THE STATE OF JAMMU AND KASHMIR AND ORS. versus FARID AHMAD TAK on 2 May 2019

[2019] 7 S.C.R. 1

THE STATE OF JAMMU AND KASHMIR AND ORS.

v.

FARID AHMAD TAK

(Civil Appeal No. 4563 of 2019 etc.)

MAY 02, 2019

[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]

Service Law:

Compulsory retirement – Justifiability of – Respondentofficial compulsorily retired by State in terms of Art. 226(2) of ServiceRegulations – On the basis of registration of an FIR alleging demandand acceptance of bribe – Challenged by filing writ petition – SingleJudge of High Court allowed the petition, holding that the decisionto compulsorily retire the Respondent was taken merely on basis ofFIR without taking into account APRs of Respondent and furthernorms for arriving at decision with regard to integrity of Respondentwere not followed – Order of Single Judge confirmed by DivisionBench of High Court – On appeal, held: Respondent was nevercaught red-handed while accepting bribe but the Division Benchconsidered the matters on that premise, which was incorrect – Thematter was also not considered from the perspective of Clause (iv)of Art. 226(2) of Service Regulations – Therefore, matters remittedto High Court for consideration afresh – Jammu and Kashmir CivilServices Regulations – Art. 226 (2).

Allowing the appeal and remitting the matters to High Court,the Court HELD : 1. In the present cases the concerned respondentofficial was never caught red handed while accepting bribe.However, observations which are identical in all three mattersindicate that the Division Bench considered the matters fromthat premise. The basic foundation was thus incorrect. The matterfrom the perspective of Clause (iv) of Article 226(2) of the Jammuand Kashmir Service Regulations was also not considered. Theorders of sanction in all these three matters highlight the acts ofcommission and omission on part of the concerned respondentsas a result of which there was wrongful loss to the State and publicinterest was compromised. [Para 15] [11-B-D]

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A2. Thus, the basic premise, on the basis of which the matterwas considered by the Division Bench of High Court was incorrectand secondly, the matter was also not considered from theperspective of Clause (iv) of Article 226(2). Therefore, thejudgments and orders under appeal passed by the Division Benchare set aside. The matters are remitted to the Division BenchBfor fresh consideration. [Para 16] [11-E-F]

State of Gujarat and another v. Suryakant Chunilal Shah(1999) 1 SCC 529 : [1998] 3 Suppl. SCR 293 ;Baikuntha Nath Das and Another v. Chief DistrictMedical Officer, Baripada and Another (1992) 2 SCCC299 : [1992] 1 SCR 836 ; M/s. Rup Diamonds andOthers v. Union of India & Ors. (1989) 2 SCC 356 :[1989] 1 SCR 13 ; Supreme Court Employees’ WelfareAssociation v. Union of India and another (1989) 4SCC 187 : [1989] 3 SCR 488 ; Narayan ChowedhuryDand Others v. Union of India and Others (1996) 7 SCC1 : 1995 [6] Suppl. SCR 178 - referred to.

Case Law Reference

FCIVIL APPELLATE JURISDICTION : Civil Appeal No. 4563of 2019.

From the Judgment and Order dated 11.12.2017 of the High Courtof Jammu and Kashmir at Jammu in LPASW No. 182 of 2017.

WithG

Civil Appeal Nos. 4564 and 4565 of 2019.

M. Shoeb Alam, Ujjwal Singh, Gautam Parbhakar, Mojahid KarimKhan, Advs. for the Appellants.

Pramod Kr. Sharma, Ambhoj Kumar Sinha, Advs. for theHRespondent.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J. 1. Leave granted.

2. These appeals arise out of three separate judgments passed bythe High Court of Jammu Kashmir at Jammu on 11.12.2017 in LPASWNo.182 of 2017, LPASW No. 159 of 2017 and LPASW No.180 of 2017.

3. The appeal arising out of decision in LPASW No. 182 of 2017is taken as the lead matter and the facts leading to said appeal arementioned in detail.

