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2022 DIGILAW 402 (JK)

Mukhtar Ahmad Bhat v. Union Territory of J&K

2022-08-22

SANJEEV KUMAR

body2022
JUDGMENT : 1. Order dated 28th May, 2021 issued by the Government of Jammu & Kashmir, whereby the petitioner has been served with Article of Charges and statement of imputation in support of each charge and has been asked to submit his written statement of defence, is made subject matter of challenge in this petition. The petitioner also prays for a mandamus to the respondents to settle, finalize and release his post retiral benefits i.e. monthly pension, gratuity and leave salary etc. 2. The impugned order of the Government is assailed primarily on two counts: – (i) That the impugned order was served upon the petitioner after 31st May, 2021 i.e. after the date of his superannuation on retirement from service and, therefore, it was not permissible in law to hold any enquiry against the petitioner after his retirement. (ii) That the impugned order, which is purportedly issued on 28th May, 2021, even if assumed to have been issued while the petitioner was in service, yet the respondent could not have continued with the enquiry after the retirement of the petitioner from service. 3. Before adverting to aforesaid twin grounds of challenge vehemently urged by the learned counsel for the petitioner, it would be worthwhile to notice few material facts. 4. The petitioner, as is averred by him in the petition, entered the services of the department of Local Bodies in the year 1980 as Junior Assistant and by dint of his merit and seniority was last promoted to the post of Secretary on substantive basis in the year 2006. The petitioner, however, superannuated from service of the respondents on 31st May, 2021. The petitioner, as is contended by him, was never served with the impugned order upto 4.30 p.m. on 31st May, 2021. He came to know of the impugned order of the Government only when one Fayaz Ahmed, Head Assistant, who was then working as Incharge P.A. to the Director, Urban Local Bodies informed the petitioner through whatsApp message at 5.27 p.m. on his personal mobile number. He came to know of the impugned order of the Government only when one Fayaz Ahmed, Head Assistant, who was then working as Incharge P.A. to the Director, Urban Local Bodies informed the petitioner through whatsApp message at 5.27 p.m. on his personal mobile number. These articles of charge served upon the petitioner indicate that the departmental enquiry against the petitioner is envisaged on the ground that his initial entry to government service as Junior Assistant was backdoor and that he was further promoted to different positions without the petitioner being eligible for promotion and even in the absence of the recommendations of the Departmental Promotion Committee. It is interesting to note that none of the officers or officials, who were allegedly privy to the recruitment of the petitioner and his further promotions in the department, are proceeded in any departmental proceedings. 5. In the reply filed by the respondents supported by affidavit of one Ashish Gupta, Additional Secretary to the Government, Housing & Urban Development Department, it is the plea of the respondents that the petitioner has been proceeded for having been prima facie found guilty of serious misconduct. The petitioner, who was initially appointed as Junior Assistant on temporary basis for a period of two months by the then Director, Urban Local Bodies, Kashmir, was subsequently appointed permanently against a direct recruitment post illegally and without referring the post to the Jammu & Kashmir Services Selection Board. The petitioner was placed as Senior Assistant w.e.f. 1st September, 1983 without having passed the Secretariat Assistant Course Examination, as required under Rules. There was no DPC conducted for promoting the petitioner as Senior Assistant. The petitioner was further placed as Head Assistant by the then Director, Urban Local Bodies, Kashmir vide order dated 5th August, 1994 without there being any post and without seeking recommendations of the DPC. The petitioner was further promoted as Secretary by the then Director, Urban Local Bodies, Kashmir without having any competence to do so. The petitioner was re-designated as Section Officer vide order dated 30th March, 2010 passed by then Director, Urban Local Bodies, Kashmir in contravention to the standing rules and regulations and without obtaining approval from the Administrative Department. The petitioner was further promoted as Secretary by the then Director, Urban Local Bodies, Kashmir without having any competence to do so. The petitioner was re-designated as Section Officer vide order dated 30th March, 2010 passed by then Director, Urban Local Bodies, Kashmir in contravention to the standing rules and regulations and without obtaining approval from the Administrative Department. It is further contended that with a view to probing the manner in