Jammu & Kashmir High Court - Srinagar Bench
State Of J&K; And Ors. vs Abdul Majid Wani on 6 October, 2017
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
LPA No. 95/2017
Date of decision: 06/10/2017
_______________________________________________________________
State of J&K & ors. Vs. Abdul Majid Wani.
Coram:
Hon'ble Mr. Justice Badar Durrez Ahmed, Chief Justice.
Hon'ble Mr. Justice Sanjeev Kumar, Judge.
Appearing counsel:
For Appellant(s) : Mr. Jahangir Iqbal Ganaie, Advocate General with
Mr. M. A. Beigh, AAG and Mr. Muzaffar Nabi Lone,
GA.
For Respondent(s) : Mr. M.A. Qayoom, Advocate.
(i) Whether to be reported in Yes
Law Journals etc.
(ii) Whether approved for publication
in Press. Yes
__________________________________________________________________________________ Sanjeev Kumar, J:
1. The respondent-writ petitioner at the relevant time was working as Patwari in Patwar Halqa, Nunner, Ganderbal. On the allegations of corruption, FIR No. 01 of 2010 was registered in Police Station, Vigilance Organization, Kashmir on 7th January, 2010. Accordingly, the Vigilance Sleuth laid a trap to nab the respondent demanding and accepting the bribe red handed. The respondent was found to have demanded and accepted Rs. 5,000/- as bribe from the complainant Sh. Ghulam Hassan Wani and was thus caught red handed by the members of the trap team. The matter was investigated and it was prima facie established that the accused- respondent had demanded and accepted bribe from the complainant and had, therefore, committed offences punishable under LPA No. 95/2017 Page 1 of 19 Section 5 (1) (d) read with Section 5 (2) of the Jammu and Kashmir Prevention of Corruption Act, Svt. 2006 and Section 161 RPC. The matter was thus placed before the Government for sanction which was accorded by the Government vide Government Order No. 64-GAD (Vig) of 2010 dated 13th October, 2010.
The Challan was ultimately presented against the respondent in the competent Court of jurisdiction which is stated to be still pending. Due to his involvement in the aforesaid case, the respondent was also arrested and remained in custody beyond the period of 48 hours. He was, therefore, placed under suspension. The suspension of the respondent along with other delinquent officials was reviewed by the Committee constituted by the Government and vide order No. FC (Adm)/20 of 2011 dated 28th April, 2011, the respondent amongst others was reinstated with a rider that he would not be given any sensitive posting till the criminal case pending against him was decided in the Court.
2. It appears that the Government, with a view to weed out the corrupt and inefficient government servants from service and to maintain high standards of efficiency, constituted a committee of officers headed by Chief Secretary of the State, vide Government Order No. 17-GAD (Vig) of 2015 dated 20th May 2015. The Committee aforesaid held its deliberations firstly on 21 st May, 2015 then on 25th May, 2015, 11th June, 2015 and finally on 26th June, 2015 and took the decision with regard to compulsory retirement of several government officials including the respondent. It is averred that while making recommendations for the pre-mature retirement of the officials whose conduct had come under consideration of the Committee, the provisions of Article 226 (2) of the J&K Civil Service Regulations and OM No. GAD (Vig) 19- Adm/2010 dated 25th October, 2010 were adhered to. It is further averred that the Committee on consideration of record observed that the respondent did not enjoy a good reputation in public due to his consistent conduct over a period of time and that the respondent was caught red handed while demanding and accepting the bribe in a trap laid by the Vigilance Sleuth and, therefore, his was LPA No. 95/2017 Page 2 of 19 a fit case for compulsory retirement. It is, however, not in dispute that neither the APRs of the respondent nor his other service record viz., service book etc. was made available to the Committee and the decision to compulsorily retire the respondent was taken merely on the basis of his involvement in a corruption case which had been registered against him when he was caught red handed while demanding and accepting the bribe during a trap laid by the Vigilance Organization. Additionally, the general reputation of the respondent too was taken into consideration.
3. Government Order No. 901-GAD of 2015 dated 30.06.2015 whereby the respondent was compulsorily retired from government service with effect from 01.07.2015 purportedly in exercise of powers conferred under the provisions of Article 226 (2) of J&K Civil Service Regulations was assailed by the respondent in the writ petition, i.e., SWP No. 1597/2015. The Single Bench of this Court accepted the writ petition and quashed the impugned order of compulsory retirement of the respondent vide its Judgment dated 20 th April, 2017. The State is in appeal before us against the aforesaid Judgment.
