Jammu & Kashmir High Court - Srinagar Bench
Bashir Ahmad Shah & Others vs State Of J&K & Others on 25 July, 2019
Author: Rashid Ali Dar
Bench: Rashid Ali Dar
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP No.1353/2013
Reserved on:09.05.2019
Pronounced on:25.07.2019
Bashir Ahmad Shah & others ...Petitioner(s)
Through: Mr. Altaf Haqani, Advocate
V/s
State of J&K & others. ...Respondent(s)
Through: Mr. Irfan Andleeb, Dy. AG.
CORAM:
=
Hon'ble Mr Justice Rashid Ali Dar, Judge.
JUDGMENT
RASHID ALI DAR, J
1. Petitioners, in terms of petition earlier filed on 23.07.2013, projected their grievance with regard to withholding of their salary from the month of April, 2011 along with arrears and sought a writ or direction upon the respondents to release the same and not to cause any interference in the service of the petitioners. It is being canvassed in terms of the writ petition that the petitioners were borne on the regular establishment of PHE Department and were ordered to be regularized w.e.f. 01.04.1995 in terms of order Nos.4653- 55, 2908-10 and 2916-18 dated 30.10.1996. The administrative exigency, according to them, led to their transfer from one place to another and so it is being stated that:
(a) The respondents ordered transfer of the staff posted at various villages under the immediate administrative control of respondent No.4 and 5.
The staff so transferred was ordered to report for duties temporarily on deputation to respondent No.5 who shall draw their salary from the establishment of respondent No.4 after production of attendance SWP No.1353/2013 MOHAMMAD ALTAF BHAT 2019.07.29 14:15 Page 1 of 23 I attest to the accuracy and integrity of this document 2 certificates from the office of respondent No.5. The said arrangement was ordered to subsist till orders for transfer of the staff along with their posts and funds are issued by respondent No.2 to 5. In this behalf, the respondent No.3 issued an order bearing No.02 of 2008-09 dated 17.06.2008 followed by an order of respondent No.4 vide letter No.4214 dated 09.09.2008 and an order of respondent No.3 vide No.SE/Estt/5302-04 dated 13.10.2010.
(b) In terms of order dated 17.06.2008 read with communication dated 09.09.2008, the petitioner No.1 was also ordered to be transferred and to report for duty in the office of respondent No.5 and the petitioner No.1 has since joined the office of respondent No.5 immediately after he was relieved by respondent No.4 on 09.09.2008 and he continues to discharge the duties and responsibilities as were assigned to him from time to time by respondent No.5.
(c) The petitioner No.2 and 3 also were transferred from the administrative control of respondent No.4 and were placed under the control of respondent No.5 and both the petitioners continued to function and discharge their duties as were assigned to them from time to time by the office of respondent No.5. The respondents also released their salary continuously and uninterruptedly till the month of March, 2011.
(d) The respondents, without any rhyme, reason or justification, failed to release the salary of the petitioners since the month of April, 2011. The respondents have not issued any order or conveyed any such order to the petitioners informing them of the reasons for stoppage of their salary since the month of April, 2011. The salary of the petitioners has SWP No.1353/2013 Page 2 of 23 MOHAMMAD ALTAF BHAT 2019.07.29 14:15 I attest to the accuracy and integrity of this document 3 been stopped despite the petitioners have been attending their duties and issuance of relevant certificates by the respondent No.5 testifying their attendance from time to time.
(e) Under law, it is not open to the respondents to with-held salary of the petitioners by unilateral exercise of authority, that too without issuing any order of conveying reasons thereof to the petitioners. Right to salary constitutes right to property under Article 19(1) of the Constitution of India as applicable to the State of Jammu and Kashmir. As a result of with-holding the salary of the petitioners, the respondents have transgressed upon the right to livelihood of the petitioners and violated the fundamental rights guaranteed under Article 14 and 21 of the Constitution of India.
(f) Reference is being made to Annexures P-1 to P-7, to canvass that the petitioners continued on their assignments referred in the petition.
