WP(C)/2997/2022 of JAWED AHMAD KHAN AND ORS. Vs UNION TERRITORY OF J AND K AND ORS. (REVENUE DEPARTMENT) on 30 December 2022

1. Heard the learned counsel for the petitioners.

2. The petitioners are the government servants in their respective status in the office of the Deputy Commissioner, Budgam, all of whom feel aggrieved by the issuance of notice no. DCB/Estt/SM/22/1033-44 dated 22.12.2022, issued by the Deputy Commissioner, Budgam, i.e. respondent no. 3 herein to seven persons jointly and the petitioners are in the list of those seven persons.

3. The purported cause of action for the Deputy Commissioner, Budgam, to issue notice in reference to the petitioners and others is an alleged defalcation of an amount of Rs. 5,12,890/- which comprised of registration fee of Rs. 2,81,390/- and Rs. 2,31,500/- as Red Cross amount. The receipt of said amount of Rs. 5,12,890/- was in connection with the registration of the documents but as the remittance of the said amount had not taken place from the concerned in the office of the Deputy Commissioner, Budgam, to the concerned Account Head related with the registration of the documents, as such, the Inspector General of Registration, J&K came to call upon the Deputy Commissioner, Budgam, vide letter no. IGR/Enqires/54/ 2022/233 dated 25.08.2022 to recover the said amount from the officials so named and pointed out those to be the three petitioners and others as the persons so liable for refund. Recovery was directed to be in equal proportion from all the seven officials and for that even the Sub-Registrar, Chadoora was slapped with the liability.

4. It is upon the purported basis of the said direction from the Inspector General of Registration J&K that the Deputy Commissioner, Budgam came to put the petitioners and three others to a common notice bearing a direction to deposit the amount of Rs. 73,270/- each in the appropriate head against proper receipt within three days from the date of issuance of the notice in reference failing which the intended recovery to be carried out under Rules. It is this notice from the Deputy Commissioner, Budgam, which has caught the petitioners’ aggrieved being exposed to suffer the monetary liability.

5. A bare perusal of the impugned notice so issued by the Deputy Commissioner, Budgam, confirms the fact that though it is nomenclatured as Notice but in essence it is an order of liability being fastened upon the persons to whom it has been addressed and that includes the petitioners. This notice generates civil consequences against the petitioners and that being so before any order which has

6.

7. the effect of generating civil consequences is sought to put into effect in the course of the public administration, the rules of natural justice require that an opportunity of hearing has to be first afforded to the person/s who is/are likely to be effected by the intended course of action at the end of the public authority/official who purports to act in the matter.

In the present case, the Deputy Commissioner, Budgam, has simply acted on the dictates of the Inspector General of Registration J&K, thereby condemning the petitioners unheard. Either the Inspector General of Registration J&K or for that matter the Deputy Commissioner, Budgam, ought to have put each of the petitioner to an individual notice to show cause as to how each of the petitioner is supposed to be held liable for the alleged acts of omission or commission on his/her part resulting in loss of amount of Rs. 5,12,890/- for which share-wise recovery of Rs. 73,270/- is intended to be carried out. Thus, without any prior enquiry whatsoever the petitioners are exposed and subjected to a penalty of recovery. Whether or not the petitioners were privy to the loss or bungling of amount of Rs. 5,12,890/- can be ascertained only on the bass of an enquiry in which regard the Deputy Commissioner, Budgam, ought to have taken recourse to an enquiry and then put the petitioners on demand for payment of share-wise contribution.

In view of the aforesaid situation the impugned notice no.DCB/Estt/SM/22/1033-44 Dated 22.12.2022 issued by the Deputy Commissioner, Budgam, renders itself not in tune with requirement of no.DCB/Estt/SM/22/1033-44 Dated 22.12.2022 issued by the Deputy Commissioner, Budgam, renders itself not in tune with requirement of rules of natural justice and thus deserves to be set-aside with a direction to the Deputy Commissioner, Budgam, to conduct an enquiry by putting the petitioners to an individual notice to show cause as to on what basis and which of the petitioner is to be held liable for defalcation of amount of Rs. 5,12,890/-. On the basis of the enquiry by having show cause reply from the petitioners,the final order in the matter be passed by the Deputy Commissioner, Budgam, This Court leaves the Deputy Commissioner, Budgam free to set time frame for carrying out the needful enquiry exercise at his/her end. The writ petition is accordingly disposed of.

8. A copy of this order be forwarded to the Deputy Commissioner, Budgam, as well as the Inspector General of Registration, J&K, for notice and compliance. Budgam, as well as the Inspector General of Registration, J&K, for notice and compliance.

9. Disposed of along with connected CM.

SRINAGAR30.12.2022Ishaq

(RAHUL BHARTI) JUDGE