4. Learned Advocate General appearing for the State has assailed the judgment of the learned Single Judge, inter alia, on the following grounds:-
(a) That the order of compulsory retirement is neither punitive nor stigmatic and is based on subjective satisfaction of the employer.
That being so, contends the learned Advocate General, the scope of judicial review is very limited and the Court would interfere only on the ground of non-application of mind or if it is mala fide, punitive, arbitrary or there is non-compliance of statutory provisions.
(b) That in view of the involvement of the respondent in a corruption case which was registered against him in a trap laid by the Vigilance sleuth wherein he was caught red handed while LPA No. 95/2017 Page 3 of 19 demanding and accepting the bribe, the integrity of the respondent had become highly doubtful and his continuance in service was highly pre-judicial to public interest and efficiency in administration.
(c ) That the decision to retire the respondent compulsorily was taken in view of his involvement in a criminal case of corruption in which he was found involved in a trap laid by the Vigilance Sleuth and, therefore, would fall within the exceptions carved out in paragraph 27 of the Judgment of the Supreme Court rendered in the case titled State of Gujrat v. Suryakant Chunilal Shah, (1999) 1 SCC 529, which Judgment has been wrongly relied upon by the learned Single Judge to quash the order of compulsory retirement of the respondent.
(d) That apart from his involvement in a criminal case of corruption, the Committee has also observed that the respondent did not enjoy a good reputation in the public due to his consistent conduct over a period of time and therefore came to the conclusion that the continuance of the respondent in service was not in public interest and, therefore, he was required to be weeded out.
5. In support of his submissions, learned Advocate General relied upon the observations made by the Supreme Court in paragraph 27 of the judgment in State of Gujrat v. Suryakant Chunilal Shah, (1999) 1 SCC 529.
6. Per contra, Mr. M.A.Qayoom, Advocate appearing for the respondent, while rebutting the submissions made by the learned Advocate General, sought to support the Judgment of learned Single Judge by submitting that mere registration of a criminal case or even the pendency of criminal Challan against an employee cannot be made the sole basis of retiring a person compulsorily before he actually attains the age of superannuation. He thus submitted that LPA No. 95/2017 Page 4 of 19 formulation of an opinion by the competent authority to retire a government servant compulsorily in public interest is though dependent upon his subjective satisfaction yet such satisfaction can only be arrived at on consideration of relevant material placed before it and in doing so, the competent authority ought to consider the whole service record of the government servant before coming to the conclusion as to whether such employee has turned into 'dead wood' or is a person of doubtful integrity. He, therefore, submitted that mere registration of a criminal case cannot lead to the conclusion that the respondent is a person of doubtful integrity or that he has outlived his utility in the government service. Registration of an FIR and even presentation of Challan is only on the basis of allegations which are yet to be proved in a competent court of law in a full- fledged trial. He, therefore, submitted that compulsory retirement could be used as a substitute for such criminal prosecution and, therefore, the order of compulsory retirement impugned in the writ petition was passed for a collateral purpose and, therefore, the Judgment of the learned Single Judge cannot be faulted. The learned counsel has also referred to the developments that have taken place after the presentation of the Challan in the court of law. He submitted that the sanction to prosecution was granted by the Government on 13th October, 2010 and immediately thereafter the Challan was presented in the Court of law but despite a lapse of more than seven years, the prosecution has only examined two witnesses. He has further submitted that the fact that the respondent was placed under suspension immediately upon registration of a criminal case against him but his suspension was reviewed and he was subsequently reinstated on 28th April, 2011 are also relevant factors to be considered while deciding as to whether the case of the respondent falls within the exceptions carved out in paragraph 27 of the judgment of Suryakant Chunilal Shah's case (supra).
6. Learned counsel for the respondent thus concluded his arguments by submitting that the satisfaction arrived at by the competent authority was based LPA No. 95/2017 Page 5 of 19 on no material and, therefore, the order of compulsory retirement impugned in the writ petition was bad in the eyes of law and had been rightly struck down by the learned Single Judge.
7. In support of his submissions, the learned counsel for the respondent relied upon the following Judgments:-
(i) (1992) 2 SCC 299; Baikuntha Nath Das And Anr vs Chief Distt. Medical Officer, Baripada and another,
(ii) (1999) 1 SCC 529; State of Gujrat v. Suryakant Chunilal Shah,
(iii) (2012) 3 SCC 580; Nand Kumar Verma v. State of Jharkhand,
(iv) (2013) 3 SCC 514; Rajesh Gupta v. State of J&K (2016) 1 SLJ 377; Khurshid Anwar Shah v. State of J&K and others, and AIR 1970 SC 852; Pushkar Mukherjee & Ors vs The State Of West Bengal.
