Jammu & Kashmir High Court - Srinagar Bench
Ghulam Qadir Dar vs . State Of J&K And Ors. on 3 May, 2019
Author: Rashid Ali Dar
Bench: Rashid Ali Dar
Serial No. 11
Regular List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
******************
SWP No. 1207/2011 Date of order: 03-05-2019 Ghulam Qadir Dar Vs. State of J&K and Ors.
Coram:
Hon'ble Mr. Justice Rashid Ali Dar, Judge.
Appearance:
For the Petitioner(s) : Mr. Nisar Ahmad, Adv.
For the Respondent(s) : Mr. Irfan Andleeb, Dy. AG.
i) Whether to be reported in Press/Media: Yes/No
ii) Whether to be reported in Digest/Journal: Yes/No
1. The petitioner inter alia seeks following relief by medium of this petition:
i) A writ of certiorari quashing the order bearing No. 1234-37 dated 09.05.2011 issued by the respondent NO. 2 so far it relates to the petitioner.
ii) A writ of mandamus commanding the respondents to allow the petitioner to continue in service and to pay him the salary and other benefits as envisaged by law without any hindrance or obstruction.
iii) A writ of mandamus commanding the respondents to maintain his service book and give him annual increments and other service benefits like promotion etc. SWP No. 2276/2011 Page 1 of 24
2. Facts giving rise to the filing of the instant petition as referred by the petitioner are that:
i) That the father of the petitioner was an employee in the respondents department who died in harness on 28.01.1990. After his death the Assistant Commissioner issued Legal Heir Certificate in favour of the family members of the deceased showing the petitioner as his son. The petitioner thereafter approached the respondents for appointment on compassionate grounds. The case of the petitioner was processed to Chief Engineer, Irrigation and Flood Control Department who thereafter forwarded the same to the Commissioner/Secretary to Government Public Works Department for relaxation of qualification bar in respect of the petitioner.
ii) That since the post on which petitioner's deceased father was working was lying vacant, so the petitioner's case was considered and he was appointed on compassionate grounds by virtue of Order No. 2831-36 dated 14.12.2005. The petitioner joined his duties in pursuance of the said appointment order on 16.12.1995 and was posted with respondent No. 4. That the petitioner along with other employees were discharging their duties efficiently with sincere dedication and devotion to the best satisfaction of his superiors. In 2002, the respondents without any reason or any cause, however, had withheld their pay. The petitioner and other employees for getting their pay and salary released very often approached and requested the respondents but they failed to consider the petitioner's grievance. The compelling circumstances SWP No. 2276/2011 Page 2 of 24 created by respondents thus forced the petitioner and other employees to approach the Hon'ble Court by way of SWP Nos.
263/2002, 262/2002 and 96/2002.
iii) That the respondent subsequent to the filing of the writ petitions and orders of the Hon'ble Court released the pay and salary of the petitioners in the writ petition and assured them for being paid the other service emoluments including the annual increments, emoluments and benefits which have accrued to the petitioners. The petitioners therefore withdrew the writ petitions with liberty to file fresh one. The respondent No. 2 after receiving the order of the court arbitrarily and capriciously issued an order of termination against the petitioner and other employees vide NO. PS/3680-82/07 dated 27.09.2007 stating therein that the order is issued pursuant to the orders of the Hon'ble High Court passed on SWP No. 96/2002, 262/2002 and 263/2002 on 05.09.2007 and the service of the petitioners of all the three petitions are herby terminated with immediate effect.
iv) That aggrieved by the order dated 27.09.2007 the petitioner and other employees filed SWP No. 1364/2007 for quashing the said order and for directing the respondents to allow the petitioners to continue and discharge their duties against the respective posts without any hindrance. That along with the writ petition, the petitioners of the writ petition SWP No. 1364/2007 filed an application for staying the operation of the order dated 27.09.2007 and while issuing notices in the main writ petition, the Court was pleased to stay the operation of the said order vide order dated SWP No. 2276/2011 Page 3 of 24 06.10.2007.
v) That after service of the order dated 06.10.2007 respondents were obliged not only to allow the petitioners to continue in service but also to pay them the salary and other service benefits as envisaged by law. They however, allowed the petitioner and other to continue in service, but did not pay them the salary. The petitioner and others were therefore constrained to approach t his Court and seek a direction against the respondents to release their salary and this Court in terms of its order dated 19.12.2007 directed them to release the due salary to the petitioners provided they are in possession.
