Jammu & Kashmir High Court - Srinagar Bench
Aijaz Hussain Sahaf. vs State Of J&K; & Ors. on 5 April, 2017
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Case no: Date of decision: 05.04.2017
SWP no.2200/2014
CMP no.3489/2014 & MP no.01/2015
Aijaz Hussain Sahaf. v. State of J&K & ors.
Coram:
Hon'ble Mr. Justice Ali Mohammad Magrey, Judge
Appearing counsel:
For Petitioner: Mr. M. A. Chashoo, Advocate;
For Respondents: Ms. Moksha Kazmi, AAG.
Whether approved for reporting: Yes This petition by the petitioner calls in question Government order no.347-PW(Hyd) of 2014 dated 29.08.2014 whereby, notwithstanding finalization of the regular enquiry into his alleged misconduct of having tampered with, and changed, his date of birth in the service records, and submission of a report by the Enquiry Officer, the Government has chosen to take recourse to its powers under Article 226 of the Jammu and Kashmir Civil Service Regulations, 1956 and ordered his compulsory retirement from service with effect from 31.10.2013, with direction that the excess salary / payments received by the petitioner for the period he unauhorisedly overstayed in service by tampering his date of birth shall be recovered from him in full.
2. Before enumerating the facts of the case, it may be mentioned that much prior to the order impugned in this writ petition, the Chief Engineer, Kashmir Irrigation and Flood Control Department, Srinagar, vide his endorsement no.EC/I?G/9663-65 dated 16.07.2012 had issued an order. Therein it was stated that a complaint had been received that the petitioner and another officer of the department had tampered with, and changed, their dates of birth recorded in their service books. The photocopy of the birth certificate produced by the petitioner was 2 forwarded to the Joint Secretary (Verification), State Board of School Education, Srinagar. The Joint Secretary, in turn, reported back that though his office did not have the permission-cum-admission form of the petitioner in the records section of the organization, yet the school records provided by the Principal, National High School, Srinagar, wherefrom the petitioner had passed his matriculation examination as a regular student, indicated that his date of birth was 28.10.1955 and not 28.10.1958 as shown in the zerox copy of the qualification certificate produced by him under serial no.1223 bearing Roll no.1979, and that the zerox copy was fake. The Chief Engineer by his aforesaid order directed the petitioner to record the actual date of birth, i.e., 28.10.1955, on the front page of service book and furnish action taken report.
3. The above order was challenged by the petitioner in SWP no.1448/2013. In CMP no.2391/2012, accompanying the said writ petition, this Court on 11.10.2013 ordered stay of the operation of the order impugned therein, with liberty to the Government/competent authority to hold a proper enquiry in the matter in accordance with the rules.
4. Consequent to the above, the Commissioner / Secretary to Government, PHE and I&FC Department, vide Memorandum no. PW/PHEK/58/2012-WP dated 27.05.2014, served a charge sheet on the petitioner. The article of charge so framed against the petitioner read as under:
"That Shri Aijaz Hussain Sahaf I/C Superintending Engineer, JKSPDC has been found to have manipulated the date of birth in the service record and managed to record his date of birth in service book as 28.10.1958 instead of his actual date of birth which is 28.10.1955.3
Thus Shri Aijaz Hussain Sahaf, I/C Superintending Engineer has failed to maintain absolute honesty and integrity in discharge of his duties and thus acted in a manner which is unbecoming of a public servant, thereby violating the provisions of Rule 3 of J&K Government Employees Conduct Rules 1971 for which departmental proceedings under rules 31 of J&K Civil Services (Classification, Control and Appeal) Rules, 1956, have been decided to be initiated against him."
It is noticed that the aforesaid charge sheet was framed, formulated and signed by the Deputy Secretary to Government, PHE, I&FC Department (HRM Branch).
5. Thereafter, the petitioner received communication no. PWQ/PHEK/58/2012-WP dated 17.06.2014 from the same Deputy Secretary to Government, PHE, I&FC Department (HRM Branch), informing him that he had been appointed as Inquiry Officer to conduct enquiry into the alleged manipulation of date of birth by the petitioner, and required him to attend the inquiry in his office chamber. The inquiry officer further informed the petitioner that he could also submit any other documentary proof / evidence in support of his defence before him.