8. We have heard learned counsel for the parties and given out thoughtful consideration to the rival contentions.
9. Compulsory retirement in service jurisprudence has two meanings. In some disciplinary rules, compulsory retirement is punitive in nature and one of the penalties that may be inflicted on a government servant consequent upon finding of guilt recorded in the disciplinary proceedings. Such penalty necessarily involves stigma and can be inflicted after following due procedure prescribed by the relevant rules and in consonance with principles of natural justice. The delinquent public servant would also be entitled to the protections as envisaged under Article 311 of the Constitution of India which is in pari materia to Section 126 of the Constitution of Jammu and Kashmir. Then there are several service rules, such as Article 226 (2) of the Jammu and Kashmir Civil Service Regulations which confer upon the Government an absolute but not arbitrary right to retire a government servant on his attaining a particular age or on completion of a certain number of years of service on formulation of an opinion that it was necessary to compulsorily retire him in public interest. In LPA No. 95/2017 Page 6 of 19 such a case, compulsory retirement is neither a punishment nor a penalty. The person compulsorily retired in public interest does not face any stigma nor does it entail any loss of retiral benefits. So long as the opinion forming the basis of order of compulsory retirement is formed bona fide on the basis of rational material and in public interest, the same cannot be ordinarily interfered with by the Court. It can only be interfered with, if it is mala fide based on no material or on collateral grounds or having been passed by the authority not competent to do so. The object of compulsory retirement is only to weed out the dead wood, who have outlived their utility for the administration and or of persons of doubtful integrity, retention of whom is only to the prejudice of efficient administration.
10. Right from the emergence of service jurisprudence, the law with regard to the compulsory retirement has been continuously evolved by judicial precedents. The object and the purpose for which the sovereign power of the Government to retire public servants compulsorily to weed out inefficient and persons with doubtful integrity was succinctly laid down by the Apex Court in Baikuntha Nath Das and another v. Chief District Medical Officer, Baripadqa and another, (1992) 2 SCC 299. The principles of law laid down in the aforesaid Judgment have been reiterated and even amplified in a series of judgments that have been followed in Baikuntha Nath Das's case.
11. As noted above, the State of Jammu and Kashmir in its Service Rules which are issued in the form of Civil Service Regulations has enacted a specific provision for dealing with the compulsory retirement of the public servants. The compulsory retirement provided in the Civil Service Regulations of the State is only aimed at weeding out the corrupt and inefficient public servants and is not intended to be resorted to by way of a penalty and, therefore, does not require anything more than formulation of an opinion that it is in public interest to do so. For facility of reference, the provisions of Articles 226 (2) of CSR, may be reproduced hereunder:
LPA No. 95/2017 Page 7 of 19"226 (2) notwithstanding anything contained in these Regulations Government may, if it is of the opinion that it is in the public interest to do so, require any Government servant other than the one working on a post which is included in Schedule II of these Rules, to retire at any time after he has completed 22 years/44 completed six monthly period of qualifying service or on attaining 48 years of age; provided that the appropriate authority shall give in this behalf a notice (in one of the forms prescribed in annexures A and B hereto as the case may be), to the Government servant at least 3 months before the date on which he is required to retire or 3 months of pay and allowance in lieu of such notice. Such a Government servant shall be granted pensionary benefits admissible under these rules on the basis of qualifying service put in by him on the date of such retirement."
12. It may be pertinent to take note that with a view to exercise the power of compulsory retirement vested in the Government under Article 226 (2) of CSR in a just, fair and not arbitrary manner, the Government has issued Instructions which form part of the Regulation 226 (2) of CSR in terms of SRO 246 dated 30th June, 1999. It would be appropriate to reproduce these Instructions as well:
"Government Instructions :- Levels at which screening should be conducted for Non-Gazetted Employees.
1. 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 LPA No. 95/2017 Page 8 of 19 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.
2. 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.
3. 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.
4. 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.
1. 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.
2. 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:LPA No. 95/2017 Page 9 of 19
* 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.
