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2009 DIGILAW 276 (JK)

Nishter Ab. Rub v. State Of J. &K.

2009-05-30

BARIN GHOSH, MUZAFFAR HUSSAIN ATTAR

body2009
1. In the writ petition, the petitioner has assailed an order dated March 15, 2002 whereby he has been compulsorily retired in public interest on proportionate pension. A learned Single Judge, while considering the writ petition felt that two substantial questions of law have arisen in the matter, which require authoritative pronouncement. The learned Judge, accordingly, referred the writ petition to the Division Bench. That is how the writ petition is before us. 2. We have heard learned counsel for the petitioner and the learned Advocate General appearing on behalf of the High Court. 3. When the order impugned in the writ petition was passed, the petitioner was a District and Sessions Judge, a member of the State Higher Judicial Service. A disciplinary proceeding was initiated against him. He was charged with the following charges: "That a complaint was received against you by Honble Administrative Judge District Pulwama and was forwarded to Lordship Honble Chief Justice, a fact finding enquiry was conducted and it was established that during the period you were posted as Sub-Judge / Chief Judicial Magistrate, Shopian, you entertained number of cases in which the counsel for the parties entered into compromise on the basis of which you passed compromise decrees in these cases. In all such cases, you recorded the statements of the Lawyers only and did not record the statements of the parties, while as under the provisions of Order 23 Rule 3 of C.P.C., any compromise which is to be acted upon by the court must be in writing and signed by the parties. You have, thus, entertained and accepted these compromise deeds and passed compromise decrees in such cases in violation of the provisions of law. 2. That in some of cases in which compromise decrees have been passed by you are given below. The defendants in the cases were Kashmiri Pandits Migrants: - The cases are: S. No. File No. Date of institution Title 1 1267/A 26-12-1997 Gh. Mohd. v. Jail Lal 2 1272/A 26-12-1997 Sitara Bano v. Janki Nath Koul 3 1299 26-12-1997 Ab.Ahad Sofi v. Shamsunder Lahori 4 1300 31-12-1997 Fihmida v. Bansi Lal 5 1301 31-12-1997 Khaliq Dar v. Makhan Lal 6 1302 31-12-1997 Gh. Mohammd Bhat v. Chaman Lal 7 1303 31-12-1997 Mst. Nasira v. Prem Nath 8 1388 10-02-1998 Ab. Ahad Hajam v. Badri Nath 9 1398 26-12-1997 Ab. Hamid v. Krishan Dass 3. Mohammd Bhat v. Chaman Lal 7 1303 31-12-1997 Mst. Nasira v. Prem Nath 8 1388 10-02-1998 Ab. Ahad Hajam v. Badri Nath 9 1398 26-12-1997 Ab. Hamid v. Krishan Dass 3. That there is a ban on such decrees under the Jammu & Kashmir Restraint on Distress Sales of Migrants Property Act, 1997. You passed these decrees in violation of the provisions of this Act. In all these cases, it was found that the compromise decrees have been passed by recording the statements of Lawyers only and not the parties. 4. That on enquiry it was found that you have got your official vehicle repaired through one Reyaz Ahmad S/o Mohd. Yousuf R/o Borihal, who is a mechanic by profession. According to him, you paid him only Rs. 2500 for such repairs while as contingent register shows that you have drawn Rs. 12500 for the expenditure of repair of the vehicle. Thus, you have converted Rs. 10,000 to your own use. 5. That your action to issue decrees in violation of the rules / laws and to draw amount for repairs of vehicle fraudulently and with malicious intention, amounts to dereliction of duties, and commission of offence under law." 4. Petitioner answered the charges. The reply was not found satisfactory and, accordingly, an Honble Judge of this Court was appointed as Enquiry Officer to enquire into the charges. In the enquiry report, the Honble Judge reported that the charges stand proved. He thereupon stated that the services of the petitioner had to be recommended to be dispensed with. In the enquiry report, the Honble Enquiring Judge, however, added that the petitioner has served the department for last about 26 years and has earned promotions to reach the post of District and Sessions Judge, which cannot be lost sight of. The Honble Judge further added that once the petitioner loses his job, his dependents and family may not have to live in penury, cannot be as well looked over. The Honble Judge further added that once the petitioner loses his job, his dependents and family may not have to live in penury, cannot be as well looked over. In the last paragraph of the report, the Honble Judge observed as under: "In the premise, in the totality of facts and circumstances, it is recommended that the delinquent officer Shri Nishter Abdul Rub be retired in the public interest on proportional pension basis in terms of Article 226(2) of Jammu and Kashmir Civil Service Regulations and that un-accounted money in the sum of Rs.97007- may be recovered from the delinquent officer." 5. A copy of the enquiry report was then served upon the petitioner with second show cause notice. By that, the petitioner was given an opportunity of making representation as to why he should not be removed / dismissed from service. Petitioner made a representation. The whole matter, i.e., the entire disciplinary proceedings, the second show cause notice and the representation of the petitioner, was, thereupon, examined by a Committee of Honble Judges constituted for that purpose. The said Committee resolved as follows: "Pursuant to the report dated 14.11.2000 submitted by the Honble Judge, a show cause notice along with a copy of the inquiry report for proposed punishment was served upon the delinquent officer for imposition of major penalty of removal/dismissal from service. The delinquent office replied the said notice which has been considered. His reply has not been found satisfactory. However, considering the totality of the circumstances, we agree with the recommendation of the learned Judge for imposing penalty of compulsory retirement in public interest on proportionate pension basis and also for recovery of Rs.9700/- instead of removal / dismissal from service of the delinquent officer. We recommend accordingly". 