6. In response to the above communication, the petitioner submitted his replies in writing dated 23.06.2014 before the Inquiry Officer.
7. It appears that the Inquiry Officer made a report of his findings in terms of communication no.PW/PHEK/58/2012-WP dated 08.08.2014. On receipt of the said report, the Government, instead of proceeding ahead in the matter in accordance with the relevant provision(s) of the Classification, Control and Appeal Rules, 1956 (hereinafter, the CCA Rules) chose to have resort to its power under Article 226 of the J&K Civil Service Regulations, 1956 (hereinafter, the CSRs), and issued the impugned order no.347-PW(Hyd) of 2014 dated 29.08.2014 with the following operative portion and reasoning:
4"Whereas the Inquiry Officer has conducted the inquiry into the matter and submitted his report vide letter No.PW/PHEK/58/2012-WP dated 08.08.2014. The Inquiry Officer in his inquiry report has drawn the following conclusions:-
i) The Forensic Science Laboratory vide
their Report No.FSL/102-Doc/Sgr dated
18.7.2014 has clearly established the
manipulation of the first page of the Service
Book and has confirmed that the signatures of
the attesting officer/officials on the first page (pasted page) of the Service Book are forged. The Joint Secretary (Verification), J&K State Board of School Education vide letter No. F(JS- Veri-Fak)B/12 A-341 dated 9-7-2012 has stated the qualification certificate in the name of Shri Aijaz Hussain Sahaf under sl.no.1223 bearing Roll No.4979 of the year 1970 be treated as absolutely fake and fabricated.
ii) On the basis of these two reports it is proved that the date of birth of Shri Aijaz Hussain Sahaf declared by him at the time of appointment and accepted by the appointing authority is 28.10.1955 which has been duly confirmed from the documentary evidence. He has later manipulated his Service Record and the first page of his service book has been covered and pasted with existing written page on which date of birth has been written as 28.10.1958 instead of 28.10.1955 and it has been found that the signatures on the pasted page have been forged.
Whereas the inquiry report has been accepted by the Department and the departmental inquiry has established the actual date of birth of Sh. Aijaz Hussain Sahaf as 28.10.1955 and the same has also been confirmed in the report of the Forensic Science Laboratory.
Now, therefore, in terms of Article 226 of J&K Civil Service Regulations Sh. Aijaz Hussain Sahaf I/C Superintending Engineer is hereby compulsorily retired from the Government service w.e.f. 31.10.2013. The excess 5 salary/payments received by the officer for the period he overstayed in service unauhorisedly by tampering his date of birth shall be recovered from him in full."
8. When the present writ petition, challenging the said Government order no.347-PW(Hyd) of 2014 dated 29.08.2014 first came up for consideration before the Court on 28.11.2014, the Court, while issuing notice, which was accepted by one of the Government counsels, namely, Alla-ud-Din, Dy. AG, passed a detailed order staying the operation of the impugned order.
9. The petitioner has challenged the enquiry proceedings as a whole and the impugned order dated 29.08.2014 on numerous grounds taken in the writ petition. Broadly speaking, inter alia, the grounds taken are that the charge sheet framed against the petitioner actually contained an opinion and decision of the Government; therefore, the whole exercise of conducting the enquiry under Rule 31 of the CCA Rules was rendered a sham exercise, and the proceedings as a whole are vitiated; that the enquiry was conducted not in adherence to the requirements of law; that the petitioner was not given an opportunity to defend himself, muchless a reasonable and fair opportunity, inasmuch as neither any evidence was produced, nor he was given an opportunity to rebut any evidence relied upon by the enquiry officer or to produce his own evidence in defence; that the petitioner was not afforded a personal hearing; that, as a matter of fact, the enquiry, if at all any, was conducted at his back, without his knowledge, so much so after he submitted his reply before the enquiry officer, refuting the allegations, nothing was heard by him thereafter from the enquiry officer till he came to know about the issuance of the impugned order dated 29.08.2014.