2. In the objections filed on behalf of the respondents earlier on 16.04.2014, the stand taken by respondents is
(i) A complaint against one Mr. Ab. Rashid Rather, Incharge E/C (Establishment Clerk) FBI Division, Tangmarg, was received by Chief Engineer, PHE, Kashmir, for illegal selection/engagement of following employees, namely:
i) Mushtaq Ahmad Dar S/o Karim Dar R/o Kishama Pattan;
ii) Bashir ahmad Malik S/o Sona Malik R/o Pariswani;
iii) Peer Bashir Ahmad S/o Mohammad Yasin R/o Ussan Bangil;
iv) Ab. Rashid Bhat S/o Hamza Bhat R/o Bona Bani;
v) Gh. Mohammad Wani S/o Haji Maqbool Wani R/o Dardepora SWP No.1353/2013 Page 3 of 23 MOHAMMAD ALTAF BHAT 2019.07.29 14:15 I attest to the accuracy and integrity of this document 4 in PHE Department which was endorsed for investigation and report. In the first instance, the pay dues of Mushtaq Ahmad Dar (petitioner No.3) were stopped w.e.f. 04/2011 while as the pay dues of Bashir Ahmad Malik (petitioner No.2) and Bashir Ahmad Shah (petitioner No.1) were stopped w.e.f. 03/2011 pending enquiry while as pay dues of Ab. Rashid Bhat had already been stopped in response to another complaint;
(ii) Keeping in view the nature of the case being very serious, a committee of below named officers was constituted vide office order No.2341 dated 19.07.2012 to investigate the case:
1. Er. Mohammad Shafi Sofi (AEE PHE Sub Division, Tangmarg)
2. Er. Mohammad Iftikhar Nadeem Matoo (Technical Officer to Ex. Engineer)
3. Mr. Gh. Mohammad Dar (Assistant Accounts Officer)
(iii) In the status report submitted by the said Committee, it is shown that as the service books placed on official record of the respondents, the petitioner No.2 and 3 are shown to have been working as daily wagers w.e.f 01.03.1998 and shown converted into regular establishment vide Govt. order No.288 of 1996 dated 26.09.1996 endorsed by Chief Engineer vide his office No.5477/95/7798 dated 25.10.1996 and thereafter working as Helpers on regular establishment up to 31.05.2004 in PHE Division Baramulla. The service particulars, as per the service books, also show the PHE Sub Division Tangmarg has been placed under the control of FBI Division Tangmarg vide Govt. Order No.12 Hyd of 2004 dated SWP No.1353/2013 Page 4 of 23 MOHAMMAD ALTAF BHAT 2019.07.29 14:15 I attest to the accuracy and integrity of this document 5 16.01.2004 and S.E. Hyd order No.290-95 dated 07.04.2004. The service books further show that both officials were working in FBI Division Tangmarg from 01.06.2004 to 31.07.2009 and then transferred to Special Division, Bandipora vide order No.18 of 2009 issued by Superintending Engineer (Hyd) Sopore. Petitioner No.3 has been shown relieved from FBI Division Tangmarg on 17.08.2009 while as petitioner No.2 is shown relieved on 18.08.2009. The service books show that the petitioner No.3 joined Special Division, Bandipora on 18.08.2009 and petitioner No.2 joined Special Division, Bandipora on 20.08.2009 and remained there up to 31.10.2010 and thereafter transferred back to FBI Division Tangmarg vide S. E. order No.5302-04 dated 13.10.2013.
They are shown relieved from Bandipora Division on 30.10.2010. Both the officials are alleged to have joined the FBI Division on 31.10.2010 as per joining reports placed on the official records.
(iv) That Committee also reported that when the service particulars recorded in the service books of alleged officials were cross checked with pay acquaintance rolls and list of the field staff handed over by PHE Division, Baramulla vide No.3589-91 dated 23.08.2004, it was not matching. The pay acquaintance rolls reveal that petitioner No.3 has not drawn any salary from the division from the date PHE Sub Division, Tangmarg, was placed under the control of FBI Division, Tangmarg up to 03/2008 and his salary was drawn from 04/2008 i.e. after a gap of about 35 months. The petitioner No.2 has also not drawn any salary up to 02/2008 and his salary was drawn from SWP No.1353/2013 Page 5 of 23 MOHAMMAD ALTAF BHAT 2019.07.29 14:15 I attest to the accuracy and integrity of this document 6 03/2008 i.e. after a gap of about 34 months, thus making their service record suspicious.
