State of J&K & ors. v. Reyaz Anwar Masoodi

Judgment

1. This Letters Patent Appeal by the State of J&K (Now Union Territory) has been filed against the judgment and order dated

23.03.2018 passed by a learned Single Judge of this Court whereby the respondent’s writ petition, SWP no.1453/2015, challenging his compulsory retirement order from Government service, issued by the appellants, has been allowed quashing the order impugned therein with direction to the appellants to reinstate the respondent-writ petitioner and grant him all consequential benefits within the period specified therein.

2. We heard learned counsel for the parties and considered the matter.

3. The respondent (writ petitioner) was initially appointed as Range Officer Grade-I on ad hoc basis vide Government order no.303- FST of 1995 dated 12.10.1995. Later, he was substantively appointed on the post vide Government order no.227-FST dated 24.05.2004 and 2 was continued at North Jehlum Range, Baramulla. Thereafter, vide Forest Order no.236 of 2004 dated 19.07.2004, he was transferred and posted at Forest Range, Rajwar, Handwara. From there he was transferred and posted at Rafiabad Range, Watergam of Langate Forest Division. While being posted there, he was deputed for undergoing training at State Forest Service College, Bunihat, Assam. After return from the training course, he was posted at Magam Range, Forest Division, Langate. Thereafter, he was transferred and placed at the disposal of Managing Director, J&K State Forest Corporation for his posting against the post of Divisional Manager / equivalent.

4. It appears that, meanwhile, on 17.07.2007, an FIR, bearing no.42 of 2007 under Sections 5(1)(d) and 5(2) of the Prevention of Corruption Act, 2006 read with Sections 467, 471 and 120(B) RPC was registered at Police Station Vigilance Organization, Kashmir (VOK). A questionnaire was served on the respondent, stating that during the investigation of the said case certain allegations mentioned therein had been prima facie established against him. It was, inter alia, alleged that while the respondent was posted as Range Officer, Forest Range Rajwar, Handwara, from 08/2004 to 12/2004, he had hatched a criminal conspiracy with one Mushtaq Ahmad Sofi, attorney holder of a private timber sale depot / joinery mill, namely, M/s 03-Star Enterprises, situated at Kachwari, Handwara; its Manager, Ghulam Hassan Bhat; Gh. Mohi-ud-Din Bhat, (Forester), the then B.O., Town Handwara, and others, as a result of which the respondent in connivance with others had manipulated the stock registers (Form 12 Register and Form 18-19 Register) pertaining to the stocks of M/s 03- Star Enterprises by way of changing the actual stock registers, being maintained at the said joinery mill / timber sale depot. The respondent was alleged to have thereby accommodated the detailed illicit timber in the records of the joinery mill / depot by inflating stock entries. The respondent was informed that by adopting corrupt practices he as a public servant had abused his official position in order to confer illegal advantage / benefit on the proprietor / attorney holder of the mill / 3 depot and others. The respondent was asked to submit his explanation in respect of the allegations mentioned in the said questionnaire. He is stated to have replied the questionnaire.

5. Thereafter, the Government issued order no.22-GAD(Vig) of 2014 dated 08.08.2014 according sanction to the prosecution of the petitioner and another person, viz the then B.O. of Town Handwara for commission of the offences under Sections 5(1)(d), 5(2) of J&K PC Act read with Sections 467, 471, 201, 120 B RPC and Section 6(e) of

J&K Forest Act, 1987 in case FIR No.42/2007 of P/S VOK. The respondent challenged the aforesaid sanction order dated 08.08.2014 through OWP no.1403/2014 and the Court by order dated 01.09.2014 ordered that if challan with respect to the said FIR was filed before the competent court of jurisdiction, the proceedings shall remain under eclipse till next date. The interim direction was, thereafter, extended from time to time. That petition is stated to be pending till date before the Court.