which the petitioner had entered the service and got promotion from time to time, a fact finding enquiry headed by Ms. Seema Bhasin, KAS, Director Finance, Housing and Urban Development Department was instituted. It is on the basis of preliminary fact finding enquiry conducted by the said officer, the Government contemplated a regular departmental enquiry against the petitioner and as a sequel thereto issued the impugned order. With regard to the legal issues, it is submitted by the respondents that the case of the petitioner is entirely covered under Article 168(A) of the Jammu & Kashmir Civil Services Regulations, 1956 and, therefore, there is nothing wrong to continue with the enquiry against the delinquent officer even after his retirement in a case where the enquiry is initiated during his service. 6. Having heard learned counsel for the parties and perused the material on record, following questions of law arise for determination: – (i) Whether under the J&K Civil Services (Classification, Control and Appeal) Rules, 1956 [“The Rules of 1956”] or the Jammu & Kashmir Civil Service Regulations, 1956 [“The Regulations of 1956”], it is permissible to hold departmental enquiry against the delinquent after his retirement? (ii) Whether the departmental enquiry/disciplinary action initiated against the delinquent while he was in service can be continued and taken to logical conclusion after retirement of the delinquent? 7. In the instant case we proceed on the assumption that the petitioner was served with the article of charges and statement of imputations in support of the charges on 28th May, 2021 and the petitioner admittedly retired on superannuation w.e.f. 31st May, 2021. The petitioner, though, contends that he was not served with the impugned order at any time prior to his superannuation, but there is nothing on record to believe the aforesaid assertion of the petitioner. 8. Rule 30 of the Rules of 1956 enumerates penalties that may, for good and sufficient reasons, be imposed upon a member of service. The petitioner, though, contends that he was not served with the impugned order at any time prior to his superannuation, but there is nothing on record to believe the aforesaid assertion of the petitioner. 8. Rule 30 of the Rules of 1956 enumerates penalties that may, for good and sufficient reasons, be imposed upon a member of service. The penalties, inter alia, include dismissal from service, removal from service and reduction to a lower post. These eight penalties enumerated in Rule 30 of the Rules of 1956, as plain language of the Rule suggests, can be imposed upon a member of the service and the expression “member of service” is defined in Rule 2(e) to mean a person holding or appointed to a whole time pensionable post. A person, who has retired from service is obviously not a person holding or appointed to a whole time pensionable post and, therefore, cannot be construed as a member of service. That being the clear position emerging from reading of Rule 30 of the Rules of 1956 conjointly with Rule 2(e), I have no doubt in my mind that the penalties enumerated in Rule 30 can be imposed on a person in service. A person, who has been retired from service unconditionally, cannot be thereafter dismissed, removed or even reduced in rank by the disciplinary authority. It is, thus, obvious that under Rule 30 and 33 to 35 of the Rules of 1956, which deal with the disciplinary proceedings and the punishments that can be imposed on conclusion thereof, do not envisage the conduct of enquiry into the misconduct of a delinquent employee after he has superannuated for the simple reason that competent authority is not empowered to inflict any of the penalties envisaged under Rule 30 of the Rules of 1956 upon a person who has ceased to be a member of service. 9. Adverting to Regulation 168-A of the Regulations of 1956, which was very strongly relied upon by the respondents to justify the impugned order and the initiation of the disciplinary proceedings against the petitioner. 9. Adverting to Regulation 168-A of the Regulations of 1956, which was very strongly relied upon by the respondents to justify the impugned order and the initiation of the disciplinary proceedings against the petitioner. At this point of time, it is pertinent to state that both the parties were not at variance with regard to the applicability of the Rules of 1956 and the Regulations of 1956 to the employees of the Urban Local Bodies borne on the service constituted by the Jammu & Kashmir Urban Local Body Institutions (Management) Service Recruitment Rules of 2008. 