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2015 Supreme(J&K) 478
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Ali Mohd. Magrey, J.
Khurshid Anwar Shah – Appellant
Vs.
State of J&K and Ors. – Respondents
SWP No. 322 of 2012 and MP No. 2307 of 2012
Decided On : 28-09-2015
For the Appellant :M.A. Qayoom and Mian Tufail, Advocates
For the Respondents:Umais Kawoos, Advocate
Headnote:
The petitioner was prematurely retired from service on the ground that he had outlived his utility to the public. The petitioner challenged the order of premature retirement, contending that the respondents had not considered his entire service record or even his service record for the last five years. The respondents contended that the petitioner's integrity was doubtful and that he was caught red-handed while accepting a bribe. The Court held that the respondents had not considered the petitioner's entire service record, including his ACRs, and that the order of premature retirement was therefore arbitrary and mala fide. The Court also held that the petitioner's involvement in a criminal case did not mean that he was guilty and that he should have been given an opportunity to clear his name before being prematurely retired. The Court quashed the order of premature retirement and directed the respondents to reinstate the petitioner in service with full back wages and benefits.
Fact of the Case:
The petitioner was prematurely retired from service on the ground that he had outlived his utility to the public. The petitioner challenged the order of premature retirement, contending that the respondents had not considered his entire service record or even his service record for the last five years. The respondents contended that the petitioner's integrity was doubtful and that he was caught red-handed while accepting a bribe.
Finding of the Court:
The Court held that the respondents had not considered the petitioner's entire service record, including his ACRs, and that the order of premature retirement was therefore arbitrary and mala fide. The Court also held that the petitioner's involvement in a criminal case did not mean that he was guilty and that he should have been given an opportunity to clear his name before being prematurely retired.
Issues: Whether the respondents had considered the petitioner's entire service record, including his ACRs, before prematurely retiring him.
Ratio Decidendi: The Court held that the respondents had not considered the petitioner's entire service record, including his ACRs, and that the order of premature retirement was therefore arbitrary and mala fide. The Court also held that the petitioner's involvement in a criminal case did not mean that he was guilty and that he should have been given an opportunity to clear his name before being prematurely retired.
Final Decision: The Court quashed the order of premature retirement and directed the respondents to reinstate the petitioner in service with full back wages and benefits.
Ali Mohd. Magrey, J.
1. The petitioner has filed this writ petition seeking a writ of certiorari to quash Government Order No. 188-GAD of 2012, dated 13.02.2012 whereby, in exercise of the powers conferred by Article 226(2) of the Jammu and Kashmir Civil Service Regulations (J & K CSR), he was given notice that he, having already rendered 22 years of service, shall retire from service with effect from the forenoon of 13.02.2012. Petitioner has further sought mandamus to command the respondents to allow him to continue in service till he would attain the age of superannuation according to the Rules, and to give him all the consequential benefits as envisaged by law. The petitioner was initially appointed as Junior Engineer vide Government Order No. 75-P.W. of 1992, dated 30.04.1992. He was, thereafter, placed as Incharge Assistant Executive Engineer by Government Order No. 548-Works of 2001, dated 28.12.2001. While the petitioner was posted as Incharge Assistant Executive Engineer at R & B Sub-Division, Magam, on the complaint of one Altaf Ahmad Ganai, that he was demanding a bribe of Rs. 2000 from him for processing his bill of the contractual works executed latter, the Vigilance Organization, Kashmir (VOK), is alleged to have laid a trap against him. Case FIR No. 16/2007 under Section 5(2) Prevention of Corruption Act (PC Act) and Section 161 RPC was registered against the petitioner and the challan was produced before the court of competent jurisdiction. The charge against the petitioner was that he had demanded bribe of Rs. 2000.00, from the complainant, received the bribe money from him, that he was caught red handed by the trap party, and, that the bribe money was recovered from his possession.
2. Pursuant to his arrest in connection with the aforesaid FIR, the Government issued Order No. 135-P.W. (R & B) of 2007, dated 02.04.2007 ordering that the petitioner shall be deemed to have been placed under suspension with effect from 22.03.2007, i.e., the date he was arrested by the State Vigilance Organization. However, subsequently, in terms of Sub-Rule (2) of Rule 31 of the J & K Civil Services (Classification, Control and Appeal) Rules, 1956, the petitioner was reinstated with immediate effect vide Government Order No. 375-P.W. (R & B) of 2008, dated 20.06.2008.
3. It was about a month thereafter that the petitioner was charge sheeted on 21.07.2008 by the Additional Special Judge Anti-corruption, Srinagar, Kashmir, for the commission of offences under Section 5(1)(d) read with Section 5(2) of the PC Act and Section 161 RPC.
4. While the prosecution was leading its evidence in the aforesaid criminal case against the petitioner, the Government, in exercise of the powers conferred on it by Article 226(2) J & K CSR issued and served on the petitioner Order No. 188-GAD of 2012, dated 13.02.2012 giving him notice that he, having already rendered 22 years of service, shall retire from service with effect from the forenoon of 13.02.2012. He was allowed three months' pay and allowances in lieu of three months' notice.
5. Meanwhile, the learned Additional Special Judge, Anti-Corruption, Srinagar, Kashmir, by judgment dated 31.12.2013, acquitted the petitioner of the charges levelled against him and discharged him of his bail bonds. The learned Judge in its aforesaid judgment held that the prosecution had failed to establish its case at the trial and that neither the demand, nor acceptance of bribe was established, nor recovery of the amount from the accused was satisfactorily proved.
6. After his acquittal in the aforesaid criminal case, the petitioner filed the instant writ petition challenging Government Order No. 188-GAD of 2012, dated 13.02.2012, INTER ALIA, on the grounds that the respondents have not considered the entire service record of the petitioner or even his service record for the last five years. It is submit
