Jammu & Kashmir High Court
Rajinder Kumar vs State Of J&K; And Others on 27 July, 2018
Author: M.K.Hanjura
Bench: M.K.Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No.2606/2016,
IA Nos.1/2017 & 1/2016
Date of order: 27.07.2018
Rajinder Kumar vs State of J&K & ors
Coram:
Hon'ble Mr Justice M.K.Hanjura, Judge.
Appearance:
For the Applicant(s) : Mr. Sunil Sethi, Senior Advocate with
Mr. Ankesh Chandel, Advocate.
For the Respondent(s) : Mrs. Seema Shekhar, Sr. AAG.
i) Whether approved for reporting in Yes/No Law journals etc.: ii) Whether approved for publication in press: Yes/No
1. In this petition, the petitioner implores for the grant of the following reliefs in his favour:
a) An appropriate writ, order or direction in the nature of writ of certiorari quashing Government order No. 1266-GAD of 2016 dated 21.11.2016 whereby the petitioner has been forcibly and compulsorily retired from service w.e.f. forenoon of 22.11.2016 being totally illegal, arbitrary and violative of fundamental rights of the petitioner.
b) An appropriate writ, order or direction in the nature of writ of mandamus commanding the respondents to reinstate the petitioner into service w.e.f. the date he has been illegally/compulsorily retired from government service and grant him all consequential retrospective benefits including salary, allowances and seniority and all other benefits to which the petitioner is otherwise legally entitled to.
c) Any other relief, which this Hon'ble Court, in the facts and circumstances of the case deems fit and proper.
2. The facts under the shade and cover of which the petitioner has craved the indulgence of this Court in granting him the reliefs aforesaid are that the State Government in an attempt to weed out the dead wood and in order to maintain a high standard of efficiency in the State services, constituted a SWP No.2606/2016, IA Nos.1/2017 & 1/2016 Page 1 of 21 Committee to consider the cases of the officers/employees for premature retirement. The sanction to the constitution of the aforesaid Committee was accorded on 20.05.2015 by the State Government, to consider the cases of officers/ officials for premature retirement. Document evidencing the fact in the form Government order 20.05.2015 is placed on record as Annexure-R. The Committee comprising of Senior Officers of the State Government chaired by the Chief Secretary includes Principal Secretary to the Hon'ble Chief Minister, Principal Secretary to the Government Home Department, Secretary to Government, General Administration and Secretary to the Government, Department of Law, Justice and Parliamentary Affairs as its members. 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 Organization was co-opted as a member by the Committee.
The Committee held its deliberations on 16.11.2016, and considered the mandate of Article 226(2) of the Jammu and Kashmir Civil Services Regulations and OM No.GAD(Vig.) 19-Adm/2010 dated 25.10.2010, which envisages screening of the record of the employees, before making recommendations for premature retirement. The records regarding involvement of Government employees in corrupt practices received from different departments were placed before the Committee. The corruption cases where investigation had been completed by the investigating agencies and sanction for the prosecution was granted by the Competent Authority were specifically considered by the Committee. The Committee observed that for a meaningful exercise, the matter requires to be deliberated upon in depth and further inputs require to be obtained from the Administrative Departments. Accordingly, the Committee decided to have SWP No.2606/2016, IA Nos.1/2017 & 1/2016 Page 2 of 21 further deliberations in the next meeting scheduled on 19.11.2016. However, the meeting of the Review Committee could not take place on 19.11.2016 and it was decided to reschedule the meeting on 21.11.2016.
The Committee finally met on 21.11.2016 and amongst others, considered the case of the petitioner. The Committee on consideration of the record observed that a case FIR No.02/2012 U/S 5(2) of the Jammu and Kashmir Prevention of Corruption Act, Samvat 2006 r/w section 420, 465, 467, 468, 471, 201, 120-B RPC was registered at P/S Crime Branch, Jammu against Revenue officers/ officials including the petitioner, the then Patwari Halqa Domana, Jammu and Tehsildar Jammu, Sh. Subash Singh Chib for facilitating the alleged illegal sale of land falling in Village Raipur Domana, Tehsil Jammu. The case investigation revealed that the petitioner willfully, maliciously, dishonestly and illegally issued the revenue extracts of the said land to a private beneficiary despite being in know of the fact that the said land was mutated u/s 8 of the Agrarian Reforms Act and mortgaged with a Bank. During further investigation, it transpired that the petitioner by entering into a conspiracy with Tehsildar concerned namely Sh. Subash Singh Chib, facilitated illegal sale of 40 kanals of land in Village Domana by sheer abuse of his official position for extraneous consideration. The Government after considering the record and evidence collected by the investigating agency and applying its mind to the facts and circumstances of the case accorded sanction to the prosecution of the petitioner vide Govt. Order No.04-GAD(Vig) of 2015 dated 30.01.2015 under the Jammu and Kashmir Prevention of Corruption Act Samvat, 2006 read with section 420, 465, 467, 468, 471, 201, 120-B RPC.
