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2019 DIGILAW 167 (JK)

State of J&K v. Mohammad Ashraf Reshi

2019-03-28

DHIRAJ SINGH THAKUR, TASHI RABSTAN

body2019
Judgment 01. The present Letters Patent Appeal has been preferred against the judgment and order dated 07.08.2018 passed by the learned Single Judge in SWP No.1527/2015. The writ Court has, by virtue of the judgment and order impugned, quashed the Government order bearing No.862-GAD of 2015 dated 30th June, 2015, whereby the petitioner had been prematurely retired from service. 02. The basis on which the writ court proceeded to quash the order of premature retirement was the fact that same had been ordered only on the basis of the registration of an FIR against the petitioner. 03. The Government, it appears, had exercised its powers vested in it in terms of Regulation 226(2) of the Jammu and Kashmir Civil Services Regulations, which authorizes the Government to retire a Government servant at any time after he has completed 22 years of service or attained the age of 48 years in public interest. This power is exercisable by the Government to remove such Governments servants, who are considered as deadwood, inefficient and of doubtful integrity. 04. In exercise of the powers vested in it, the Government constituted a committee vide Government order No.17-GAD(Vig) 2015 dated 20.05.2015. The Committee held its deliberations on 21.05.2015. Records regarding involvement of Government employees in corrupt practices were placed before the Committee. This included trap cases registered with the Vigilance Organization of the State as also cases relating to the employees possessing disproportionate assets beyond their known sources of income. The Committee appears to have again met on 26th June, 2015, in which, amongst others, the case of the petitioner was considered. The Commissioner/Secretary to the Government, School Education Department, was co-opted as a member. Material before the Committee: 05. The Committee while considering the case of the petitioner, which formed the basis of ordering his pre-mature retirement, recorded thus:— (A) Through his consistent conduct over a period of time, the employee does not enjoy a good reputation in the public. (B) Based on a specific complaint, a trap was laid against the petitioner, the then I/C Head Assistant, ZEO Office, Iddgah, Srinagar, and was found demanding and accepting bribe of Rs.1000/- in lieu of release of the G.P.Fund amount of Rs.3,88,924/- and SLI amount of Rs.58534/-. Accordingly, FIR No.05/2012 was registered with P/S VOK (Vigilance Organization Kashmir). (B) Based on a specific complaint, a trap was laid against the petitioner, the then I/C Head Assistant, ZEO Office, Iddgah, Srinagar, and was found demanding and accepting bribe of Rs.1000/- in lieu of release of the G.P.Fund amount of Rs.3,88,924/- and SLI amount of Rs.58534/-. Accordingly, FIR No.05/2012 was registered with P/S VOK (Vigilance Organization Kashmir). The petitioner was caught red handed in the trap proceedings and the money was also recovered from him and challan was produced before the Court. (C) It was reported by the Department that the Annual Confidential Reports (ACRs) of the employee are not available. (D) The Committee took note of the fact that the petitioner, while holding a post of I/C Head Assistant in the Education Department was caught red handed while demanding and accepting bribe for releasing the GP fund and SLI amount. (E) Since the employee is generally known to have bad reputation and was caught red handed while demanding and accepting bribe for releasing the GP fund and SLI amount and was found involved in corrupt practices, therefore, it recommended retirement of the petitioner from Government service in the public interest under Article 226(2) of the J&K CSR. 06. Based upon the recommendation of the Committee, the Government passed order bearing No. 862-GAD of 2015 dated 30th June, 2015, whereby the petitioner was prematurely retired from service in terms of Regulation 226(2) of the Jammu and Kashmir Civil Service Regulations. 07. The order of premature retirement came to be challenged by the petitioner in a writ petition bearing SWP No.1527/2015, primarily on the ground that the same had been passed arbitrarily without recording the subjective satisfaction on the basis of the service record as was required to be done in terms of the provisions of Regulation 226(2) of the J&K Civil Service Regulations and the instructions appended thereto. It was also urged that the order impugned had been passed solely on the ground that there was an FIR registered against the petitioner. 08. The writ court allowed the writ petition vide judgment and order dated 7th August, 2018, impugned in this Letters Patent Appeal. 09. A similar case involving the legality of an order of premature retirement based on mere registration of an FIR, came up for consideration before a Division Bench of this Court in LPASW No.156/2017 titled State of J&K and others v. Khurshid Ahmad, decided on 12.12.2017. 09. A similar case involving the legality of an order of premature retirement based on mere registration of an FIR, came up for consideration before a Division Bench of this Court in LPASW No.156/2017 titled State of J&K and others v. Khurshid Ahmad, decided on 12.12.2017. While dismissing the appeal in the said case, a Division Bench of this Court placed reliance on the Apex Court judgment in State of Gujarat and anr. v. Suryakant Chunilal Shah, (1999) 1 SCC 529 , in particular paragraph 27, wherein it was held that merely because a person was shown to be involved in a criminal case did not mean that he was guilty of that offence. 