13. To supplement these Instructions and to provide for a uniform procedure, the Government in the General Administration Department has also issued Office Memo, i.e., 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, which are now part of Article 226 (2) of CSR, or in the shape of Office Memo issued by the GAD are meant to be adhered to by the Screening Committee while evaluating the cases of officers put before it for taking a decision with regard to their compulsory retirement. A bare perusal of the norms to be followed by the Screening Committee while scrutinizing the cases of the employees for compulsory retirement would show that for establishing that the integrity of a government servant is doubtful, a number of factors are required to be considered, like the number and nature of complaints received, if any, against the government servant pertaining to 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 LPA No. 95/2017 Page 10 of 19 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 thus clear that it is on the basis of consideration of the aforesaid factors, that the Government has to formulate an opinion as to whether the government servant under consideration is a person of doubtful integrity and his continuance in service is highly pre-judicial to efficient administration and public interest. The decision to compulsorily retire a government servant can thus be taken upon consideration of the relevant material referred to in the guidelines (supra) and the principles laid down from time to time in several judicial pronouncements. The Instructions issued by the Government to regulate the exercise of power under Article 226 (2) of CSR are binding and any decision taken in derogation thereof would suffer from vice of arbitrariness and be vitiated on account of non-application of mind. In this regard, it would be appropriate to refer to the observations of the Supreme Court in paras 8 and 18 of the case titled Swaran Singh Chand v. Punjab State Electricity Board and others; (2009) 13 SCC 758. Paragraph 8 of the Judgment reads thus:
"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 LPA No. 95/2017 Page 11 of 19 the procedural sword shall perish with that sword."
14. In paragraph No. 18 of the aforesaid Judgment, it was held thus:-
"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."
15. The aforesaid position of law was reiterated by the Supreme Court in a later judgment titled Madhya Pradesh State Cooperative Dairy Federation Lrd. And another v. Rajnesh Kumar Jamidar, (2009) 15 SCC 221. In paragraph 43, the Supreme Court held thus:-
"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. ........."
16. 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 further be relevant to refer to the observations made by the Supreme Court in case titled M.S.Bindra v. Union of India and others; (1998) LPA No. 95/2017 Page 12 of 19 7 SCC 310. The observations made in paragraph 13 of the Judgment are very pertinent and are, therefore, reproduced hereunder:-
"13. While reviewing this case from the next angle for judicial scrutiny, i.e., want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials, no reasonable man would reach such a conclusion. While evaluating the materials, the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim 'nemo firut repente turpissimus' (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"."
17. Similarly, in the case of State of Gujrat v. Umedbhai M. Patel, (2001) 3 SCC 314, the Supreme Court was pleased to laid down definite principles of law relating to compulsory retirement. Paragraph 11 of the Judgment wherein these principles were summarized reads thus:-
"11. The law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarized thus:LPA No. 95/2017 Page 13 of 19
(i) Whenever the service of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even uncommunicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be imposed as a punitive measure."
18. The position of law as enumerated hereinabove, was once again reiterated in a case from Jammu and Kashmir State titled Rajesh Gupta v. State of Jammu and Kashmir, (2013) 3 SCC 514. Paragraph 27 of the Judgment of Suryakant Chunilal Shah (supra) which has been relied upon by both the sides and is also the basis of the judgment of learned Single Judge, is also reproduced hereunder:-
"27.The whole exercise described above would, therefore, indicate that although there was no material on the basis LPA No. 95/2017 Page 14 of 19 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 allegedly committed by the employee."
19. In the backdrop of the legal principles laid down by the Supreme Court in the aforementioned Judgments, the contentions of the learned Advocate General appearing for the State may be examined.