Regarding the APRs of the petitioner, the Committee observed that the APRs of the petitioner are reported to be not available with the Revenue Department. The Committee observed that the petitioner does not SWP No.2606/2016, IA Nos.1/2017 & 1/2016 Page 3 of 21 enjoy a good reputation in the public and the overall perception in the general public is that he is a corrupt official. The committee took note of the fact that the petitioner indulged in manipulation of official record by misuse of his official position amounting to gross misconduct which in unbecoming of a public servant and having regard to the material placed before the Committee, the Committee came to the conclusion that it would not be useful to retain the petitioner in service and rather it would be in the larger public interest to retire him pre-maturely from Government service. The Committee, therefore, recommended for retirement of the petitioner from the Government Service in large public interest under Article 226(2) of J&K CSR. The Committee also recommended that the petitioner be given three months pay and allowances in advance, as admissible, in lieu of the notice for such retirement. The recommendations of the Review Committee regarding premature retirement of the petitioner were placed before the Competent Authority, which were accepted on 21.11.2016, and these culminated into the issuance of the impugned order.
3. The petitioner has contended in his pleadings that the order of compulsory retirement is a result of non-application of mind. While inviting attention of this Court to the APRs of the year 2009-10, 2010-11 and 2011-12, it is submitted that the service record of the petitioner is excellent. It is further submitted that a First Information Report was lodged against the petitioner namely FIR No.2/2012 in which the charge sheet has been filed against him and the Tehsildar for the commission of offences punishable under Section 5(2) of the J and K Prevention of Corruption Act Samvat, 2006 read with Sections 420, 465, 467, 468, 471, 201, 120-B RPC before the Court of the Learned Special Judge Anti Corruption, Jammu in which the trial is at an advanced stage and the decision to compulsorily retire the respondent in public interest has been SWP No.2606/2016, IA Nos.1/2017 & 1/2016 Page 4 of 21 taken merely on the basis of the First Information Reports lodged against the respondent.
4. Heard and considered.
5. 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 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. While as, 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 petitioner 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, under and in terms of SWP No.2606/2016, IA Nos.1/2017 & 1/2016 Page 5 of 21 Government order bearing No. 17-GAD (Vig) 2015 dated 20th of May, 2015, 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 petitioner by the Crime Branch, Jammu, and, therefore, recommended for the retirement of the petitioner 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 and is in accordance with the law.
6. Per contra, the learned counsel for the petitioner 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 the compulsory retirement of the petitioner cannot with stand the scrutiny of law.
7. What requires to be stated, at the outset, is that the Government, in an attempt to cleave to the principles of chopping the deadwood in the shape of corrupt and inefficient Government servants from service and to maintain the highest standards of efficiency, constituted a Committee headed by the Chief Secretary of the State vide Government Order bearing No.17-GAD (Vig) 2015 dated 20th of May, 2015. The Committee, in addition to the Chief Secretary, comprised of the Inspector General of Police, Vigilance Organization and the Administrative Secretary of the concerned Department. The Committee held its deliberations on various occasions and finally on 21st of SWP No.2606/2016, IA Nos.1/2017 & 1/2016 Page 6 of 21 November, 2016, recommended for compulsory retirement of the petitioner. The respondent- State has contended in the pleadings that the officers/ officials, whose conduct had come under a cloud, while accord of consideration to their cases by the Committee, the provisions of Article 226 (2) of the J&K Civil Services Regulations and OM no. GAD (Vig) 19-Adm/2010 dated 25th of October, 2010, were invoked. The case of the respondent-State is that the Committee, while considering the case of the petitioner, came to the conclusion that the petitioner did not enjoy a good reputation in the public and in addition, the petitioner, indulged in corrupt practices. It is the specific case of the respondent- State that the "Annual Performance Reports" of the petitioner were not considered by the Committee in the matter of passing the order directing his compulsory retirement. While recording the order of his compulsory retirement, the baseline of the order is the alleged involvement of the petitioner in the FIR detailed hereinbefore, buttressed with his general reputation which, it is stated, was unbecoming of a Government servant.
8. 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 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 SWP No.2606/2016, IA Nos.1/2017 & 1/2016 Page 7 of 21 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."
9. 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 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.
SWP No.2606/2016, IA Nos.1/2017 & 1/2016 Page 8 of 21
(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 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."
10. 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, SWP No.2606/2016, IA Nos.1/2017 & 1/2016 Page 9 of 21 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 rigor 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 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 paragraph nos. 8 and 18 SWP No.2606/2016, IA Nos.1/2017 & 1/2016 Page 10 of 21 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."
11. 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. and another v. Rajnesh Kumar Jamidar, (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. ........."
12. 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:
SWP No.2606/2016, IA Nos.1/2017 & 1/2016 Page 11 of 21 "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".
13. 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, 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, SWP No.2606/2016, IA Nos.1/2017 & 1/2016 Page 12 of 21 that is a fact in favour of the officer. (viii) Compulsory retirement shall not be imposed as a punitive measure."
14. 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 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.
15. Taking an overall view of the matter, the bottom line of the order of compulsory retirement of the petitioner is his conduct and the registration of FIR(s) against him, and in one of them, it is stated that the charge sheet has been laid before the Court. Whether the compulsory retirement of the petitioner 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 SWP No.2606/2016, IA Nos.1/2017 & 1/2016 Page 13 of 21 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 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."
