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2001 DIGILAW 179 (JK)

Mohinder Singh v. Chief Justice Of J&K

2001-08-27

B.L.BHAT, H.K.SEMA

body2001
Per Sema ACJ (Oral) 1. We have heard Mr. Qureshi, learned counsel for the appellant as well as Mr. Kawoosa, learned AAG appearing for respondents. 2. Appellant was working in the court of 2nd Addl. Munsiff, Srinagar. He was prematurely retired from service by order No. 1194 dated: 25-03-1987 passed by the Honble Chief Justice in exercise of the powers conferred on him under Article 226 (2) of the Jammu and Kashmir Civil Services Regulations. The impugned order runs as under: "Order No. 1194 dated: 23-03-1987 Shri Mohinder Singh Nazir 2nd Addl. Munsiff Court, Srinagar (under suspension) is hereby retired from government service with immediate effect. He is allowed three months pay and allowance in lieu of notice as provided under Article 226 (2) of the Jammu and Kashmir C.S.R. The period of suspension shall be treated as leave of whatever kind be due to him. Sd/(Hakim Imtiyaz Hussain) Secretary to the Honble Chief Justice. No. 23366-69/SY dated: 23-03-1987" This order has been assailed by the appellant by filing SWP No. 412/1991 which has been dismissed by the impugned order. Hence the present appeal. 3. Basically the main thrust of appeal is that the appellant has been compulsorily retired by way of punishment. It is contended by Mr. Qureshi that from the impugned order it would clearly appear that the appellant has been placed under suspension on the allegations levelled against him and instead of inquiry into the allegations made against him, he has been retired prematurely by invoking the provisions of Art. 226 (2) of the J&K C.S.R. We at this stage point out that this is an admitted case although there was some complaint made against the appellant. No proceedings were started against the appellant by filing a charge sheet. Proceedings in departmental inquiry is preceded by a charge sheet. Since, admittedly, no charge sheet has been framed against the appellant, there is no question of conducting any inquiry in terms of Art. 311 of the Constitution of India. Argument of Mr. Qureshi has no substance and is accordingly rejected. 4. Proceedings in departmental inquiry is preceded by a charge sheet. Since, admittedly, no charge sheet has been framed against the appellant, there is no question of conducting any inquiry in terms of Art. 311 of the Constitution of India. Argument of Mr. Qureshi has no substance and is accordingly rejected. 4. It is well settled principle of law that: a) compulsorily retiring a government servant is not an order of punishment and unless the order of compulsorily retiring a government servant is tainted with a malafide; b) that is based on no evidence; c) that is arbitrary, the court cannot go into the question and examine the material available on record and comes to a different finding than the finding concluded by the appropriate authority. 5. In order to satisfy us, and in order to lift the veil the nexus between the proximate documents available and the order leading to the passing of the impugned order, we have requisitioned the record from the learned A.A.G. and he produced the record. On perusal of the record it would clearly appear that there was a complaint against the appellant who was a Nazir and the complaint was endorsed to the Vigilance Commissioner (Judicial) for an investigation. From the record it reveals that the report submitted by the Vigilance Commissioner was approved by the Honble Chief Justice and pursuant to the recommendations of the Vigilance Commissioner, the appellant has been retired compulsorily by invoking the provisions of Art. 226 (2) as referred to above. We have perused the record and from the report clearly appear that in course of inquiry the Vigilance Commissioner has examined Mis. Sudesh Varikoo, 2nd Addl. Munsiff, Srinagar, Abdul Aziz and Gh. Mohammad Ganai, process servers. In their statements they have categorically stated that the appellant (Nazir) used to attend the court at 1 PM and create lot of problems for the litigants, apart from using abusive language against the Officers and other litigant public. The Nazir in the District Court is an important functionary. If he comes to court at 1 PM every day there will be no sufficient time left for him to discharge the public duties. He being a Nazir coming to Court at 1 PM, the public interest was suffering to a great extent. Compulsorily retiring such a person in our view is clearly a case of chopping off dead wood in the public interest. He being a Nazir coming to Court at 1 PM, the public interest was suffering to a great extent. Compulsorily retiring such a person in our view is clearly a case of chopping off dead wood in the public interest. We have perused the record and were clearly of the view that the order of compulsorily retiring the appellant from service has got the approval of the Chief Justice who is a competent authority under the Law. Also from the record it appear that on the receipt of the complaint the Honble Chief Justice ordered for an inquiry to be conducted by the Vigilance Commissioner and the record submitted by the Vigilance Commissioner on 04-03-1987, on the basis of which the appellant was compulsorily retired from service by an impugned order. The material collected by the Vigilance Commissioner on the basis of which the order of compulsory retirement has been passed is neither stigmatic nor punitive (See: 1996 (4) SCC 504 "Allahabad Bank Officers Association and Anr, appellant Vs. Allahabad Bank and others, respondents). From the record it clearly bears out that there was sufficient materials for retiring the appellant by invoking Art. 226 (2) of the J&K Civil Services Regulations. In view of what has been stated above, the following rulings cited by Mr. Qureshi is of no help to the appellants case. AIR 1954 SC 369 "Shyam Lal Vs. State of UP and Anr: AIR 1981 SC 70" Baldeve Raj Vs. Union of India and Ors: AIR 1967 SC 1260 " State of UP Vs. Madan Mohan Nagar: AIR 1970 SC 143 "T.S. Mankad Vs. State of Gujrat: The other points urged in the LPA are not pressed by the counsel for the appellant at the time of arguments. In the result there is no merit in this appeal and is accordingly dismissed.