610. The respondents in their reply have stated that it was pursuant to the order dated 11.10.2013 passed by the Court in petitioner's writ petition, SWP no.1448/2012, that the department decided to hold a departmental enquiry into the matter consistent with the rules in vogue. Accordingly, vide Government order no.165-PW(Hyd) of 2014 dated 08.05.2014, respondent no.2 was appointed as Inquiry Officer. Respondent no.2 after conducting the inquiry and getting the record examined by the Forensic Science Laboratory for its genuineness or tampering thereof, submitted his report to respondent no.1 in terms of communication no.PW/PHEK/58/2012-WP dated 08.08.2014. The report which was thus made by the Inquiry Officer, i.e., respondent no.2, is quoted in para (v) under the heading Preliminary Objections of the reply. It is, word by word, the same as has been reproduced in the impugned order, quoted in para 7 hereinabove. It is stated that the report so made by the inquiry officer was accepted and it established that the actual date of birth of petitioner was 28.10.1955 which was confirmed by the J&K Forensic Science Laboratory and corroborated by the Joint Secretary (Verification), J&K State Board of School Education. It is averred in the reply that, "accordingly, petitioner's retirement was deemed to have been made from Government Service w.e.f. 31.10-.2013 in terms of Government Order No.347-PW(Hyd) of 2014 dated 29.08.2014". Further that, the order envisaged that the excess salary/payment received by the officer for the period he has overstayed in service unauthorisedly by tampering his date of birth shall be recovered from him in full.
11. In para (vi) of the reply under the heading preliminary objections, it is also submitted that the petitioner demitted his office prior to issuance of the Government order no.347-PW(Hyd) of 2014 dated 29.08.2014 which was conveyed to respondent no.1 by the Managing 7 Director, JKSPDC, in terms of communication no.
JKSPDC/Adm/3536 dated 19.07.2014, which clearly showed the guilt of the petitioner.
12. In their para-wise replies, the respondents have stated that the inquiry established the correct facts because the Forensic Science Laboratory, J&K, vide their report bearing no.FSL/102-DOC/Sgr dated 18.07.2014, confirmed the alleged tampering in the Service Book of the petitioner and that "the Inquiry Officer, while proceeding in the matter, had given ample opportunities of being heard and the petitioner attended the office of the Inquiry Officer on 23.06.2014 and was asked various questions during the proceedings which were replied by the petitioner, but the same did not suffice the purpose in his favour as per the inquiry report submitted by the Inquiry Officer" and that, "the officer had on his own demitted office on 21.07.2014, whereas the termination order was issued by the Department on 29.08.2014".
13. During the course of arguments, the learned counsel for the parties, apart from making oral submissions, opted to make their submissions in writing as well which they did. I have perused the same and considered the matter.
14. There are some serious lacunae, pointed out by the learned counsel for the petitioner, at each step in the whole process of the conduct of the enquiry against the petitioner, right from framing of the charge sheet to the issue of the impugned order, which render the exercise wholly unreasonable, arbitrary and, therefore, unconstitutional.
15. First and the foremost of the lacunae is that the Government appointed an enquiry officer vide order no.165-PW(Hyd) of 2014 8 dated 08.05.2014 before even framing the charge sheet against the petitioner; and secondly, the charge sheet has not been framed and signed by the disciplinary authority, but by the very person who was appointed as Enquiry Officer vide Government order no.165-PW(Hyd) of 2014 dated 08.05.2014. Law is settled that on both these counts, the whole exercise is vitiated and rendered illegal.
16. It may be observed here that, admittedly, pursuant to the order dated 11.10.2013 passed by this Court in CMP no.2391/2013 accompanying petitioner's writ petition, SWP no.1448/2013, the Department decided to hold an inquiry against the petitioner in terms of the provisions of CCA Rules. In fact, it was mentioned in the Memorandum dated 29.05.2014 served on the petitioner that the Government proposed to hold such an inquiry against him. The relevant provision of the CCA Rules in this connection is Rule 33. Its sub-Rule (4) prescribes as under:
"(4) The competent authority may inquire into the charges itself or if it considers it necessary so to do, it may appoint an inquiry officer for the purpose."
