Abdul Majid Wani vs State Of J&K; & Anr. on 20 April, 2017

[Cites 3, Cited by 1]

Jammu & Kashmir High Court - Srinagar Bench

Abdul Majid Wani vs State Of J&K; & Anr. on 20 April, 2017

1. This petition filed by the petitioner calls in question Government order no.901-GAD of 2015 dated 30.06.2015 whereby the Government in exercise of its powers conferred by Article 226(2) of the Jammu and Kashmir Civil Service Regulations, 1956 gave notice to the petitioner that he, having already rendered 22 years of service, shall retire from service with effect from forenoon of 01.07.2015.

2. The petitioner was working as Patwari, having been so appointed by an order issued by the Divisional Commissioner, Kashmir, under endorsement no. Divcom/199-PTW/Estt dated 05.06.1990. As averred in the writ petition, he was placed under suspension by Tehsildar, Ganderbal on 09.01.2010 on the verbal information of Inspector, Vigilance Organization, Kashmir. Subsequently, on the recommendations of the Review Committee constituted by the Government in terms of its order, bearing no.184-Rev of 2006 dated 28.09.2006, some seventeen Government employees working in the Revenue Department, who had been placed under suspension, were reinstated in service by order no. FC(Adm) 120 of 2011 dated 28.04.2011. The order directed the officials so reinstated, except those figuring at serial nos. 3 and 13 thereof, to report to the concerned Deputy Commissioners for further posting. The order further read that the period of suspension of the officials shall be decided separately, on case to case basis, subject to the final outcome of their cases pending adjudication in the courts.

3. Notwithstanding the above, four years after his reinstatement by the aforesaid order dated 28.04.2011, the Government issued the impugned order no.901-GAD of 2015 dated 30.06.2015, purporting it to be in exercise of its power under Article 226(2) of the Jammu and Kashmir Civil Service Regulations, 1956 (for short, CSRs), and in public interest, giving notice to the petitioner that he having already rendered 22 years of service shall retire from service with effect from 01.07.2015. He was allowed three months' pay and allowances in the amount of Rs.1,30,512.00 in lieu of notice vide cheque no.373544. The cheque, however, mentioned in figures Rs.130512/- and in words "One lac five hundred and twelve" only.

4. The petitioner has challenged the impugned order on the grounds taken in the writ petition, which include that (i) the impugned order is by way of punishment inflicted on him without following the due process of law; that the case of the petitioner does not fall in any of the categories of cases enumerated by the Supreme Court in various of its decisions; that the respondents have not considered the service record of the petitioner, muchless his entire service record; that the impugned order is arbitrary.

5. The respondents in their reply have restated the same binomial theorem which they have been mentioning in their replies filed in such cases for last two years. This Court has reproduced that theorem in some of its judgments. However, in the para-wise reply, it is stated that the petitioner never discharged his duties sincerely and honestly but as a matter of fact indulged in corruption and was caught red handed while demanding and accepting bribe of Rs.5000/- for issuance of revenue extracts, which resulted in registration of FIR no.01/2010 under section 5(1)(d) read with Section 5(2) of the Jammu and Kashmir Prevention of Corruption Act, Svt. 2006 and Section 161 RPC at Police Station VOK against him. It is further stated that the impugned order has been issued after completing all legal formalities, is in accordance with law and supported by reasons as mandated in Article 226(2) of the CSRs. It is averred that the overall performance of the petitioner during his service tenure has remained abysmal. In paragraph 7 of the reply, it is, inter alia, stated as under:

"...It is well settled that while considering an employee for compulsory retirement, the overall performance of an employee is to be considered. The performance of the petitioner during his service tenure has not remained excellent and the petitioner has not performed duties with dedication. The service career of the petitioner is not unblemished, as the petitioner during his service tenure indulged in corrupt practices and enjoyed bad reputation. The impugned order is not mala fide in nature, but is supported by evidence. The impugned order is bona fide in nature. The impugned order is not by way of punishment but has been issued after taking into consideration the performance and the entire service record of the petitioner..."