6. One more FIR, bearing No.23/2011, is stated to have been registered against 46 forest officers/officials on the allegation of execution of works of 81 farm ponds through fictitious muster rolls, in which the respondent is one of the accused. The said FIR is stated to be still under investigation and no headway has been made therein till date.

7. While the respondent was working as Incharge Divisional Manager, State Forest Corporation (SFC) Division, Zangli, Kashmir, the Government in exercise of the powers conferred by Article 226(2) of the Jammu and Kashmir Civil Service Regulations, 1956 (CSRs), gave him notice vide Order no.857-GAD of 2015 dated 30.06.2015 to the effect that he, having already attained 48 years of age, shall retire from service w.e.f. forenoon of 01.07.2015. He was allowed three months’ pay and allowances in lieu of three months’ notice. 4

8. The respondent challenged the aforesaid order dated

30.06.2015 by writ petition, SWP no.1453/2015, on the grounds taken therein. The respondents in the writ petition in their reply stated that the Committee constituted vide Government order no.17-GAD(Vig) 2015 dated 20.05.2015 for considering the cases of officers/officials for premature retirement in terms of Article 226(2) and 226(3) of the CSRs, on consideration of the records regarding involvement of Government employees in corrupt practices etc., came to the conclusion that the respondent herein was generally known to have bad reputation and for fudging with the official record with criminal intent for his pecuniary benefits, and, therefore, recommended to retire him under Article 226(2) of the CSRs. The recommendation so made by the Committee was accepted by the competent authority which culminated into issuance of the impugned order.

9. The learned Single Judge, on noting the respective pleadings of the parties and arguments advanced before the Court by the learned counsel for the parties, has observed that taking an overall view of the matter, the bottom-line of the order of compulsory retirement of the respondent herein has been his conduct and registration of FIR no.42/2007 and FIR no.23/2011, Police Station VOK, against him, in which, it was stated before that Court, the investigation was in progress, but no charge-sheet had been laid before the court of competent jurisdiction. The learned Single Judge, referring to, and quoting, the instructions issued by the Government vide SRO 246 dated 30.06.1999 read with the addendum thereto, issued by General Administration Department vide Office Memo OM No. GAD(Vig)19- Adm/2010

25.10.2010, observed instructions/guidelines are meant to be followed by the Screening Committee both in vigour and rigor while evaluating the cases of the officers forwarded to them for taking a decision with regard to their compulsory retirement, and that the decision to compulsorily retire a Government servant has to be, as a matter of necessity, based on the analogy of the said guidelines and the principles of law evolved from 5 time to time in a catena of judicial pronouncements. Further, referring to the judgments of the Supreme Court in Swaran Singh Chand v Punjab State Electricity Board, (2009) 13 SCC 758; Madhya Pradesh State Cooperative Dairy Federation Ltd v Rajnesh Kumar Jamidar, (2009) 15 SCC; State of Gujarat v Umedbhai M. Patel, (2001) 3 SCC 314; and State of Gujarat v Suryakant Chunilal Shah, (1999) 1 SCC 529; and M. S. Bindra v UOI, (1998) 7 SCC 310, and applying the law and the principles expounded therein, the learned Single Judge has found that the whole exercise has been conducted on the basis of the involvement of the respondent in FIR Nos. 42/2007 and 23/2011 registered at Police Station VOK which are pending investigation, and that the State has applied in the reverse the axiom of law that a person accused of an offence is presumed to be innocent, unless and until his guilt has been proved. The learned Single Judge has further recorded that the Committee constituted by the Government vide Order No.17- GAD(Vig) 2015 dated 20.05.2015 to consider the cases of officers/officials for premature retirement, has given a complete goby to the provision of Article 226(2) of the CSRs read with the instructions/guidelines issued by the Government in that behalf, while considering the petitioner’s case for compulsory retirement.