The above provision of law has come up for consideration before the Court in Showkat Ali Zargar (Dr.) v State, 2005(Supp) JKJ 169 [HC]. The Court in paragraph 6 of the judgment held as under:
"6...[R]eference to the CCA rules which regulate the disciplinary proceedings as per stand of Respondent-SKIMS becomes necessary, and relevant to the issue is sub rule 4 of rule 33, which reads:
'(4) The competent authority may inquire into the charges itself or if it considers it necessary so to do, it may appoint an inquiry officer for the purpose.' 9 The language of the rule aforementioned makes it manifestly clear that it is the competent authority which can frame the charge, however, after charge is framed it has the power to appoint an enquiry officer to enquire into the charge so framed. Situations are conceivable where rules do not indicate the officers competent to initiate the departmental proceedings and in absence of rules to the contrary it cannot be canvassed that appointing authority alone can initiate enquiry, but where rules specifically cite the authority competent to frame the charge, it has to be that authority. In the case on hand it is the CCA Rules which are applicable to the SKIMS and sub rule 4 of rule 33 is very clear to the effect that competent authority alone can frame the charge...."
Who is the competent authority, the Court in the very same paragraph of the judgment in Showkat Ali Zargar (Dr.) v State (supra), held as under:
"... What is deducible from a conjoint reading of sub-rule 4 of rule 33 and 34 is that competent authority is the one which has the power to impose penalty and such authority is spelt out in sub section 1 of the Section 126 of the Constitution of Jammu and Kashmir which admits no ambiguity on the court that it is the appointing authority which has the competence to impose penalty..."
17. In the above case, the charge was framed by the Administrative Officer and signed by the Joint Director - not either by the Government or by the Chairman of the Governing Body. The Court proceeded to lay down the fall out of such incompetent action and in that connection, relied upon the earlier judgment of the Court in Ghulam Qadir Bhat v. University of Kashmir, 1984 SLJ 311. Therein, while dealing with the point, the Court had ruled as under:
"A plain reading of the Rule shows that it prescribes that the competent authority or the appointing authority shall on being satisfied on the basis of the facts and material available before it, that charges are required to be framed against the delinquent officer, shall so frame definite charges and serve the same on the delinquent concerned alongwith the statement of allegations seeking his explanation by way of written 10 statement of defence and further enquiring from him if he wants personal hearing. If the delinquent denies the charges, the competent authority, on the basis of the material before it, may decide either to proceed or not to proceed against the delinquent. Should, however, the competent authority decide to proceed further, it shall order an enquiry into the charges, which stand already served on the delinquent by the competent authority and an Enquiry Officer would then be appointed by the authority. The Enquiry Officer shall, thereafter, hold an enquiry into these charges and conclude the enquiry in accordance with the rules of natural justice."
The Court in para 7 of the judgment in Showkat Ali Zargar (Dr.) v State (supra), concluded that the ratio decedendi of the judgment makes it manifestly clear that if charge sheet is framed by an enquiry officer and not by the competent authority, entire proceedings including the order of punishment are bound to vitiate.
18. In the instant case, as already mentioned, the charge sheet against the petitioner has been framed, formulated and signed not by the disciplinary authority. So applying the law laid down by the Court in the above two judgments, the proceedings as a whole are vitiated.
19. Then there is yet another grave factor involved in the matter, which is that the very person who has framed, formulated and signed the charge sheet, has been appointed as the Enquiry Officer. There can be no denial to the fact that principles of natural justice have to be strictly followed in departmental proceedings. Nemo judex in causa sua or Nemo judex in sua causa is the celebrated principal of natural justice which tells us that no one can be a judge in which he has an interest. This principle has to be strictly followed and applied to any appearance of a possible bias. True it is that the Rule does not preclude the disciplinary authority from holding the enquiry himself after he has framed the charge sheet and, therefore, the aforesaid principle of 11 natural justice may not always be attracted in every case, inasmuch as a disciplinary authority is authorised not only to frame the charge, but also given the discretion to hold the enquiry as well himself. But in the instant case, whereas the charge against the petitioner was contained in the first paragraph of the charge sheet, the second paragraph, looking at its contents from any angle, constitutes an opinion, rather the finding of the person framing the charge. The enquiry officer, therefore, had commenced the enquiry proceedings with a predetermined mind that the charge framed has to be, in any case, held to be proved against the petitioner. This was and is, therefore, a case where the above principle of natural justice is attracted with all gravity - the bias being writ large on the face of the contents of the charge sheet. Given the scenario that the charge sheet contained a definite finding of fact in its second para in relation to the article of charge contained in the first paragraph thereof, the enquiry proceedings as a whole are rendered and tantamount to a sham process where the petitioner was hanged and then asked why he should not be so hanged. That being the position, the enquiry proceedings are wholly vitiated and any report made by the enquiry officer, being rendered illegal, could not and cannot be relied upon for any purpose whatsoever. Consequently, the impugned order founded on any such enquiry report cannot be sustained.