6. Heard learned counsel for the parties, minutely perused the record placed before the Court and considered the matter.

7. It is well settled by now that an order of compulsory retirement is neither to be passed by way of, nor constitutes, a punishment on the government servant. It is also settled that for purposes of assuming the subjective satisfaction to invoke the power to compulsorily retire a government servant, the entire service record of the employee has to be considered. In fact, the respondents themselves in para 7 of their reply, as quoted hereinabove, have stated that while considering an employee for compulsory retirement, his overall performance is to be considered. Obviously, such 'overall performance' cannot be considered in abstract; it has to be gathered from his service record and service record may comprise of many things, most particularly his Annual Confidential Reports.

8. Though in their reply, the respondents have vouchsafed many things, but the original record produced by the respondents does not support that. The record at Note 3 makes mention of OM no.GAD(Vig)19-Adm/2010 dated 25.10.2010 envisaging the screening of the record of the employees before making recommendations for premature retirement which includes the following:

(a) APR folder of the Government employee with particular reference to the entries in the APRs for the last five years;

(b) Details about any promotions given in favour of the employee in the last three to five years;

(c) Number and nature of complaints if any received by the parent department/office of the employee or the State Vigilance Organization against the official;

(d) Enquiries if any conducted by the State Vigilance Organization or by the department concerned and the outcome thereof;

(e) Cases if any registered/investigated by the State Vigilance Organization, nature of the allegation and the outcome of the investigation;

(f) Adverse reports, if any, received by the CID about the reputation of the official and the gist of such reports supported by evidence;

(g) Gist of irregularities committed by the employee, like in the matter of appointments, etc supported by documents;

(h) Brief mention about failure, if any, in achieving the targets set out for him by the Government / department with supportive details; and

(i) Warning and censures issued to the employee.

So far so good, but then there is nothing on the original record to show that any such service record of the petitioner was called for, placed before the Committee or considered by it. The assertions made by the respondents in para 7 of their reply, as quoted above, are not supported by the original record. The record, on the other hand, speaks of a glaring mechanical approach adopted by the Committee and may be by reason of a machination and a political gimmick, which is more depicted by the press statements attributed by the petitioner in para 7(a) of the writ petition to the Cabinet Spokesman of the Government, which the respondents have conveniently omitted to rebut. Therein the said Cabinet Spokesman had said that the Government had ordered premature retirement of officials including five KAS officers and two Chief Engineers on the recommendations made by a high level committee headed by Chief Secretary. He had further stated that out of 63 officials, 25 were caught red-handed while accepting bribe by the Vigilance Organization; whereas disproportionate asset cases had been established against 11 of them. He had further stated that the remaining 27 were involved in different cases and that the Government decision was a warning shot to tainted and corrupt officials. He had said "we are trying to send a message to employees that anybody who is performing well is in safe hands". Obviously, it speaks of as if the Government needed a scapegoat to give such a warning shot and send the above message. Unfortunately, that is neither the purport nor the object of Article 226(2) of the CSRs and this provision of the Rules cannot be used for such an oblique motive.

9. The recommendation made by the Committee, which is on the original record, makes mention of only the incident of trap against the petitioner regarding which, it is clearly stated that the case was challaned in the court of law. It is unambiguously stated in the recommendations that 'it was reported by the Department that the Annual Confidential Reports (ACRs) of the official are not available'. Not only that, in the penultimate paragraph of the 1½ page recommendation, it is categorically recorded as under:

"The Committee took note of the fact that the official, while holding a post in the Revenue Department, was caught red handed while demanding and accepting bribe as illegal gratification, thereby, substantiating the fact that he has outlived his utility to the public."

It thus becomes axiomatic that there was nothing before the Committee, no evidence, no document, no ACRs, no complaints, no service record, except the report of the Vigilance Organization, Kashmir, that the petitioner had been caught red handed in a trap and that the case was pending adjudication in a court of law. It thus, by no standards, can be said to be fulfilling any of the conditions warranting invocation of the power under Article 226(2) of the CSRs. It may be observed here that it is well settle that power to retire compulsorily a Government servant in terms of service rules is absolute, provided the authority concerned forms a bona fide opinion that compulsory retirement is in public interest. The test is that the opinion must have been formulated bona fide, that is, it must be founded on subjective satisfaction and such subjective satisfaction must be based on the service record of the employee, supported by material and evidence; it should not be imaginative. In the instant case, the satisfaction recorded by the Committee is clearly imaginative, not based on any material or evidence. No ACR is available with the Committee to adjudge the performance of the petitioner during his service career. The Committee has honestly recorded in its recommendation that it took note of the fact that the official, while holding a post in the Revenue Department, was caught red handed while demanding and accepting bribe as illegal gratification, a case in regard to which is pending adjudication in the court of law. This single instance which is pending adjudication cannot constitute the service record of the petitioner. The impugned order, therefore, is clearly in the nature of a punishment inflicted on the petitioner for his aforesaid allegation of having demanded and accepted bribe. Nothing prevented the Government from holding an enquiry into such allegation / misconduct against the petitioner and awarding the maximum punishment prescribed by rules to him. But they cannot circumvent the procedure established by law and resort to the power under Article 226(2) of the CSRs to award the punishment in other way round.