vi) That the respondents caused their appearance in the case and filed their objections wherein besides other things, it was stated by them that the department received some anonymous telephone calls and a few letters wherein it was reported that appointment of the petitioners of the writ petition bearing SWP No. 1364/2007 is void and illegal and some of them have been regularized on the basis of the fake engagement orders and a few have been engaged by incompetent authorities It was also stated that the matter was taken seriously and was brought to the not8ice of other respondents as a matter of abundant caution, salary of the lower cadre staff was immediately stopped and establishment staff was directed to submit engagement/appointment orders of the concerned employees. It was also stated that the service books of 276 lower cadre employees were made available, but basis orders of appointment of the petitioners whose regularization order is SWP No. 2276/2011 Page 4 of 24 fake, has not been submitted and on a careful examination of the service books of the petitioners and other lower cadre staff a number of basic appointment orders were found fake and a detailed communication report was prepared which was submitted to respondent No. 2. It was further stated that the police station Pulwama has already registered a case under FIR No. 39/2000 under Section 409, 420, 467, 468, 471 and 120-B RPC in connection with the fake appointment orders of lower cadre staff of the Irrigation Division which is pending investigation. It was also stated that the police station concerned has seized service books of 279 employees including three pay acquaintance rolls and the respondent No. 2 at the same time also constituted an enquiry committee which has also enquired into the matter. It was also stated that the police has released service books of 101 employees and has released by the police because t hose were found genuine.
vii) That during the pendency of the writ petition, Dy. SP Headquarters Pulwama addressed a communication dated 30.04.2008 to the respondent No. 4 stating therein that during investigation conducted so far and perusal of records obtained, reveals that the appointment of 22 persons mentioned in the letter have been found valid and that the investigation is still in progress, but the complicity of 22 employees referred in the communication was stated to have not been substantiated; that in terms of letter dated 30.05.2008, Dy. SP Headquarters Pulwama informed the respondent NO. 4 that during further investigation 11 more persons have been found to have validly been appointed and funds SWP No. 2276/2011 Page 5 of 24 for incumbents were duly provided to the department in accordance with non plan; that on 13.01.2009, Dy. SP Headquarter, Pulwama informed the respondent NO. 4 that the investigation of the case has been closed finally due to deficient evidence in favour of appointment of Javid Ahmad Hakeem; that in terms of letter dated 04.04.2009 the Dy. SP Headquarters Pulwama informed the respondent No. 4 that the case against individuals mentioned in the enclosed list has been closed and untraced due to deficient evidence; that in terms of letter dated 17.04.2009, the Dy. SP Headquarters Pulwama again informed the respondent No. 4 that the case against individuals mentioned in the enclosed list has been closed and untraced due to deficient evidence; that on receipt of the aforesaid communications from the Dy. SP Headquarters, Pulwama, the respondent No. 4 addressed a letter to respondent No. 3 informing him about the matter and requested him to advise him as to what further action in the matter is required to be initiated as the case is subjudice and is pending in the Court in various writ petitions.
