Srinagar: “Compulsory retirement of a government servant cannot be sustained merely on the lodging of an FIR, allegations and on the asking of the cross-section of the people,” J&K High Court said on Wednesday.
The observation was made by a division bench of the J&K High Court in an appeal by the Secretary, General Administration Department and Commissioner/Secretary Food, Civil Supplies and Consumer Affairs Department J&K.
The appeal challenged an order by a single bench which quashed the compulsory retirement of G S Chib, former Director, Consumer Affairs & Public Distribution and, one Romesh Chander of Nagrota Jammu by the then State government of J&K on the allegations of embezzlement and shortages.
Justices Tashi Rabstan and Rajesh Sekhri held “as regards the allegation that the writ petitioner is responsible for embezzlement and shortages while being posted in the Consumer Affairs and Public Distribution Department is concerned, FIR No.22/2009 was registered and the case is still pending against the petitioner.
“In our view compulsory retirement cannot be sustained merely on the lodging of an FIR, allegations and on the asking of the cross-section of the people. The practice followed by the State in directing compulsory retirement of the writ petitioner was completely unwarranted because that would violate the basic maxim of ‘innocent until proven guilty’. Thus, via the impugned order of compulsory retirement, the State has applied this principle in the reverse.”
The judges admitted that the power to retire 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.
The compulsory retirement in service law has been generally used in relation to cases where an employee has been directed that her/his services are no longer required before she/he reaches the normal age of retirement prescribed by the rules. The purpose and object of premature retirement of a government employee is to weed out the inefficient, the corrupt, the dishonest or the dead-wood from government service, said their judgment.
The judges, however, held that the State government has proceeded in a very cavalier manner over the writ petitioner by compulsory retiring the writ petitioner from service as the decision seems to be based on no material, in as much as the relevant material including the APRs and other service record which was required to be considered by the committee for considering the case of the petitioner for compulsory retirement has either not been placed before the committee or has not been considered while coming to the conclusion that the petitioner is generally known to have bad reputation and his continuance may not be in the larger interest of the public.
They said that merely because a government-constituted 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.
The committee, they said, has not discussed as to what the source or material was based upon which the petitioner was said to be not enjoying a good reputation. The committee had taken a decision only upon the fact that an FIR had been registered by the Crime Branch, Jammu, against the petitioner.
Dismissing the appeal the division bench held “the allegations levelled by the state against the writ petitioner, the State and its officers at the helm of affairs, if are fair enough and have a will, and do not intend to provide a safe passage to writ petitioner, are free to go ahead with inquiry, if they deem fit, and complete the same in a time bound manner without any excuse on the part of officers holding such inquiry.”
