Jammu & Kashmir High Court - Srinagar Bench
Mohd. Bashir Rather vs State Of J&K; on 22 September, 2017
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP No. 1562/2015
c/w SWP No. 2006/2013
Date of Order: 22.09. 2017
Mohammad Bashir Rather Vs. State of J&K &Ors.
Coram:
Hon'ble Mr JusticeAlokAradhe, Judge
Appearance:
For petitioner (s): Mr. M.A. Qayoom, Advocate
For respondent(s);Mr. M.A. Beg, AAG
i/ whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
SWP NO. 1562/15
1. In this petition petitioner who at the relevant time was performing his duties as In-charge Tehsildar (North), Srinagar has assailed the validity of the order dated 30.06.2015 by which the petitioner has been pre-maturely retired in exercise of powers under Article 226 (2) of the Jammu and Kashmir Civil Service Regulations w.e.f. 01.07.2015. The petitioner also seeks directions to the respondents to reinstate the petitioner in service and to accord him all consequential benefits. In order to appreciate the petitioner's challenge to the impugned order few facts need mention which are stated infra:
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2. The petitioner at the relevant time was posted as In-charge Tehsildar North, Srinagar. He was placed under suspension vide order dated 7.10.2013 by Deputy Commissioner, Srinagar pending enquiry into the matter, on the ground that during surprise visit of Tehsil office (North), Srinagar on 7.10.2013 alongwith two Additional Deputy Commissioners, it was found 21 employees of Tehsil office were absent and the Tehsildar's office chamber was also locked and the petitioner was not available in the office premises. A copy of the order of suspension was forwarded to the Commissioner/Secretary to Government Revenue Department J&K, Srinagar.
3. A communication dated 11.10.2013 sent by under Secretary to Govt.
Revenue Department to Deputy Commissioner, Srinagar by which an enquiry was made from the Deputy Commissioner whether any written complaints have been received against the petitioner. It was further stated that the Tehsildar is a field officer and he has to perform multifarious duties and has to visit for spot inspection. Therefore, it was imperative to enquire about the whereabouts of the petitioner before issuing the order of suspension. The Deputy Commissioner was directed to furnish aforesaid information and meanwhile the order of suspension of the petitioner was rescinded forthwith. Thereafter by an order dated 14.10.2013, the order of suspension of the petitioner was rescinded by the Secretary to Govt. Revenue Department and the SWP No. 1562/15 Page 2 of 23 c/w SWP 2006/2013 Deputy Commissioner, Srinagar was required to furnish the details of the complaints of the allegations leveled against the petitioner for further action in accordance with rules. However, on the same day i.e. 14.10.2013 the Divisional Commissioner, Kashmir passed an order of suspension in contemplation of the departmental enquiry against him on the proposed charges that the petitioner has passed attestation orders in 1292 number of mutations on the basis of oral gifts which has resulted into evasion of stamp duty to the tune of Rs. 18.87 crores.
4. In order to enquiry into the allegations leveled against the petitioner with regard to the attestation of mutation orders passed by him, a Committee was constituted comprising Commissioner Survey and Land Records J&K, Addl; Deputy Commissioner, Srinagar and Deputy Commissioner, Stamps, Commercial Taxes department Kashmir vide order dated 14.10.2013. By communication dated 24.10.2013, the matter pertaining to attestation of mutations made by the petitioner was referred for a detailed investigation to State Vigilance Organization. Thereafter by a communication dated 24.10.2013 sent by Deputy Secretary to Government, General Administration Department, the Divisional Commissioner, Kashmir was advised to initiate regular departmental enquiry against the petitioner.
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5. The Supreme Court vide judgment dated 5.5.2011 passed in Civil Appeal No.1714 of 2005 in the case of Hafeeza Bibi&Ors v. Sheikh Faid (dead) by LRS &Ors. inter-alia held that when a gift could be made by orally its nature and character is not changed because of it having been made by a written document. It was further held that three essential requisites must be fulfilled to constitute a valid gift and the form is immaterial. In view of the aforesaid decision of the Supreme Court, a circular dated 09.10.2017 was issued by the Revenue Department of Govt. of J&K by which Revenue Authorities were directed to ensure implantation of the judgment of the Supreme Court.
