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2016 DIGILAW 336 (JK)

State of J&K v. Naveen Kumar Sharma

2016-06-29

N.PAUL VASANTHAKUMAR, TASHI RABSTAN

body2016
JUDGMENT : N. Paul Vasantha Kumar, J. 1. By consent the appeal itself was taken up for disposal at the admission stage. This appeal is preferred by the State and its officers challenging the order of the Writ Court made in SWP No. 2750/2011, dated 27.11.2015, wherein the writ court quashed the punishment order passed against the respondent, namely ordering recovery of salary paid to the respondent in the promoted post and imposing punishment of reversion to the post of District Manager from the post of Divisional Manager. The Writ Court allowed the Writ Petition holding that without issuing notice under Rule 35 [Adequate opportunity of making any representation be given to the officer concerned before issuing order imposing penalty.] of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956 which mandates that before issuing an order of punishment the person concerned should be given adequate opportunity of making representation and the representation is considered before the order of punishment is passed. 2. The brief facts necessary for disposal of this L.P. Appeal, as put forth by the respondent before the Writ Court, was that respondent while working as District manager in J&K Scheduled Caste/Scheduled Tribe and Backward Classes Development Corporation was promoted to the post of Divisional manager in the pay scale of Rs. 10,000-350-15250 by order dated 16.10.2002. The said order was issued with the approval of the Chairman of the Corporation. One Arshid Majid Bhat, who was also a District manager, challenged the promotion of the respondent by filing SWP No. 1669/2003 and the said writ petition was allowed by this Court by judgment dated 16.09.2005, quashing the promotion of the respondent senior to the respondent in the promotion list of Divisional Managers. The official respondents were directed to undertake the exercise of releasing the higher grade in favour of said Arshid Majid Bhat, which order was implemented by the Corporation by order dated 22.03.2006 by cancelling the promotion given to the respondent and reverted him to the post of District manager. The respondent filed review petition seeking review of the order dated 16.09.2005 by placing the minutes of the Selection Committee, wherein he was shown at Serial No. 1 and said Arshid Majid Bhat at Serial No. 2. The respondent filed review petition seeking review of the order dated 16.09.2005 by placing the minutes of the Selection Committee, wherein he was shown at Serial No. 1 and said Arshid Majid Bhat at Serial No. 2. The copies of the minutes of the selection produced by the respondent being doubted, it was sent for expert opinion in which the report was drawn to the effect that the Forensic Science laboratory showed that copy produced by the respondent was tempered with. Based on that the review petition was dismissed. The respondent preferred LPA No. 276/2006, which was also dismissed by order dated 18.10.2007 with the following observations:- "...the appellant changed his stand only after the decision of the Writ Court and then he sought to build up a case on the basis of the document which is found by the Forensic Science Experts as an interpolation. In the facts and circumstances, I find the conduct of the appellant quite deplorable. At one stage, we were thinking of taking suitable action against the appellant, but I leave it open to the Corporation to take appropriate action against the appellant in this matter." 3. Based on the observation/liberty granted in the order of the Division Bench, leaving it open to the Corporation to take appropriate action against the respondent, a communication was issued on 01.09.2010 informing about the approval of the Corporation for recovery of the excess payment made to the respondent which he had drawn on his promotion to the post of General Manager and according of approval for forfeiting of three increments in the present grade of the respondent and he was also censured for remaining careful in future. In view of the approval granted an order dated 10.11.2010 was issued ordering recovery of excess payment, forfeiting of three increments and information to remain careful in future. The said order having been passed in violation of Rule 35 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956, the Writ Court set aside the order, against which this appeal is filed, solely on the ground that even if there is procedural violation, opportunity ought to have been granted to the appellants to issue show cause notice, call for objections and pass fresh orders. 4. 4. The learned senior counsel appearing for the respondent argued that the learned Single Judge having applied his mind not to grant opportunity, the appellants are not justified in seeking opportunity to proceed further by filing appeal. 5. We have considered the rival submissions. 6. It is seen from, the records, particularly the order of the Division Bench made in LP A No. 276/2006, dated 18.10.2007, which appeal was preferred by the respondent, that the respondent prima facie tempered with the minutes of the selection committee, reversing the position of names on the 2nd page of the minutes and produced the photocopy of the interpolated document to built up his case. Therefore, the conduct of the appellant in that appeal, who is respondent, herein, was quite deplorable. The Division Bench, instead of taking suitable action on its own, referred it to the Corporation to take appropriate action against the respondent herein for getting promotion by tempering of record. The said finding rendered by the Division Bench has become final which is binding on all the parties in the said appeal. In such circumstances, respondent cannot escape the action from the appellants for his dereliction/misconduct. 7. It is a well settled principle of law that if an order of punishment is not sustainable for not following the procedures contemplated under Rules or for violation of principles of natural justice, the employer/department must be given liberty to proceed further from the stage where the proceedings got vitiated. Here the respondent is still in service hence there may not be any impediment to follow the mandatory procedures and pass fresh orders. Thus the learned counsel for the appellants is justified in seeking liberty to follow Rule 35 of 1956 Rules, and pass fresh orders. 8. In such circumstances, while up-holding the order of the Writ Court we are of the view that the appellants are entitled to get an opportunity to proceed further by following Rule 35 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956 and pass fresh orders. 9. 8. In such circumstances, while up-holding the order of the Writ Court we are of the view that the appellants are entitled to get an opportunity to proceed further by following Rule 35 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956 and pass fresh orders. 9. Having regard to the facts and circumstances of the case, particularly with reference to order passed by the appellants, forfeiting increments for three years, we are of the view that interest of justice would be met by observing that while proceeding further the appellants shall not pass any harsh punishment than the one already inflicted which is quashed on technical grounds. While passing fresh orders the appellants shall bear in mind that the salary received by the respondent in the promoted post was for discharging his duties on the promoted post and same cannot be recovered as the appellants extracted work from the respondent for which salary has been paid. Thus the salary already paid to the respondent in the promoted post shall not be recovered. It is also made clear that if any recovery from salary has already been made, the recovered amount shall be refunded to the respondent before proceeding further by issuing notice as per Rule 35 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956 and passing fresh orders. The appellants are granted three months time to initiate fresh proceedings as indicated above and to pass final orders. The appeal is partly allowed with above directions. No costs.