10. We are of the opinion that it would be advantageous to quote the findings recorded by the learned Single Judge in this regard in paras 16 to 20 of the judgment, which read as under: “16. Looking at the instant case from the above perspective, an important fact which cannot be lost sight of is that the Committee has given a complete goby to the Regulation 226(2) of the CSR read with the instructions (provided hereinbefore) in considering his compulsory retirement. These lay great emphasis and spell out the need and demand to consider the entire service record of the public servant available in the shape of APRs, service book, personal file giving the details of the complaints received against him from time to time and so on and so forth. While considering the desirability of the retention or otherwise of a public servant, whose conduct has come under a cloud, the criminal case(s) registered against him can 6 be considered on the parapet and the bulwark of the chain of the documents/service particulars, as stated hereinbefore. But to say that the FIR(s) can form the sole basis to retire a public servant compulsorily is neither in tune nor in line with the scheme and mandate of Article 226(2) of the CSR read with the guidelines supra and the judicial pronouncements holding the ground. Taking such a view that FIR(s) only will form the basic structure of an order of compulsory retirement of a public servant will be repugnant and averse to the very concept and object of compulsory retirement. In order to attach a semblance of fairness to such an order, the entire service record of a public servant, more significantly the service record of the previous years preceding the decision, has to be assessed and evaluated. These cannot be skipped and shelved in formulating such an opinion by taking umbrage under the plea that the same were not available, as stated here in this case. If these are disregarded and omitted in the matter of the accord of consideration the compulsory the case of retirement of a public servant, the whole exercise will get vitiated under the colour of non-application of mind and the decision having been taken not on just grounds, but for a collateral purpose, and, to cap it all, how can the conduct of a public servant be put through the wringer, when there is no definite material available to substantiate so. 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. This is a fundamental flaw in the order issued against the petitioner, whereby he has been shown the door.

17. The contention of the respondents in this petition is that there was no material in the shape of ‘Character Roll Entries’ available before them and, if these were not available, the State could not have concluded that the conduct of the petitioner was unbecoming of a public servant, or that he was a man of doubtful integrity, or that he was a fit person to be retired compulsorily from service. The order of the compulsory retirement of the petitioner, in these circumstances, is punitive having been passed for the collateral purpose of his immediate removal than in public interest. However, the petitioner has knocked the bottom out of this contention of the respondent- State that the ‘Character Roll Entries’ were not available at the time when consideration was accorded to the case of his compulsory retirement. This strengthens the view that the order has been passed for a collateral purpose of his immediate removal. 7

18. The facts are eloquent. In the writ petition, filed by the petitioner, he has placed on record the details of his ‘Annual whereunder his achievements, from time to time, have been judged/evaluated by his superiors and he has been rated as under: Reports’ wherein Performance ‘1. For the year/period ending 2009-10, the petitioner has been rated as excellent, well versed with administrative skill and well protective officer.

2. In the APR for the year/period ending 2011-2012, the petitioner has been rated as well versed with administrative skills, having good knowledge of forestry operations and excellent quality of man management.

3. For the year/period ending 2012-2013, the petitioner has been rated as excellent, having well organized working and well versed with administrative skills.

4. For the year/period ending 2013-2014, the petitioner has been rated as excellent, having well organized working and well versed with administrative skills.

5. For the year/period ending 2014-15, the petitioner has been rated as well versed with extraction job.’

19. The aforementioned ‘Annual Performance Reports’ have been shelved. These have escaped the scrutiny of the Committee. It appears to have been done with the ultimate aim of shown the petitioner the exit and, had these ‘Annual Performance Reports’ been considered, the result would have been otherwise.

20. The argument of the learned counsel for the respondent-State that the principles of natural justice cannot be invoked by a public servant in the aid of assailing an order of compulsory retirement and that such an order does not amount to a punishment, is based on the sound principles and cannons of law, but, to say that such an order can be passed by shunning the material on the basis of 8 which such an order can be passed in terms of the rules, regulations and the law governing the subject, is a spurious and a contrived argument. Such an argument is devoid of merit and does not have the legs to stand upon.” The learned Single Judge, recording as quoted above, has held that the Government order No.857-GAD of 2015 dated 30.06205 cannot stand the test of law and reason and, accordingly, quashed the same.