6. In view of the opinion given by the Advocate General by communication dated 6.2.2014, the Additional Secretary to Government Revenue Department requested the Divisional Commissioner, Kashmir to consider the reinstatement of the petitioner. Thereafter by communication dated 04.03.2014 Divisional Commissioner, Kashmir request the Inspector General of Police Crime Branch J&K, Jammu to initiate necessary investigation in the matter of mass scale of attestation of mutations carried out by the petitioner. The petitioner thereupon approached this court by filing OWP No. 652 of 2014 in which the initiation of second enquiry was challenged. A Bench of this court by an order dated 17.05.2014 stayed the second enquiry which was initiated by the Crime Branch, Kashmir. The SWP No. 1562/15 Page 4 of 23 c/w SWP 2006/2013 Secretary on 11.3.2014 sent a note for consideration to the General Administration Department to consider the case of the petitioner for revocation of the suspension order in light of the observations made by the Divisional Commissioner, Kashmir. Eventually by an order dated 26.06.2015 the case of the petitioner for revocation of order of suspension was considered and it was decided to reinstate the petitioner and to attach him with Divisional Commissioner, pending regular departmental enquiry. In compliance of the order dated 26.6.2015 the petitioner joined his duties as In-charge Tehsildar in the office of Divisional Commissioner, Kashmir on 27.6.2015 so as to facilitate the holding of departmental enquiry. However, by an order dated 30.6.2015 a notice was given to the petitioner that since he has rendered 22 years of service he shall superannuate w.e.f 01./07/2015. The aforesaid order was passed purportedly in exercise of powers under Article 226 (2) of the J&K CSR. In the aforesaid factual background the petitioner has approached this court.
7. Learned counsel for the petitioner submitted that the petitioner has not violated the procedure laid down for attestation of mutations on the basis of oral gift. While inviting attention of this court to the service book of the petitioner, it is argued that no adverse entry has been recorded against the petitioner in his Annual Confidential Reports from the year 2008 to 2009 onwards and the petitioner has been found SWP No. 1562/15 Page 5 of 23 c/w SWP 2006/2013 fit for promotion and even an entry has been recorded in the service book of the petitioner that he is an outstanding officer knowing revenue law and is in a position to face critical law and order situation effectively. It has also been recorded in the Annual Confidential Reports of the petitioner for the year 2011 that the public relations of the petitioner are excellent. Learned counsel for the petitioner has also invited attention of this court to the certificates dated 6.12.2011 and 15.4.13 issued by Deputy Commissioner, Srinagar as well as settlement officer, Srinagar in which it is stated that the work and conduct of the petitioner is satisfactory and he is sincere and dedicated officer of high integrity.
8. It is also argued that the Committee has passed an order of retirement on the assumption that the petitioner has bad reputation and has taken into account the First Information Report which was registered against him as well as the Audit Report. It is submitted that there is no iota of material on record to show that the petitioner has bad reputation. It is pointed out that the Committee has failed to take into account the fact that the petitioner has been acquitted in the criminal case which was registered against him under section 5(2) of the J&K Prevention of Corruption Act, 2006 vide judgment dated 19.10.2006. Learned counsel for the petitioner has also invited the attention of this court to the Audit Report dated 07.10.2013 which has been forwarded to the SWP No. 1562/15 Page 6 of 23 c/w SWP 2006/2013 petitioner for necessary action and there is nothing adverse against the petitioner in the Audit Report. It is submitted that even assuming that the petitioner was involved in the financial irregularities, in that case also, order of compulsory retirement could not have been passed as the same has been passed by way of punishment.
9. In support of aforesaid submissions reference has been made to the decision of Supreme Court in Ram Eqbal Sharma V. State of Bihar & Anor. AIR 1990 SC 1368 as well as decision of Supreme Court in High Court of Judicature at Patna v. Ajay Kumar Srivastava &Ors. AIR 2017 SC 548 and a decisions of this court in Aijaz Hussain Sahaf v. State of J&K &Ors, 2017 (1) SLJ 222, Ab. Majid Wani v. State of J&K 2017 (3) JKJ HC 487 and Kuldeep Kumar v. State of &ors. 2017(3) JKJ HC642. Learned counsel for the petitioner has also made reference of various judgments of this court passed in SWP 1947 of 2015 decided on 21.12.2016, SWP No. 2220/15 decided on 15.07.2016, SWP No. 1900/2015 decided on 21.12.2015 and LPA No. 177/2016 decided on 25.8.2017 by a Division Bench of this Court. He has also made a reference Supreme Court judgement in case State of Gujrat vs. Umebdhai M.Patel AIR 2001 SC1109.
