Commissioner Secretary vs Hafeeza

M.M. Kumar, C.J.—This order shall dispose of two appeals filed by the State of Jammu and Kashmir and its officer on the one hand and

the legal heirs of the writ petitioner late Shri Abdul Rashid Zargar. Both the appeals filed under Clause-12 of the Letters Patent are directed against

the judgment and order dated 27.05.2011 rendered by the learned writ court while allowing SWP No. 1823/2009. The learned writ court has

directed the official respondents to release a sum of Rs. 1,91,464.44 in favour of the petitioners/respondents/legal heirs of the employee because

the amount was wrongly deducted from his gratuity and arrears of pension. The needful was required to be done within a period of 15 days and

they were required to calculate the leave salary as admissible to the petitioner from the date of suspension till 10-09-1998. It was to be paid to the

petitioner along with interest @ 5% per annum.

It would be first necessary to state few facts in order to appreciate the controversy.

One Shri Abdul Rashid Zargar who was working as Store Keeper in the Appellant's Department of Food & Supplies was entrusted with

receipt and distribution of food grains to the ration card holders through Ration Depot under public distribution system while posted as Store

Keeper at Brandub Centre. It was reported by the Assistant Director, Baramulla vide letter No. FS/ADBG/93/2371-73 dated 02.07.1993

(Annexure-A1) that late Shri Abdul Rashid Zargar misappropriated the sale proceeds of food grains for the month of May, 1993. He was placed

under suspension on the charges of misappropriation/embezzlement. A departmental enquiry was ordered and on reconciliation of the accounts, a

particular quantity of food grains was found outstanding against him. The enquiry resulted in passing the order of his termination bearing order No.

199-DFSK of 1998 dated 11.09.1998 passed by the Deputy Director (Adm), Food and Supplies Department, Srinagar. The contents of the

order are set out below in extensor:--

Whereas, Mr. Ab. Rashid Zargar S/o. Gh. Ahmad Zargar R/o Ganihama Baramulla was working in this Department as Storekeeper in the pay

scale of 758-940.

Whereas, the said employee was posted as storekeeper at Brandub, centre during the year 1993-94 where he was entrusted with receipt and

distribution of food grains to the rationers catered through ration depot under Public Distribution System.

Whereas, it was reported by Assistant Director Baramulla vide his No. FS/ADB/92/2371-73 dated 02-07-98 that the storekeeper has

misappropriated the sale proceeds of following food grains and bags for the month of May 1993 to the extent as shown below and absented

himself willfully,

Whereas, pending enquiry the said employee was placed under suspension for charges of misappropriation embezzlement of above mentioned

quantity vide order No. 176 DFSK of 1994 dated 17-05-1994.

Whereas, the departmental enquiry was instituted in the case vide order No. 551 DSK of 1994 dated 27-9-94.

Whereas, on reconciliation of accounts conducted by the said storekeeper the following quantity of food grains were found outstanding against

him.

Whereas, the cost of the above mentioned quantity worked out by Chief Accounts Officer vide his No. DFSK/Acctts/Sopore/2330-32 dated 17-

08-1994 amounts to Rs. 1,91,465.44.

Whereas, during course of enquiry the said employee admitted the shortages and attributed the same to his self negligence and accepted its

responsibility and assured that he will liquidate the same in five installments.

Whereas, the said employee was served with office memorandum alongwith the extract of enquiry report under this office No. even dated 20-02-

1995 whereunder he was directed to defend his case as the department contemplated to impose any of the punishment under Rule 30 of CCA

Rules 1956.

Whereas, the said employee acknowledged the said office memorandum but did not respond and despite series of reminders his reply on 22-12-

1996 whereunder he attributed the shortages towards the abnormal prevailing circumstances and prayed for his reinstatement with recovery of the

outstanding amount from his salary.

Whereas, the reply of the said employee has not been found convincing he was therefore served with notice of termination in terms of Rule 34 of

CCA Rules 1956 vide this office No. even dated 16-06-1997 which was published in daily Alsafa on 30-06-1997.

Whereas, the said employee in reply to the termination notice did not give convincing reply for did he liquidate the Government money which was

outstanding against him as assured by him before the enquiry officer.

Whereas, from the above it is clear that the conduct of the above named employee has remained very bad and he has admitted

misappropriation/embezzlement of Government grains and a sale proceeds thereof with mala fide intentions and has therefore put the Government

exchequer to loss.

Now, therefore, for the established charges as mentioned in foregoing paras Mr. Ab. Rashid Zargar S/o. Gh. Ahmad Zargar R/o Ganihama

Baramulla is hereby terminated for departmental service.

Late Shri Zargar challenged the aforesaid order by filing SWP No. 263/2001 pleading various grounds therein. During the pendency of the

proceedings before the learned writ court, Shri Zargar expired and by CMP No. 502/2005 his legal heirs were allowed to join as party. The

learned writ court, after examining various arguments, vide order dated 20.05.2005 set aside the order of termination by holding as under:--

In the present case as indicated above the charge has been framed by an incompetent authority as the Assistant Director not being the appointing

authority of the petitioner was not competent to frame the charge-sheet. Since the basis of the enquiry i.e. the charge-sheet has been framed by an

authority who was not competent to do so the enquiry was without jurisdiction and in contravention of the provisions of the rules. The basis of the

enquiry being without jurisdiction. The enquiry and the conclusion arrived at on basis of such enquiry cannot stand.

