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2013 DIGILAW 190 (JK)

Javed Ahmad Bhat v. State of J&K & Ors.

2013-04-08

ALI MOHAMMAD MAGREY, M.M.KUMAR

body2013
Magray, J.:-- These Letters Patent Appeals have been filed against the common ad-in­terim order dated 14.12.2012 passed by the learned Writ Court in three clubbed writ petitions, bearing OWP No. 174/ 2012 and SWP Nos. 290/2012 and 1692/2011, whereby Government order No. 02-Coop of 2012 dated 03.02.2012, requiring the appellant to look after the charge of the post of General Manager, Anantnag Central Cooperative Bank, has been put in abeyance with direc­tion to respondent No. 1 to handover the charge of the said post to some other officer of integrity. 2. Records reveal that, while the ap­pellant was posted as Senior Manager in the Anantnag Central Cooperative Bank (for short ACCB), respondent No. 2, vide communication No. RCS/SS/ 474-75 dated 23.06.2011, made a report to respondent No. 1 about certain com­plaints received in his office regarding corrupt practices of the officials of the ACCB. Respondent No. 2 in the said com­munication also stated that he had summoned the officials of the Bank to his office twice to seek clarification from them, but they did not respond. Referring to an earlier incident of Debt Relief scam that had occurred in the Bank, respondent No. 2 in the said com­munication made the following recom­mendations: "Given the above position, in order to avoid any big mischief by the Gen­eral Manager and the other staff who are in league, this office is of the opin­ion that the case shall be handed over to the State Vigilance Organization for a thorough probe. Besides, in view of the recent instructions by the State Gout, on weeding out of corrupt offi­cials under Article 226 of the J&K CSR, proper recommendation to in­clude the name of Sh. Farooq Ahmad Khan and Javed Ahmad Bhat shall be made separately." Apparently pursuant to the afore­said report and recommendations, Gov­ernment issued Order No. 41-Coop of 2011 dated 05.08.2011 whereby the appellant was transferred from ACCB and attached with respondent No. 2. pending enquiry into charges against him. The appellant challenged the aforesaid Government order dated 05.08.2011 through writ petition, SWP No. 1692/2011, and the order was stayed by the learned Writ Court vide order dated 09.08.2011, as a result the appellant continued to function on his post in ACCB. 3. In the meantime, respondent No. 2, vide order dated 24.08.2011, appointed a team of officers to hold a detailed en­quiry on the areas highlighted in the complaints. 3. In the meantime, respondent No. 2, vide order dated 24.08.2011, appointed a team of officers to hold a detailed en­quiry on the areas highlighted in the complaints. The Enquiry Committee thus constituted, submitted its report to respondent No. 2 vide No. Adl/Adm/1584-85 dated 19.01.2012. In the said report, the Enquiry Committee clearly indicted the appellant and the General Manager of the Bank with serious im­putations of connivance between them aimed at causing huge financial losses to the Bank. 4. The aforesaid report of the En­quiry Committee did not evoke any ac­tion; instead respondent No. 1, issued Government Order No. 02/Coop of 2012 dated 03.02.2012, ordering the appel­lant to look after the charge of the post of General Manager, ACCB. 5. It appears that one Bilal Ahmad Khan a lonee of ACCB, who was one of the complainants in the earlier com­plaints, made a representation to the Minister Incharge, Cooperatives, J&K, bringing to his notice the corrupt prac­tices of the appellant and requesting therein to shift the appellant from ACCB. Sensing some trouble, the ap­pellant filed another writ petition, SWP 290/2012, praying for forbidding the respondents from causing any interfer­ence in his status. The said writ peti­tion was disposed of at the threshold on 23.2.2012, however, with direction that till appropriate orders are passed, the present status of the petitioner shall be maintained. 6. Aforesaid Bilal Ahmad Khan also filed a writ petition, OWP No. 174/2012, challenging the Government order dated 03.02.2012. In the said writ peti­tion, the learned Writ Court passed a detailed order, which is reproduced hereunder: "... While considering this petition, it transpired that the Court had only yesterday considered the writ petition of respondent No. 3. In this petition, reference is made to the allegations levelled against respondent No. 3, petitioner in SWP No. 290/2012 and the recommendations made by the Enquiry Committee. In order to appreciate this issue, the record of SWP No. 290/2012 was sent for. Mr. Haqani, learned counsel for the petitioner in SWP No. 290/ 2012 was also requested to appear. In view of the issues involved in this case, this Court deems it appro­priate to recall the order dated 23.02.2012passed in SWP No. 290/2012. Both the petitions alongwith SWP No. 1692/2011 will be taken up together for consideration. Notice for rule Nisi. List in the next week. CMP No. 255/2012 Notice as above. In view of the issues involved in this case, this Court deems it appro­priate to recall the order dated 23.02.2012passed in SWP No. 290/2012. Both the petitions alongwith SWP No. 1692/2011 will be taken up together for consideration. Notice for rule Nisi. List in the next week. CMP No. 255/2012 Notice as above. Meanwhile, re­spondent No. 1 will file personal af­fidavit about what has happened to the enquiry which has been ordered in the matter and what decision has been taken subsequent to that en­quiry. The said respondent will also indicate in the affidavit whether in the face of enquiry the impugned Govern­ment Order No. 02-Coop of 2012 dated 03.02.2012 shall remain in force. Registry to serve this order to respondent forthwith. Meanwhile, re­spondent No. 1 is at liberty to take stock of the situation and pass ap­propriate orders in respect of man­ning of the post of General Manager, Central Cooperative Bank, Anantnag. Compliance report be submitted by next date." 7. Pursuant to the aforesaid order, respondent No. 1 filed personal affida­vit on 26th March, 2012. The Learned Writ Court, after hearing the learned counsel for the parties and consider­ing the matter, passed the order dated 14.12.2012, which is challenged in the present Letters Patent Appeals. 