20. It may also be mentioned here that two of the other fundamental principles of natural justice are that no one can be condemned unheard and that justice should not only be done but should manifestly appear to have been done. The nature, aim and scope of these principles and the extent of their applicability were first articulated by the Supreme Court in A. K. Kraipak v. Union of India, (1969) 2 SCC 262. Grant of opportunity of hearing to a delinquent includes giving him an opportunity to rebut any evidence that is proposed to be read against 12 him. In the instant case, the enquiry officer of his own has proceeded to send the documents to the Forensic Science Laboratory. Not only that, not a single piece of paper, characterized by the enquiry officer as evidence against the petitioner, including such report of the Forensic Science Laboratory, has been put to the petitioner for his rebuttal during the course of enquiry so as to afford him an opportunity to rebut the same. Instead, the enquiry officer has adopted a novel method of relying on such documents/reports and proceeded to formulate its report. The persons who have made such reports have not been called as witnesses and the petitioner has not been given any opportunity to cross-examine them. The whole proceedings have been held in a shoddy and novel manner.
21. There is yet another very crucial aspect of the matter. Rule 30 of the CCA Rules prescribes the penalties which may, for good and sufficient reason, be imposed upon a member of a Service in the manner as provided in the said Rules. Sub-Rule (vi) thereof prescribes premature retirement on proportionate pension other than that specified in Article 226(2) of the CSRs as one of the major punishments. Under Article 226(2) of the CSRs the Government has the discretion, if it is of the opinion that it is in the public interest to do so, to require any specified Government servant to retire at any time after he has completed 22 years / 44 completed six monthly periods of qualifying service or on attaining 48 years of age; provided that the appropriate authority shall give in this behalf a three months' prior notice in one of the prescribed forms to such Government servant or 3 months' pay and allowances in lieu of such notice. Though Article 226(2) does not speak about the nature of the retirement it would constitute, but the language thereof itself makes it abundantly clear that such a retirement would constitute premature compulsory 13 retirement. The concept of premature compulsory retirement has come into existence and force to remove a public servant whose services are no longer useful to the general administration or in public interest; if it is felt that for better administration, for augmenting efficiency, it is necessary to chop off the deadwood. The order of premature compulsory retirement made in public interest does not constitute or postulate a punishment and it carries no stigma. On the other hand, the premature retirement envisaged by Sub-rule (vi) of Rule 30 of the CCA Rules is clearly a measure of major punishment for proved misconduct. Therefore the two retirements - one envisaged by Sub- rule (vi) of Rule 30 of the CCA Rules and the other by Article 226(2) CSRs - are entirely different in their objectivity, essence, effect and field of operation: one is to augment efficiency in the Service and the other is to inflict punishment for proved misconduct. In fact, Sub-rule
(vi) of Rule 30 of the CCA Rules itself speaks "premature retirement on proportionate pension other than that specified in Article 226(2) of the Jammu and Kashmir Civil Service Regulations". The two retirements can be ordered in context of the peculiar set of facts, following a separate set of procedures provided under the two sets of Rules governing these retirements. One retirement cannot be ordered on the set of facts, reasoning and following the procedure prescribed vis-à-vis the other. For instance, after holding an enquiry into the allegation of any kind of misconduct against a Government servant under the provisions of CCA Rules, the Government can award the punishment of premature retirement after following the procedure laid down in the said Rules, which would include holding of enquiry in accordance with the procedure laid down therein and giving of a show cause notice to a delinquent against the penalty proposed; whereas under Article 226(2) of the CSRs the Government is only required to formulate its opinion, of course, on the basis of entire service record of 14 a government servant as to his utility. The Government or the competent authority, therefore, while seeking to act upon the report of an enquiry officer purportedly made in consequence of conduct of such enquiry into the alleged misconduct under the CCA Rules cannot hop the rules and take resort to the discretion under Article 226(2) of the CSRs. This is so simple that the retirement under Article 226(2) is retirement simplicitor; whereas the retirement under Sub-rule (vi) of Rule 30 of the CCA Rules is a measure of punishment which can be inflicted only after following the procedure for awarding such a punishment. By hopping the Rules and the procedure, the respondents have greatly prejudiced the petitioner in as much as he has been deprived of an opportunity to defend himself and to explain why the proposed punishment should not be awarded to him. On that count also the procedure so adopted by the respondents is vitiated and consequently the impugned order is not sustainable in law. This clearly speaks of a close-minded-rush-through mannerism demonstrated by the respondents which renders the whole exercise arbitrary.