viii) That during the pendency of the writ petition, all the Class-IV employees of the irrigation Division Pulwama submitted an application to the respondent No. 4 for releasing them the benefits under 6th Pay Commissions. The respondent No. 4 accordingly addressed a communication dated 07.01.2010 to the respondent No. 3 stating therein that as the petitioners are drawing their salary regularly pursuant to the stay order granted by the court, therefore, his office has no objection, if the benefits of 6 th Pay SWP No. 2276/2011 Page 6 of 24 commission are accorded in their favour under rules coupled with record of up to date necessary entries in thier respective service books for which formal orders with regard to the authorization of conferring the benefits of 6th Pay commission needs to be issued by the competent authority; that no orders wren passed by the respondents on the aforesaid communication. The petitioners therefore filed an application before the court for directing the respondents to release the benefits envisaged by 6th Pay commission. However while that application was pending, the Court took up the main writ petition for hearing and by virtue of order dated 04.05.2010 quashed the order dated 27.09.2007 and directed the respondents to initiate the enquiry against the petitioners in the writ petition supra in accordance with law and settled norms and while conducing such enquiry, to provide an opportunity of hearing to the petitioners. The Court was pleased to direct that the enquiry be initiated and concluded within a period of one month from the date copy of the order is served on them; that on 17.05.2010 the respondent No. 2 issued an order whereby respondent NO. 3 was nominated as enquiry officer w ho was directed to submit detailed report in the matter by or before 05.06.2010. A copy of the order was also forwarded to respondent NO. 4 for information and necessary action with further direction to provide full assistance to the enquiry officer in completing the assignment within the stipulated time; that the respondent No. 3 also vide his letter dated 29.05.2010 informed the respondent No. 4 to furnish his office the history sheet s of the case duly completed SWP No. 2276/2011 Page 7 of 24 sealed and signed so that eh case is scrutinized accordingly and report submitted to the higher authorities within the stipulated time. It was also stated that the petitioners be directed to appear before him as desired by the respondent NO. 2; that on 17.06.2010 the respondent No. 3 informed the respondent NO. 4 that in connection with enquiry being conducted in the case, he is directed to attend his office along with AAO/HA/dealing assistant and bring all relevant records on 22.06.2010. He was also told that the petitioners be also informed to appear before him on the scheduled date as desired by respondent NO. 2.; that a meeting was convened on 23.06.2010 by respondent No. 3 in his office where a number of officers were present and out of 61 petitioners of the writ petition, 44 petitioners were also present on the scheduled date and time. The petitioners were heard by respondent No. 3 who stated before him that they were/have been working as daily wagers in the I&FC Division Pulwama and were regularized by the DDC Pulwama and the Ex. Engineer after completing more than 09 to 11 years service as such daily wagers in the department. The officials of the I&FC division Pulwama reported to the respondent No. 3 that the basic records viz appointment orders etc are not available with the division due to fire incident and that duplicate service books were checked and it was observed that the petitioners were appointed by the then DDC Pulwama/Ex. Engineer Irrigation division Pulwama without any orders from the competent authority. The enquiry officer thereafter checked the duplicate service books at random and found the entries recorded in the service books were SWP No. 2276/2011 Page 8 of 24 framed on the basis of photostate copies of original service books and as per records available in the divisional office. It was decided in the meeting that the division shall produce basic records viz appointment orders etc before the enquiry officer within two days. It was also decided that after receipt of the documents relating to the case and their thorough examination, the petitioner and other officials shall again be called for haring in the next week.
ix) That the enquiry was not completed by the respondents within one months as stipulated in the judgment dated 04.05.2010 therefore an application bearing CMP No. 2171/2010 came to be filed by the respondents before the court seeking reasonable time to comply with the directions contained in the judgment dated 04.05.2010. the said application came up before the court on 02.141.2010 when it was pleased to issue notice to the non- applicants with the further direction to respondent No. 2 to give latest status report about the case; that the application filed by the respondents; that the application filed by the respondents for extension of time is still pending before the Hon'ble court. However in the meanwhile the enquiry officers in terms of communication dated 07.12.2010 submitted a detailed report to the respondent No. 2 in which he recommended as under:
"......... The undersigned is of the view that the case is a faitaccompli as the 57 petitioners have been getting their salary benefits s despite clear lacunae in their appointment by an officer not have competence to do so and by virtue of Hon'ble High Court direction from time to time.
The petitioners have rendered their services for major part of their life in the department and it cannot be doubted whether they have involvement in their illegal SWP No. 2276/2011 Page 9 of 24 appointment/regularization. It is mentioned here that it is the officer not the class 4th employees who is/are supposed to be aware of the appointment rules and the legal/administrative implications thereof. The class 4th employee cannot be subjected to punishment because of the folly, ignorance and incompetence of the officer concerned.
It cannot be said with certainty whether the employees were reflected in the Annual B-4 statement against which the government have been granting their salaries as no such record pertaining to that period could be produced by the division. More so, there is no clue available to suggest that the employees were appointed/regularized against sanctioned strength.