4. The Respondent was appointed as Junior Engineer,Power Development Department, Jammu and Kashmir in the year1985 and with the passage of time stood promoted as Assistant ExecutiveEngineer. FIR No. 30 of 2006 -VOJ (Vigilance Organisation, Jammu)was registered against the Respondent at Police Station VigilanceOrganisation, Jammu in respect of offences punishable under Section5(1) (d) read with Section 5(2) of Jammu and Kashmir Prevention ofCorruption Act, 2006 and under Section 120-B of the Ranbir Penal Code.In due course of time, sanction for prosecution was granted by thecompetent authority after having found substance in the allegations. Theprosecution in respect of said offence is still pending.

5. On 20.5.2015 a Committee comprising of Chief Secretary –Government of J&K, Principal Secretary to the Chief Minister, PrincipalSecretary to the Government – Home Department, Commissioner/Secretary to the Government – General Administration Departmentand Secretary to the Government – Department of Law Justice &Parliamentary Affairs was constituted under the orders issued bythe Commissioner/Secretary to Government, General AdministrationDepartment, Government of Jammu and Kashmir. In terms of Article226(2) and 226(3) of Jammu and Kashmir Civil Services Regulations(for short ‘the Regulations’) cases of officials for premature retirementwere placed before the Committee. The Committee held meetingson 21.5.2015, 11.6.2015 and 26.6.2015 and considered cases ofofficers/officials including the respondent. Insofar as the case of therespondent was concerned, the Report of the Committee stated as under:- “The accused officer by abusing his official position made paymentsagainst unexecuted works resulting in huge loss to the Stateexchequer. The accused officer in league with JE, recorded A

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Afraudulent measurements and prepared exorbitant bills for drawal,thereby, misusing his official position. Accordingly, FIR No.30/2006-VOJ, was registered by the Vigilance Organisation. Theinvestigation of the case was concluded as proved. The CompetentAuthority has also accorded sanction vide Govt. OrderNo.34-GAD (Vig) of 2012 dated 20.09.2012. Further, the caseBalready stands challaned in the court of law.

It was reported by the Department that the AnnualConfidential Reports (ACRs) of the officer are not available.

The Committee took note of the fact that the officer while holdinga post in Power Development Department, indulged in corruptpractices and caused loss to the State exchequer by fraudulentmeans, thereby, substantiating the fact that he has outlived hisutility to the public.

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Since, the officer is generally known to have bad reputationand embezzled Government money by misusing and abusing hisofficial position, and under a conspired plan, dishonestly preparedfraudulent bills on the basis of false/excessive measurements thuscaused loss to the State exchequer, therefore, it is recommendedthat Mr. Fareed Ahmad Tak be retired from the GovernmentService in the public interest, under Article 226(2) of J&KCSRs. It is further recommended that Mr. Fareed Ahmad Tak begiven three months pay and allowances in advance, as admissible,in lieu of the notice.”

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6. On 30.6.2015 in exercise of power conferred under aforesaidArticle 226(2), an order was passed compulsorily retiring the Respondentfrom service. The text of the order was as under:- F

“Whereas the Government is of opinion that it is in the publicinterest to do so.

Now, therefore, in exercise of the powers conferred by Article226(2) of the Jammu and Kashmir Civil Service Regulations,the Government hereby gives notice to Shri Fareed AhmadTak, I/c Assistant Executive Engineer, Estates Division, Jammu,that he having rendered 22 years of service, shall retire fromservice w.e.f. forenoon of 01/07/2015.

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He is allowed three months of pay and allowances in lieu ofthree months notice.

By order of the Government of Jammu and Kashmir.”