6. The report of the Committee of the Honble Judges and the reply of the petitioner to the show cause notice was lastly considered by the Full Court, when it resolved as follows: "Considered the report of the Committee. Resolved - the report of the Committee is accepted to the extent that the delinquent officer is compulsorily retired in public interest on proportionate pension w. e. f. 31.12.2001." 7. The decision of the Full Court, as reflected in the said resolution was, thereupon, communicated to the Government, whereupon the order impugned in the writ petition was passed by the order of the Governor. The decision of the Full Court, as reflected in the said resolution was, thereupon, communicated to the Government, whereupon the order impugned in the writ petition was passed by the order of the Governor. The text of the said order is as follows: "In exercise of the powers conferred under section 109 read with section 126 of the Constitution of Jammu and Kashmir and as recommended by the Honble High Court, sanction is accorded to the compulsory retirement of Shri Nishtar Abdul Rub, Member Jammu and Kashmir Higher Judicial Service on proportionate pension in public interest." 8. In the background of what has been stated above and considering the same, the learned Judge, who dealt with the writ petition at the initial stage, felt that the following questions of law arise for determination of the writ petition: "1) Whether the petitioner could be compulsory retired in exercise of the power under section 126 of the Constitution by the competent authority, or the case of the petitioner falls within the ambit of Regulation 226 of the CSR read with fourth proviso appended thereto and whether the petitioner has been compulsory retired as a matter of punishment, and if it is so, is compulsory retirement a penalty in terms of rule 30 of the Rules 1956? 2) Whether the discharge of duties in the administration of justice, such as passing of compromise decrees or other judicial orders, can validly form subject matter of the disciplinary proceedings when neither party to the litigation is aggrieved of such judicial action (s)?" 9. It was contended on behalf of the petitioner that a disciplinary proceeding initiated under the Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956 can be concluded, if the delinquent is not absolved of the charges, by meting out those punishments as are mentioned in rule 30 thereof. It was submitted that clause (6) of Rule 30 authorizes grant of punishment by way of premature retirement on proportionate pension other than as specified in Article 226(2) of the Jammu and Kashmir Civil Service Regulations. It was submitted that if the disciplinary proceedings against the petitioner had been thus concluded, the matter would have been different. But the fact remains that the same was not thus concluded. It was submitted that Article 226(2) of the J&K Civil Service Regulations authorizes premature retirement of government employees in public interest. It was submitted that if the disciplinary proceedings against the petitioner had been thus concluded, the matter would have been different. But the fact remains that the same was not thus concluded. It was submitted that Article 226(2) of the J&K Civil Service Regulations authorizes premature retirement of government employees in public interest. The contention is that if it was in public interest to bring to an end the services of the petitioner, then the disciplinary proceeding takes the back seat. It was contended that though there are records pertaining to application of mind in relation to disciplinary proceedings, but there appears to be nothing on record which would suggest application of mind to ascertain whether in public interest it was appropriate to compulsorily retire the petitioner under Article 226(2) of the Jammu and Kashmir Civil Service Regulations. It was contended that, in fact, as the records stand, the petitioner was retired in public interest. It was submitted that the original recommendation of the learned Enquiring Judge was user of power under Article 226(2) of the Civil Service Regulations in public interest and the ultimate decision by the Full Court was also so. It was contended that when the decision of the Full Court was communicated, the compulsory retirement was justified only on public interest. It was contended that the matter pertaining to public interest matter had not been gone in and, at least, no record of the Court would suggest the same. It was, accordingly, submitted that the order is not sustainable. 10. In the alternative, it was contended that when a disciplinary proceeding has been initiated and the same is not concluded in terms of the rules applicable in relation thereto, i. e., Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956, the materials placed on record of such a proceeding cannot be taken note of for exercise of power to compulsorily retire on public interest. 