(v) The Committee further reported that the names of alleged officials do not exist in the list of field staff of various carders handed over by PHE Division, Baramulla, to FBI Division, Tangmarg, at the time when PHE Sub Division, Tangmarg was placed under the control of FBI Division Tangmarg vide Govt. Order No.12-Hyd of 2004 dated 16.01.2004 and S. E. Hyd. Sopore's order No.290-95 dated 07.04.2004. Their relieving orders from PHE Division, Baramulla, and their joining report in FBI Division Tangmarg in the year 05- 2004 are neither available nor has it been mentioned in the service books. Regarding verification of service particulars vis-à-vis service books of both the said officials with effect from 1996 up to 20.04.2004, the matter was taken up with Executive Engineer, PHE Baramulla, vide office letter No.2944 dated 03.10.2011 and in response, Executive Engineer, PHE, Baramulla, replied as under:
"The pay acquaintance rolls/records of the Division has been ceased by VOK upto 02/2010 with the result this office is not in a position to verify their service record."
(vi) Regarding petitioner No.1, the Committee reported that as per the service book, the official has been shown working in PHE Division on regular establishment as Assistant Lineman upto 31.08.2008 and transferred to FBI Division Tangmarg at the time when jurisdiction of WSS Kalantra Vizer and Checki Tapper was transferred to FBI Division Tangmarg vide chief Engineer's office order No.PHE/Estt/7980-82 dated 09.07.2008 endorsed by S. E. SWP No.1353/2013 Page 6 of 23 MOHAMMAD ALTAF BHAT 2019.07.29 14:15 I attest to the accuracy and integrity of this document 7 Hydraulic, Sopore, vide No.5693-94 dated 29.07.2008 along with the staff and relieved from Baramulla Division vide No.4212 dated 09.09.2008 as cleared by Ex. Engineer PHE Division, Baramulla in response to the office letter No.2406 dated 17.09.2011. The salary of the said official was drawn regularly with effect from 09/2009 till 03/2010 as verified from pay acquaintance roll. The pay dues of the said official were stopped from the month of 03/2011 after receipt of the complaint pending enquiry. The verification of service records of the petitioner No.1 viz-a-viz service book and pay acquaintance roll from 1996 to 31.08.2008 was also taken up with Ex. Engineer PHE Division, Baramulla, vide office letter No.2944 dated 03.10.2011 and reply was same as conveyed in case of petitioner No.2 and 3
(vii) The appointment of Ab. Rashid Bhat S/o Hamza Bhat R/o Bona Bani stands already declared fraud and illegal through consideration report issued vide No.183-97 dated 11.04.2012 issued by the office of S.E (Hyd) Circle Baramulla HQ Sopore, in another case. Regarding Gh. Mohammad Wani S/o Haji Maqbool Wani R/o Dardpora, it has been submitted that no such person exists on the pay rolls of the respondents.
(viii) The appointment of the petitioners is disputed and, as such, the matter is under investigation and in the first instance, their pay dues have been stopped. The action taken at this stage cannot be said to be violative of Article 19(1) of the Constitution.
SWP No.1353/2013 Page 7 of 23 MOHAMMAD ALTAF BHAT 2019.07.29 14:15 I attest to the accuracy and integrity of this document 8
3. On 24.07.2013, notice had been issued to the other side for appearance and a direction had been issued to the respondents to accord consideration for release of duly earned wages in favour of the petitioners. Thereafter, in terms of order dated 24.11.2014, respondents had been directed to comply with order dated 24.07.2013 and to report positively by next date of hearing. Thereafter, an order has been passed on 24th of February, 2015, in terms of which petition has been admitted and the respondents directed to file fresh compliance report in light of the statement made by learned counsel for the petitioners as regards release of current wages/salary to the petitioners.
4. The compliance report had been, accordingly, submitted by the respondents, which, according to the petitioners, necessitated amendment of the writ petition for which a motion made was accepted and amended writ petition, accordingly, filed, wherein consideration order dated 12.02.2015 was challenged impliedly, while as report of the Committee dated 09.11.2012 (Annexure-P8) in mainly challenged.