x) That in light of recommendation of the enquiry officer, the respondent No. 2 had to close the enquiry and grant all the benefits to the petitioners as envisaged by law. Instead of doing so, he addressed a communication dated 05.01.2011 and 19.02.2011 to the government for instructions in the matter for filing the compliance report before the court./ The Deputy Secretary to Government accordingly vide his letter date 10.03.2011 informed the respondent No. 2 to issue a speaking order in light of the facts enumerated in the enquiry report and file compliance report before the court; that even after receiving the letter dated 10.03.2011 from the government the respondent NO. 2 had to pass a speaking order of closure of enquiry because the enquiry officer had stated so in his recommendations. Instead of doing so, the respondent No. 2 issued an order bearing No. 1234-37 dated 09.05.2011 where under he has stated that the order of appointment/conversion/engagement being fake and false, hence the claim of the petitioner and others is rejected and they are not entitled to any service benefits henceforth which includes their SWP No. 2276/2011 Page 10 of 24 salary also. While endorsing a copy of order to respondent NO. 4 and directing him to inform the petitioner and other employees regarding the orders an act as per the consideration order issued strictly. The respondent No. 4 in turn has informed the respondent NO. 5, 6, 7 and 8 and other officers to take immediate necessary action in the matter in accordance with the order dated 09.05.2011
3. Aggrieved with the order dated 09.05.2011, petitioner challenges the same on the following grounds
i) That not only the police but the enquiry officer in terms of his report dated 07.12.2010 has held that the petitioner had not been appointed on fake orders. In this view of the matter the respondent No. 2 had to close the enquiry and give all the consequential benefits to the petitioners,. Instead of doing so, he brought the matter to the notice of the government which too directed him pass a speaking order in the case and file a compliance report thereof in the court . the respondent No. 2 instead of passing a speaking order in faovur of the petitioner has however held in terms of the impugned order that the appointment /conversion /engagement orders of the petitioner and other employees are fake and false and has on this b ground reject their claim and held them not entitled to any service benefit. It is respectfully submitted that the respondent NO. 2 has passed the impugned order dated 09.05.2011 in a colourable exercise of power and with malafide intention of causing harm to the petitioners.
SWP No. 2276/2011 Page 11 of 24ii) That in case titled State Bank of India Vs. K. P. Narayanan (AIR 2003 SC 1100), it has been authoritatively held that when competent authority does not agree with the enquiry on any article of charge then before it records its own finding on such charge, it must record its tentative reasons its own finding on such charge, it must record in tentative reasons for such disagreement and give delinquent officer an opportunity to represent before it records its finding. The report of the Inquiry officer containing its finding will have to and the delinquent will have an opportunity to persuade the disciplinary authority to accept favourably the concussions of the enquiry officer. It has also been held that principles of natural justice require the authority which has to take a final decision and can impose penalty, to given an opportunity to the officer charged of misconduct, to file a representation before the disciplinary authority regards its findings on the charge framed against the officer. In the instant case, after receiving report of the enquiry officer, the respondent No. 2 instead of disagreeing with the report, brought the matter to the notice of the government which directed him to pass a speaking order in the case. The respondent NO. 2, had therefore to pass a speaking order and close the enquiry and exonerate the petitioners or the charges leveled against them. However instead of doing so, the respondent No. 2 while disagreeing with the enquiry officer, has held that the enquiry officer has held the petitioner and other guilty of having got appointment/ engagement/conversion on fake and false basis. Since SWP No. 2276/2011 Page 12 of 24 before recording such a finding and hold them guilty of such misconduct, he having not recorded his tentative reasons for such disagreement with the enquiry report and has not given an opportunity to the petitioners to represent their case before the respondent No. 2 before he would record his finding in the case, therefore the impugned order is contrary to the settled legal positon and is such liable to be set aside.
iii) That the respondent No. 2 has not served any show cause notice on the petitioner before passing the order dated 09.05.2011. Since the petitioner had been brought on regular establishment and was permanent employees of the department, therefore, before rejecting his claim and imposing punishment on him the respondent No. 2 as final authority has to issue a show cause notice to the petitioner informing him about his tentative decision.
iv) That the petitioner has been in service for the last 17 years. He has a family and children of grown up age. By rejecting his claim it is not only petitioner but his family also which has to suffer. The respondent No. 2 has not taken this aspect of the matter into notice while passing the impugned order as he ha violated the safeguards enshrined in Article 14 and 16 Constitution of India.
v) That for the treatment meted out to the petitioners and the order passed by the respondents is violative of Article 14 and 16 of the constitution. The petitioners have been put to unfair and unjust treatment.