11. It was lastly contended, that assuming the words `public interest can be ignored from the decision of the Full Court as well as from the communication thereof by the order on behalf of the Governor, but the fact remains that the materials on record would suggest that the charge nos. 1, 2 and 3 have not been proved and the disciplinary authority, namely, the Full Court has absolved the petitioner of the 4th charge. 1, 2 and 3 have not been proved and the disciplinary authority, namely, the Full Court has absolved the petitioner of the 4th charge. It was submitted that the charge as contained in charge nos. 1, 2 and 3, was in relation to grant of decrees on the basis of compromises recorded by the lawyers of the parties, which were not either in writing or signed by the parties to the lis. It was submitted that it is well settled in law that, although comprise must be in writing and should be signed, it is not necessary that it should be signed by the parties to the lis themselves, but can also be signed by their legal representatives. In this connection reliance was placed on the judgment of the Honble Supreme Court in Byram Pestonji Gariwala v Union Bank of India, reported in AIR 1991 SC 2234 at page 2245. It was, therefore, submitted that the allegations made in relation to the charges 1, 2 and 3, even if are accepted to have been established, the same cannot be treated to be a misconduct. It was contended that so far as Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 is concerned, the same does not ban passing of decree and, accordingly, the said charge also is of no effect. It was submitted that assuming charge no. 4 stands proved, as has been reported by the learned Enquiring Judge, and initially accepted by the Committee of Honble Judges too, but discarded by the Full Court while taking their ultimate decision, since the learned Enquiring Judge recommended recovery of the money involved in relation to the said charge from the petitioner, and the Committee of Honble Judges, while altered the proposal to remove or dismiss the petitioner from service, made recommendation of recovery, but the Full Court only accepted the report of the Committee of Honble Judges to the extent that the petitioner be compulsorily retired in public interest on proportionate pension and, thereby, did not accept the recommendation of recovery, which connotes that they did not accept the foundation thereof, It was submitted that thus, by looking into the matter from both angles, the conclusion would be that the order impugned in the writ petition is not sustainable. 12. 12. The learned Advocate General on behalf of the High Court submitted that while exercising power of judicial review under Article 226 of the Constitution of India, the Court does not sit in appeal over the matter. He further submitted that judicial review of the decision is not available, but it is the decision making process which can be judicially reviewed. He submitted that the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, which came into force sometimes in June, 1997, was a beneficial Act for the purpose of benefiting migrants who had left their properties in the Kashmir Valley. He submitted that the Act made it absolutely clear that properties belonging to the migrants shall not be sold without permission of the Divisional Commissioner, in whom such properties vested by reason of the provisions of the Act. He submitted that the object thereof was to prevent distress sales of those properties. He submitted that in furtherance of the said Act, the State Legislature made the Jammu and Kashmir Migrants (Stay of Proceedings) Act, 1997, and thereby, stayed proceedings of the nature in which the subject compromise decrees were passed. He contended that, as would be evidenced from the enquiry report, the Honble Judge, who made the enquiry, was aware of the fact that it is not necessary for the parties themselves to sign and write the comprise and representatives of the parties, including lawyers appearing on their behalf, could sign and write those compromises, but the facts and circumstances, which came on record, did not justify acceptance of such compromise decrees, inasmuch as the decrees were passed even before the summons had been issued. He submitted that in relation to charge no. 4, the petitioner, in his reply to the charge sheet, accepted that he had paid Rs.2,500 only to Riyaz Ahmad for effecting repairs of the car and contended to have paid the remaining amount to other mechanics. He further submitted that, at the enquiry stage, Riyaz Ahmad had deposed to have received Rs.2,500 plus Rs.400 from the petitioner on account of repairs of the subject car. He submitted that before Riyaz Ahmad an attempt was made to show that the entire sum of Rs.12,500 was paid to him. He further submitted that, at the enquiry stage, Riyaz Ahmad had deposed to have received Rs.2,500 plus Rs.400 from the petitioner on account of repairs of the subject car. He submitted that before Riyaz Ahmad an attempt was made to show that the entire sum of Rs.12,500 was paid to him. This contention, apart from being contrary to the plea taken in the reply to the charge sheet, was specifically denied by Riyaz Ahmad. It was submitted that in terms of the reply given to the charge sheet, it was obligatory on the part of petitioner to bring on record evidence suggesting that, apart from Riyaz Ahmad, he had engaged other mechanics and had paid them sums of money in addition to what he had paid to Riyaz Ahmad. It was contended that no such attempt was made. The learned Advocate General then submitted that in the circumstances, the charges stand proved and the process of proving the charges cannot be called in question. He submitted that, in the facts and circumstances of the case as born out from the records