5. Having regard to the report of enquiry and its impact on the rights of the petitioners, in the amended writ petition, Para 8-A has been added, wherein petitioners have projected as under:
"8-A. That during the pendency of the writ petition purporting to comply with the order of the Court for releasing of salary of the petitioners, the respondents have passed an order bearing No.6000- 6003 dated 12.2.2015 on the basis of the investigation report bearing No.70/CAP/10 dated 09.11.2012. In terms of the said documents, the respondents have proceeded to hold that the service particulars reflected in their service books on cross check did not match with the Pay Acquaintance Rolls regarding payment of their specific periods, therefore, their pay dues with effect from March, 2011 after receipt of SWP No.1353/2013 Page 8 of 23 MOHAMMAD ALTAF BHAT 2019.07.29 14:15 I attest to the accuracy and integrity of this document 9 complaints till pending enquiry had been stopped. The said orders and the enquiry made by the respondents are legally incompetent inasmuch as the enquiry has been held behind the back of the petitioners without, in any manner whatsoever nature, associating them therein. The respondents while constituting the enquiry committee did not at all convey copy of the alleged complaint nor did they inform the petitioners about the constitution of the enquiry committee of three officers appointed vide order dated 19.07.2012. The petitioners had not been informed about any proceedings as may have been conducted by the enquiry committee. The petitioners do not know about the nature of the records examined by the said enquiry committee on the basis of which conclusions have been drawn nor have the petitioners been associated in such enquiry. The conclusion drawn by the enquiry committee is prejudicial to the interests of the petitioners and had been formulated behind their back.
Admittedly, petitioners after having worked on PDL basis were ordered to be converted into regular establishment as Helpers in the grade of Rs.750-940/ w.e.f. 01.04.1995 vide Government Order No.288 of 1996 dated 26.09.1996 and endorsed vide No.PHE/Estt/5477/95/ 7798-7817 dated 25.10.1996. As may be reflected by the service records of the petitioners, their services were verified from time to time by the competent authority/drawing and disbursing officers. The petitioners were as well granted the benefit of grade revision in pursuance of SRO 18 dated 19.01.1998 and they were ordered to be placed in the revised pay as on 31.12.1995 in the pay scale of 2550-55- 2660-60-3200/ under the orders of the competent authority/drawing and disbursing officers fixing their increments as on 01.04.1999. The petitioners as well were granted first time bound promotion in terms of SRO 14 of 1996 read with SRO 311 of 1997 w.e.f. 01.10.2000. Accordingly, under the orders of the competent authority/drawing and disbursing officers, their pay was fixed in the First Higher Standard Pay Scale 2610-3540 as on 01.10.2000. The petitioners were as well re- designated as Assistant Linemen and subsequently were transferred to SWP No.1353/2013 Page 9 of 23 MOHAMMAD ALTAF BHAT 2019.07.29 14:15 I attest to the accuracy and integrity of this document 10 FBI Division, Tangmarg, in terms of the orders bearing No.02 of 2008- 09 dated 17.06.2008 read with order No.7980-82 dated 19.07.2008 consequent to shifting of their Sub-Division along with staff. The petitioners have drawn the salary regularly till the month of March, 2011, without any break including for the period for which the respondents have mentioned that no salary was drawn by them in terms of the Acquaintance Rolls. The respondents have either not taken into consideration the relevant records reflecting the salary having been paid to the petitioners or have suppressed or concealed or misplaced such records. The consideration order passed by the respondents is arbitrary in nature."
6. There has been no change in the relief clause except to the extent that the impugned enquiry report/consideration Order-Annexure-P8 be declared incompetent, irrational and arbitrary.
7. In the objections/response to the amended writ petition, the respondents have been categoric in stating that the enquiry was initiated wherein the petitioners herein were asked to participate and to present the documents in support of the contentions raised by them but they failed. Pertinent recitals as referred in paras 2 to 4 of the said response are:
" The impugned order has been passed by the competent authority with complete application of mind to the facts and circumstances of the case. The order is reasoned one and not open to challenge. The contentions raised by the petitioners that the enquiry has been conducted at their back and without issuing them any notice to explain their cause is completely baseless, in view of the fact that the respondents while conducting the enquiry issued notice to all the petitioners and informed them that a complaint duly endorsed by the Chief Engineer, Kashmir PHE Department Srinagar vide his No.2577 dated 03.05.2011 has been received by the office of Executive Engineer in FBI Division, Tangmarg regarding their appointments in PHE Department. The SWP No.1353/2013 Page 10 of 23 MOHAMMAD ALTAF BHAT 2019.07.29 14:15 I attest to the accuracy and integrity of this document 11 Executive Engineer accordingly requested the petitioners to produce all relevant documents in support of the service particulars mentioned in their service books before the Committee members.
