannot be skipped and shelved in formulating such an opinion by taking umbrage under the plea that the same were not available, as stated here in this case. If these are disregarded and omitted in the matter of the accord of consideration to the case of the compulsory retirement of a public servant, the whole exercise will get vitiated under the colour of the non-application of mind and the decision having been taken not on just grounds, but for a collateral purpose, and, to cap it all, how can the conduct of a public servant be put through the wringer when there is no definite material to substantiate so. The reputation of a public servant cannot be termed as doubtful and his conduct cannot be determined only on spoken words in the absence of any material on record or source to justify so and to crown it all, in the FIR No.24/2002, registered against the petitioner by the Vigilance Organization, Kashmir, on the basis of which he has been shown the exit, the petitioner has been acquitted of all the charges levelled against him by the Court of Special Judge, Anti-Corruption, vide judgment dated 19th of October, 2006, which is attached to the rejoinder.
22. The facts in the present case are eloquent. The respondent has appended with the writ petition "Annual Performance Reports" wherein LPASW No. 237/2017 Page 22 of 24 and whereunder his achievements have been judged/ evaluated by his superiors. For the year 2012-13, the Initiating Officer has rated the respondent as an excellent Officer who executes the work assigned to him under difficult circumstances. For the year 2011-12 the respondent has again been reported to be an "Outstanding Officer" by the Initiating Officer, which has been endorsed by the Accepting Authority. For the year 2010-11 he has been rated as an excellent Officer by the Initiating Officer which has been approved by the Accepting Authority. In 2009-10, the respondent has been portrayed as an efficient revenue knowing and diligent officer by the Initiating Officer and the same is the position in the year 2008-09 also. Again for the years 2002-03, 2003-04, 2004-05, 2005-06, 2006-07, 2007-08, the performance of the respondent has been depicted to be "Very Good" or "Outstanding" by the Initiating Officers.
23. The aforementioned "Annual Performance Reports" have been shelved. These have escaped the scrutiny of the Committee. It appears to have been done with an ultimate aim of showing the door to the respondent and, had these "Annual Performance Reports", been considered, the conclusion would have been otherwise. The enunciation of law, signifies that registration of FIR or pendency of criminal case(s), cannot form the edifice for retirement of an employee compulsorily when his APR entries are good and integrity is portrayed in the APRs as beyond doubt. Reference in this regard may be made to S. Ramachandra Raju v. State of Orissa:
AIR 1995 SC 111; Jugal Chandra Saikia v. State of Assam & Anr.:
(2003) 4 SCC 59; State of J&K & Ors. v. Janak Singh: 2010(4) JKJ 89 [HC]; Rajendra Prasad Verma & Ors. v. Lieutenant Governor (NCT LPASW No. 237/2017 Page 23 of 24 of Delhi) & Ors.: (2011) 10 SCC 1 and State of J&K & Anr v. Satish Chander Khajuria.
24. The argument of the learned counsel for the appellant that the principles of natural justice cannot be invoked by a public servant in the aid of assailing an order of compulsory retirement and that such an order does not amount to a punishment, is based on the sound principles and canons of law, but to say that such an order can be passed by shunning the material on the basis of which such an order can be passed in terms of the rules, regulations and the law governing the subject, is a spurious and a contrived argument. Such an assertion is devoid of merit and does not have the legs to stand upon.
25. Viewed in the context of all that has been said and done above, merely that a case has been registered against the respondent by the Vigilance Organization cannot form the basis of retiring him compulsorily, as a corollary to which the judgment/order of the learned Single Judge impugned here in this appeal which is based on the law, reason and the logic does not call for any interference and is, upheld. Therefore, the appeal fails and is, accordingly, dismissed. There shall, however, be no order as to costs.
(M. K. Hanjura) (Ali Mohammad Magrey)
Judge Judge
Srinagar
June 7th, 2018
"TAHIR"
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