4. The respondents have filed counter affidavit wherein it is stated as:
SWP No. 2276/2011 Page 13 of 24i) That during Chairi-Sharief crisis in the year 1995, the Irrigation Division, Pulwama gutted in a devastating fire including the whole service records and some persons including the petitioners in connivance with the departmental officials taking advantage of the gutter records and entered into the government service by way of fake and fraudulent means in order to cause loss to the Government exchequer and got succeeded in making the service records according to their choice.
ii) That in the year 2001 the department received the complaints regarding these fake and fraudulent appointment sand the department without wasting any time started enquiring into the matter. IN the meantime, the petitioners alongwith other person moved to Hon'ble High Court and filed various writ petitions which they finally withdrew in the year 2007 when they realized that they will not succeed in the writ petitions on merits. The department terminated the service of all these petitioners. The petitioners numbering 61 then filed another writ petition before the Hon'ble High Curt bearing SWP No. 1364/2007 titled Abdul Hamid Mir and Ors. V/s State and Ors the writ petition was finally disposed of the Hon'ble High court on 09.05.2010 with the direction to the department to conduct the enquiry and to see whether the petitioners have entered into the government services by way of fake and fraudulent means, if so, then they are not entitled for any service benefits including the salary. The department complied the Hon'ble High Court order and conducted the enquiry and found that the petitioners have entered into the government services by way of fake and fraudulent means by taking the advantage of the gutted records of the irrigation division Pulwama in connivance with some SWP No. 2276/2011 Page 14 of 24 departmental officials., The enquiry committee found that the petitioner w ho was figuring at S. No. 38 of SWP No. 1364/2007 titled Abdul Hamid Mir and others Vs. State and Others along with some other petitioners have never worked as dailywager as per the documents furnished by them to the enquiry committee that included the present petitioner as such question of the conversion of petitioner on regular temporary establishment does not arise at all because the enquiry committee found the appointment order of the petitioner fake and fraudulent one. The petitioner has no cause of action to file the present petition that also when the department found his appointment as fake and fraudulent one along with other petitioners of SWP No. 1364 of 2007 titled Abdul Hamid Mir and Others Vs. State and Others
5. The petitioners have filed rejoinder wherein it is stated as:
i) That the father of the petitioner who was working in the respondent department died in harness on 28.01.1990. After his death the Assistant Commissioner issued Legal Heir Certificate in favour of the family members of the deceased showing the petitioner as his son. The petitioner thereafter approached the respondents for appointment on compassionate grounds. The case of the petitioner was processed to Chief Engineer, Irrigation and Flood Control Department who thereafter forwarded the same to the Commissioner/Secretary to Government Public Works Department for relaxation of qualification bar in respect of the petitioner.
ii) That since the post on which petitioner's deceased father was working was lying vacant, so the petitioner's case was considered and he was appointed on compassionate grounds by virtue of Order No. 2831-36 dated 14.12.2005. The petitioner joined his duties in pursuance of the SWP No. 2276/2011 Page 15 of 24 said appointment order on 16.12.1995 and was posted with respondent No. 4. That the petitioner along with other employees were discharging their duties efficiently with sincere dedication and devotion to the best satisfaction of his superiors. In 2002, the respondents without any reason or any cause, however, had withheld their pay. The petitioner and other employees for getting their pay and salary released very often approached and requested the respondents but they failed to consider the petitioner's grievance. The compelling circumstances created by respondents thus forced the petitioner and other employees to approach the Hon'ble Court by way of SWP Nos. 263/2002, 262/2002 and 96/2002.
iii) That the respondent subsequent to the filing of the writ petitions and orders of the Hon'ble Court released the pay and salary of the petitioners in the writ petition and assured them for being paid the other service emoluments including the annual increments, emoluments and benefits which have accrued to the petitioners. The petitioners therefore withdrew the writ petitions with liberty to file fresh one. The respondent No. 2 after receiving the order of the court arbitrarily and capriciously issued an order of termination against the petitioner and other employees vide NO. PS/3680-82/07 dated 27.09.2007 stating therein that the order is issued pursuant to the orders of the Hon'ble High Court passed on SWP No. 96/2002, 262/2002 and 263/2002 on 05.09.2007 and the service of the petitioners of all the three petitions are hereby terminated with immediate effect.