In pursuance to order issued by Ex. Engineer, FBI Division vide No.2341-46 dated 19.07.2012, a meeting of the members of the Committee was held on 24.07.2012, wherein it was decided that some relevant documents may be sought from the petitioners whose names figure in the complaint. Accordingly, the petitioners were informed in writing and were given time up to 30th of July for producing these documents. Two persons, Mushtaq Ahmad and Bashir Ahmad attended the office on 25.07.2012 and requested to increase the deadline for few more days so that they can arrange these documents. Meanwhile, it was felt important to find the pay details of these persons and Executive Engineer FBI Division Tangmarg was requested to provide the dates from which they have drawn their salaries and when their salary was stopped.
After due examination and thorough investigation of the complaint by the Committee constituted for the purpose certain doubts surfaced regarding the service of the alleged officers including petitioners via- a-viz service books, Pay Acquaintance Rolls, bank accounts and handing over and taking over of field staff of various cadres which took place in FBI Division Tangmarg and PHE Division Baramulla at the time when PHE Sub Division, Tangmarg was placed under the control of FBI Division Tangmarg vide Govt. order No.12-Hyd of 2004. To clear all the doubts, the records pertaining to the establishment of the alleged officers/petitioners were scrutinized and the alleged officials were given the chance to provide records, if any in their favour for verification which they failed to produce.
8. Additional rejoinder has been filed thereafter by the petitioners wherein stoppage of salary and non-performance of duties etc. has been refuted. The attendance records/correspondences referred therein as Annexure-R1 SWP No.1353/2013 Page 11 of 23 MOHAMMAD ALTAF BHAT 2019.07.29 14:15 I attest to the accuracy and integrity of this document 12 (containing number of pages up to page No.55) are referred to sound that the petitioners have been continuously working with the respondents and the stand taken by the respondent No.5, as referred to at page No.17 of the amended petition, was uncalled. In the said para at page 17 (supra) it had been stated that the petitioners are not presently on the rolls of the Division neither their attendance has been issued by the respondent No.5 from March, 2001.
9. Heard learned counsel for the parties.
10. Mr. Haqani, learned counsel for the petitioners, submitted that there is evasive reply on the part of respondents in denying para 3 of the writ petition as they have simply stated "it is a matter of record". The respondents, according to him, have not denied the continuation in service of the petitioners, therefore, respondents shall be deemed to have admitted their status and so the stand taken in terms of response has to be turned down. It is also his plea that the petitioners have not at all been allowed to participate in any kind of enquiry, therefore, the contention raised in this behalf is ill founded. The enquiry, if any had been initiated, had to be in conformity with the provisions of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules and Constitutional mandate. Same having been observed in breach, the enquiry relied is to be treated as a mere eye wash.
11. It is also being stated that Rule 30 and 33 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules have been flouted with impunity by the respondents. Even otherwise, principles of natural justice which were required to be adhered to being fundamental, have been given a go bye.
SWP No.1353/2013 Page 12 of 23 MOHAMMAD ALTAF BHAT 2019.07.29 14:15 I attest to the accuracy and integrity of this document 13
12. According to learned counsel for the petitioners, the respondent No.5, who has filed objections, contending that the petitioners herein have not been discharging their duties and continue in the services of the department, needs to be dealt with for tendering an incorrect and unfounded contention. The documents on record, certificates of concerned JE, Assistant Executive Engineer etc. un-erringly point out that the petitioners have been continuously performing their duties even for the period for which the respondents had stated salary has not been drawn or disbursed. The petitioners were required to be heard in conformity with the principles of natural justice. The Court is, thus, required to examine the decision making process on the part of respondents, according to him.