brought on the record of the disciplinary proceedings, it cannot be said that a prudent person could not take the decision as was taken by the Honble Enquiring Judge and followed by the disciplinary authority. He submitted that the materials, as have been brought on record, do suggest that, on the basis thereof, the decision, as has been taken, could be taken and the matter ends there, and the Court has no further jurisdiction to go any further to judicially review the decision. The learned Advocate General submitted that the Honble Enquiring Judge, in no uncertain terms held the petitioner guilty of charges. He submitted that an enquiry officer, normally, is required to ascertain whether charges stand proved or not and he is not normally expected to make any recommendation as regards punishments that may be given by the disciplinary authority on the basis of the enquiry report. He submitted that, however, the Honble Enquiring Judge, having regard to 26 years past service and considering the plight of the family members of the petitioner in the likely case of his dismissal, merely observed that the writ petitioner may be retired in public interest on proportionate pension basis in terms of Article 226(2) of the Jammu and Kashmir Civil Service Regulations. It is the contention of the learned Advocate General that the said part of the enquiry report can, at best, be construed as the wish of the Honble Enquiring Judge, which had no binding force at all. The learned Advocate General submitted that when the enquiry report was considered before issuing the second show cause, the proposed punishment was dismissal / removal from service alone; it was neither retirement in public interest on proportionate pension, nor recovery of unaccounted money pertaining to charge no. 4. However, after the representation to the second show cause notice was received and the same was considered with the materials on record pertaining to the disciplinary proceeding, the Committee of Honble Judges, considering the totality of circumstances, agreed with the recommendation of the Honble Enquiring Judge for imposing the penalty of compulsory retirement in public interest on proportionate pension basis and also for recovery of Rs.9,700, instead of removal / dismissal from service, which punishment alone was indicated as the proposed punishment in the second show cause notice. He submitted that this was only a recommendation by the Committee and it did not reach finality. He further submitted that this recommendation had no binding effect also. He further submitted that it was the disciplinary authority, namely, the Full Court, which was entitled to take decision on the basis of the enquiry report, materials brought on record during the course of the enquiry, second show cause and the representation thereon, and that the same, along with the report of the Committee of Honble Judges, came to be considered, and inasmuch as the second show cause notice did not indicate that there is a proposal to recover any money from the petitioner, the Full Court passed an order of compulsory retirement in public interest on proportionate pension with effect from the date mentioned therein and the same having been repeated in the order impugned in the writ petition, there is no scope of interference at all. It was submitted that the petitioner is seeking to play with the words `public interest, as have crept in the decision of the Full Court as well as in the order impugned in the writ petition. It was submitted that the petitioner is seeking to play with the words `public interest, as have crept in the decision of the Full Court as well as in the order impugned in the writ petition. He submitted that the words `public interest are being unjustly linked with Article 226(2) of the Jammu and Kashmir Civil Service Regulations, as was mentioned in the enquiry report while recommending retirement of the petitioner in public interest on proportionate basis. He submitted that there was a disciplinary proceeding and the said proceeding has been concluded by ultimately passing the order of compulsory retirement on proportionate pension in terms of clause (6) of Rule 30 of the Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956, and, merely because the words `public interest have been used, it cannot be said that the said order has been passed on any other basis other than the basis indicated by him. 13. In reply, the learned counsel for the petitioner submitted that the words `public interest have been used consciously by the Honble Judges of the Court while taking the decision in the Full Court and these words were consciously used by the Committee of Honble Judges, too, while considering the matter. He submitted that not only the words `public interest, but also Article 226(2) of the Jammu and Kashmir Civil Service Regulations was specifically mentioned by the Honble Enquiring Judge. In the circumstances, it is not permissible to construe that the words `public interest, have crept in just by a sheer chance. 14. A look at the charge sheet containing the charges, as set out above, would indicate that there were, in fact, two charges against the petitioner. The first charge was in relation to passing of decrees on compromise, which were not signed or written by the parties; instead, were signed and written by the lawyers of the parties, when the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 banned passing of such decrees. The second charge was conversion of public money. It is possible that the charge was one and something else was sought to be proved in relation to the first charge, as is evident from the submissions recorded above. The second charge was conversion of public money. It is possible that the charge was one and something else was sought to be proved in relation to the first charge, as is evident from the submissions recorded above. In such circumstances, conclusion may be that the said charge on the materials brought in course of enquiry may be said to have not been proved. 