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Jammu & Kashmir High Court

Robkar vs Sanjeev Verma Commissioner Secretary ... on 27 May, 2024

Author: Wasim Sadiq Nargal

Bench: Wasim Sadiq Nargal

                                                               Sr. No. 8 & 218

        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU

                                               ROBSW No. 4/2024
                                               c/w
                                               CCP(S) No. 363/2022


ROBKAR                                            ....Petitioner(s)/Appellant(s)

                 Through :- Mr. Z. A. Shah, Senior Advocate with
                            Mr. J. I. Balwan, Advocate.
         V/s
Sanjeev Verma Commissioner Secretary GAD,                     ....Respondent(s)
Civil Secretariat, Jammu.
                Through :-    Mr. Eishaan Dadhichi, GA.

Coram: HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
                                 ORDER

27.05.2024

1. The record reveals that in terms of order dated 18.03.2024, the respondents were directed to file fresh compliance report/statement of facts as regards payment of consequential benefits to the petitioner by the next date of hearing, failing which, Commissioner/Secretary, GAD, Government of UT of J&K (inadvertently, recorded as Additional Secretary, GAD in the order) was to appear in person before this court.

2. Since statement of facts/compliance report was not filed by the respondents nor the concerned Secretary has appeared in person in terms of the direction passed by this court mentioned supra, the Registry was directed to frame Robkar against the said respondent asking him to show cause as to why he should not be proceeded against and punished under the provisions of the Contempt of Courts Act.

3. Besides, the court observed that the respondent did not intend to comply with the judgment/order of the writ court which has attained finality till 2 ROBSW No.4/2024 c/w CCP(S) No.363/2022 Apex Court of the Country as the appeal preferred by the State before the Division Bench of this court and also before the Apex Court has been dismissed.

4. Today when the Robkar along with the contempt petition is taken up, it has been submitted that reply has been filed on behalf of the contemnor-Mr. Sanjeev Verma, Commissioner/Secretary to Govt., General Administrative Department, copy of the same has been furnished to this court which is taken on record.

5. Para 5 of the said reply would show that pursuant to the aforesaid O.M. dated 03.11.2023, a part of the pending salary arrears of the petitioner extending from 01.07.2015 to 31.03.2019 amounting to Rs. 41,24,214/- has been drawn and credited in the account of petitioner, as per the availability of budget in the financial year 2023-24. With regard to the settlement of the salary arrears of the petitioner pertaining to the remaining period i.e. 01.04.2019 to 13.09.2023, vide O.M. No. GAD-SEROKAS/307/2022 dated 06.05.2024, Finance Department has been requested to authorize additional funds to the tune of Rs. 60.00 lakhs in favour of General Administration Department out of Interim Budget to meet out the salary arrears of the petitioner, as no provision was kept in B.E. -2024-25 for the said purpose owing to the fact that the said claim turned up after the budget discussions with the Finance Department were already over.

6. The respondents while filing reply to the Robkar has further pleaded that with regard to release of the consequential benefits in favour of the petitioner, other than the monetary as stated above, the officer has to be cleared from the Vigilance angle. It is also the stand of the respondent that an FIR has been registered against the petitioner bearing No.13/2002 and inquiry vide JSC SLK-58/2004 is still pending disposal.

c/w CCP(S) No.363/2022

7. Further stand, which has now been taken by the respondent in the reply affidavit is that after thorough deliberations, the Transport Department, J&K and the representative of the Transport Department were instructed to expedite the submission of Action Taken Reports for FIR No. 13/2002 and JSC SLK-58/2004.

8. The respondents, with a view to fortify their claim, have also placed on record the Record note of the meeting chaired by Commissioner/Secretary to the Government, General Administration Department, held on 16.05.2024 in which it has been concluded as under:

"Conclusion:

After thorough discussion, the chair instructed the Transport Commissioner and the representative of the Transport Department to expedite the submission of action taken reports for FIR No. 13/2002 and JSC-SLK-58/2004. These reports concern the period when Mr. Bhumesh Sharma was part of the J&K Transport Services, prior to his induction into the Jammu and Kashmir Administrative Services. The chair stressed the importance of resolving these issues quickly, noting that the matter is currently sub-judice. Moreover, the representative of the ACB was requested to provide assistance to the Transport Department by way of providing documents related to the case, if any required by the department. Follow-up:

A follow-up meeting will be scheduled to review the progress on the pending Action taken reports and any further actions required."

9. At this stage, learned senior counsel, Mr. Z A Shah submits that the respondents have filed a false affidavit before this court in the light of the fact that the FIR bearing No.13/2002 in which the name of the petitioner was not figuring at all has since been closed and the departmental enquiry was initiated against the officer incharge at that relevant point of time and this could not be a basis or a stumbling block for not granting consequential benefits to the petitioner.

c/w CCP(S) No.363/2022

10. Mr. Shah further submits that insofar as JSC-SLK-58/2004 is concerned, the same also stands closed.

11. Mr. Shah further submits at the Bar that as on date, no inquiry is pending against the petitioner, which could come in the way of the respondents to implement the judgment passed by the learned Single Judge which is sought to be complied with through the medium of instant contempt petition.