10. On the other hand learned AAG has submitted that there was no vigilance clearance against the petitioner after 2009 and the petitioner made illegal mutations before the issuance of circular. It also argued SWP No. 1562/15 Page 7 of 23 c/w SWP 2006/2013 that the Annual Confidential Reports of the petitioner were not attested by the competent authority and from perusal of the record it is not indicated who has written the aforesaid Annual Confidential Reports. It is also submitted that audit report clearly shows the implication of the petitioner in the financial irregularities. It is further submitted that no Annual Confidential Reports were available in case of the petitioner and decision relied upon by learned counsel for the petitioner in case of Ram Eqbal sharma vs. State of Bihar & Anor. AIR 1990 SC 1368 deals with recommendation of one man comity which was not constituted for the purpose of consideration of premature retirement, therefore the sane is of no assistance to the petitioner. It is also submitted that the decision rendered in Aijaz Hussain Sahaf v. State of J&K & Ors.2017 SLJ 224 pertains to the dispute with regard to the date of birth, therefore, it was held that the enquiry in such a case ought to have been held. It is submitted that there was sufficient material on record to form an opinion that the petitioner is deadwood and that he had lost confidence of the employer. It is also urged that this court cannot examine the sufficiency of the material before the committee which had formed the opinion. Learned AAG, has also produced record of the proceedings before committee and has relied on the decisions of the supreme court in case of C.D.Ailawad v.Union of India &Ors, AIR 1990 SC 1004, SWP No. 1562/15 Page 8 of 23 c/w SWP 2006/2013 Posts and Telegraphs Board v. C.S.N.Murthy, AIR 1992(2) SCC 317, State of U.P.& Anor. V.Bihari Lal AIR 1994 Supp(3) 593, State Of Orisa and Others v.Ram Chandra Das 1996 (5) SCC 331, Jugal Chandra Saikia v. State of Assam & Anor 2003 (4) SCC 59, Arundhati Ashok Walavalkar v. State of Maharashtra 2011 (11) SCC 325 and Diwan Singh v. Life Insurance Corporation of India AIR 2015(2) SCC 341.
11. By way of rejoinder reply learned counsel for the petitioner referred Full Bench decision of this court in case Ghulam Ahmed Sofi vs. Mohd. Sidiq Dareel AIR 1974 J&K 59 and has submitted that the aforesaid judgment was followed by the Supreme Court in the year 2011 and since 1974 the mutations are being attested on the basis of oral gifts. Learned counsel for the petitioner has also invited attention of this court to the government order dated 09/11/2001 with regard to the procedure of writing Annual Confidential Reports and has submitted that the Annual Confidential Reports have been duly signed by the competent authority particularly in respect of year 2011 -12, 2012- 2103. It is also submitted that once it is alleged that petitioner is involved in financial irregularities and the departmental enquiry has been initiated against him, he cannot be compulsorily retired.
12. It is further submitted that in case of Dr. Riyaz Ahmad Dar v. State 2016(2) SLJ 833, this court has dealt with proceedings of the SWP No. 1562/15 Page 9 of 23 c/w SWP 2006/2013 committee which had considered the case of the petitioner. It is further submitted that the petitioner has also filed reply to the audit report and the petitioner is concerned with treasury Khanyar not Tankipora. It is also submitted that merely on the basis of allegations which are pending enquiry no order of compulsory retirement can be passed.
13. I have considered the submissions made on both sides and perused the record.
14. Before proceeding to deal with the matter on merits, at this stage it is apposite to take notice of well settled legal principles with regard to compulsory retirement in public interest. The Supreme Court while dealing with scope of Judicial Review in such cases has held that when an order of compulsory retirement in public interest is challenged before the Court, its validity depends upon its being supported by public interest. The State must disclose the material so that the Court may be satisfied with the order is not bad for want of any material whatever which to a reasonable man may reasonably instructed in law is sufficient to sustain, the ground of public interest. The court is confined to examination of the material merely to see whether a rational mind may conceivably be satisfied that compulsory retirement of the office concerned is necessary is public interest. ( See Baldev Raj Chadha v. Union of India and others, (1980)4 SCC 321). In the case of Baikuntha NathDass and another vs. Chief District SWP No. 1562/15 Page 10 of 23 c/w SWP 2006/2013 Medical Officer, Baripada and another, (1992) 2SCC 299, it was held that opinion of the authority regarding compulsory retirement is subjective satisfaction of the authority which has to be formed on the basis of entire record of service and the order of compulsory retirement does amount to punishment. The principles of natural justice are not required to be observed while passing an order of compulsory retirement. The order of compulsory retirement is subject to judicial review only on the ground of mala fides, arbitrariness and perversity. The supreme Court after detailed deliberations summarized the following legal principles:
(i) An order of compulsory retirement is not a punishment it implies no stigma nor any suggestion of misbehavior.