10. It may be observed here that the cardinal principal laid down by the Supreme Court in Baikuntha Nath Das v Chief Distt. Medical Officer, (1992) 2 SCC 299, is that formulation of an opinion by a competent authority, that a Government Servant is corrupt and, therefore, his premature retirement from Government service is in public interest, is entirely dependent upon his subjective satisfaction. But a competent authority can be led to such a satisfaction only on consideration of the material on record and/or placed before him. It, therefore, presupposes existence of evidence and material germane to the issue, on the basis and consideration of which the competent authority is led to such a satisfaction. Of course, sometimes a Government servant may not generally enjoy a good reputation for honesty and integrity, and it may indeed be difficult to show or prove by positive evidence that he is dishonest, but then his immediate controlling and supervising officer or those officers who have the opportunity to watch his performance from close quarters are always in a position to know the nature and character of his performance and reputation. They ought to record such observations and general remarks with specific details, if any, about the Government servant in his record of service to make the material gatherable therefrom, if and when required. That, of course, is the object and purpose of maintaining the service record of a Government servant, which necessarily mean the yearly assessments made on all the facets of the functioning of a Government servant, i.e., the APRs, especially those recorded by his immediate superior or the initiating officer who mostly has the control over the affairs of the reported officer and, therefore, has the first hand information about his conduct and performance as a public servant. The record of service would also include his service book containing the entries of the promotions earned by him; the record of the important positions assigned to, and held by, him; punishments, if any, awarded in any departmental enquiry; and more importantly, findings, if any, recorded on a proper enquiry, with which he has been legally associated, in any complaint received against him; convictions, if any, suffered in any complaint of corruption against the public servant, etc. In short, there has to be credible and germane material and evidence to support such a satisfaction; the satisfaction cannot be in abstract and in imagination. This is all the more necessary because while taking action against a Government servant under Article 226(2) of the J&K CSRs, the principles of natural justice are not attracted.

11. Mr. Qayoom, learned counsel for the petitioner, submitted that it being well established that the petitioner was compulsorily retired merely because of his involvement in the criminal case, in view of the law laid down in State of Gujarat v. Suryakant Chunilal Shah, (1999) 1 SCC 529, it was highly improper on the part of the Government to do so because involvement of a person in a criminal case does not mean that he is guilty. In para 27 of the above judgment, the Supreme Court observed as under:

"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."

12. In the instant case, as mentioned earlier, there was no material before the Committee on the basis of which a reasonable opinion could be formed that the petitioner had outlived his utility as a government servant or that he had lost his efficiency and had become a dead wood. The Committee constituted by the Government had made recommendation to compulsorily retire the petitioner merely on account of his involvement in the mentioned criminal case. Therefore, in view of the law laid down by the Supreme Court, as referred to above, the impugned order cannot be sustained in law.

13. In light of the above, the impugned Government order no.901-GAD of 2015 dated 30.06.2015 cannot be said to be an order having been passed in public interest. It, therefore, cannot be sustained. It is, accordingly, quashed. Resultantly, the petitioner shall be reinstated in service. He shall be entitled to all service benefits during the intervening period which would have accrued to him in normal course, but for the impugned order. The writ petition is, accordingly, allowed.

14. No order as to costs.

15. The original records produced by the learned State counsel are returned to him in the open Court.

(Ali Mohammad Magrey) Judge Srinagar, 20.04.2017 Syed Ayaz Hussain, Secretary

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Jammu & Kashmir High Court - Srinagar Bench