12. The learned senior counsel with a view to substantiate his claim, further submits that since the judgment passed by the learned Single Judge is of 07.02.2017 and the registration of FIR as well as the inquiry has already been dealt with in detail by the learned Single Judge. Thus, the issue, which has already been clinched by the learned Single Judge and upheld up to the Hon'ble Supreme Court, cannot be reopened at this stage by filing a false affidavit.

13. The respondents thus have scant respect to the order/judgment passed by this court from time to time and are adopting dilly-dally tactics just to frustrate the judgment which has been upheld by the Apex Court.

14. Mr. Shah has placed on record a copy of the Government order No.1091-JK(GAD) of 2023 dated 08.09.2023, a perusal whereof, reveals that Government Order No.868-GAD of 2015 dated 30.06.2015 was rescinded abinitio with the following observations which are reproduced as under:

i. The officer shall be entitled to payment of salary and other service benefits to which he would have been entitled to in the absence of Government Order No.868- GAD of 2015 dated 30.06.2015. However, the consequential service benefits shall be subject to the outcome of departmental proceedings/court case pending, if any, against the Officer. ii. The payment of salary in terms of the instant Government Order shall be subject to the deduction of three month's salary and allowances paid to him at the time of premature retirement in lieu of notices as envisaged under Article 226(2) of J&K CSRs.

iii. The officer shall furnish an undertaking to the effect that he was not gainfully employed anywhere during the period w.e.f. 01.07.2015 (date of premature retirement) till date (issuance of rescindment order). iv. The officer upon re-instatement shall submit his joining report to his Administrative Department for further posting."

15. Mr. Shah further submits that the order which has been passed by the present Commissioner/Secretary to Government against whom Robkar has been framed, has admitted that the petitioner is entitled to the payment of salary and other service benefits to which he would have been entitled in absence of the Government Order No.868-GAD of 2015 dated 30.06.2015. However, the order reveals that the consequential service benefits shall be subject to the outcome of the departmental proceedings/court case pending if any against the officer. Since the learned senior counsel has made categoric statement before this court that as on date, no departmental proceedings/court case is pending against the officer, thus, the respondents are under legal obligation qua the petitioner to have implemented the judgment in toto by releasing the consequential benefits as directed by the learned Single Judge vide order /judgment dated 07.02.2017, which has assumed finality.

16. At this stage, Mr. Eishaan Dadhichi, learned counsel appearing on behalf of the respondents has drawn attention of this court to the order passed by the Division Bench in which the Division Bench while disposing of the writ petition preferred by the State has been pleased to observe as under:

14. However, as regards the allegations leveled by the writ respondent against the writ petitioner, the State and its officers at the helm of affairs if are fair enough and have a will, and do not intend to provide a safe passage either to writ petitioner or the then officials/officers of Vigilance Organization, are free to go ahead with such inquiry, if they deem fit, and complete the same in a time bound manner 6 ROBSW No.4/2024 c/w CCP(S) No.363/2022 without any excuse on the part of the officers holding such inquiry."

17. From a bare perusal of the operative portion of the Division Bench order, which is reproduced supra, it is apparently clear that the Division Bench has been pleased to observe that insofar as the allegations leveled by the State against the writ petitioner is concerned, the State and its officers at the helm of affairs if are fair enough and have a will, and do not intend to provide a safe passage either to writ petitioner or the then officials/officers of Vigilance Organization, are free to go ahead with such inquiry, if they deem fit, and complete the same in a time bound manner without any excuse on the part of the officers holding such inquiry.

18. Admittedly, the aforesaid order has been passed by the Division Bench on 19.10.2022 and till date, the respondents have not concluded any such inquiry which could be a stumbling block for granting the relief to the petitioner as already granted by the writ court and instead the respondents have issued a direction to the Transport Commissioner and the representative to expedite the submission of action taken report in FIR No. 13/2002 and JSC-SLK-58/2004, which according to the learned senior counsel for the petitioner have already been closed. Thus, as on date, no such inquiry is pending against the petitioner which could come in the way of the respondents to implement the judgment in its letter and spirit.

19. Confronted with the same, Mr. Dadhichi learned counsel appearing on behalf of the respondent-contemnor (Mr. Sanjeev Verma, Commissioner/ Secretary to Govt. GAD), on the instructions being imparted by the concerned respondent-contemnor, who has assured that the order/judgment passed by this 7 ROBSW No.4/2024 c/w CCP(S) No.363/2022 court dated 17.02.2017 will be implemented in its letter and spirit within one week positively.

20. In the light of the assurance extended by the learned counsel appearing on behalf of the respondent-contemnor on the instructions of the concerned respondent, the proceedings in the instant contempt petition as also in Robkar are deferred for the time being and the matter is adjourned for 05.06.2024, on which date, the respondent shall come with the final compliance report of the judgment in question. Let fresh compliance report be filed on or before the next date of hearing positively, failing which this Court will be constrained to initiate coercive measures against the respondent (contemnor).

21. List on 05.06.2024.

22. In the meantime, Mr. Z A Shah, learned senior counsel appearing on behalf of the petitioner may file rejoinder to the objections so filed by Mr. Eishaan Dadhichi, GA against the Robkar framed by this Court.

(Wasim Sadiq Nargal) Judge Jammu:

27.05.2024 Raj Kumar