Jammu & Kashmir High Court
State Of J&K; And Others vs Subash Chander Raina on 6 February, 2018
Bench: Ramalingam Sudhakar, M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
LPASW No.195/2017, MP No.1/2017
Date of order: 06.02.2018
State of J&K and others Versus Subash Chander Raina
Coram:
Hon'ble Mr. Justice Ramalingam Sudhakar, Judge
Hon'ble Mr. Justice M. K. Hanjura, Judge
Appearance:
For the appellant (s): Mr. H. A. Siddiqui, Sr. AAG.
For the respondent(s) : Mr. Rahul Pant, Advocate.
i) Whether to be reported in Digest/Journal : Yes/No.
ii) Whether approved for reporting in Press Media : Yes/No. (Per Hanjura-J)
1. Impugned in this Letters Patent Appeal is the defensibility and pragnability of the judgment and order dated 06.04.2017 of the learned Single Judge passed in SWP No. 968/2012 by which the Govt. order no. 178-GAD of 2012 dated 13.02.2012 to compulsorily retire the respondent in public interest with effect from the forenoon of 13.02.2012 has been quashed.
2. In adumbrating and 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 State Government in an attempt to weed out the dead wood and in order to maintain high standard of efficiency in the State services, constituted a Committee to consider the cases of the officers/employees for premature retirement vide Government order No.32-GAD (Vig.) of 2011 dated 16.05.2011 comprising of senior officers headed by the Chief Secretary to scrutinize the record/activities of such officers/officials and recommend LPASW No.195/2017 Page 1 of 17 pre-mature retirement in terms of Article 226 (2) and 226(3) of Jammu and Kashmir Civil Services Regulations, 1956 in case of the officials who should be removed from service/pre-maturely retired. The Principal Secretary to Government Finance Department, Inspector General of Police, and Inspector General of Police, Vigilance, J&K, were also invited to participate in the meeting as special invitees. The Committee in the above backdrop considered the records of the employees as well as the records regarding the involvement of the Government employees involved in corrupt practices. The Committee took a special note of the fact that the respondent while holding the post of Accounts Assistant in Additional Treasury, Jammu, was caught red-handed while accepting bribe and as such the Committee recommended to compulsorily retire the respondent from Government service in public interest. The recommendations of the Committee were accepted by the Government as a corollary to which the order aforesaid by which the respondent was compulsorily retired came into being.
3. In his pleadings, the respondent has submitted 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 and his APRs have not been examined/considered by the Committee. The order of his retirement has been passed in view of the fact that a criminal case was pending against him. It is also submitted that subsequently the respondent was acquitted of the charges that were leveled against him in the said case.
4. Learned Sr. AAG representing the appellant State has 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 LPASW No.195/2017 Page 2 of 17 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. Whileas, 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. In order to consider the cases of officers/ officials, who indulged in corruption/ had bad reputation in public and created impediments in the delivery of services to the general public in a smooth and effective manner, sanction was accorded to the constitution of a Committee to consider the cases of the Officers/ officials for premature retirement, The Committee noticed that an FIR was registered against the respondent by the vigilance organization, 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 was issued. It has been, argued that the order is legal. It is in accordance with LPASW No.195/2017 Page 3 of 17 law. The Ld. writ court has not appreciated the matter in the right perspective. The order impugned is based on wrong assumption and presumption of law and is, as such, legally misconceived, untenable, without any merit, and, in sequel thereto, merits to be set aside.
5. Per contra, 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 go by in the instant case, and therefore, the order of compulsory retirement of the respondent cannot with stand the security of law. The judgment of the writ court is based on the canons of law and on 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 respondent has already been acquitted in the case registered against him by the Vigilance Organization.