10. So far as Article 168-A of the Regulations of 1956 is concerned, the same essentially deals with the proceedings for recovery from pension and for facility of reference the same is reproduced hereunder: – “168-A. The Government reserves to itself the right to order the recovery from the pension of an officer of any amount on account of losses found in Judicial or Departmental proceedings to have been caused to Government by the negligence or fraud of such officer during his service provided that – (a) Such departmental proceedings if not instituted while the officer was on duty: – (i) Shall not be instituted save with the sanction of Government; (ii) Shall be instituted before the officer’s retirement from service or within a year from the date on which he was last on duty, whichever is latter; (iii) Shall be in respect of an event which took place not more than one year before the date on which the officer was last on duty; and (iv) Shall be conducted by such authority and in such places as the Government may direct; (b) all such departmental proceedings shall be conducted if the officer concerned so requests in accordance with the procedure applicable to departmental proceedings on which an order of dismissal from service may be made; and (c) such judicial proceedings if not instituted while the officer was on duty, shall have been instituted in accordance with sub-clauses (ii) and (iii) of clause (a) above. 11. A plain reading of Regulation 168-A clearly suggests that the Government is empowered to order the recovery from the pension of an officer of any amount on account of losses found in judicial or departmental proceedings to have been caused to Government by negligence or fraud of such officer during his service. 11. A plain reading of Regulation 168-A clearly suggests that the Government is empowered to order the recovery from the pension of an officer of any amount on account of losses found in judicial or departmental proceedings to have been caused to Government by negligence or fraud of such officer during his service. There is, however, a proviso that such departmental proceedings, if not instituted while the officer was on duty, shall not be instituted save with the sanction of the Government; shall be instituted before the officer”s retirement from service or within a year from the date on which he was last on duty, whichever is later; shall be in respect of an event which took place not more than one year before the date on which the officer was last on duty and shall be conducted by such authority and in such places as the Government may direct. All such departmental proceedings leading to recovery from pension shall be conducted if the officer concerned so requests in accordance with the procedure applicable to the departmental proceedings on which an order of dismissal from service may be made. 12. It is, thus, abundantly clear that as is ordained by Rule 30 of Rules of 1956, it may not be permissible to hold disciplinary proceedings against the delinquent employee after he has been superannuated and this would be the position even if the disciplinary proceedings are initiated while such delinquent employee was in service. However, in terms of Article 168-A of the Regulations of 1956, nothing prevents the Government to hold departmental/disciplinary proceedings into the conduct of the officer/official which has resulted into a financial loss to the Government. These proceedings, however, would be limited only to determine the amount to be recovered from the pension of the government employee on account of losses found to have been caused to the Government by the negligent and fraudulent act of delinquent officer. There is, however, a caveat to the exercise of this power by the Government and the caveat is that where such departmental proceedings are initiated while the officer was on duty, these proceedings shall not proceed save with the sanction of the Government. There is, however, a caveat to the exercise of this power by the Government and the caveat is that where such departmental proceedings are initiated while the officer was on duty, these proceedings shall not proceed save with the sanction of the Government. These proceedings shall be instituted before the officer”s retirement from service or within a year from the date on which he was last on duty or in respect of an event which has taken place not more than one year before the date on which the officer was last on duty. It is, thus, evident that if the Government fails to institute departmental proceedings for recovery of the amount on account of losses found to have been caused to the Government by negligence and fraud of delinquent officer or not instituted while the officer was in service shall not be instituted unless the conditions laid down in the proviso of Regulation 168-A are fulfilled. 13. In the instant case, the impugned order was issued by the Disciplinary Authority while the petitioner was on duty and, therefore, proviso of Regulation 168-A is not attracted. The Government is well within its right to proceed with the departmental enquiry but this enquiry would only be limited to find out and determine the amount of loss, if any, found to have caused to the Government by the negligence and fraud of the petitioner. The departmental proceedings in question would not lead to imposition of any of the punishments enumerated in Rule 30 of the Rules of 1956. This is the clear position emerging from a careful reading of the relevant provisions of the Regulations of 1956, which, indisputably, regulate the service conditions of the employee of urban local bodies borne on the service constituted by the Rules of 2008. 