20. Coming to the contention of learned Advocate General that registration of a criminal case of corruption against the respondent and that, too, pursuant to a trap laid by the Vigilance Organization was sufficient material for the Government to formulate an opinion that it was not in public interest to permit the respondent to continue in service and therefore the order of compulsory retirement impugned in the writ petition was legally valid. In this regard, it may be stated that if this contention of the State is accepted then it would mean that whenever an employee is booked for commission of offences under the provisions of Prevention of Corruption Act pursuant to a trap laid, it would be presumed that the such public servant would be ultimately or at least invariably be convicted and thus would necessarily entail his dismissal. We are afraid, such hypothesis or supposition cannot be countenanced. Had it been so, the rule making authority would have normally provided in the rule itself that if an employee is booked for a particular type of offence committed, under specified circumstances, he would lose his appointment or that he could be presumed to LPA No. 95/2017 Page 15 of 19 be a person of doubtful integrity and, therefore, liable to be compulsorily retired. For another reason also, the contention of learned Advocate General cannot be accepted, in that, Regulation 226 (2) of CSR read with Instructions appended thereto lay great emphasis on consideration of the whole service record of the public servant which may be available in different forms like APRs, service book, personal file containing complaints received against such public servant from time to time etc. While considering the desirability of retention or otherwise of a public servant whose conduct has come under scrutiny, a criminal case including the one registered upon trap laid by the Vigilance Organization would definitely form relevant material, as held by the Supreme Court in Suryakant Chunilal Shah's case (supra). But, to say that the Government can retire a public servant compulsory solely on the basis of registration of a criminal case of corruption, may be pursuant to a trap laid by the Vigilance Sleuth, would be abhorrent to the very object of compulsory retirement which as has been authoritatively held in a catena of judicial decisions, cannot be punitive nor can it be resorted to as a substitute for a regular inquiry or a criminal trial. As is rightly held, mere registration of an FIR is not proof of guilt which can only be established in a full-fledged trial to be held in a criminal court. The position would not be much different if the criminal case is registered pursuant to a trap laid by the Vigilance Organization or some other investigating agency. Therefore, the distinction sought to be drawn by the learned Advocate General relying on para 27 of the Judgment of Suryakant Chunilal Shah's case (Supra) is neither supported by any logic nor the same is in consonance with the scheme of compulsory retirement and the concept as generally understood and elaborately laid down in Service Rules and the principles enunciated through judicial pronouncements. The decision to compulsorily retire a public servant has, therefore, to be on the cumulative assessment of his whole service record attaching more importance to his service record of the previous few years preceding the decision. As held in the LPA No. 95/2017 Page 16 of 19 judgments (supra), the compulsory retirement cannot be resorted to as a punitive measure and as a substitute for a regular departmental enquiry or criminal prosecution. If such a decision is taken on the basis of mere registration of a case, may be a trap case, ignoring the other service record of the public servant, the same would be vitiated on account of non-application of mind and also on account of being a decision taken for a collateral purpose.
21. That being so, the contention of learned Advocate General that the Government is competent to formulate an opinion with regard to compulsory retirement of a public servant solely on the basis of registration of an FIR or a criminal case, under certain set of facts and circumstances like apprehending the public servant demanding and accepting bribe red handed in a trap laid for the purpose, cannot be accepted.
22. The other contention of learned Advocate General that apart from the criminal case registered against the respondent under the Jammu and Kashmir Prevention of Corruption Act, the Screening Committee also took into consideration that the respondent did not enjoy a good reputation due to his consistent conduct over a period of time, is equally devoid of any merit. First of all, as admitted by the learned Advocate General that there was no material before the Committee to come to such a satisfaction and secondly, even if it is accepted, as contended by the learned Advocate General, that the assessment of the Committee was on the basis of spoken reputation, in that eventuality also, it was mandatory for the Committee to have spelt out the same in the minutes of meeting conducted for the purpose.
23. In response to the query put by this Court, the learned Advocate General fairly conceded that there is no such observation or finding recorded by the Committee nor is there any communication of any controlling officers of the 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 LPA No. 95/2017 Page 17 of 19 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).
25. At the cost of repetition, it may be stated that the appellants not only ignored the well settled legal principles but ignored their own instructions as well and thus acted arbitrarily. In these circumstances, it cannot be said that appellants had any relevant material on the basis of which a reasonable opinion could be formed that respondent had outlived his utility as a Government servant or that he had lost his efficiency or that he was person of doubtful integrity, whose continuance in service was prejudicial to public interest. Pendency of a criminal case against a public servant, particularly one registered pursuant to a trap laid by a Vigilance Sleuth may be a relevant factor but cannot be made the sole basis for issuance of order of compulsory retirement. The mandate of Rules providing for consideration of the whole service record including pendency of a criminal case is the sine-qua-non for a valid exercise of LPA No. 95/2017 Page 18 of 19 power of retiring a public servant compulsorily. The observations made in para '27' of Suryakant Chuni Lal Shah's case (supra) needs to be understood in the context of its facts as also the scheme of Rules providing for compulsory retirement.
26. Viewed thus, we do not find any legal infirmity in the Judgment impugned, which may call for any interference in this intra court appeal. The appeal, therefore, fails and the same is dismissed accordingly. No order as to costs.
(Sanjeev Kumar) (Badar Durrez Ahmed)
Judge Chief Justice
Srinagar:
06/10/2017
Tilak, Secy.
LPA No. 95/2017 Page 19 of 19