13. Learned counsel for the petitioners has taken reliance on the judgment of the Hon'ble Apex Court ion "Deokinandan Prasad vs. State of Bihar & Ors" (AIR 1971 SC 1409), to sound that right to get salary is a right to property which cannot be violated by the respondents. Furthermore, according to him, service record maintained by the respondents has to be given a proper thought as the appointment of petitioners and the benefits granted to them from time to time has been reflected therein and which is attested by the concerned DDO. Reliance on the judgment of this Court in "Mohd. Shaban Bhat Vs. State & others"
(1992 S. L. J. 342), is being made.SWP No.1353/2013 Page 13 of 23 MOHAMMAD ALTAF BHAT 2019.07.29 14:15 I attest to the accuracy and integrity of this document 14
14. On the other hand, Mr. Irfan Andleeb, Dy. AG, while taking refuge on the objections/counter filed by the respondents, submitted that the respondents have proceeded in the matter properly and it was only after receipt of copy of the complaint from Chief Engineer's office against Establishment Clerk, Abdul Rashid, salary of the petitioners had been stopped. The names of the petitioners' figure in the said complaint having fabricated and forged their engagement orders and service record and got salary benefits pursuant to forged record. The service record including service books, relied on by the other side, according to him, are outcome of forgery made by the petitioners in connivance with Establishment Clerk, Ab. Rashid. The original service books of the petitioners have been produced and it canvassed that the entries made therein are also outcome of fraud and so any benefit cannot be given to them. The petitioners, according to him, had been provided ample opportunity to clear cloud caste on their status but they failed to do so which can be gathered from the perusal of the report of the Committee so constituted, objections and the record as produced. It is also his submission that due to seizure of the record of PHE Division, Baramulla, by Vigilance Organization, further probe could not be made in the matter. However, it is being conceded that the order of transfer of petitioner No.1 was later on found to be true. This assertion is, however, being qualified with a rider that the origin of his service is a mystery as it does not get corroborated from the record available in the office. SWP No.1353/2013 Page 14 of 23 MOHAMMAD ALTAF BHAT 2019.07.29 14:15 I attest to the accuracy and integrity of this document 15
15. One more submission made by learned Dy. AG is that the salary has not been drawn and disbursed in favour of the petitioners for a pretty long time which has not been justified or commented upon anywhere in the writ petition.
16. In rebuttal, learned counsel for the petitioners submitted that the Court has to take notice of the fact that the service record is prepared in compliance to Rule 6.27 of Financial Code and it gives the minute details of the official carrier of an employee holding a substantive post as a non- gazetted servant. Custody of the same remains with the head of the office and so the plea raised on behalf of the respondents that the service record is forged one, cannot be accepted. It is also his submission that the service book has been prepared on 01.04.1995 and contains the details of service of the petitioners up to the year 2009/2010. Various officers have attested the service particulars and also drawn the arrears in terms of 6th Pay Commission. The Acquaintance Roll too remains in custody of head of the office and if it had any variation vis-à-vis service book, same had to be projected in an intelligible manner. Article 265 of CSR is also pressed into service to substantiate the argument. Reliance to the judgment of this Court in "Hafiza Vs. State" (1999 S. L. J. 140), is being made to substantiate the contention that the salary is property right of a civil servant which cannot be taken away in a casual manner. On mere receipt of complaint, of which reference is found in the communication dated 9th November, 2012, the salary has been decided to be stopped. SWP No.1353/2013 Page 15 of 23 MOHAMMAD ALTAF BHAT 2019.07.29 14:15 I attest to the accuracy and integrity of this document 16 The complaint, if any received, had not seen light of the day and the copy of the same had not been furnished to the petitioners by the respondents. The respondent No.5 had been only asked to enquire into the matter and so he could not stop the salary or alter the status of the petitioners without taking resort to the provisions of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, is also being canvassed. Non-release or drawl of salary is attributed to the fact that in terms of deputation order of the petitioners, the service had to be utilized at FBI Division, Tangmarg and salary had to be drawn at PHE Division Baramulla or Tangmarg.
17. Mr. Haqani also submitted that the contention raised by the respondents that the service record could not match with the Pay Acquaintance Roll, if the record had been seized by Vigilance Organization up to February, 2010, the period under cloud is from May, 2005 to February, 2008. It is also being put forth that the plea raised about non-drawl of salary is unfounded as the petitioners have specifically stated that they have drawn salary for the entire period and same has not been refuted by the other side either in terms of response or otherwise by production of any record.