(ii) The order has to be passed by the Government on forming the opinion that is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether, While the High Court or this Court would not examine the matter as an appellant court, they may interfere if they are satisfied that the order is passed
(a) mala fide or (b) that is based on no evidence or (c) that it is SWP No. 1562/15 Page 11 of 23 c/w SWP 2006/2013 arbitrary in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order.
(iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter - of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.
15. The Supreme Court in the case of Madhya Pradesh StateCooperative Dairy Federation Limited and another vs. Rajnesh Kumar Jamindar and others, (2009) 15 SCC 221 held that law relating to compulsory retirement in public interest is no longer Res Integra. The provision SWP No. 1562/15 Page 12 of 23 c/w SWP 2006/2013 has been made principally for wedding out the dead wood and an order of compulsory retirement in public interest can be made subject matter of judicial review on the grounds namely when it is based on no material, when it is arbitrary, when it suffers from the view of non- application of mind and when there is no evidence to support the case. It is well settled legal principle that verbal complainants or enquires would constitute relevant material on the basis of which APRs indicating the integrity of the officer is doubtful can be recorded. (See Rajendar Prasad Verma and others vs. Lieutenant Governor (NCT of Delhi) and others, (2011), 10 SCC 1.)An order of compulsory retirement is neither punitive nor stigmatic. It is based on subjective satisfaction of the employer and is amenable to interference if it suffers from mala fide, perversity, arbitrary. (See, Rajasthan State Road Transport Corporation and others vs. Babu Lal Jangir, (2013) 10 SCC 551). It is equally well settled legal proposition that entire service record of an employee is required to be scrutinized for adjudging his justification of continuance in service. (See Punjab State Power Corpn. Ltd. Vs. Hari Krishan Verma, (2015) 13 SCC
156).
16. The Supreme Court in the case of State of Gujarat and another vs. Suryakant Chunilal Shah, (1991) 1 SCC 529 has held that services of dishonest and corrupt officer should be dispensed with in public SWP No. 1562/15 Page 13 of 23 c/w SWP 2006/2013 interest. It has further been held that efficiency and honesty of an officer has to be assessed on the basis of material for which confidential reports are an important input. Mere involvement of an employee in criminal case or pendency of criminal case in itself does not sufficient to compulsory retire an employee in public interest. It has further been held that Review Committee exceeded its jurisdiction in doubting respondent's integrity on the basis of pending criminal cases when there was no indication of doubtful integrity in the confidential reports. The aforesaid decision was considered and was explained by the Supreme Court in the case of Jugal Chandar Saikia vs. State of Assam and anr, (2003) 4 SCC 59, in which it was held that in the case of Suryakant Chuni Lal Shah (supra), there was no material before the Review Committee inasmuch as there were no adverse remarks in the Character Roll entries, the integrity was not doubtful at any time and the Character Roll entries subsequent to respondents promotion to the post of Assistant Food Controller (Class- II) were not available. In the aforesaid circumstances, it was held that the compulsory retirement in the case of Suryakant ChunilalShah (supra) was bad. A Division Bench of this Court in State of Jammu and Kashmir and others vs. Janak Singh, 2010(4) JKJ 89 (HC) in paragraph 7 has held thus:-
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"7. Whether registration of an FIR, based upon specific compliant, can be made basis for formulation of an opinion for pre-mature retirement, is an issue which isno longer resintegra. As already stated above, formulation of subjective opinion on the basis of the record of the respondent, will be a determinative factor to prematurely retire him. Registration of 2 FIRs is not part of the service record of the respondent on the basis of which opinion can be formulated by the Review Committee. These are merely allegations which are subject matter of investigation/trial and cannot become the basis for formulation of such an opinion, as rightly observed herein supra that the fate of these complaints has to be determined by the agency which is not part of the Committee. We, accordingly, hold that learned Singe Judge was correct in rejecting the contention of the appellants in this behalf."