22. Apart from the above, it becomes axiomatic from the contents of the Memorandum dated 29.05.2014, the petitioner was not informed what oral or documentary evidence the Government proposed to produce or rely upon to establish the charge so framed against him. There is also nothing brought on record, or even pleaded in any return, that the written-statement of defence submitted by the petitioner was perused and considered by the competent authority and that it was after accord of such consideration that the competent authority was satisfied that the allegation was such as required to be probed into in a regular enquiry. Further, admittedly, the Enquiry Officer had asked the petitioner to appear before him only once on 23.06.2014 on which date he was required to answer certain questions which he did. He was not, 15 thereafter, associated with any proceedings conducted by the Enquiry Officer. As a matter of fact, admittedly, after 23.06.2014, when the petitioner submitted his answers to the questionnaire put to him, he was neither called nor any further proceedings were conducted by the Enquiry Officer. It is reiterated that neither the Forensic Science Expert concerned was called and examined by the Enquiry Officer, nor was the petitioner afforded an opportunity to cross-examine the Forensic Science Expert as to his findings recorded by him in his report. Similarly, the Enquiry Officer did not call and examine, or afford an opportunity to the petitioner to cross-examine the Joint Secretary (Verification), J&K State Board of School Education. Again, the Enquiry Officer did not call and examine, or afford an opportunity to the petitioner to cross-examine the Principal, National High School, Srinagar, at whose behest and instance the Joint Secretary (Verification), J&K State Board of School Education, had reported and opined that the petitioner's date of birth was 28.10.1955 and that the photocopy of the certificate produced by him was fake. Furthermore, the report of the Principal, National High School, Srinagar, sent by him to the Joint Secretary (Verification), J&K State Board of School Education pursuant to the latter's communication no. F(JS-Veri- Fak)B/12A-341 dated 09.07.2012 nor the report/opinion of the Joint Secretary (Verification), J&K State Board of School Education, were, admittedly, furnished or put to the petitioner.
23. One can go on end, enumerating the lacunae in the enquiry process which go to the root and, in any case, have grossly prejudiced the petitioner in defending himself. On all these aspects there are innumerable judgments denouncing such practices and failures on the part of the authorities at the helm in such enquiries. I think it unnecessary to burden this judgment with the quotations of the law so 16 laid down by the courts from time to time, especially the Apex Court. However, in my view, it would suffice to give the citations of the judgments referred to and relied upon at the Bar. These are (i) Fakhruddin v. State of M. P., AIR 1967 SC 1326; (ii) decision of this Bench in Ghulam Mohammad Ganai v State of J&K, SWP no.1305/2004, decided on 31.05.2016; (iii) decision of the Court in HC Abdul Rehman Bhat v State & ors, SWP no.1310/2009 decided on 24.10.2011; (iv) State of Orisa v Binapani Dei, AIR 1967 SC 1269;
(v) Ram Ekbal Sharma v. State of Bihar, AIR 1990 SC 1368; (vi) Union of India v Mohd. Ramzan Khan, AIR 1991 SC 471; (vii) Mohd. Sammandar Malik v State of J&K, 2011(1) SLJ 142; (viii) Khurshid Anwar Shah v State of J&K, 2016(1) SLJ 377(HC); (ix) another decision of this Bench in Shamim Ahmad Laherwal v State of J&K, SWP no.1381/2015 decided on 13.12.2016; (x) another decision of the Court in Bashir Ahmad Bhat v. State & ors., SWP no.762/2000 decided on27.04.2011; and (xi) Pt. Gopi Nath Wali v State of J&K, AIR 1958 J&K 11. As against the above judgments, the law cited and relied upon by the learned State counsel, viz. Prem Nath Bali v Registrar, High Court of Delhi, AIR 2016 SC 101; Bank of India v T. Jogram, AIR 2007 SC 2703; Rajasthan SRTC v Bajrang Lal, (2014) 4 SCC 693; and Diwan Singh v LIC, (2015) 2 SCC 341, are not attracted in the facts and circumstances of the present case.