6. Heard and considered.
7. 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:-
"On the other hand, learned Sr. AAG for the respondents submitted that the State Government from time to time reviews the performance of its officers/officials on completion of either 22 years of service or on completion of 48 years of service in exercise of powers under Article 226(2) of the Civil Services Regulations. It is further submitted that a Committee was constituted which has considered the case of the petitioner individually. The Committee found that a criminal case was pending against the petitioner in which the petitioner was caught red handed, accepting bribe and therefore, the decision was taken to compulsorily retire the petitioner. It is further submitted that the order of compulsory retirement is not penal in nature inasmuch as the petitioner shall be entitled to all service benefits. It is further submitted that the First LPASW No.195/2017 Page 4 of 17 Information Report was lodged against the petitioner after sanction was accorded by the State Government after examining the entire material which was produced by the State Government. However, the fact that the petitioner has been acquitted in the aforesaid criminal case has not been disputed.
I have considered the submissions made by both the sides. The controversy involved in the instant writ petition is covered by order dated 22.12.2016 passed in SWP No.1940/2015. For the reasons assigned in the aforesaid order, the impugned order dated 13.02.2012 is hereby quashed. The petitioner shall be reinstated in service with all consequential benefits within one month from today. Accordingly, the writ petition is allowed."
8. What requires to be stated, at the outset, is that the Committee, while considering the case of the respondent, came to the conclusion that the respondent did not enjoy a good reputation in the public and, in addition, the respondent, indulged in corrupt practices inasmuch as he was caught red handed while accepting the bribe. 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 baseline of the order, quashed by the learned writ Court, is the alleged involvement of the respondent in the FIR detailed hereinbefore, buttressed with his general reputation which, it is stated, was unbecoming of a Government servant.
9. The State of Jammu and Kashmir has enacted a specific provision for dealing with the compulsory retirement of the public servants in the 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 LPASW No.195/2017 Page 5 of 17 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."
10. 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 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 LPASW No.195/2017 Page 6 of 17 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) (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 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, LPASW No.195/2017 Page 7 of 17 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."
11. 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 analysing 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 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 LPASW No.195/2017 Page 8 of 17 prejudicial to smooth functioning of the administration and the public interest. The decision to compulsory 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 the paragraphs 8 and 18 of the case titled "Swaran Singh Chand v. Punjab State Electricity Board and others", 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 to be made nor strict proof thereof is insisted upon. Such an order being illegal would be wholly unsustainable."
12. The view, as propounded above, has been repeated and reiterated by the Supreme Court in the case of "Madhya Pradesh State Cooperative Dairy Federation Lrd. And another v. Rajnesh Kumar Jamidar, LPASW No.195/2017 Page 9 of 17 (2009) 15 SCC 221", Paragraph 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. ........."
13. 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 and others; (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 firutrepenteturpissimus‟ (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".
14. In the case of "State of Gujrat v. Umedbhai M. Patel, (2001) 3 SCC 314", the Supreme Court, at Paragraph No.11 of the judgment, LPASW No.195/2017 Page 10 of 17 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."
15. 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.195/2017 Page 11 of 17 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 is was an arbitrary decision.
16. 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 an FIR against him, in which he was ultimately acquitted. 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 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 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 LPASW No.195/2017 Page 12 of 17 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."
17. The view taken by us in the preceding paragraphs 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 finding recorded by the Committee nor is there any communication of any controlling officers of the LPASW No.195/2017 Page 13 of 17 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)."
18. 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 such an opinion can be framed. The whole exercise has been conducted LPASW No.195/2017 Page 14 of 17 on the basis of the involvement of the respondent in a criminal cases. If the contention, as propounded by the State, that the involvement of the respondent came into limelight in a case 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 consequence of 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.
19. 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., (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 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 LPASW No.195/2017 Page 15 of 17 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".
20. 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 smoke of cloud, the criminal case or cases 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 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 with the guidelines supra and the judicial pronouncements holding the ground. Taking such a view that an 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 LPASW No.195/2017 Page 16 of 17 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. This is a fundamental flaw in the order issued against the respondent, whereby he has been shown the door without looking into the fact that the respondent had been acquitted in the case on which explicit reliance has been put by the appellant in directing the compulsory retirement of the respondent, which fact has not been disputed by the appellant-State.
21. Viewed in the context of all that has been said and done above, merely that a case or cases has/have 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 Ld. 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 be no order as to costs.
Jammu (M.K Hanjura) (Ramalingam Sudhakar)
06.02.2018 Judge Judge
Surinder
LPASW No.195/2017 Page 17 of 17