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2016 Supreme(J&K) 13
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
N. Paul Vasanthakumar, Tashi Rabstan, JJ.
Smt. Santosh - Petitioner
Vs.
The State of Jammu & Kashmir & Anr. - Respondents
SWP No. 172 of 2011
Decided On : 02-03-2016
For the Petitioner:M/s. K.K Pangotra & S.C Gupta, Advocates
For the Respondents:Mr. A.V Gupta, Sr. Advocate with Mr. Munish Sharma, Advocate for R-2
The court established that departmental proceedings conducted after an officer's superannuation without retaining them in service are without jurisdiction, and cited the relevant provisions in Jammu and Kashmir Civil Service Regulations, 1956.
Headnote:
Dismissal - Jurisdiction to Proceed with Departmental Proceedings - Jammu and Kashmir Civil Service Regulations, 1956 - Article 226
Fact of the Case:
The writ petitioner, an Additional District and Sessions Judge, was dismissed with retrospective effect after serious allegations of judicial misconduct. The petitioner's legal representatives sought modification of the dismissal order to secure retiral benefits.
Finding of the Court:
The court found that the dismissal order with retrospective effect was too harsh given the absence of corruption allegations and the petitioner's 30 years of service. The court modified the dismissal to compulsory retirement from the date the petitioner reached the age of superannuation, ensuring retiral benefits for the legal heirs.
Issues: Jurisdiction to proceed with departmental proceedings after the petitioner's superannuation, and the appropriateness of the dismissal order with retrospective effect.
Ratio Decidendi: The court held that the departmental enquiry conducted beyond the petitioner's superannuation without retaining him in service was without jurisdiction. It also cited Jammu and Kashmir Civil Service Regulations, 1956, Article 226, which provides for compulsory retirement at the age of 55, unless the officer is retained in service.
Final Decision: The dismissal order was modified to compulsory retirement from the date the petitioner reached the age of superannuation, ensuring retiral benefits for the legal heirs.
N. Paul Vasanthakumar, J.
This writ petition is filed by the writ petitioner (Additional District and Sessions Judge), who was dismissed with retrospective effect by order dated 12.10.2010 i.e. from 31.12.2003. The said order is challenged by contending as follows:-
The writ petitioner was appointed as Munsiff-cum-Judicial Magistrate 1st Class in August, 1974, promoted as Sub Judge and District and Sessions Judge. While he was posted as 2nd Additional District & Sessions Judge, Jammu, the then Acting Chief Justice on the basis of complaints from the members of the Bar as well as general public, on 26.05.2003 gave direction to the Registrar Vigilance to conduct enquiry. The writ petitioner was placed under suspension by order dated 31.05.2003 The Registrar Vigilance after conducting enquiry submitted his report with remarks of serious suspicion on the working of the writ petitioner. Thereafter charge memo was issued on 03.06.2003 alleging that the petitioner disposed of number of cases by over stepping his jurisdiction, excess of jurisdiction, unmindful of explicit provisions of law, not giving fair chance to prosecution to prove its cases, disposed of applications without the same being assigned by the Principal District and Sessions Judge in a cursory and casual manner on the day of presentation and by releasing the seized Kerosene Oil in huge quantity, granted bail to the accused, who were involved in offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substance Act in utter disregard to the law relating to bail in a casual and routine manner, granted anticipatory bail to accused involved in offence under Section 5(2) Prevention of Corruption Act, 2006, the jurisdiction of which is exclusively vested with Special Judge, Anti-corruption, Jammu and after granting bail allowed the applicant to withdraw the application giving way to escape custodial interrogation, disposed of more than 100 anticipatory bail applications during the period from 01.01.2003 to 12.05.2003, out of which 77 applications were dismissed in default and the applicants got relief and avoided custodial interrogation, did not insist on the police reports and objections from the prosecution. The writ petitioner submitted his objections and being not satisfied with the reason enquiry was conducted and the enquiry officer submitted his report on 04.08.2004, holding that charge Nos. 1, 2 and 7 have been fully established. The proved charges are as follows:-
“1. It is alleged that you while posted as 2nd Addl. District and Sessions Judge, Jammu, disposed of number of cases showing that you over stepped your jurisdiction, resorted to improper exercise of jurisdiction and erroneously assumed jurisdiction upto yourself, unmindful of explicit provision of law.
2. It is alleged that perusal of case files of ‘State v. Jankar Chand’ File No. 50, decided on 14-01-2003, State v. Navin Singh’ Chalan No. 331, date of decision 11-2-2003, State v. Suram Singh’ File No. 322, date of decision 13-3-2003 and State v. Niranjan Singh alias Bitto, File No. 526, date of decision 26-4-2003, indicates that you disposed of these matters in an improper and slip-shod manner unmindful of your duty to give a fair chance to prosecution to prove its cases and oblivious to the gravity of the offence and accusations in the cases.
………………………..
7. It is alleged that all these acts of omissions and commissions mentioned above make you liable for misconduct/judicial indiscipline besides display of conduct unbecoming of a Judge.”
2. The writ petitioner reached the age of superannuation on 31.12.2003 even before conclusion of the enquiry. Based on the enquiry report, show cause notice was issued calling upon the writ petitioner to show cause as to why he may not be dismissed from service. The writ petitioner gave reply to the show cause notice. After considering the same the order of dismissal was passed by the government bearing Government Order No. 2071-LD(A) of 2010 dated 12.10