7. The Respondent challenged the aforesaid order dated30.6.2015 by filing a Writ Petition namely SWP No.2405 of 2015in the High Court of Jammu and Kashmir at Jammu. In its affidavit-in-reply, the State justified the action submitting inter alia that the orderof compulsory retirement was passed in public interest after dueconsideration by a Committee which comprised of very seniorofficials. The Writ Petition was allowed by a Single Judge of the HighCourt by his judgment and order dated 22.12.2016. It was held bythe Single Judge that the decision to compulsorily retire the Respondentwas taken merely on the basis of registration of a First InformationReport against the Respondent without taking into account theAPRs of the Respondent. Further, the norms evolved by the Stateto arrive at a decision with regard to integrity of the Respondentwere also not followed and as such, the order compulsorily retiringthe Respondent was not sustainable.

8. The State being aggrieved, preferred Letters Patent Appealbeing LPASW No. 182 of 2017 which was dismissed by a DivisionBench of the High Court by its order dated 11.12.2017. On the samedate, two other Letters Patent Appeals viz. LPASW Nos. 159 of 2017and 180 of 2017 were also considered and dealt with by theDivision Bench. While considering the instant Letters Patent Appeal,the Division Bench stated in paragraph 16 of the lead matter as under:- “16. Learned counsel for the appellant urged that the factthat the respondent had been booked by the vigilance organisationpursuant to the lodging of a complaint and was caught redhanded while demanding and accepting bribe was a case, whichwould come within the ambit of paragraph 27 of SuryakantChunilal Shah’s[1]case and, therefore, in those circumstances,the order of premature retirement could not be said to be bad inlaw.”

The aforesaid paragraph also appears ad verbatim in the judgmentin respect of LPASW No. 159 of 2017 as paragraph no.15 and asparagraph no. 16 in its decision in LPASW No. 180 of 2017.

1 State of Gujarat and another vs. Suryakant Chunilal Shah - (1999) 1 SCC 529

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A9. The State being aggrieved is presently in appeal challengingthe correctness of the decisions of the Division Bench of the High Court.

10. It was submitted by Mr. M. Shoeb Alam, learned advocatefor the appellant that the law laid down by this Court in variousdecisions, leading case being Baikuntha Nath Das and AnotherBvs. Chief District Medical Officer, Baripada and Another[2], is veryclear and summed up in paragraph no. 34 of the decision in BaikunthaNath Das[2]as under:- “34. The following principles emerge from the above discussion:

(i) An order of compulsory retirement is not a punishment.It implies no stigma nor any suggestion of misbehaviour.

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(ii) The order has to be passed by the government on formingthe opinion that it is in the public interest to retire agovernment servant compulsorily. The order is passed onthe subjective satisfaction of the government.

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(iii) Principles of natural justice have no place in the contextof an order of compulsory retirement. This does not meanthat judicial scrutiny is excluded altogether. While the HighCourt or this Court would not examine the matter as anappellate court, they may interfere if they are satisfied thatthe order is passed (a) mala fide or (b) that it is based on noevidence or (c) that it is arbitrary — in the sense that noreasonable person would form the requisite opinion on thegiven material; in short, if it is found to be a perverse order.

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(iv) The government (or the Review Committee, as the casemay be) shall have to consider the entire record ofservice before taking a decision in the matter — ofcourse attaching more importance to record of andperformance during the later years. The record to be soconsidered would naturally include the entries in theconfidential records/character rolls, both favourable andadverse. If a government servant is promoted to a higher postnotwithstanding the adverse remarks, such remarks losetheir sting, more so, if the promotion is based upon merit(selection) and not upon seniority.

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H2 (1992) 2 SCC 299

(v) An order of compulsory retirement is not liable to be quashedby a Court merely on the showing that while passingit uncommunicated adverse remarks were also takeninto consideration. That circumstance by itself cannot be abasis for interference.”