8. We have heard learned counsel for the parties and considered the mat­ter. 9. In these two appeals, which are identical, the impugned order of the learned Writ Court is challenged mainly on the grounds that the learned Single Judge had not considered and appreciated the statements made in the affidavit filed by respondent No. 1 pursuant to Court directions; that the learned Writ Court did not appreciate that the writ petition filed by respon­dent No. 4 herein was not maintainable and that the impugned order is non-speaking. 10. The sole question that arises for consideration in the present appeals is as to whether, in face of the materials those have come on record, the interim order passed by the learned Writ Court on 14.12.2012 suffers from any illegal­ity or irregularity. Mr. Haqani is pri­marily aggrieved of Clause (c) of the im­pugned order, whereby Government Order No. 02-Coop of 2012 dated 03.02.2012, has been kept in abeyance and appellant directed to hand over the charge of the post of General Manager to other officer of integrity. 11. Mr. Haqani is pri­marily aggrieved of Clause (c) of the im­pugned order, whereby Government Order No. 02-Coop of 2012 dated 03.02.2012, has been kept in abeyance and appellant directed to hand over the charge of the post of General Manager to other officer of integrity. 11. It is not in dispute that there are serious imputations levelled against the appellant and that the Enquiry Committee, appointed by respondent No. 2, in its report has recorded such revelations made before it by the com­plainants and the members of the Bank Recovery Team which have far reach­ing consequences on the functioning and finances of the Bank. It is also not in dispute that there is an enquiry pending into the said allegations against the appellant. Even mention of pendency of the enquiry has been made in the Government order dated 03.02.2012. For facility of reference, the said order is quoted hereunder. "In the interest of administration, Shri Javed Ahmad Bhat, Senior Manager, ACCB shall look after the charge of the post of General Manager, ACCB till further orders relieving Shri Qamar Sajad, Asstt. Commissioner (Rev­enue), Anantnag of the additional charge of Incharge General Manager, ACCB. This is subject to the outcome of enquiry pending against him in the administration Department." The aforesaid Government order is professed to be in the interest of ad­ministration. In light of the aforesaid undisputed facts, it is not comprehendible how the posting of an officer, against whom an enquiry is, admit­tedly, pending, can serve the interest of administration. 12. The gravity of the allegations on the basis of which the aforesaid en­quiry is said to be pending is discernable from the communication dated 23.06.2011 addressed by the Reg­istrar, Cooperative Societies, J&K, Srinagar, to the Commissioner Secre­tary to Government, Cooperative De­partment, Srinagar, quoted in para­graph 2 hereinabove, as also from the enquiry report dated 19.01.2012 made by the Enquiry Committee constituted by respondent No. 2. The Enquiry Com­mittee in its report has clearly stated that the complainants had stated that the appellant and the other officials of the Bank, named therein, had been pressurizing the loanees to file affida­vits to the effect that they had not with­drawn any loan from the Bank on the assurance that no recoveries on ac­count of the loan amounts drawn by them would be made from them. The Enquiry Committee also reported that the Recovery Team had conceded be­fore them that they had been under strict instructions not to effect recov­eries from the loanees. Given the se­riousness of the allegations levelled against the appellant, the Government issued an order, bearing Government order No. 41-Coop of 2011 dated 05.08.2011, whereby the appellant was ordered to remain attached with Re­spondent No. 2 pending enquiry into any charges against him. Admittedly, the enquiry has not been concluded as yet, as expressly mentioned in the Govern­ment order dated 03.02.2012 itself. Lately, even a High Level Committee has been constituted by the Govern­ment vide Government order dated 11.02.2013 to enquire into the func­tioning of ACCB. 13. Since serious allegations in re­lation to the finances of the Bank have been levelled against the appellant and an enquiry has been contemplated and ordered against him into such allega­tions, it was all the more imperative and in the fitness of things for the re­spondents to keep him away from the records in order to ensure that he does not tamper with such records to wriggle out of the charges. The respondents, instead, sought to put the appellant at the helm of affairs, an act not only an­tithetic to the interests of the finan­cial institution in the given facts and circumstances, but even contradicting respondent No. 1's own prima faice view about the conduct and functioning of the appellant. It hardly needs a men­tion that contemplation of an enquiry constitutes a prima facie view about the delinquency of a person. It is not un­derstandable, if respondent No. 1 was of the opinion that the appellant was so clean as to be fit enough to be put at the helm of a financial institution and to deal with finances at the district level, then why should there be a sepa­rate committee constituted vide Gov­ernment order dated 13.2.2012, as stated by the said respondent in his affidavit filed before the learned Writ Court, followed by appointment of a High Level Committee, to enquire into the allegations levelled against the appellant. It smacks of an unholy patron­age. 14. In light of the above, we are of the considered view that the learned Writ Court has rightly exercised its dis­cretion. Consequently, we do not see any force in the grounds urged by Mr. Haqani in the present appeals. 15. These appeals are, accordingly, dismissed along with the connected CMPs. It smacks of an unholy patron­age. 14. In light of the above, we are of the considered view that the learned Writ Court has rightly exercised its dis­cretion. Consequently, we do not see any force in the grounds urged by Mr. Haqani in the present appeals. 15. These appeals are, accordingly, dismissed along with the connected CMPs. Interim direction dated 02.01.2013 is vacated. 16. Since the three writ petitions are pending and the parties have not completed the pleadings, we request the learned Writ Court to ensure completion of pleadings and disposal of writ petitions as expeditiously as pos­sible, preferably within a period of three months. IA No. 47/2013 17. This application is disposed of in terms of the above orders. ___________