iv) That the enquiry officer in his report clearly mentions that the petitioner has been shown to have been appointed on compassionate ground but he did not choose to see the appointment authority of the petitioner and in a mechanical and cursory manner has mentioned that SWP No. 2276/2011 Page 16 of 24 the petitioner has been appointed by the Executive Engineer when the fact of the matter is that he has been appointed by Superintending Engineer on compassionate grounds. The appointment of the petitioner was on compassionate grounds and in this regard the respondents have not made any mention in their reply.
v) That he respondents have denied the appointment of the petitioner being made by the S. E but they have not denied the service book of the petitioner which has been annexed with the writ petition. The petitioner was appointed on compassionate ground, therefore, his appointment cannot be illegal or fake. However the department has clubbed the writ petitioner with the employees whose appointment is under scrutiny and ow in order to prove their illegal stand they have made false averments in their reply.
vi) That the enquiry officer has not properly enquired the appointment of the petitioner and the reply filed by the respondents is vague and does not give specific reply to paras submitted by the petitioner in his writ petition. The basic ground on which the petitioner is relying in his writ petition is that he is the beneficiary of SRO 43, but no such enquiry is being made by the respondents and there is no reply to that effect. The petitioners' appointment cannot be treated as fraudulent as he was being appointed on the basis of SRO 43and the enquiry conducted by the department does not specifically deal with the petitioner as the enquiry says that the petitioner's appointment is outcome of fraud.
6. Heard learned counsel for the parties.
7. Learned counsel for the petitioner while being heard has stated that the disciplinary authority has followed principle of natural justice in breach with impunity as no SWP No. 2276/2011 Page 17 of 24 opportunity of being heard was given to the present petitioner. The disciplinary authority on its own and without giving reasons for deviating from the recommendations of Enquiry Officer, any charge came to the conclusion that petitioner has to be terminated. Protection to the petitioner is available in terms of section 126 of the Constitution of J&K read with Rule 33 and 34 of the Classification Control Rules. In order to bolster his case, learned counsel for the petitioner has relied on the judgment of Hon'ble Apex Court in case titled State Bank of India Vs. K. P. Narayanan Kutty, AIR 2003 SC 1100.
8. Learned Dy. AG on the other side submits that the petitioners referred in the earlier writ petition had derived benefits out of forged documents which include present petitioner and there was no requirement to hear the petitioner or any other person.
He has also referred to the judgments of Hon'ble Apex Court in case titled Haryana Warehousing Corporation Vs. Ram Avtar and Another (1996) 2 SCC 98 wherein their Lordship has held that:
"......The High Court, in our opinion, was not right in coming to the conclusion that any opportunity should have been granted to the respondent before an adverse decision is taken with regard to non-crossing of efficiency bar. Rule 4.8 of Punjab State Service Rules provides that where an efficiency bar is prescribed in a time scale, the next increment above the bar is not to be given to an employee without the specific sanction of the authority empowered to withhold increments, provision does not contemplate any hearing being granted to an employee before a decision is taken with regard to permitting or non-permitting an employee to cross the efficiency bar. Note-3 to the said Rule, on which reliance was placed by the learned counsel for the respondent, merely provides that the cases of all officers held up at the efficiency bar should be reviewed annually with a view to determine whether the quality of their work has improved and generally whether SWP No. 2276/2011 Page 18 of 24 the defects for which they were stopped at the bar have been remedied to an extent sufficient to warrant the removing of the bar. In the instructions dated 29.1.1974 issued by the Haryana State Government, it is stated in para 4 as follows:
"It is thus not necessary before it is decided to stop a Government employee at an efficiency bar to inform him in writing of the grounds on which it is proposed to take such action. The order stopping an employee at an efficiency bar should however be a speaking order and it should give sufficient details so that, the employee can, if he so desires, make a representation against the same. It is desirable that every case should be scrutinised carefully by the Departments and good reasons given in support of an order of stoppage."
The validity of the aforesaid instructions had not been challenged and, in any case, it appears to us that the stoppage of an employee at the efficiency bar is not by way of punishment and does not cause any stigma on an employee. When an efficiency bar is inserted in a time scale it only means that at that stage annual increment is not as of right but the bar will be removed, and an employee allowed further increments, if the authority concerned comes to the conclusion that such an employee is not inefficient. An opinion to this effect has necessarily to be a subjective one though it must be based on relevant facts. It is further seen that in the aforesaid instructions, it has been stated that an order stopping an employee at an efficiency bar should be by speaking order and sufficient details should be given so that an employee can, if he so desires, make a representation against the same. Besides providing for a post facto hearing, a concept which is not unknown to the principles of natural justice, the speaking order which is passed can also be subjected to judicial review, as has been done in the present case. The passing of speaking order, however, does not mean that before the authority concerned comes to the conclusion of stopping of a person at the efficiency bar stage, an opportunity of hearing must be given to him. Consideration of all material before taking the decision is sufficient compliance of the requirement.