17. The aforesaid decision has been followed by another Division Bench of this Court in the case of State of Jammu and Kashmir and another vs. Satish Chandra Khajuria vide order dated 07.10.2016 passed in LPASW No. 122/2016. Thus from the aforesaid enunciation of law by the Division Bench of this Court, it is evident that Registration of FIR against an employee is not part of his service record and mere probe of certain alleged irregularities cannot be made a ground to retire a person compulsorily when his APRs entries are good and integrity is reflected in the APRs as beyond doubt. SWP No. 1562/15 Page 15 of 23 c/w SWP 2006/2013
18. A three Judge Bench of Hon'ble Supreme Court in the case of BaikunthaNath Das and Anor. V. Chief District Medical Officer, Baripada&Anr. AIR 1992 Supreme Court 1020 has held that the order of compulsory retirement has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government. The Government or the Review committee shall have to consider the entire record of service before taking a decision in the matter of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so if the promotion is based upon merit (selection) and not upon seniority. A Division Bench of this court vide order dated 07.10.2016 passed in LPA (SW) No. 122/2016 has held that merely because FIRs are registered and some allegations were under probe, the same cannot form the basis of compulsory retirement.
19. The Supreme Court in High Court of Judicature at Patna(supra) has held that if there are serious allegations of misconduct on the part of delinquent employee, in such a case employer is always at liberty to SWP No. 1562/15 Page 16 of 23 c/w SWP 2006/2013 take disciplinary action against the employee. It has further been held that if an employee's conduct is questionable warranting his removal or compulsory retirement from the service, such an officer cannot simply be sent home with all the retiral benefits.
20. In Ram Ekbal Sharma (supra) the Supreme Court has held that an order of compulsory retirement cannot be passed by way of punishment. It has further been held that even though the order of compulsory retirement is couched in innocuous terms, in an appropriate cases, the Court can lift the veil to find out whether the order is based on any misconduct of the Government servant concerned or the order has been made bona-fide and not on any oblique or extraneous purposes.
21. In the backdrop of aforesaid well settled legal position, the facts of the case at hand may be seen. In the instant case, the petitioner was placed under suspension, pending departmental enquiry against him on 07.10.2013. On the same day a committee was constituted comprised of Commissioner Survey and Land Records J&K, Addl; Dy. Commissioner, Srinagar and Dy. Commissioner Stamps, Commercial Taxes Department Kashmir. The aforesaid Committee was directed to submit the enquiry report against the petitioner within one month and was further directed to submit recommendation with regard to financial loss of state exchequer, the action taken by the petitioner in SWP No. 1562/15 Page 17 of 23 c/w SWP 2006/2013 violation of the rules to evade taxes and the proposed punishment. Thereafter on 24.10.2013 matter was referred to State Vigilance Organization taking into account the gravity of the charges against the petitioner for conducting an enquiry against him. On 24.10.2013 the General Administration Department directed the Divisional Commissioner, Kashmir to initiate the regular departmental enquiry against the petitioner.
22. On 9.01.2014 a show cause notice was issued to the petitioner, to which he submitted reply. The enquiry initiated by the State Vigilance Organization was stayed by a Bench of this court vide order dated 17.05.2014 passed in SWP NO. 652/ of 2014. The review committee considered the case of the petitioner on 13.5.2015 for revocation of suspension of the petitioner. It is pertinent to mention here that the aforesaid review committee comprised of the same members, which was constituted on 14.10.2013, recommended the revocation order of suspension of the petitioner. Thereafter by an order dated 26.6.2015 the order of suspension of the petitioner was revoked and the petitioner joined his duties. However, instead of proceeding ahead against the petitioner with the departmental enquiry which was already initiated, the State Government took recourse to the provisions of Article 226(2) of the J&K Civil Service Regulations and passed an order of pre-mature retirement on 30.06.2015.
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23. From perusal of the reply filed on behalf of the respondents it is evident that a committee was constituted on 20.5.2015 to consider the cases of pre-mature retirement. From the averments made in the preliminary objections it is axiomatic that the committee considered the case of the petitioner on 26.6.2015 and took into account the fact that First Information Report namely FIR No. 24/ of 2002 for offences under section 5 (2) of the J&K Prevention of Corruption Act was pending against the petitioner and the petitioner was placed under suspension vide order dated 07 .10.2013 in view of the gravity of the charges against him. The respondents also took into account the Audit Report. From the communication sent by the Divisional Commissioner dated 4.6.2015 it is evident that the committee was apprised that Annual Confidential Reports of the petitioner for the preceding 5 years are not available. The Committee also take into account the fact that the petitioner has attested 95.17% of mutation on the basis of oral gifts which has caused huge loss to the State exchequer and the petitioner has bad reputation. Accordingly, committee made a recommendation for pre-mature retirement of the petitioner.