18. Considered the rival arguments.
19. Having regard to the nature of controversy projected by the parties, it would be inapt for this Court to record a finding about the genuineness of or nature of origin of entry of the petitioners in the department. It has SWP No.1353/2013 Page 16 of 23 MOHAMMAD ALTAF BHAT 2019.07.29 14:15 I attest to the accuracy and integrity of this document 17 been already noted that the petitioners have pleaded their engagement in the department was made as daily wagers, same was regularized and they were brought on regular establishment. Admittedly, three petitioners have jointly projected their grievance about the withholding of the salary, to which it is being stated they had an entitlement. The petitioners have not, however, given any details as to how they were engaged in the department as daily wagers and who was the officer having ordered for their engagement and if done so, when. Necessary details as to when each of them had earned a right to regularization have also not been given.
20. The petitioners herein sought the indulgence of this Court by filing the petition on 23.07.2013 wherein they prayed for grant of Writ of Mandamus for commanding the respondents to release salary which had been withheld from the month of April, 2011, according to them. Entitlement to the same was based on the premise that they had been regularized in pursuance of order dated 30.10.1996 and the documents annexed in support of the petition are relied to sound, they were shown to be working as ALM (Assistant Line Man).
21. The consideration accorded pursuant to direction passed in CMP No.2171/2013 has led to the passing of order No.6000-6003 dated 12.02.2015, wherein reference of earlier order passed under No.70/CAP/10 dated 09.11.2012 is given and which accordingly has been called in question in terms of the amended petition after seeking SWP No.1353/2013 Page 17 of 23 MOHAMMAD ALTAF BHAT 2019.07.29 14:15 I attest to the accuracy and integrity of this document 18 leave of the Court to amend the petition, as noted above. Challenge to order dated 09.11.2012 was thrown thus after a gap of about three years.
22. Petitioners plead to have been dealt with in breach of Constitutional mandate and Service Regulations and so the primary question that falls for consideration is whether the petitioners had to be dealt as per procedure delineated in Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules read with Jammu and Kashmir Civil Service Regulations in Section 126 of the Constitution of J&K State. To reiterate, the infraction of a right guaranteed in terms of said rules and the Constitution is stated to have been made both in amended as well as the petition earlier filed. It has been noted herein that the respondents have been specific in pleading that in consonance of principles of fair play and natural justice, an enquiry was initiated wherein conduct of not only custodian of record, Ab. Rashid Rather, was gone into but also the allegations levelled against the present petitioners and two more persons, namely, Abdul Rashid Bhat and Ghulam Mohammad Wani were examined. Dispute not only about the birth of the petitioners in the department but also about the period for which the petitioners were paid is also raised which, having regard to the pleas taken and the material on record, cannot be set at rest while considering the merits of the present petition.
23. An enquiry as technical as delineated under the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules and SWP No.1353/2013 Page 18 of 23 MOHAMMAD ALTAF BHAT 2019.07.29 14:15 I attest to the accuracy and integrity of this document 19 Civil Service Regulations may not be needed if the employer is reasonably satisfied on the basis of some record or proof in its custody, that employee has fraudulently forced its entry in a government department and either usurped some post or otherwise has drawn emoluments from public exchequer. The contention raised on behalf of petitioners thus hinges on the genuineness of the appointment of the petitioners, which the respondents have to examine and as said above cannot be determined herein because being a disputed question of fact. The plea raised thus on behalf of the petitioners to adjudge the action of the respondents in stopping their salary bad without holding an enquiry as contemplated by the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules and Civil Service Regulations can be accepted only if a finding on the genuineness of their appointment and continuation in service is recorded in their favour.
24. Withholding of the salary of a civil servant may have to be termed to be in breach of his rights but, as also noted hereinabove, it pre- supposes that the government or civil servant has been lawfully appointed and he holds a post to which the protection in terms of the Constitution is attracted and provided. Parties should not be at variance about this pertinent aspect of the matter.
25. It may sound relevant herein to state that a mere assertion would not suffice to hold that a person is a member of particular service. A person claiming to be clothed with a right as a government/civil servant SWP No.1353/2013 Page 19 of 23 MOHAMMAD ALTAF BHAT 2019.07.29 14:15 I attest to the accuracy and integrity of this document 20 needs to unambiguously point out that he belongs to a particular cadre, category or class. He may have to show strength of that cadre of the service to make his case credit worthy. There are neither pleadings nor does the record suggest as to which cadre of a particular service the petitioners belong and what had been cadre strength of this service in the division and as to how Recruitment Rules permit them to hold a particular status.
