Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench comprising of M. K. Hanjura, J., dealt with a petition where the question before Court was whether government order given by Government of Jammu and Kashmir under Article 226(2) of the Jammu and Kashmir Civil Services Regulations where petitioner was given compulsory retirement could have been given under the circumstances of the instant case or not.

Facts of the case are that an FIR was registered against the petitioner by the Vigilance Organization, Kashmir, alleging the petitioner to have committed criminal misconduct punishable under Section 5(2) of the J&K Prevention of Corruption Act read with Sections 161 and 109 of the Ranbir Penal Code (RPC) after which petitioner was suspended. It is this suspension order which is impugned in the instant case. Respondent stated that it is in public interest that the administration work is clean and effective. Thus, it is important that inefficient and corrupt officers are weeded out from the services. On the above ground respondent removed petitioner from his services. Petitioner contended that the committee which was created did not consider the ‘Annual Performance Report’ of the petitioner.

The High Court was of the view that compulsory retirement merely because an FIR is lodged against the petitioner by the Vigilance Organization cannot be sustained. Therefore, impugned order was quashed. [Ahsan-ul-Haq Khan v. State of J&K, 2018 SCC OnLine J&K 584, dated 05-09-2018]

Case BriefsHigh Courts

Jammu and Kashmir High Court: While deciding upon the petition challenging the the defensibility and legality of Order No. 36 of 2015, passed by the Managing Director, J&K PCC, Ltd., Srinagar, directing the retirement of the petitioner from service with effect from 01.07.2015 in terms of Article 226(2) of the Jammu and Kashmir Civil Service Regulations, the Bench of M.K. Hanjura, J., held that registration of FIR or pendency of criminal case(s), cannot form the basis for a compulsory retirement of an employee in the light of such employee’s excellent/good/satisfactory Annual Performance Report (APR) and such an outlook is neither in tune nor in line with the scheme and mandate of Article 226(2) of the J&K CSR.

As per the facts of the present case, the petitioner initially worked as a daily rated worker in the respondent department and was regularized as Junior Assistant and later promoted as Assistant Manager. However various complaints were filed against the petitioner before the Vigilance Organization Kashmir (VOK), who registered an F.I.R under Sections 420, 467, 468 of RPC against the petitioner, as a consequence of which the respondent department placed the petitioner under suspension, compelling the petitioner to approach the Court. The petitioner via his counsel Arshid Andarabi, contended before the Court that the impugned Order directing the compulsory retirement is arbitrary. Per contra, the respondents contended that the order of compulsory retirement of the petitioner is neither punitive nor stigmatic, but it is based on the sacrosanct object of weeding out the inefficient officials in order to maintain a high standard of efficiency and initiative in the State services and the Courts have limited scope of judicial review in such cases

Perusing the facts and arguments, the Court observed that the exercise of the power of compulsory retirement vested in the Government (the Corporation in this case), under Article 226(2) of CSR is based on reason, justice, fairness and a just analysis and an order of compulsory retirement, taken under the safety valve of public interest, could not be treated as a major punishment. However the order of compulsory retirement can be subjected to judicial scrutiny, if the Court is satisfied that the order passed is mala fide; or that it is based on no evidence; or that it is arbitrary. The Court was of the opinion that the practice followed by the Corporation in directing compulsory retirement for the petitioner was completely unwarranted because that would violate the basic maxim of ‘innocent until proved guilty’. The Court also observed that via the impugned Order the State has applied this principle in the reverse. The Court also took notice the petitioner has had a satisfactory employment record with a proven valid degree. Finally the Court observed that the reputation of a public servant cannot be termed as doubtful and his conduct cannot be determined only on spoken words in the absence of any material on record which was the fundamental flaw in the Order issued against the petitioner. [Mohd. Shafi Shah v. Comm. Sectt. PWD, 2018 SCC OnLine J&K 138, decided on 01.03.2018]

Case BriefsHigh Courts

High Court of Jammu and Kashmir at Jammu: A Division Bench comprising of Dhiraj Singh Thakur J. and Sanjay Kumar Gupta J. recently addressed a Letters Patent Appeal which challenged the order passed by the Single Judge wherein a Government Order directing the premature retirement of the petitioner had been quashed. The reasoning that had been provided for quashment of the order was that the retirement had been ordered simply based on an FIR registered against the petitioner and without considering his service record.

The facts of the case revolve around Regulation 226(2) of the Jammu & Kashmir Civil Services Regulations which authorizes the Government to retire a Government Servant at any time after completion of 22 years of service or after the employee has attained the age of 48 years in public interest. This regulation essentially exists for the government to get rid of any employee who is considered to be inefficient or of doubtful integrity or corrupt. For execution of this power, it has to follow the norms that have also been set by the Government. In the present case, the Government had set up a Committee in exercise of its powers under the aforementioned regulation. The Committee recorded that the petitioner against whom the regulation was being enforced did not have a good reputation in public, had an FIR registered against him on charges of bribery which was found to be true. Based on these grounds, the Government had passed the order for his pre-mature retirement from service.

This order was challenged by the petitioner on the grounds of it being arbitrary and without having recorded the requisite subjective satisfaction on the basis of the service record as was prescribed under Regulation 226. The petitioner had also argued that the FIR had been registered to demolish his good reputation. The counsel for the petitioner had relied on State of Gujarat v. Suryakant Chunilal Shah, (1999) 1 SCC 529 wherein the Supreme Court had envisaged a situation when mere registration of an FIR would constitute as relevant material for compulsory retirement, although it would then depend on the nature of the alleged offence committed. Counsel for the appellant, on the other hand, argued that the recommendations of the Committee were not made simply upon the fact of the registered FIR but also because the respondent lacked good reputation and was of doubtful integrity.

The Court referred to Baikuntha Nath Das v. Chief District Medical Officer, (1992) 2 SCC 299 wherein the Supreme Court had crystallized the principles surrounding “Compulsory Retirement”. Although principles of natural justice did not have a place in such situations, judicial scrutiny couldn’t be excluded. If the order was mala fide, not based on any evidence or arbitrary in the sense that no reasonable person would come to the decision in question on the available material, it would be a perverse order. The Court had emphasized that the Government would have to consider the record and performance of the public servant which would include character rolls, both favorable and adverse.

The Court also referred to M.S Bindra v. UOI,  (1998) 7 SCC 310, wherein it was clarified that even though natural justice doesn’t have any role to play in the context of compulsory retirement, it wouldn’t exclude considering the version of the delinquent officer which would be imperative to reach the correct conclusion.

The Court pointed out that in State of Gujarat v. Suryakant Chunilal Shah, (1999) 1 SCC 529 it was held that the annual character roll of the Government Servant would give an appropriately objective assessment of his integrity and job performance since adverse remarks on such rolls would be warning signs of the absence of such a person’s job integrity. It also noted that the Court, in this case had held that merely being involved in a criminal case wouldn’t per se establish the person’s guilt and hence, a compulsory retirement based on such a factor wouldn’t stand.

The Court observed that hearsay reputation or casual statements questioning the integrity of a person would not be considered as they could be baseless or emanating from mala fide intentions. For the purposes of assessing the reputation of a government servant, the material would have to be cogent and in the shape of a record which would need to be considered in the correct perspective. Opinions regarding doubtful integrity and questionable reputation would need to emanate from an officer who had an opportunity to work with the delinquent officer on a day to day basis. Dismissing the appeal, the Court upheld the Single Judge’s decision. [State of J&K v. Krishan Lal,  2017 SCC OnLine J&K 731, order dated 12.12.2017]