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]