15. However, it cannot be said that the second charge, i.e., conversion of public money, was not proved. If there are two distinct charges and one is not proved, but the other is proved, on the charge that stands proved, a decision to punish can be taken. However, in such situation, having regard to the gravity of the charge, it can be said that the punishment as meted out, is not proportionate to the charge proved. 16. In the instant case, however, that is not the contention before us. Further more, if the charge of conversion of public money stands proved against a public officer, we do not think that there can be any other punishment otherwise than disassociation of that public officer from the public office and that having been awarded in the instant case, even if it had been urged, we could not hold that the punishment is disproportionate. 17. We thus answer the second question referred for answer by the Learned Single Judge to the Division Bench. 18. In law, an enquiry officer is entitled to only enquire whether the charge stands substantiated or not. The enquiry officer is required to look into the materials properly brought on record of the enquiry by prosecution as well as materials brought thereon by the delinquent, and, thereupon, to prepare a summary thereof. In the event, after preparing the summary, he does not give his conclusions, he acts perfectly within the domain of his power. If he concludes and expresses his mind as to whether the charges stand proved or not on the materials that have been brought on record of the enquiry, that is a mere opinion of the enquiry officer and is not binding on the disciplinary authority. We think that the enquiry officer can go thus far and no further; he cannot make any recommendation on punishment in his enquiry report, for, it is beyond his competence to even ponder over the same. We think that the enquiry officer can go thus far and no further; he cannot make any recommendation on punishment in his enquiry report, for, it is beyond his competence to even ponder over the same. In law, therefore, a recommendation of punishment made by the enquiry officer has no significance at all. 19. From the facts, as narrated above, it is clear that when the enquiry report was considered by the Court, the Court did not propose to give any of the punishments recommended by the Learned Enquiring Judge. While the learned Enquiring Judge proposed giving of punishment of compulsory retirement and recovery of the public money converted by the petitioner, the Court in the second show cause notice proposed dismissal or removal. When the matter was considered by the Committee of Honble Judges, they seem to have felt that the recommendation of the Learned Enquiring Judge is more appropriate, and, therefore, instead of removal and dismissal from service, proposed compulsory retirement in public interest on proportionate pension basis along with recovery of the converted money. The said report of the Committee of the Honble Judges was not binding on the disciplinary authority, namely, the Full Court. They could act on the basis thereof or could altogether ignore the same. In the instant case, however, the disciplinary authority, namely, the Full Court, accepted that report only to the extent the same proposed compulsory retirement in public interest on proportionate pension; instead of removal / dismissal from service, i.e., a lesser punishment than what was proposed in the second show cause notice. Neither the Court, nor the Committee of Honble Judges and ultimately the Full Court, ever thought of Article 226(2) of the said Regulations. While originally the Court proposed removal/dismissal from service to conclude the disciplinary proceedings, the Committee of Honble Judges thought compulsory retirement on proportionate pension, but in public interest would be appropriate. The Full Court also thought so and, accordingly, awarded the punishment of compulsory retirement on proportionate pension, but in public interest. The words `public interest used thus cannot be linked with Article 226(2) of the said Regulations. In the context of the matter, the words `public interest thus used must be deemed to be public interest not to denude the family of the petitioner and expose them to abject penury by reason of dismissal of the petitioner. The words `public interest used thus cannot be linked with Article 226(2) of the said Regulations. In the context of the matter, the words `public interest thus used must be deemed to be public interest not to denude the family of the petitioner and expose them to abject penury by reason of dismissal of the petitioner. The decision of the disciplinary authority, namely, the Full Court, having been translated exactly in the same manner, by the order impugned in the writ petition, we find there is no scope of interference at all. 20. Before parting, we would only add that proportionate pension is available in clause (6) of Rule 30 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, but the same is not available in Article 226(2) of the Jammu and Kashmir Civil Service Regulations, where, upon compulsory retirement, the retiree is entitled to pension on the basis of qualifying service. 21. We, accordingly, dismiss the writ petition, however, without any order as to costs.