Rajesh Gupta
Jammu, Feb 18:CAT set aside Penalty of Removal from service, DP initiated after retirement against then Commissioner/Secretary MD Khan
In Original Application No. 1179/2020 titled Mehraj-ud-Din Khan VERSUS 1. Union Territory of Jammu and Kashmir through Commissioner/Secretary to Government, General Administration Department, (Services) & others after hearing DB of CAT ordered as under;-
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -
a) Declaring the impugned proceedings initiated against the Applicant vide Notice dated 13.02.2019 of Respondent No.2 pursuant to Articles of Charge bearing No. GAD(Ser)KAS/92/2017 dated 28.11.2018, as well as the impugned Notice bearing No. GAD(Ser) KAS/982/2017-1 dated 13.05.2020 purportedly a Show Cause Notice and its culmination viz. impugned Government Order No.734- JK(GAD) of 2020 dated 29.07.2020, imposing the Applicant post against retirement prohibitorily disproportionate major penalty of removal from service, void ab-initio and non-est in law, be issued in favour of the Applicant and against the Respondents.
b) Quashing Impugned proceedings Initiated against the Applicant vide Notice dated 13.02.2019 of Respondent No.2 pursuant to Articles of Charge bearing No. GAD(Ser)KAS/92/2017 dated 28.11.2018 and also Government Order No. 154-GAD of 2019 dated 31.01.2019 issued by respondent No. 1 whereby respondent No. 2 was appointed as Inquiry Officer under Rule 33(4) of Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules 1956 as well as the impugned Notice bearing No.GAD(Ser) KAS/982/2017-1 dated 13.05.2020 purportedly a Show Cause Notice and its culmination viz. Impugned Government Order No.734-JK(GAD) of 2020 dated 29.07.2020, be also issued in favour of the Applicant and against the Respondents;
c) Directing the Respondents in particular Respondent No.1 to treat the impugned proceedings initiated against the Applicant vide Notice dated 13.02.2019 of Respondent No.2 pursuant to Articles of Charge bearing No. GAD(Ser) KAS/92/2017 dated 28.11.2018 and also Government Order No. 154-GAD of 2019 dated 31.01.2019 issued by respondent No. 1 whereby respondent No. 2 was appointed as Inquiry Officer under Rule 33(4) of Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules 1956 as well as the impugned Notice bearing No.GAD(Ser) KAS/982/2017-1 dated 13.05.2020 purportedly a Show Cause Notice and its culmination viz. impugned Government Order No.734- JK(GAD) of 2020 dated 29.07.2020, non-est in law, be also issued in favour of the Applicant and against the Respondents;
d) Directing the Respondents in particular Respondent No.1 to desist, refrain and forbear from giving effect and/or carrying into execution the impugned Government Order No.734- JK(GAD) of 2020 dated 29.07.2020, in any manner prejudicial to the constitutionally guaranteed service rights and interests of the Applicant including post retiral benefits, be also issued in favour of the Applicant and against the Respondents; e) Directing the Respondents in particular Respondent No.1 admit forthwith the Applicant to all the service rights and interests including post retiral benefits accrued due in law to the Applicant as if the impugned Government Order No.734- JK(GAD) of 2020 dated 29.07.2020, had not come into being at all, be also issued in favour of the Applicant and against the Respondents;
f) Any other order or direction which this Hon'ble Tribunal in the facts and circumstances of the case deems just and proper be also issued in favour of the Applicant and against the Respondents;”
2. The applicant, while serving as Commissioner/Secretary to the Government, was placed under suspension in September 2018. An FIR was also registered against him.
Shortly thereafter, the respondents issued a notification retiring the applicant on superannuation w.e.f. 30.11.2018.
The applicant disputes the said retirement on the ground of incorrect recording of date of birth, relying upon a Government Order of 1996 by which his date of birth stood corrected in the service record. The issue regarding the legality of his retirement is stated to be sub judice before the competent forum.
3. After the applicant stood retired from service, the respondents proceeded to appoint an Inquiry Officer under the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 and conducted a departmental enquiry on the basis of articles of charge stated to have been issued on 28.11.2018.
The enquiry culminated in issuance of a show cause notice proposing major penalty and finally in Government Order dated 29.07.2020 imposing the penalty of removal from service w.e.f. 29.11.2018, i.e., one day prior to the date of retirement.
4. Aggrieved, the applicant has assailed the entire disciplinary proceedings, including the enquiry, show cause notice and final order of penalty, primarily on the ground that no departmental enquiry could have been legally continued or concluded after his retirement and that the impugned penalty is without jurisdiction. He also seeks consequential service and retiral benefits.
5. The respondents justify their action by asserting that the charge sheet had been issued prior to retirement and, therefore, the disciplinary proceedings could be continued even after retirement in terms of Article 168-A of the Civil Service Regulations. It is contended that the enquiry was conducted in accordance with rules and that the applicant was afforded opportunity of participation.
The respondents further submit that serious allegations relating to tampering of service record were involved and that criminal proceedings were also sanctioned, which justified departmental action.
6. The core issue which falls for determination is whether the respondents could lawfully continue and conclude departmental proceedings and impose the penalty of removal from service after the applicant had already retired on superannuation.
7. It is a settled principle of service jurisprudence that disciplinary control over a government servant ordinarily ceases upon retirement. Save and except where the relevant service rules expressly permit continuation of proceedings for a limited purpose, such as withholding or recovery from pension, no major penalty affecting the status of service can be imposed after retirement. Removal or dismissal from service presupposes the existence of a subsisting employer-employee relationship. Once that relationship comes to an end by superannuation, the very foundation for imposing such penalty disappears.
8. Even assuming that the charge memorandum was issued shortly before the date of retirement, the record clearly shows that the appointment of the Inquiry Officer, conduct of enquiry, issuance of show cause notice and final order of penalty were all undertaken after the applicant had already stood retired.
The respondents have not been able to demonstrate any specific statutory provision which authorises imposition of the penalty of removal from service post-retirement. Article 168-A of the Civil Service Regulations, relied upon by the respondents, at best enables action affecting pensionary benefits and does not confer jurisdiction to retrospectively remove a retired employee from service.
9. Equally significant is the fact that the impugned order seeks to impose removal from service with effect from a date one day prior to retirement, which is nothing but an artificial device to overcome the legal bar attached to post-retirement disciplinary control. Such an approach cannot be countenanced in law and offends the basic principles of fairness, legality and jurisdiction.
10. In these circumstances, the impugned enquiry proceedings, show cause notice and Government Order dated 29.07.2020 cannot be sustained and deserve to be set aside as being without authority of law.
11. At the same time, this Tribunal is conscious of the settled doctrine of “no work, no pay”.
The applicant admittedly did not discharge duties during the relevant period and, therefore, cannot claim back wages or monetary benefits for the period he did not actually work. However, once the penalty order is set aside, the applicant cannot be made to suffer adverse civil consequences in matters of status, seniority and retiral entitlements flowing from such illegal action.
12. Accordingly, the Original Application is allowed with the following directions:-
a) The impugned disciplinary proceedings initiated after the retirement of the applicant, including the show cause notice and Government Order dated 29.07.2020 imposing the penalty of removal from service, are hereby set aside.
b) The respondents shall accordingly re-compute and release the admissible retiral benefits of the applicant, strictly in accordance with rules, within a period of three months from the date of receipt of certified copy of this order.
c) No order as to costs.
(RAM MOHAN JOHRI) (RAJINDER SINGH DOGRA) Administrative Member
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