11. From the above quoted paras of the impugned judgment, it is seen that the learned Single Judge has observed that Article 226(2) of the CSRs read with the instructions/guidelines issued by the Government lay great emphasis and spell out the need and demand to consider the entire service record of the public servant available in the shape of APRs, service book, personal file giving the details of the complaints received against him from time to time; that while considering the desirability of the retention or otherwise of a public servant, whose conduct has come under a cloud, the criminal case(s) registered against him can be considered on the parapet and the bulwark of the chain of the documents/service particulars and that FIR(s) cannot form the sole basis to retire a public servant compulsorily as the same is not in line with the scheme and mandate of Article 226(2) of the CSR read with the guidelines issued by the Government and the judicial pronouncements holding the ground. The learned Single Judge has further held that the order has been passed for a collateral purpose of the petitioner’s immediate removal. To arrive at this conclusion, the learned Single Judge has observed that the petitioner’s APRs for the years 2009-2010, 2011-2012, 2012-2013, 2013-2014, 2014-1015 have escaped the scrutiny of the Screening Committee which appears to have been done only with the ultimate aim of showing the petitioner the exit, and that had these ‘Annual Performance Reports’ been considered, the result would have been otherwise. The learned Single Judge has further held that to say that an order of compulsory retirement can be passed by shunning the material on the basis of which such an order can be passed in terms of 9 the rules, regulations and the law governing the subject, is a spurious and a contrived argument.

12. Before us, the learned AAG argued that the compulsory retirement is not punitive in nature and that learned Single Judge erred in holding that FIRs registered against the respondent could not solely form the basis for compulsorily retiring him. The learned AAG contended that the learned Single Judge did not appreciate the facts of the case in their right perspective; therefore, the judgment impugned is liable to be set aside. To buttress his arguments, the learned AAG cited and relied upon the following decisions of the Supreme Court in State of J&K v Farid Ahmad Tak, (2019) 7 SCC 278; State of U. P. v Bihari Lal, 1994 Supp (3) SCC 593 (p 4); State of Orissa v Ram Chandra Das, (1996) 5 SCC 331; Balkuntha Nath Das v Chief District Medical Officer, (1992) 2 SCC 299; M. L. Binjolkar v State of M. P., (2005) 6 SCC 224 (p.5); and State of Gujarat v Suryakant Chunilal Shah, (1999) 1 SCC 529.

13. On the other hand, the learned counsel for the respondent submitted that it has been long before laid down that before taking a decision whether or not a Government employee should be compulsorily retired, the Government or the Reviewing Committee, as the case may be, has to consider the entire service record of the employee, attaching more importance to the record and performance during the later years. He submitted that it has been specifically laid down that the record to be considered would include the entries in the confidential records/character rolls. The learned counsel, referring to the instructions issued by the Government to regulate the exercise of power under Article 226(2), which, inter alia, state that the Screening Committee should consider the entire service record, including all material and relevant information available on record about the employees before coming to any conclusion, submitted that these instructions are binding on the Screening Committee, and that any decision taken in derogation thereof would suffer from vice of 10 arbitrariness. He submitted that the Screening Committee did not consider any such material, muchless the APRs of the petitioner, especially, of the later period of his service. On that ground, the learned counsel submitted that the order of compulsory retirement of the respondent, being bad in law, was rightly quashed by the learned Single Judge. The learned counsel further argued that merely because a person is shown to have been involved in a criminal case would not per se mean that he was guilty of having committed that offence. To buttress his arguments, the learned counsel cited and relied upon two Supreme Court judgments in State of J&K v Farid Ahmad Tak, (2019) 7 SCC 278; High Court of Judicature at Patna v. Ajay Kumar