16. The view taken by us in the preceding paras 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 SWP No.2606/2016, IA Nos.1/2017 & 1/2016 Page 14 of 21 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 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)."
17. 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 petitioner 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 SWP No.2606/2016, IA Nos.1/2017 & 1/2016 Page 15 of 21 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 on the basis of the involvement of the petitioner in a criminal cases. If the contention, as propounded by the State, that the involvement of the petitioner 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 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.
18. 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, SWP No.2606/2016, IA Nos.1/2017 & 1/2016 Page 16 of 21 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 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".
19. 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 goby 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 SWP No.2606/2016, IA Nos.1/2017 & 1/2016 Page 17 of 21 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. This is a fundamental flaw in the order issued against the petitioner, whereby he has been shown the door.
20. The facts in the present case are eloquent. The petitioner has appended with the writ petition "Annual Performance Reports‟ wherein and whereunder his achievements, from time to time, have been judged/evaluated by his superiors. For the year 2009-10, 2010-11 and 2011-12, the petitioner has been rated as good. These "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 respondent the exit and, had these "Annual Performance Reports‟, been considered, the conclusion would have been otherwise. The SWP No.2606/2016, IA Nos.1/2017 & 1/2016 Page 18 of 21 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. 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 and anr (2003) 4 SCC 59; State of J&K and ors v. Janak Singh 2010(4) JKJ 89 [HC]; Rajendra Prasad Verma and ors v. Lieutenant Governor (NCT of Delhi) and ors (2011) 10 SCC 1; State of J&K and anr v. Satish Chander Khajuria vide order dated 07.10.2016 passed in LPASWNo.122/2016 in which the SLP has been dismissed by the Supreme Court.
21. The argument of the learned counsel for the respondent-State 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 canon 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.
22. A Single Judge of this Court, after verbose discussion decided an akin matter, being SWP no.1367/2017, titled Mushtaq Ahmad Baba v. State of J&K and others, with the following observations:
"20. „Francis Bacon‟ (1561 to 1626) said and I quote, "Laws are like cobwebs; wherein the small flies are caught and the bumble bees break through". To this is added the quote of „Mr Henry Ward Beecher‟, which is "Law is a battery, which targets all that is behind it, but sweeps with destruction that is outside it". The quote of „William Shenstone‟ (1714-63) also fits to a "T" in this petition and it is that "Laws are generally found to be nets of such a texture, as the SWP No.2606/2016, IA Nos.1/2017 & 1/2016 Page 19 of 21 little creep through, the great break through, and the middle-sized are alone entangled in". These quotes apply in all the fours to the instant case. Annexure-R9 attached to the Rejoinder affidavit of the petitioner, is an Unstarred CQ No. 185 of Shri Ashok Khajuria on the subject "Prosecution". The questions and the replies have been framed therein. The question No. (a) relates to the number and names of Government and PSU Officers/ Officials against whom the State Vigilance Organization (SVO) and Crime Branch have sought sanction for their prosecution from GAD. The question No. (b) pertains to the Officers/ Officials against whom sanction has been accorded for their prosecution and the question No. (c) specifies the Officers/ Officials against whom sanction is pending and the reason for delayed prosecution is the accord of sanction. Annexure "A1", appended to the said Unstarred CQ contains the list of 126 employees and, Annexure "A2", is the list of 13 employees. Similarly, Annexure "B", contains the list of 142 employees and, Annexure "B1", contains the list of 8 employees. Annexure "C", bears the names of 20 employees and, Annexure "C1", is the list of 5 employees. Had the intention of the Respondent-State been to weed out all the deadwood on the parameters that the Committee evolved, all the employees, figuring in the aforesaid annexures, would have been shown the door after taking resort to the provisions of Article 226(2) of the Jammu and Kashmir Civil Services Regulations. However, only a skeletal of the employees (small flies) including the petitioner were shown the exit and the bumble bees were allowed to break through. The cases of only some of the employees have been treated as the rare and unique ones. They have been discriminated invidiously and the rules of the game have not been applied equally."
23. May be that the observations made by the Single Judge may not cut much ice and may not be of much significance and relevance in the case but the sphere of the jurisdiction of the Committee was to consider each such cases for compulsory retirement in which the charges of corruption were leveled against each employee. How is that a few employees were picked up for such consideration and the others were allowed to go scot free and break through? The societal concerns of administering law and justice are not legal luxuries. The state cannot indulge in the luxury of legal sophistry with purposes more ulterior then transparent, concealing more and revealing less and masquerading as if fighting for principles! It is a sheer marvel that Courts have worked in and survived such chaotic conditions.
SWP No.2606/2016, IA Nos.1/2017 & 1/2016 Page 20 of 21
24. 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 petitioner by the Vigilance Organization cannot form the basis of retiring him compulsorily, as a corollary to which the (M K Hanjura) Judge Jammu 27.07.2018.
Raj Kumar SWP No.2606/2016, IA Nos.1/2017 & 1/2016 Page 21 of 21