High Court Quashed Illegal Order In Jammu & Kashmir; But What About Culprits?

High Court quashed illegal order;but what about culprits in J&K?

JAMMU, Oct 14: Justice Magrey recently in a land mark judgment quashed compulsory retirement order of one Khurshid Anwar Shah, AEE. It was also ordered to reinstate the petitioner within 10 days & all service benefits, increments, seniority & full back wages from the date he was prematurely retired.

 It is pertinent to mention here that Shah was acquitted for the charges of bribe from a contractor in December 2013 by the competent court but he was retired during the trial. Later the charges were not proved against him. It was also mentioned in the order that authorities before passing the order should have waited for outcome of the trial court as merely on the basis of allegations such a grave action was unwarranted. The authority’s ought to have borne in mind that he was still to be tried in the court of law & truth was yet to be ascertained. But so called competent officers did not bothered for. Shall such officers be taken to task by Govt. 

 It is not only the case where Govt. has done illegality there are lot of other examples of superpowers on the part of Govt. One officer was compulsorily retired by the intelligent bosses of the state only on the report of CID by putting properties on the name of innocent. Later same agency CID said that “Since the CID being an intelligence generatory agency, has submitted said report to the Govt. for appropriate action. Intelligence agency can only share inputs & does not gather any documentary evidence”. But the said officer had a legal fight with the Govt. for eight years up to Supreme Court of India. After the said communication of CID, Govt. asked the Vigilance to verify the previous report of CID & Vigilance In turn commented that the properties & lockers etc. don’t pertains to the officer but then also, the officers did not bother to withdraw illegal order passed by them on the report of CID alone. Supreme court quashed the order as   “The order passed suffer from vice of arbitrariness & High Court also not gone on the basis of record”                                                                                      .                   

 It is a matter of great concern to write here that Supreme Court of India in Surinder Shankar Awasthi v/s State of UP. 1982 Lab Ic 548(All) has ordered as “An ex parie enquire has been carried out by the CID, the screening committee recommended the compulsory retirement & the petitioner was compulsorily retired. HELD:- Theorders of compulsory retirement suffer from vice of inflicting punishment on the petitioner & in violation of Art. 311 COI. If the allegations against the petitioner were found to be substantiated by CID. It was the bundned duty to hold an enquiry against the petitioner for providing  a proper opportunity to him rather than to have adopted tis short cut of removing him from service”. But no opportunity of being heard was provided to the above officer but throwed axe on him & made him corrupt in the eyes of public causing mental harassment to him along with his family members but what about the intelligent IAS/IPS officers, who made the fraud report, which was later found not on ground. The basic object of the compulsory retirement is to weed out the dead woods not of their choice innocents in violation of Art.226 J&K Civil service Regulations.                 

Supreme Court had made rulings regarding compulsory retirement that before passing such an order the service record of last five years should be taken into consideration & it should not be shortcut remedial to remove from service but in this state nobody bothers forbut use their own muscle powers to finish the life of any officer, which can be seen from the orders passed by the Govt. into the matter. In AyaaubkhanNoorkhanPathan v. State of Maharashtra &Ors., AIR 2013 SC 58, this Court while placing reliance upon a large number of earlier judgments held that cross-examination is an integral part of the principles of natural justice, and a statement recorded behind back of a person wherein the delinquent had no opportunity to cross- examine such persons, the same cannot be relied.                                               

In Nirmala J. Jhalavs State Of Gujarat &Anr on 18 March, 2013,viii) There is nothing on record to show that the appellant whose defence has been disbelieved in toto, had ever been given any adverse entry in her ACRs, or punished earlier in any enquiry. While she has been punished solely on uncorroborated statement of an accused facing trial for misappropriation.

30. In view of the above, we have no option except to allow the appeal. The appeal succeeds and is accordingly allowed. The order of punishment imposed by the High Court in compulsorily retiring the appellant is set aside. However, as the appellant has already reached the age of superannuation long ago, it is not desirable under the facts and circumstances of the case, to grant her any substantive relief, except to exonerate her honourably of all the charges, and allow the appeal with costs, which is quantified to the tune of Rs.5 lacs. The State of Gujarat is directed to pay the said cost to the appellant within a period of 3 months from today.

In BaikunthaNath Das &Anr. Vs. Chief District Medical Officer, Baripada&Anr., AIR 1992 SC 1020, this Court has laid down certain criteria for the Courts, on which it can interfere with an order of compulsory retirement and they include mala fides, if the order is based on no evidence, or if the order is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material, i.e. if it is found to be a perverse order. The Court held as under:–

 (ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government.  (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or the Court would not examine the matter as an appellate Court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary- in the sense that no reasonable person would form the requisite opinion on the given material : in short, if it is found to be a perverse order. (iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter- of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. 

Had the big bosses in the Government taken consideration of the above guideline framed by the Hon’ble Supreme Court of India before passing an order of Compulsory retirement if not why not they retired as dead woods for violation of Act/Rules of Art. 226?

 

 

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