24. From the material available on the record it is evident that the recommendation made by the Committee are cryptic, arbitrary and SWP No. 1562/15 Page 19 of 23 c/w SWP 2006/2013 suffers from vice of non-application of mind for the following reasons:
i) The Committee only took into account the fact that the FIR was lodged against the petitioner for the offence U/s 5 (2) J&K Prevention of Corruption Act. However, it failed to take into account the fact that the petitioner was acquitted in the aforesaid criminal case vide judgment dated 19.10.2006 passed by a Special Judge Anticorruption, Srinagar in case No. 9/B/ 2003.
ii) The Committee took into account the fact that on account of gravity of charges against the petitioner, the petitioner was placed under suspension. However, the Committee has failed to take note of the fact that the order of suspension was revoked on 26.6.2015.
iii) The Committee took into account the Audit Report which is seriously disputed by the petitioner. On the basis of averments contained in the Audit Report, which is disputed by the petitioner he cannot be prematurely retired, as the averments contained therein have to be enquired into.
iv) The Committee found that Annual Confidential Reports of the petitioner for past five years were not available whereas from perusal of the record petitioner has annexed the annual performance report for the period from 2006 to 2007 onwards till 2012 to 2013. In the aforesaid ACRs the performance of the petitioner has been found to be excellent and he has been declared fit for the promotion. SWP No. 1562/15 Page 20 of 23 c/w SWP 2006/2013 In fact in the ACRs for the year 2012-2013 , remarks have been made that the petitioner is competent and to knows revenue laws and has ability to work the round the clock and is outstanding while dealing with the public in normal as well as abnormal times and is a distinguished officer. The aforesaid fact totally destroys the foundation of the recommendation made by the Committee that the petitioner either has a bad reputation or is a habitual offender. In fact there is no material on record to indicate that the petitioner had either bad reputation or petitioner's relation with public in general were not good.
25. The commendation certificates have been issued to the petitioner on 6.12.2011 and 15.4.2013 by the Dy. Commissioner, Srinagar as well as settlement officer, Kashmir stating that the work and conduct of the petitioner is satisfactory and he is pro-active in redressal of grievances of people.
26. It is well settled in law that an order of compulsory retirement shall not be passed as a short cut to avoid Departmental Regular Enquiry when such a course is desirable. In the instant case from perusal of the averments made by the respondents in the reply it is evident that the petitioner was alleged to be guilty of gross financial irregularities which the petitioner has vehemently denied. The Departmental Regular Enquiry was initiated against the petitioner and he was placed under SWP No. 1562/15 Page 21 of 23 c/w SWP 2006/2013 suspension However, his order of suspension was revoked and no reasons have been assigned by the respondents as to why Departmental enquiry was not held against the petitioner. An order of compulsory retirement cannot be passed as punitive measure to avoid a departmental enquiry. In the instant case, within four days of revocation of order of suspension on the charges of financial irregularities, the order of pre-mature retirement has been passed on 30.6.2015 with a view to avoid the Departmental Regular enquiry and in the considered opinion of this court, the order of compulsory retirement in the instant case has been passed as a punitive measure which is not permissible under law.
27. Learned counsel for the parties have disputed that the legality or otherwise of the mutations made by the petitioner, therefore, it is not necessary for this court to deal with the aforesaid issue as admittedly the respondents had initiated enquiry into the alleged illegal mutations carried out by the petitioner which appears to be pending. The submissions made by learned AAG, that there was enough material on record before the committee is not borne out from the proceedings of the committee, therefore, the same sans substance. Similarly the contention made on behalf of the respondents that the Annual Confidential Reports s have not been attested by the competent authority deserves to be rejected in view of the Government order dated 09/11/2001 which provides for writing of SWP No. 1562/15 Page 22 of 23 c/w SWP 2006/2013 the Annual Confidential Reports. As per the aforesaid Government authority the revenue authority and the deputy commission has signed Annual Confidential Reports for the year 2010-2011 and 2011-2012. The audit report could not have been form the basis for compulsory retirement of the petitioner as the findings in the audit report are yet to be enquired into and the findings recorded in the audit report have been seriously disputed by the petitioner
28. In view of the preceding analysis, the impugned order dated 30.06.2015 Is hereby quashed and the respondents are directed to reinstate the petitioner in service and to accord him all consequential benefits within a period of one month from the date copy of this order is served on the respondents. In result the writ petition is allowed. 29. SWP No. 2006/2013 In view of the order passed today in SWP No. 1562 of 2015 this writ petition is rendered infructuous. Accordingly the same is dismissed.
(AlokAradhe) Judge Srinagar 22.09.2017 Mujtaba secy.
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