9. Considered the rival arguments
10. It may be proper herein to have reference of the impugned order to the extent it relates to the petitioner herein:
".....One of the petitioner (35) namely Ghulam Qadir Dar S/o Ghulam Mohammad Dar R/o Wagoora Tral has been shown appointed under the provisions of SRO 43 of 1994 on 16.12.1995 when the petitioner obtains the death certificate of his deceased father from the concerned police Station on 11.07.1996 and necessary legal heirs certificate from the Assistant Commissioner Revenue on 28-11-2000 as such proves fraudulent. Besides the Executive Engineer is not competent to issue such orders..."SWP No. 2276/2011 Page 19 of 24
11.It may also be relevant herein to state that the contention raised in terms of the instant petition appears also to have been projected by the petitioner before the Enquiry Officer who has dealt it with observations referred above. This Court while examining the matter of various petitioners including petitioner deemed it necessary that same shall be gone into by a regular enquiry. It would be thus unwise and improper for this Court to make any attempt to examine the merit on the questions of fact put forth by the petitioner having regard to the opinion framed earlier that such questions of fact have to be determined by making an enquiry.
12. Relevant to state herein during consideration of the instant petition, it came to fore that the earlier a writ petition bearing SWP No. 1022/2011 had been filed challenging the order No. 1234-37 dated 09.05.2011 passed by respondent No. 2 which has been impugned herein by the petitioner so far it affects his rights. In terms of the impugned order not only the service of the petitioner but also many other appear to have been terminated. Legality of the this order has been examined by this court in terms of the order passed on 29.09.2011. On consideration of the entire material and having regard to the report of the enquiry officer, and the action taken thereon by the disciplinary authority has been dealt by a Coordinate Bench of this Court (by the Hon'ble Mr. Justice Hasnain Masoodi as his Lordship) then was as:
"...The facts cataloged herein above are by and large undisputed. It is admitted case of the parties that the allegation as regarded fake and forged engagement/confirmation/conversion SWP No. 2276/2011 Page 20 of 24 orders relied upon by the petitioners having been fabricated and cooked up by the petitioners with or without help of officers/officials of the irrigation Division P:Ulwama and the District Administration, was subject matter of Case FIR No 39/2000 Police Station Pulwama. The investigation was closed as "untraced" due to deficient evidence and the decision communicated by Dy. SP Headquarter Pulwama vide his No. HQRS/01/09/848 dated 4.4.2009 to the Senior Officers of Irrigation Department. Independent of the investigation in case FIR No. 39/2000 the enquiry was also instituted in compliance of writ court order in SWP No. 1364/2007. The enquiry officer has concluded his report comprising of 62 pages with the following observations:
"The undersigned is of the view that the case is a faitaccompli as the (57) petitioners have been getting their salary benefits despite clear lacunae in their appointment by an officer, not have competence to do so and by virtue of Hon'ble High Court direction from time to time.
The petitioners have rendered their services for major part of their life in the department and it cannot be doubted whether they have involvement in their illegal appointments/regularization. It is mention here that it is the officer not the class 4 th employee who is/are supposed to be aware of the appointment rules and the legal/administrative implications thereof. The class 4th employees cannot be subjected to punishment because of the folly, ignorance and incompetence of the officer concerned.
It cannot be said with certainty whether the employees were reflected in the Annual B-4 Statement against which the Government have been granting their salaries as no such record pertaining to that period could be produced by the Division. More so, there is no clue available to suggest that the employees were appointed/regularized against the sanctioned strength."
The enquiry Officer thus while dealing with the
appointment/conversion/engagement orders individually in his
comprehensive report dated 7.12.2010 appears to have been impliedly recommend that though the engagement/confirmation/conversion in favour of the petitioners did suffer from illegalities and irregularities detailed in the report, yet having regard to the fact that the petitioners were in place for a long time that the irregularities in all the cases were not exclusively attributed to the petitioners, the matter deserved to be closed. Though the enquiry officer does not spell out of the conclusion SWP No. 2276/2011 Page 21 of 24 in too many words yet this is what can be inferred on an overall view of the report.