14. Learned counsel for the petitioner has relied upon following judgments in support of his contention that no departmental proceedings can be initiated or continued against a retired government employee: – (i) Bhagirathi Jena v. Board of Directors, O.S.F.G. and others, (1999) 3 SCC 666 ; (ii) State of Jammu & Kashmir and another v. Dr. .Kulwant Singh and another, 2004(1) JKJ 351 ; (iii) Gh. Mohd. .Kulwant Singh and another, 2004(1) JKJ 351 ; (iii) Gh. Mohd. Dhar (Dr.) v. State of J&K, 2000 KLJ 401; (iv) Division Bench Judgment of High Court of Calcutta rendered in the case of Gour Chandra Sarkar v. The State of West Bengal and others decided on 6th May, 2010. 15. The aforesaid judgments, though, rendered entirely in different factual context do support the proposition that in the absence of rules and regulations providing to the contrary, the disciplinary proceedings against a retired Government Official cannot be instituted or continued. It is, thus, trite that departmental proceedings to inflict major or minor penalties prescribed in the relevant Rules can be instituted and continued even against a retired government officer/official provided the rules and regulations governing their conditions of service so provide specifically. 16. When the case of the petitioner is viewed in the context of aforesaid legal expositions, there is left no scope for doubting the clear legal position emerging from the reading of Rules of 1956 and the Regulations of 1956. While the Rules of 1956, in particular Rule 30, clearly envisages disciplinary proceedings for inflicting enumerated minor and major penalties upon a member of service, which expression, as held above, would not include retired officer of the Government. However, Regulation 168-A does permit the Government to conduct departmental proceedings to find out and determine the amount of loss, if any, caused by a delinquent officer whether serving or retired, due to his act of negligence or fraud. The Regulation only places few restrictions in a case where departmental proceedings are initiated while the delinquent officer has ceased to be on duty. This obviously covers the contingency where the government contemplates departmental proceedings against a retired government official. It is, however, reiterated that such departmental proceedings, if initiated or continued against retired government official, shall be restricted only to find out and determine the amount on account of losses caused to the Government by such officer due to his negligence or fraud and would not in any manner be applied for imposing any of the punishments enumerated in Rule 30 of the Rules of 1956. 17. 17. In view of the aforesaid analysis, this petition is disposed of by holding as under: – (i) That under Rule 30 and 33 to 35 of the Rules of 1956, the Government is empowered to institute and conduct disciplinary proceedings for imposition of penalties enumerated in Rule 30 only against “a member of service” and as held above, member of service would not include a “retired government employee”. (ii) That under Article 168-A of the Regulations of 1956, the Government is well within its right to conduct departmental proceedings against a Government Officer or government employee (serving or retired) to find out and determine the amount of loss caused to the Government by negligence or fraud of such employee and recover the same from his pension. Such departmental enquiry shall, however, be restricted only to the determination of financial loss caused to the Government by the delinquent government employee and would not be applied or made use of for the purposes of imposing the punishment(s) prescribed under Rule 30 of the Rules of 1956. (iii) That the impugned order dated 28th May, 2021 issued in respect of the petitioner may be proceeded only for the purposes of determining the amount on account of loss, if any, caused by any negligent or fraudulent act of the petitioner. The petitioner, however, would not be proceeded in the departmental proceedings for the purposes of imposing any of the punishments prescribed in Rule 30 of the Rules of 1956. (iv) The Government shall be entitled to recover such amount of loss, as is found established in the departmental enquiry, if any, conducted by the respondents in pursuance of the impugned notice dated 28th May, 2021. Till such enquiry is conducted and amount of loss, if any, is determined against the petitioner, he shall not be denied post retiral benefits. The respondents shall do well to process the case of the petitioner for post retiral benefits and release the same in his favour within a period of two months from the date a copy of this judgment is served upon them.