Excelsior Correspondent
JAMMU, May 8: In another big jolt to the State Government, High Court today quashed the premature retirement of Kamal Mahendru, Additional Provident Fund Commissioner.
After hearing Senior Advocate UK Jalali with Advocates Shivani Jalali and Parmod Kumar Sharma for the petitioner whereas Senior AAG Seema Shekhar with Government Advocate Mehvish Shah for the State, Justice B S Walia observed, “the question that arises is, firstly, there is no specific denial to the forwarding of APRs for the years 2006-2007, 2007-2008, 2009-2010, 2010-2011, 2011-2012, 2012-2013, 2013-2014 & 2014-2015 vide communications dated 11.04.2012, 21.06.2013, 09.06.2014 and 16.06.2015 by the petitioner to the Provident Fund Commissioner as also of the APRs having been removed by the respondents”.
“Secondly, assuming that the petitioner had not forwarded his self appraisal, the responsibility for writing APRs in terms of clause (I) of Item III of the Government Instructions fell squarely on the Initiating Officer. Thirdly, if the Initiating Officer had failed to abide by the mandate of the instructions, its fall out would not be attributable to the petitioner but on the person immediately superior– the initiating, reviewing and accepting officer”, Justice Walia said.
“The petitioner had been prematurely retired on the ground that he had been a corrupt officer or that he did not enjoy a good reputation. In the absence of APRs having been recorded and the same having been considered by the Committee the subjective satisfaction or the opinion recorded by the Committee and the consequent action is legally unsustainable more so when the Committee itself in its recommendations has mentioned that investigation in the allegations of disproportionate assets was closed by the Investigating Agency in the year 2001 and the closure is stated to have attained finality”, High Court said.
“No other specific instance on the basis of which the Committee recorded that the accused officer indulged in corrupt practices is available”, Justice Walia said, adding “court in proceedings under Article 226 of the Constitution of India cannot go into the question of sufficiency and insufficiency of material. However as noted by the Coordinate Bench in Paragraph 23 of its Judgment, it certainly falls within the scope of judicial review to see firstly if the material was such as could lead any reasonable person to the subjective satisfaction as had actually been formulated by the Committee”.
“The petitioner in the instant case appeared before the House Committee which closed the matter and ordered his repatriation. Thereafter, a regular departmental enquiry was ordered. Same is claimed to have resulted in exoneration by the enquiry officer and report in respect thereto pending before the disciplinary authority since close to 30 months prior to the passing of the impugned order with no steps having been taken to finalise the enquiry”, High Court said, adding “the impugned order cannot be said to have been passed in accordance with the mandate of Article 226(2) of the J&K Civil Service Regulations, 1956 as well as the instructions applicable”.
With these observations, Justice Walia set-aside the impugned order and directed that the petitioner shall be reinstated with consequential benefits.
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