The disciplinary authority-Superintending Engineer, nonetheless oblivious to the outcome of the investigation and the enquiry report, has gone ahead and terminated the petitioners services vide order impugned in the petition. It is argue by learned counsel for the respondents and rightly so that the Disciplinary authority is not duty bound to agree with the conclusions drawn by the Enquiry officer and that the disciplinary authority may on going through the enquir8y report arrive at a conclusion different from the conclusion drawn by the enquiry officer. However, it is to be emphasized that the Disciplinary Authority, in case it does not agree with the outcome of the enquiry and the recommendation made by the enquiry officer, has to afford the delinquent official against whom disciplinary action is proposed to be taken unmindful of the recommendation of the enquiry officer, a fair, adequate and reasonable opportunity to show cause against the proposed action. To make the opportunity to be given to the delinquent officials meaningful, it is necessary to provide the delinquent officials copy of the enquiry report so that the delinquent officials is in a position to urge and explain that proposed departure from the conclusions drawn by the Enquiry Officer is unwarranted. In the present case, the Disciplinary Authority on receipt of the enquiry report, that as already pointed out was to an extent in favour of the petitioners, has proceeded to terminate services of the petitioner/award major punishment without furnishing petitioners copy of the enquiry report and affording the petitioners an opportunity to convince and persuade disciplinary authority that there was no cope for any disagreement with the conclusions drawn by the enquiry officer in light of material collected during the enquiry and in ground for termination of the petitioners service.SWP No. 2276/2011 Page 22 of 24
So viewed, the impugned order No. 1234-37 dated 09.5.2011 whereby the service of the petitioners have been terminated, does not stand legal scrutiny.
For the reasons discussed above, the writ petition is allowed and order No. 1234-37 dated 09.5.2011 is set aside. The respondent No. 2 is directed to provide copy of the enquiry report as also action proposed to be taken against the petitioners, to all the petitioners within one week from the date copy of the order is served/communicated to the respondent No. 2. The petitioners shall submit their reply, if any, within two weeks after the copy of the enquiry report and the aforesaid communication is handed over to them. The respondent No. 2 shall thereafter within one week from the receipt of the reply/replies from the petitioners pass order as may be deemed fit and proper having regard to the enquiry report and the conclusions drawn by the Disciplinary Authority on going through the enquiry report and the replies, if any, received from the petitioners and of course rules governing the mater. It is made clear that the Disciplinary Authority shall be at liberty to pass the orders individually as the reply submitted by the petitioners may warrant individual and separate consideration and because all the petitioners may not respond to the communication of the Disciplinary Authority or delay their response and prejudice expeditious disposal of the matter(s) of his/their co petitioners".
13.In my opinion, the matter is squarely covered by said judgment. Accordingly, writ petition is required to be allowed and is allowed on the analogy referred above.
Order No. 1234-37 dated 09.5.2011 so far it relates to the petitioner is set aside. The respondent No. 2 is directed to provide copy of the enquiry report as also action proposed to be taken against the petitioner, to the petitioner within one week from SWP No. 2276/2011 Page 23 of 24 the date copy of the order is served/communicated to the respondent No. 2. The petitioner shall submit his reply, if any, within two weeks after the copy of the enquiry report is handed over to him. The respondent No. 2 shall thereafter within one week from the receipt of the reply from the petitioner pass order as may be deemed fit and proper having regard to the enquiry report and the conclusions drawn by the Disciplinary Authority on going through the enquiry report and the reply, if any, received from the petitioner and of course subject to rules governing the mater.
To make it explicit, if the competent authority does not agree with Enquiry Officer's view on the article of charge then before it records any of its finding on such charge, it must record its tentative reasons for such disagreement and give an opportunity of being heard to the petitioner.
14. The record as produced by learned Dy. AG be returned back to him.
(Rashid Ali Dar) Judge Srinagar 03-05-2019 "Aasif"
SWP No. 2276/2011 AASIF GUL Page 24 of 24 2019.05.06 04:19 I attest to the accuracy and integrity of this document