It was further submitted that the High Court principally reliedupon paragraph no. 27 of the decision of this Court in Chunilal Shah’scase[1]. Said paragraph no.27 was as under:- “27. The whole exercise described above would, therefore,indicate that although there was no material on the basis of whicha reasonable opinion could be formed that the respondent hadoutlived his utility as a government servant or that he had losthis efficiency and had become a dead wood, he was compulsorilyretired merely because of his involvement in two criminal casespertaining to the grant of permits in favour of fake and bogusinstitutions. The involvement of a person in a criminal case doesnot mean that he is guilty. He is still to be tried in a court of lawand the truth has to be found out ultimately by the court where theprosecution is ultimately conducted. But before that stage isreached, it would be highly improper to deprive a person of hislivelihood merely on the basis of his involvement. We may,however, hasten to add that mere involvement in a criminalcase would constitute relevant material for compulsoryretirement or not would depend upon the circumstances of eachcase and the nature of offence allegedly committed by theemployee.”

11. Mr. Alam submitted that the Committee in questioncomprised of very high officials/officers under the Chairmanship ofChief Secretary. The Respondent’s involvement in the crime, as wellas the fact that the competent authority had granted sanction, were thefactors which weighed with the Committee, and the decision was takenin public interest. The order of compulsory retirement was an innocuousorder and completely satisfied the principles as culled out inBaikunth Nath Das[2]. He further submitted that the DivisionBench completely failed to consider the fact situation in the matter.It was never the case of the prosecution that the Vigilance Organisationhad caught Respondent red handed while demanding and acceptingbribe. As a matter of fact, in none of the present three cases was A

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Athere any such allegation of the accused being caught red handedwhile demanding and accepting bribe.

12. Mr. Pramod Kumar Sharma, learned advocate who appearedfor Respondents in all three matters relied upon various orderspassed by this Court dismissing Special Leave Petitions arising fromBjudgment and orders passed by the Division Bench in identical situations.He particularly relied upon the orders passed by this Court in SpecialLeave Petition (c) CC Nos.6027-6028 of 2017 arising from thejudgment and order dated 07.10.2016 passed by the Division Benchof the High Court of Jammu and Kashmir at Jammu in LPASW Nos.103of 2016 and 122 of 2016 and various other orders passed by this CourtCsubsequently.

13. The provisions under which the Committee was constitutedviz. 226(2) of the Regulations prescribes norms which are requiredto be followed by the Screening Committee. Said Article 226(2) is asunder:-D

“(i) The Annual Performance Report of the Non-Gazettedemployees are neither normally written very carefully nor arethey fully available in a large number of cases. The ScreeningCommittee should, therefore, consider the entire service recordincluding all material and relevant information available on recordEabout the employee before coming to any conclusion.

(ii) The Government employees whose integrity is doubtfulshould be retired. For the purpose of establishing that theintegrity of the Government servant is doubtful the followinginformation/records could be considered.

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Number and nature of complaints received, if any,against the Government servant pertaining to doubtfulintegrity or corruption.

Number and nature of various audit paras pending, ifany, against the Government Servant in which concernedGgovt. servant is found to be involved.

Number and nature of vigilance cases pending inquiry, ifany, against the Government servant.

Adverse entries in the APRs concerning doubtfulintegrity, if any.

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Number and nature of departmental inquiries/preliminaryinquiries, if any, which are going on against the concernedGovernment servant.

Number and nature of administrative censure/warnings/punishment pertaining to corruption/doubtful integrityagainst the Government servant, if any.

General reputation of the employees.

(iii) Government employee who is found to be ineffective shouldbe retired. The basic consideration in identifying such employeesshould be fitness/competence of the employee to continue in thepost, which he is holding. If he is not found fit to continue in hispresent post, and than his fitness/competence to continue in thelower post from where he had been previously promoted shouldbe considered.

(iv) The specific norms for efficiency/effectiveness cannot bereally laid down since they pertain to the nature of the workin each particular department would vary from department todepartment. However, these norms should be similar to normslaid down in the APRs of the employees concerned relatingto his performance and efficiency/effectiveness. Specific normson two to three parameters should be laid down for specificjobs. An illustrative list of norms is given below:

For Teachers the pass percentage achieved by theirstudents.

For Revenue staff, norms relating to revenue work, suchas mutations attested, jamabandies completed, revenuepass books issued etc.

For engineering staff, norms relating to timely projectimplementations without time and cost over-runs etc.