The petition is therefore, allowed and by the writ of certiorari the order of termination No. 199 DFSK of 1998 dated 12/98 which is impugned in

the present writ petition is hereby quashed.

Order accordingly.

The direction issued by the learned writ court attained finality because no appeal was preferred by the appellants-State or its officers. However,

the appellant-State passed an order for recovery of outstanding amount of Rs. 1,91,465.44 on account of misappropriation of food grains. Late

Shri Zargar was accordingly found entitled to the sum of Rs. 30,235/- per month on account of gratuity and the family pension was fixed as Rs.

4,080/- plus usual allowances from 28.03.2005. The Accountant General advised the Treasury Officer/Additional Treasury Officer, Khanyar to

recover the sum of Rs. 1,61,430.44 from arrears of pension of Shri Zargar and Rs. 30,035/- from his gratuity. After deduction, the family pension

@ Rs. 4080/- plus usual allowances admissible under the rules is being paid. The legal heirs-respondents again filed SWP No. 1823/2009 alleging

that once the order of termination has been set aside by the judgment and order dated 20.05.2005 rendered in SWP No. 263/2001, then no

recovery could have been effected from the arrears of pension or gratuity payable to the deceased employee Shri Zargar. After hearing the

arguments, the learned writ court vide order dated 27.05.2011 held that the petitioners respondents were entitled to the payment of Rs.

1,91,465.44 which has been wrongly deducted from the arrears of pension and gratuity of Shri Zargar and the appellants were to calculate the

leave salary as admissible to Shri Zargar with effect from the date of suspension till 10.09.1998. It was to be paid to the petitioners along-with

interest @ 5% per annum. The order was to be complied with in a month's time. It is against the aforesaid judgment and direction that these two

appeals have been filed.

We have heard learned counsel for the parties at a considerable length and are of the view that both the appeals are liable to be dismissed.

No doubt it is true that Shri Zargar faced serious charges of embezzlement and misappropriation. The aforesaid charges pertain to the year

1993-94. The courts ordinarily do not come to the rescue of such persons who are alleged to be involved in embezzlement or misappropriation.

However, the State Government could not proceed with the departmental enquiry as per the rules known as ""Jammu and Kashmir Civil Services

(Classification, Control and Appeal) Rules, 1956"". Accordingly, the order of termination passed on the enquiry was set aside on 20.05.2005 when

SWP No. 263/2001 was allowed. Thereafter, no effort was made either to hold a fresh enquiry or even to challenge the order passed by the

learned writ court on 20.05.2005 by filing Letters Patent Appeal. Thus, the order has attained finality.

On the basis of the allegations levelled in the first enquiry, the stock worth lacs of rupees was alleged to have been misappropriated, however,

the amount was sought to be recovered from the arrears of pension and gratuity payable to Shri Zargar. Once the departmental enquiry based on

those allegations leading to termination of services of Shri Zargar was quashed, there was no room left for the appellant-State to make deduction

from the arrears of his pension and gratuity. Moreover, we find that employee has died during the period of his suspension before conclusion of

disciplinary or court proceedings instituted against him could be concluded, the period between the date of suspension and the date of death has to

be regarded as the period spent on duty for all intents and purposes.

Rule-108-BB of the Rules known as J & K Civil Service Regulations (Vol. 1) Chapter-X read as under:--

108-BB Notwithstanding anything contained in sub-rule (B)(i) and (ii) above where a Government servant under suspension dies before

disciplinary or court proceeding instituted against him are concluded, the period between the date of suspension and the date of death shall be

treated as duty for all purposes and his beneficiaries shall be paid full pay and allowances for that period to which he would have been entitled had

he not been suspended, subject to adjustment in respect of subsistence allowance already paid.

A perusal of the aforesaid rule would show that the said rule would override other provisions and it is to prevail despite anything to the

contrary. According to the rule, if a Government servant under suspension dies before the conclusion of disciplinary proceedings or the

proceedings pending before any criminal court then the period of suspension till the time of his death has to be regarded as the period spent on

duty for all intents and purposes. His beneficiaries are to be paid full pay and allowances for the period to which he would have been entitled to,

had he not been suspended subject to adjustment of subsistence allowance already paid.

On the face of the aforesaid rule position, the appellant-State or its officers were obliged to release all the arrears of salary from the date of

suspension till the date of the death of Shri Zargar to his legal heirs respondents. Hon'ble the Supreme Court has also maintained the same view in

Basudeo Tiwary Vs. Sido Kanhu University and Others, . Therefore no direction is warranted to hold a fresh enquiry whereas proceedings in the

earlier enquiry have already been set aside.

On our repeated queries, Mr. Lone (appearing in LPA No. 220/2012) or Mr. Thakur (appearing in LPA No. 201/2011) were not able to

advance any argument which may warrant modification of directions issued by the learned writ court. The relief admissible to the petitioners-

respondents has already been granted by the learned writ court. The judgment and order passed by the learned writ court does not suffer from any

legal infirmity warranting interference of this Court. Thus, both the appeals are devoid of any merit and are liable to be dismissed. As a sequel to

the above discussions, both the appeals fail and are hereby dismissed. The directions issued by the learned writ court are upheld. The appellant-

State and its officers are directed to pay the arrears of salary and other benefits as per the directions of the learned writ court to the petitioners-

respondents within a period of two months from the date of receipt of a copy of this order.