Mohinder Verma
JAMMU, June 13: Division Bench of High Court of Jammu & Kashmir and Ladakh comprising Justice Tashi Rabstan and Justice Puneet Gupta has held that formation of opinion for compulsory retirement of an employee should be based on the subjective satisfaction of authority concerned but such satisfaction must be based on a valid material. Moreover, employee’s conduct cannot be determined only on spoken words in the absence of any material on record.
The DB was dealing with the Letters Patent Appeal (LPA) filed by Government of Union Territory of Jammu and Kashmir challenging the judgment and order of Single Bench whereby compulsory retirement of Rajinder Kumar, the then Patwari was quashed.
After hearing counsel appearing for the parties and considering rival contentions, the DB observed, “it is well settled that when an order is challenged as arbitrary or malafide in the petition under Article 226 of the Constitution of India, it is the Governmental duty to provide documents for inspection of court”, adding “not only the employer is obliged to produce the materials, but the onus of establishing that the order was made in public interest is also on the employer”.
“The power to retire compulsory a Government servant in terms of service rules is absolute, provided the authority concerned forms a bona fide opinion that compulsory retirement is in public interest. Further, the order of compulsory retirement cannot be based on the sole basis of recommendations of the committee which has to be considered by the competent authority in accordance with law”, the DB said.
The DB further said, “merely because the committee has made recommendations for retirement of writ petitioner, he cannot be compulsorily retired unless the competent authority comes to a conclusion after forming a bona fide opinion of its own that the writ petitioner can be subjected to compulsory retirement in the interest of the institution”.
Pointing towards Supreme Court’s judgments, the DB said, “the annual character roll of the Government servant would give an appropriately objective assessment of his integrity and job performance since adverse remarks on such rolls would be warning signs of the absence of such a person’s job integrity”, adding “merely being involved in a criminal case wouldn’t per se establish the person’s guilt and hence, a compulsory retirement based on such a factor wouldn’t stand”.
However, mere involvement in a criminal case would constitute relevant material for compulsory retirement or not would also depend upon the circumstances of each case and the nature of offence allegedly committed by the employee.
The DB further observed, “the formation of opinion for compulsory retirement is to be based on the subjective satisfaction of the authority concerned but such satisfaction must be based on a valid material and it is permissible for the courts to ascertain whether a valid material exists or otherwise, on which the subjective satisfaction of the administrative authority is based”.
“Although it is claimed by the writ respondents that the writ petitioner was not enjoying good reputation and the overall perception in the general public was that he was a corrupt official, yet the writ respondents have not denied that there were no adverse remarks in the APRs of writ petitioner as claimed by him; meaning thereby one can construe that the writ petitioner might have a satisfactory employment record”, the DB said.
Moreover, the reputation of writ petitioner cannot be termed as doubtful, as projected, nor could his conduct be determined only on spoken words in the absence of any material on record. Further, the writ petitioner has already been acquitted of the offences registered against him vide FIR No.02/2012 under Section 5(2) of the Jammu and Kashmir Prevention of Corruption Act read with Sections 420, 465, 467, 468, 471, 201, 120-B RPC registered at Police Station Crime Branch, Jammu with regard to facilitating illegal sale of 40 kanals of land in Village Domana by sheer abuse of his official position for extraneous consideration.
“We do not see any reason to interfere with the judgment of Single Judge. Thus, the practice followed by the Government in directing compulsory retirement of writ petitioner pursuant to registration of FIR was completely unwarranted”, the DB said while dismissing the appeal and upholding the judgment and order of Single Judge.
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