10. Since the present case also involves similar facts as were being considered by the Division Bench in State of J&K and Ors. v. Khurshid Ahmad (supra), the said judgment would apply with all force to the facts and circumstances of this case as well. What was stated by the Division in paragraphs 26, 27, 28 and 31 is material and is reproduced hereunder:— “26. Since most of the arguments centered around what the Apex Court in Suryakant Chunilal Shah’s judgment had stated in paragraph 27, it would be beneficial to reproduce the said paragraph in its entirely, which is as under:— “27. The whole exercise described above would, therefore, indicate that although there was no material on the basis of which a reasonable opinion could be formed that the respondent had outlived his utility as a Govt. servant or that he had lost his efficiency and had become a deadwood, he was compulsorily retired merely because of his involvement in two criminal cases pertaining to the grant of permits in favour of fake and bogus Copyright : Jay Kay Infotech 3/29/2019 10/11 JAY KAY INFOTECH-JK Digital e-Library-Software Licensed to : HC Srinagar (Library) institutions. The involvement of a person in a criminal case does not mean that he is guilty. He is still to be tried in a court of law and the truth has to be found out ultimately by the court where the prosecution is ultimately conducted. But before that stage is reached, it would be highly improper to deprive a person of his livelihood merely on the basis of his involvement. He is still to be tried in a court of law and the truth has to be found out ultimately by the court where the prosecution is ultimately conducted. But before that stage is reached, it would be highly improper to deprive a person of his livelihood merely on the basis of his involvement. We may, however, hasten to add that mere involvement in a criminal case would constitute relevant material for compulsory retirement or not would depend upon the circumstances of each case and the nature of offence allegedly committed by the employee.” 27. On a reading of the aforementioned judgment, it thus, becomes clear that in the first part of the judgment, the Apex Court had clearly held that merely because a person is shown to have been involved in a criminal case would not per se mean that he was guilty of having committed that offence. The guilt would necessarily have to be established in the trial and before that stage is reached, it was held improper to deprive a person of his livelihood merely on the basis of his involvement. However, on a reading of the later part of the paragraph 27 of the judgment (supra), it is clear that mere involvement in a case whether would constitute relevant material for compulsory retirement has been held to be dependent upon the circumstances of each case and nature of offence allegedly committed by the employee. Learned counsel for the appellant-State in fact had tried to bring the present case within the ambit of the later part of the judgment. 28. In our opinion, looking to the fact that the case, which was being considered by the Apex court in State of Gujarat and Anr. V. Suryakant Chunilal Shah was also a case where there were two FIRs registered against the Government servant under the Prevention of Corruption Act, which is similar on facts to the case at hand, no exception can, thus, be made in the present case contrary to the law as declared in the said judgment. 31. While the committee can always assess the integrity of a government servant and consider the reputation which he enjoys yet for assessing the same, there has to be some basis in the service records. 31. While the committee can always assess the integrity of a government servant and consider the reputation which he enjoys yet for assessing the same, there has to be some basis in the service records. Hearsay reputation or casual statements questioning the integrity of a person ought not to be considered for the same may be baseless or attributed for malafide purposes. Even for purposes of assessing the reputation of a government servant, the material must be cogent, the same must be in the shape of record which must then be considered in the correct perspective. Opinion regarding doubtful integrity and questionable reputation must emanate from an officer who has had an opportunity to see the work and conduct of the officer from a closed quarter on a day to day basis. Relying upon opinion of a Secretary of the Administrative Department who might not have any first hand information and experience of having seen and work with the officer concerned would be both risky and uncalled for and would give credence to the saying “give a dog a bad name and kill it”. 11. In view of the decision dated 12.12.2017 rendered by the Division Bench of this Court in State of J&K and Ors. v. Khurshid Ahmad (supra) on the similar issue and in similar set of facts, we feel that the said decision is applicable in the present case as well. 12. In view of the above, we find no merit in the present appeal, the same is dismissed and the order of the writ court is upheld.