26. Every employer, by dint of his position, is entitled to verify the credentials of a person working under him as an employee at any moment if the situation so warrants. The action on the part of respondents to examine the averments of the complaint and the allegations levelled against the present petitioners and Ab. Rashid, Establishment Clerk, with these characteristics, cannot be said to be bereft of legal sanctity necessitating it to be declared as non-est and so inconsequential. The respondents, as noted above, have been very specific in stating that they did comply with the fundamental requirements of principles of natural justice and so enquire into the matter. It is also stated that the enquiry Committee had asked the petitioners to provide relevant information with regard to their status and a part of which, admittedly, could have been within the exclusive knowledge of the petitioners. The pertinent observations of the enquiry committee with regard to each of the petitioners have already been noted hereinabove and may not need a repetition herein.
SWP No.1353/2013 Page 20 of 23 MOHAMMAD ALTAF BHAT 2019.07.29 14:15 I attest to the accuracy and integrity of this document 21
27. The record available either in the office of respondents or the Vigilance Organization or any other office of the Government may have a relevance with the subject and is required to be considered to arrive at a fair and proper conclusion. The documents referred by the petitioners to sound that they had been continuously working at various places and the service books to have been prepared in conformity with the provisions of Financial Code cannot be relied in these proceedings to conclude that the petitioners have been genuinely appointed in the respondent department, they having been paid the emoluments admissible under rules and the withholding of the salary was against the rules and regulations applicable vis-à-vis petitioners.
28. Viewing the case of the petitioners for grant of relief in terms of above legal position, it is deemed proper to dispose of this petition with the following directions:
The respondent No.2 (Chief Engineer) shall hold an enquiry with regard to nature of allegations levelled against each of the petitioners. Each petitioner shall be individually made conversant with the accusations. It shall be seen by the said respondent as to how far it would be practicable to hold separate enquiry or joint enquiry against the petitioners herein under rules.
The petitioners are directed to render all necessary assistance in taking the said enquiry to its logical conclusion and if the respondents deem it proper to call any information or document, SWP No.1353/2013 Page 21 of 23 MOHAMMAD ALTAF BHAT 2019.07.29 14:15 I attest to the accuracy and integrity of this document 22 which to their belief is in custody of the petitioners, the petitioners shall make the same available to the respondents.
In particular, the below mentioned tabulated information, unless the respondents do not deem it necessary to be procured from the petitioners, shall be provided by the petitioners to the respondents with regard to the enquiry directed to be held and for taking it to its logical conclusion:
(i) Individual details regarding date, month, year and how they got engaged,
(ii) When they became entitled for regularization,
(iii) Name and designation of the officer/officers under whose immediate subordination the petitioners have worked from time to time along with the details of the assignment held and the manner in which, according to the petitioners, work was elicited from them by the respondent department, year, date and month when order of their regularization was issued,
(iv) Name of the officer who prepared their service book,
(v) Details of salary/remuneration paid for each month from the date of their engagement and the mode of payment.
29. This exercise shall be undertaken and completed within a period of four months from the date copy of this order is served on the respondents. In case of failure to do so, without any reasonable cause, the enquiry shall lapse and SWP No.1353/2013 Page 22 of 23 MOHAMMAD ALTAF BHAT 2019.07.29 14:15 I attest to the accuracy and integrity of this document 23 the petitioners shall be held entitled to get salary and other service benefits, which they were receiving before stoppage of salary, under rules. Default/lapse shall be at the peril of the concerned authority/officer who will be personally liable to reimburse the State for the loss caused. Service benefits including salary unpaid if any and release of annual increments if any due, have to be released accordingly if the entry of the petitioners in the department is found genuine or has to be treated genuine by not taking the enquiry to logical conclusion in the aforesaid manner. In case during enquiry, respondents feel necessity to go through the record which is stated to be in custody of Vigilance Organization, they shall approach the said Organization who shall be bound to render necessary assistance and making available record either for perusal or otherwise required for taking the enquiry to its logical conclusion. The respondents, in case need is felt, may seek extension for concluding the enquiry referred above.
30. Disposed of as above.
(Rashid Ali Dar) Judge Srinagar 25.07.2019 "Bhat Altaf, PS"
1.2.
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
SWP No.1353/2013 Page 23 of 23
MOHAMMAD ALTAF BHAT
2019.07.29 14:15
I attest to the accuracy and
integrity of this document