Article 168-A of the J&K Civil Services Regulations empowers the government to conduct departmental proceedings against a retired government employee to determine financial loss caused by the employee's negligence or fraud, without imposing penalties under Rule 30.

JUDGMENT :

Order dated 28th May, 2021 issued by the Government of Jammu & Kashmir, whereby the petitioner has been served with Article of Charges and statement of imputation in support of each charge and has been asked to submit his written statement of defence, is made subject matter of challenge in this petition. The petitioner also prays for a mandamus to the respondents to settle, finalize and release his post retiral benefits i.e. monthly pension, gratuity and leave salary etc.

2. The impugned order of the Government is assailed primarily on two counts:-

(i) That the impugned order was served upon the petitioner after 31st May, 2021 i.e. after the date of his superannuation on retirement from service and, therefore, it was not permissible in law to hold any enquiry against the petitioner after his retirement.

(ii) That the impugned order, which is purportedly issued on 28th May, 2021, even if assumed to have been issued while the petitioner was in service, yet the respondent could not have continued with the enquiry after the retirement of the petitioner from service.

3. Before adverting to aforesaid twin grounds of challenge vehemently urged by the learned counsel for the petitioner, it would be worthwhile to notice few material facts.

4. The petitioner, as is averred by him in the petition, entered the services of the department of Local Bodies in the year 1980 as Junior Assistant and by dint of his merit and seniority was last promoted to the post of Secretary on substantive basis in the year 2006. The petitioner, however, superannuated from service of the respondents on 31st May, 2021. The petitioner, as is contended by him, was never served with the impugned order upto 4.30 p.m. on 31st May, 2021. He came to know of the impugned order of the Government only when one Fayaz Ahmed, Head Assistant, who was then working as Incharge P.A. to the Director, Urban Local Bodies informed the petitioner through whatsApp message at 5.27 p.m. on his personal mobile number. These articles of charge served upon the petitioner indicate that the departmental enquiry against the petitioner is envisaged on the ground that his initial entry to government service as Junior Assistant was backdoor and that he was further promoted to different positions without the petitioner being eligible for promotion and even in the absence of the recommendations of the Departmental Promotion Committee. It is interesting to note that none of the officers or officials, who were allegedly privy to the recruitment of the petitioner and his further promotions in the department, are proceeded in any departmental proceedings.

5. In the reply filed by the respondents supported by affidavit of one Ashish Gupta, Additional Secretary to the Government, Housing & Urban Development Department, it is the plea of the respondents that the petitioner has been proceeded for having been prima facie found guilty of serious misconduct. The petitioner, who was initially appointed as Junior Assistant on temporary basis for a period of two months by the then Director, Urban Local Bodies, Kashmir, was subsequently appointed permanently against a direct recruitment post illegally and without referring the post to the Jammu & Kashmir Services Selection Board. The petitioner was placed as Senior Assistant w.e.f. 1st September, 1983 without having passed the Secretariat Assistant Course Examination, as required under Rules. There was no DPC conducted for promoting the petitioner as Senior Assistant. The petitioner was further placed as Head Assistant by the then Director, Urban Local Bodies, Kashmir vide order dated 5th August, 1994 without there being any post and without seeking recommendations of the DPC. The petitioner was further promoted as Secretary by the then Director, Urban Local Bodies, Kashmir without having any competence to do so. The petitioner was re-designated as Section Officer vide order dated 30th March, 2010 passed by then Director, Urban Local Bodies, Kashmir in con