*‘Departmental inquiry, sufficient material on record imperative’
Upholds judgment quashing compulsory retirement of JKAS officer
Mohinder Verma
JAMMU, Oct 19: A Division Bench of the High Court of Jammu & Kashmir and Ladakh comprising Justice Tashi Rabstan and Justice Sindhu Sharma has held that compulsory retirement of Government servant cannot be ordered merely on the recommendation of the committee and there must be formal departmental inquiry and availability of sufficient material to form bona fide opinion by the competent authority.
These observations have been made by the Division Bench while dismissing the Letters Patent Appeal (LPA) of State of Jammu and Kashmir challenging the judgment and order dated February 7, 2017 of the Single Bench whereby impugned order No.868-GAD dated June 30, 2015 regarding compulsory retirement of KAS Officer Bhumesh Sharma was quashed.
After hearing the counsel appearing for the parties, considering their rival contentions and perusal of record, the DB observed, “it is well settled that when an order is challenged as arbitrary or mala fide in the petition under Article 226 of the Constitution of India, it is the Governmental duty to provide documents for inspection of court”.
“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 Supreme Court has clearly held that it is a terminal step to justify which the onus is on the administration, nor a matter where the victim must make out the contrary”, the DB said.
The DB further said, “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”, adding “although the scope of judicial review is limited, it has repeatedly been held by the Apex Court that when an order of premature retirement is challenged, the authorities concerned must disclose the materials on the basis of which the order was made”.
“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, adding “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 the Supreme Court judgment in case titled “State of Gujarat Versus Suryakant Chunilal Shah”, the DB said, “merely being involved in a criminal case would not per se establish the person’s guilt and hence, a compulsory retirement based on such a factor would not stand”, adding “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”.
About the instant case, the DB said, “admittedly, a perusal of the file as well as the record clearly reveals that compulsory retiring the writ petitioner (Bhumesh Sharma) from service was based on no material, in as much as the writ respondent even did not conduct any departmental inquiry with respect to the act of alleged misconduct on the part of writ petitioner”.
“Further, his APRs from the years 2001-2002 till 2013-2014 have either been good or outstanding, more so the Single Judge had specifically opined that a perusal of the APRs of writ petitioner clearly reveals that no departmental inquiry was pending against him meaning thereby the writ petitioner had a satisfactory employment record”, the DB said, adding “the State has failed to explain why the Vigilance Department gave clearance to the writ petitioner and why he was selected to the Kashmir Administrative Service in the year 2010 when he has done the act of alleged misconduct and his performance as an officer was not up to the mark”.
The DB further said, “even the writ petitioner has specifically claimed in the writ petition that the Transport Commissioner vide communication dated 11.07.2011 had recommended his name for gold medal for his honesty, integrity and meritorious service. In such a situation, 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, which was the fundamental flaw in the order issued against the petitioner compulsory retiring him from service”.
“Since the State has failed to disclose the material forming the basis for compulsory retiring the writ petitioner from service, as such it can be said to be a case of no material or no evidence and the same can certainly be held to be arbitrary or without application of mind”, the DB said, adding “we are not inclined to take a view other than the one taken by the Single Judge. Accordingly, the appeal is dismissed and judgment and order of Single Judge is upheld”.
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