Justice BS Walia of J&K High Court Jammu Wing today quashed premature retirement of Chief Enforcement Officer JMC Satish Khajuria.
In his petition Khajuria had sought quashment of order dated June 30, 2015 whereby in exercise of the powers conferred by Article 226 (2) of the Jammu and Kashmir Civil Service Regulations, 1956 (hereinafter referred to as the Regulations), the petitioner was retired from government service w.e.f. forenoon of July 1, 2015 by allowing him 3 months pay and allowances in lieu of 3 months notice. He had pleaded for reinstatement in service with effect from the date 'he had been illegally retired from government service and to grant him all consequential benefits including salary, allowances, seniority etc'.
Justice BS Walia after hearing Sr. Adv Sunil Sethi for the petitioner and Sr. AAG SS Nanda for the state, observed that the recommendations have been given by the Committee constituted by the Government only on account of involvement of the petitioner in the criminal case. Involvement of the petitioner in the criminal case did not mean that he was guilty. The respondents ought to have borne in mind that the petitioner was still to be tried in a court of law and the truth was to be found out ultimately by the court where the prosecution was ultimately conducted.
Justice BS Walia further observed that but before that stage was reached, it was highly improper to deprive the petitioner of his livelihood merely on the basis of his involvement in the case. It is true that there were some severe allegations levelled against the petitioner, but on mere allegations such a grave action was unwarranted. The Government could have awaited the decision in the case. There was no reason to show such a promptitude in exercise of power under Article 226(2) of the CSRs. Awaiting the result of the trial was more necessitated because there was no other material which would warrant compulsory retirement of the petitioner. In these circumstances, this Court is of the view that the respondents have not exercised their power in the public interest to effectuate the efficiency of the service."
Justice BS Walia further observed that apart from the gist of allegations against the petitioner of his involvement in the FIRs besides his facing probe in 09 verifications there was no other material available with the committee nor was taken into account before giving its recommendations for prematurely retiring the petitioner. Recommendations by the committee do not disclose taking of APRs / service record into account. The same is in violation of settled law. The plea that the APR's were recorded in violation of the order applicable in respect thereto would have carried weight in case the said APR's had been considered and dealt with on aforesaid point. In the absence of APR's having been available with the committee and same not having been taken into account, the said objections is not maintainable. In view of decision of Apex Court in State of Gujarat v. Suryakant Chunilal Shah mere registration of FIR cannot furnish the basis to the Competent Authority to retire a public servant in public interest purportedly on account of FIR having been registered. In the circumstances, in the light of the position as noted in the preceding paragraphs, the impugned order is unsustainable. It is brought to the notice of this Court that the petitioner has not reached the age of superannuation and is to retire on 31.07.2016. In the circumstances, while allowing the writ petition, impugned order is quashed, petitioner is ordered to be reinstated with all consequential benefits. However, in view of respondent No. 1 not having been impleaded as party by name despite allegations of malafide exercise of power by said officer, it would not be appropriate to follow the normal rule of grant of full salary on reinstatement in view of the decision of the Supreme Court in Rajesh Gupta vs State of J&K & ors. Accordingly, payment of salary from the date of order of premature retirement till reinstatement is restricted to 30%. Petitioner shall also not be entitled to any interest on monetary benefits. JNF