Qazi Ghulam Jeelani vs State And Another

By the instant petition, petitioner seeks a writ of certiorari to the effect that communication bearing no. 17021-26 dated 26.03.2019 addressed by the

respondent no. 2 to the petitioner be quashed and by a writ of mandamus the respondents be directed to pay Leave Salary, Gratuity, Commutation and

other pensionary benefits to the petitioner and also forward his case to the Accountant General for drawal of pensionary and other retiral benefits as

early as possible so that the petitioner receives the benefits without any obstruction or hindrance of any kind whatsoever.

The controversy, as per the pleadings, is simply that petitioner retired as Executive Engineer in the respondent department on 31st March, 2019,

however, his case for pensionary and retiral benefits was not processed despite requests and instead a letter bearing no. 17021-26 dated 26th March,

2019, was issued by respondent no. 4 calling upon petitioner to furnish the copy of Date of Birth Certificate within two days positively to enable the

directorate to verify the genuinity of the same from the competent authority and communicate the report to Crime Branch Kashmir. The

communication further conveyed the petitioner that Crime Branch Kashmir has reported that you have been asked to furnish the copy of your DOB

and attested copy of your service book in the Crime Branch for ascertaining the genuinity of the DOB, which you have not furnished so far. It further

provided that till such time the petitioner’s pensionary benefits as well as the pension case shall not be forwarded to the Accountant General.

It is further stated that the respondents have issued some process against the petitioner which has taken a shape of enquiry for the alleged DOB

fudging.

Aggrieved of the inaction of respondents, petitioner has filed the instant petition to seek redressal of his grievances

Respondents have resisted the petition on the ground that based on a complaint lodged with the State Crime Branch regarding the genuineness of

the date of birth of the petitioner recorded in the service book, the Crime Branch has taken cognizance of the same under P.V. No. 25/2018,

therefore, the petitioner was directed to furnish the requisite documents which are still awaited.

During the pendency of the writ petition, a Government Order bearing no. 236-PW(Hyd) of 2019 dated 03.07.2019 came be issued by respondent

no. 1, by virtue of which a Committee came to be constituted, purportedly in compliance to the order dated 22.4.2019 passed by this Court in the

instant petition, to determine the alleged fudging of documents and misplacement of service book (if any) of the petitioner. The said Committee was

asked to complete the assignment and submit its report by 10th July, 2019.

The issuance of the above stated Government Order prompted the petitioner to seek amendment of the writ petition so as to enable him to lay

challenge to it and this court, in terms of order dated 30.07.2019, allowed the motion and permitted the petitioner to file the amended writ petition,

which was subsequently filed and the prayer seeking quashment of the Government Order No. 236-PW(Hyd) of 2019 dated 03.07.2019 was

additionally incorporated.

Heard learned counsel for the parties.

Admit.

Learned counsel for petitioner submits that it is a settled position of law that a Govt. employee can be subjected to disciplinary action/ enquiry only

when he is on the rolls of the employer and no action, much less the one initiated in the present case, is available to the respondents as the petitioner

ceased to be an employee in the month of March, 2019, and admittedly nothing incriminating has been found against him till he retired. It is further

submitted that petitioner has remained unblemished during his entire service career spreading to decades. He further submits that petitioner, in fact, in

his capacity as a Section Officer has first entered the department and submitted his all certificates and during his tenure as such he studied further and

base d on his academic credentials he was placed initially as Junior Engineer and subsequently rose upto the level of Executive Engineer and for all

these years and during all such career progression the petitioner was never suspected of any wrongdoings, but only when he reached his

superannuation the petitioner was put to this unnecessary trauma.

Learned counsel further submits that petitioner is subjected to torture and his life has been made hell by withholding his pensionary and retiral

benefits and by indulging in such practice respondents have violated the Constitution as petitioner’s fundamental right of livelihood has been

snatched. Learned counsel for petitioner would pray that writ petition be allowed and respondents be directed to process, settle and release all retiral

benefits in favour of petitioner forthwith along with interest accrued in his favour from the date the pensionary benefits were withheld.

On the other hand learned Counsel appearing for the respondents contended that petitioner has failed to respond to the notices issued to him and

he is duty bound to associate with the enquiry. Learned Counsel, however, admitted that all the proceedings began against petitioner just few months

before his retirement and nothing till then was alleged or found against him.

Considered the submissions made.

This Court has already, in case titled Mehraj-ud-din Ashai v. State of J&K and others reported as 2014 (3) JKJ 434 of which incidentally I am the

author, held that it is not open to the respondent employer to withheld the retiral benefits of a Government employee on the basis of something

incriminating alleged against him after the later reached the age of superannuation. As and when an employee reaches the age of superannuation and

retires from active service he ceases to be an employee, therefore, cannot be subjected to any disciplinary proceedings so much so that even the

provision of initiating enquiry is not open to respondent employer. Law on the subject is not res integra, Hon ’ble Apex Court in case titled State of

Jharkhand and others versus Jitendra Kumar Srivastava and another reported as AIR 2013 SC, 3383 has laid down the same principle. The Division

Bench of this Court has recently, in case titled Gh. Mohi-ud-Din Lone v. State of J&K and others reported as 2020 (6) JKJ 346 has also taken a

similar view.

Having regard to what has been stated hereinbefore, the submissions made by learned counsel for petitioner carry weight and are persistent with

law. In my opinion a great prejudice has been caused to the petitioner by withholding his pensionary and retiral benefits. The petitioner along with his

family must have been subjected to great hardships in absence of the source of sustenance. The pensionary benefit is a deemed right of an employee

and is aimed at to ensure that a retired employee lives a peaceful and dignified life. Snatching or withholding of such a valuable right amounts to

infringing the fundamental right to livelihood guaranteed by the Constitution.

In view of above, the writ petition succeeds and is allowed as such along with all CMs and by a Writ of Certiorari the impugned Government

Order No. 236-PW(Hyd) of 2019 dated 03.07.2019 issued by respondent no. 1 and the impugned communication bearing no. 17021-26 dated

26.03.2019 issued by respondent no. 2 are quashed. Respondents, by a writ of mandamus, are commanded to release all the pensionary and retiral

benefits in favour of petitioner, with effect from the date the same has become due to him, notwithstanding pendency of any disciplinary proceedings.

Having regard to the fact that for the last more than two years petitioner has been made to suffer by withholding his pensionary and retiral benefits, a

benefit of interest could be awarded in favour of petitioner, however, I refrain from doing so in view of peculiar facts and circumstances of the case.

All the respondents in general and respondent no. 2 in particular, are directed to release pensionary and retiral benefits in favour of petitioner within a

period of three months from the date copy of the order is served upon respondents.

Disposed of along with all CMs on the above lines. CCP (S) no. 173/2020

In the instant contempt petition the petitioner alleges violation of order dated 12.12.2019 passed in SWP no.845/2019 now WP (C) no. 1343/2018

in terms whereof respondents were directed to release the GP Fund in favour of the petitioner. Since the main writ petition stands finally disposed of

and all the interim orders have merged with the final order, therefore, the contempt petition to that extent does not survive, therefore, shall stand

disposed of as settled.

Registry to keep copy of this order on each file.