The concerned Administrative Department should, for eachspecific category of employees under its control, identify twoto three key result areas/norms against which the efficiency/effectiveness of the Government employees should be considered.These norms should be communicated to the screening committeeby the Administrative Department in advance.

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(v) While the entire record of the employee should be consideredat the time of review, no employee should ordinarily beretired on grounds of ineffectiveness, if his services duringthe preceding 5 years, or where he has been promoted on higherpost during 5 years his service in the higher post have been foundsatisfactory.

(vi) No employee should ordinarily be retired on groundsof ineffectiveness, if in any event he would be retiring onsuperannuation within a period of one year from the date ofconsidering of his case.

(vii) This provision of Rule for premature retirement shouldnot be used for reduction of surplus staff or an economy measure.Similarly, it should not be used to retire a Governmentservant on grounds of specific act of misconduct as ashortcut to initiating formal disciplinary proceedings againsthim. The appropriate authority shall not, however, be precludedto take action against a Government servant to retire himprematurely at the relevant time, even at that time, specificact of misconduct has come to notice.

(viii) Once a decision has been taken under the relevant servicerule to retain a Government servant in service beyond theprescribed age or beyond the prescribed length of service,he shall ordinarily continue in service till he attains the age ofsuperannuation.”

14. According to Mr. Alam, the relevant criteria for engineeringstaff which was stipulated in clause (iv) related to timely projectimplementations without time and cost over-runs. It was submitted thatnot only the prosecution that was initiated against the Respondent,but the order of sanction issued by the competent authority showed thatpublic interest was completely compromised, leading to total loss ofmore than Rs.16,00,000/- as a result of acts of commission and omissionon part of the Respondent.

15. It is true that the exercise of power under aforesaidArticle 226(2) of the Regulations by the very same Committee didnot meet with the approval, and the Division Bench in certaincases did reject the plea of the State Government, and affirmed theorders passed by the Single Judge setting aside the orders of compulsory

retirement. It is also true that in those matters Special Leave Petitionswere dismissed summarily. However, it is well settled that mere summarydisposal of a Special Leave Petition does not conclude the issue on merits[3].

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We, however, need not go into the matter as some strikingfeatures which emerge from three matters are as under:- B

a)In all these three cases the concerned Respondent officialwas never caught red handed while accepting bribe.However, observations which are identical in all threematters indicate that the Division Bench considered thematters from that premise. The basic foundation was thusincorrect.

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b)The matter from the perspective of Clause (iv) ofArticle 226(2) of the Regulations was also not considered.The orders of sanction in all these three matters highlightthe acts of commission and omission on part of the concernedRespondents as a result of which there was wrongful loss toDthe State and public interest was compromised.16. The aforesaid two features are common in all these threematters. The basic premise, as indicated hereinabove, on the basis ofwhich the matter was considered by the Division Bench was incorrectand secondly, the matter was also not considered from the perspectiveE

16. The aforesaid two features are common in all these threematters. The basic premise, as indicated hereinabove, on the basis ofwhich the matter was considered by the Division Bench was incorrectand secondly, the matter was also not considered from the perspectiveof Clause (iv) of Article 226(2) as stated above. We, therefore, set asidethe judgments and orders under appeal passed by the Division Bench ofthe High Court in LPASW Nos.182 of 2017, 159 of 2017 and 180 of2017. The matters are remitted to the Division Bench for freshconsideration. These Letters Patent Appeals stand restored to the file ofthe High Court which may now be dealt with afresh.

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17. The appeals are allowed to the aforesaid extent. No costs.

Kalpana K. Tripathy

Appeal allowed and matters remittedto High Court.

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3 M/s. Rup Diamonds and others vs. Union of India & Ors – (1989) 2 SCC356 para 8; Supreme Court Employees’ Welfare Association vs. Union of Indiaand another – (1989) 4 SCC 187 para 22; Yogendra Narayan Chowdhury andothers vs. Union of India and others – (1996) 7 SCC 1 para 5

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