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Govt should consider entire service record of employee before forcible retirement: HC

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Srinagar: J&K High Court today held that the government should consider the entire record of service of an employee before forcibly retiring him from the service.

The decision was announced by Justices Ali Mohammad Magrey and Puneet Gupta in an appeal against a single bench judgment in the case of Reyaz Anwar Masoodi, a senior Forest Department officer. Masoodi had been compulsorily retired by the government in 2015 on the charges of corruption and misuse of official position.

An appeal had been filed by the Union Territory administration against the 2018 single bench judgment. The bench had quashed the retirement order of Masoodi.

The government in 2014 had accorded sanction to the prosecution of Masoodi and many others for commission of the offences under Anti Corruption Act and misuse of official position. An FIR was lodged against him with the Vigilance Organization Kashmir.

One more FIR was lodged against the officer in 2011 which is stated to be still under investigation and no headway has been made therein till date.

While the respondent Masoodi was working as In charge Divisional Manager, State Forest Corporation (SFC), the Government gave him a notice vide Order no.857-GAD of 2015.  The notice read that he, having already attained 48 years of age, shall retire from service with effect from 01.07.2015.

He challenged the order and the court found that in both the cases against Masoodi, the investigation was in progress. It also found that no charge-sheet had been laid before the court of competent jurisdiction.

The court said “the decision to compulsorily retire a Government servant has to be, as a matter of necessity, based on the analogy of the certain guidelines and the principles of law evolved from time to time in a catena of judicial pronouncements”.

It said the State had applied in reverse the axiom of law that a person accused of an offence is presumed to be innocent, unless and until his guilt has been proved.

The Committee constituted by the Government to consider the cases of officers/officials for premature retirement, has given a complete goby to the provision of law.

The state then filed an appeal against the single bench order which was dismissed today by the division bench.

It held that the respondent Masoodi could not be prematurely retired solely by reason of registration of the two FIRs in which he is one of the accused.

It further said “while the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary – in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be perverse order”.

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