24. To put the nut into the shell, the whole exercise has been conducted in a novel manner and in total disregard of the procedure established by law. The Enquiry Officer has straight away proceeded to formulate his report relying only on the opinion of the FSL Expert, obtained by the Enquiry Officer at the back of the petitioner, without his knowledge, and without putting the same to the petitioner, and the opinion of the Joint Secretary (Verification), J&K State Board of 17 School Education which had been made by him earlier to the Chief Engineer, Kashmir Irrigation and Flood Control Department, vide communication no. F(JS-Veri-Fak)B/12A-341 dated 09.07.2012, not on the basis of the records of the Board itself, but on the basis of some report obtained from Principal, National High School.
25. What is more striking in the instant case is the novel procedure adopted by the Government to do away with the services of the petitioner, highlighted above.
26. The crux of the matter, or the core feature of the action so taken by the respondents against the petitioner, essentially requiring resolution or determination by the Court, relates to the question which is this: On completion of a departmental enquiry initiated against a public servant in terms of the provision of Rule 31 of the Jammu and Kashmir (Classification, Control and Appeal) Rules, 1956, whether, acting on the final report of the enquiry officer, even if it is made in due regard of the procedure established by law, it is permissible for the Government to resort, or, have recourse, to Article 226(2) of the Jammu and Kashmir Civil Service Regulations and compulsorily retire the public servant? The answer, as discussed above, has to be big and categorical, no. And if it is so done, the fall would be that the whole exercise would be vitiated. It is so held in the instant case.
27. Now, the question arises what relief can be granted to the petitioner at this stage. Before coming to that aspect, yet another novelty attendant to the case is that by the impugned order the petitioner has been compulsorily retired from Government service with effect from 31.10.2013 which is the date commensurate to the date of superannuation of the petitioner calculated on the basis of his date of 18 birth viz. 28.10.1955 which allegedly was originally recorded in his service book and is alleged to have been changed to 28.10.1958. If we go by the date 28.10.1958, the date of superannuation of the petitioner on attaining the age of 60 years would come to 31.10.2018. That means, if his date of birth turns out to be 28.10.1958, the petitioner still has one year and 7 months of service left. It is note worthy that the operation of the impugned order was stayed by the Court order dated 28.11.2014. Consequently, the petitioner has continued in service. Now that the Court has come to a definite conclusion that the enquiry has been conducted not in accordance with the procedure, I think it would be appropriate to quash the impugned order. The respondents need to bear in mind that they have not till date alleged that the petitioner has turned into deadwood or imbibed any of the attributes on the basis of which he could even now be termed as having lost his utility to the Service and could, therefore, be compulsorily retired in public interest in exercise of the powers under Article 226(2) of the CSRs.
28. In view of the above, this petition is allowed. The impugned Government order no.347-PW(Hyd) of 2014 dated 29.08.2014 is quashed. Consequently, the respondents are directed to reinstate and treat the petitioner in service, entitled to all the benefits, as if the impugned order had not at all been issued. To accelerate such process, the petitioner is directed to report for duty before Commissioner Secretary to Govt. PHE, Irrigation & Flood Control Department, Civil Secretariat, Jammu, within seven days from today, preferably, with a certified copy of this judgment.
29. This also disposes of the connected CMP(s). The interim direction passed shall stand merged in the above directions of the Court.
1930. No order as to costs. Record produced be returned to State counsel in open Court.
(Ali Mohammad Magrey) Judge Srinagar, 05.04.2017 Syed Ayaz Hussain, Secretary