Santosh vs State of Jammu & Kashmir

N. Paul Vasanthakumar, C.J. - This writ petition is filed by the writ petitioner (Additional District and Sessions Judge), who was dismissed with

retrospective effect by order dated 12.10.2010 i.e. from 31.12.2003. The said order is challenged by contending as follows:-

The writ petitioner was appointed as Munsiff-cum-Judicial Magistrate 1st Class in August, 1974, promoted as Sub Judge and District and

Sessions Judge. While he was posted as 2nd Additional District & Sessions Judge, Jammu, the then Acting Chief Justice on the basis of complaints

from the members of the Bar as well as general public, on 26.05.2003 gave direction to the Registrar Vigilance to conduct enquiry. The writ

petitioner was placed under suspension by order dated 31.05.2003. The Registrar Vigilance after conducting enquiry submitted his report with

remarks of serious suspicion on the working of the writ petitioner. Thereafter charge memo was issued on 03.06.2003 alleging that the petitioner

disposed of number of cases by over stepping his jurisdiction, excess of jurisdiction, unmindful of explicit provisions of law, not giving fair chance

to prosecution to prove its cases, disposed of applications without the same being assigned by the Principal District and Sessions Judge in a

cursory and casual manner on the day of presentation and by releasing the seized Kerosene Oil in huge quantity, granted bail to the accused, who

were involved in offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substance Act in utter disregard to the law relating to

bail in a casual and routine manner, granted anticipatory bail to accused involved in offence under Section 5(2) Prevention of Corruption Act,

2006, the jurisdiction of which is exclusively vested with Special Judge, Anti-corruption, Jammu and after granting bail allowed the applicant to

withdraw the application giving way to escape custodial interrogation, disposed of more than 100 anticipatory bail applications during the period

from 01.01.2003 to 12.05.2003, out of which 77 applications were dismissed in default and the applicants got relief and avoided custodial

interrogation, did not insist on the police reports and objections from the prosecution. The writ petitioner submitted his objections and being not

satisfied with the reason enquiry was conducted and the enquiry officer submitted his report on 04.08.2004, holding that charge Nos. 1, 2 and 7

have been fully established. The proved charges are as follows:-

1) It is alleged that you while posted as 2nd Addl. District and Sessions Judge, Jammu, disposed of number of cases showing that you over

stepped your jurisdiction, resorted to improper exercise of jurisdiction and erroneously assumed jurisdiction upto yourself, unmindful of explicit

provision of law. 2) It is alleged that perusal of case files of State v. Jankar Chand, File No.50, decided on 14-01-2003, State v. Navin Singh and

other, Chalan No.331, date of decision 11-2-2003, State v. Suram Singh and others File No. 322, date of decision 13-3-2003 and State v.

Niranjan Singh alias Bitto, File No. 526, date of decision 26-4-2003, indicates that you disposed of these matters in an improper and slip-shod

manner unmindful of your duty to give a fair chance to prosecution to prove its cases and oblivious to the gravity of the offence and accusations in

the cases.

………………………..

7) It is alleged that all these acts of omissions and commissions mentioned above make you liable for mis-conduct/judicial indiscipline besides

display of conduct unbecoming of a Judge.

The writ petitioner reached the age of superannuation on 31.12.2003 even before conclusion of the enquiry. Based on the enquiry report, show

cause notice was issued calling upon the writ petitioner to show cause as to why he may not be dismissed from service. The writ petitioner gave

reply to the show cause notice. After considering the same the order of dismissal was passed by the Government bearing Government Order

No.2071-LD(A) of 2010 dated 12.10.2010, giving retrospective effect of dismissal from 31.12.2003.

The said order was challenged by the writ petitioner (since dead) contending that after the date of superannuation of the writ petitioner, there is

no jurisdiction to proceed with the departmental proceedings unless the writ petitioner was retained in service for the purposes of completing

disciplinary proceedings. Secondly passing a dismissal order with retrospective effect is unknown to service law. During pendency of the writ

petition, the writ petitioner passed away on 31.03.2013 and his wife and daughter came on record as legal representatives to prosecute the case

by stating that in case dismissal order is set aside, they will be in a position to get retrial benefits, arrears of pension from 01.01.2004 to 31.3.2013

and family pension from 01.04.2013.

Mr. K.K. Pangotra, learned counsel for the writ petitioner submitted that even though serious allegations were made against the deceased writ

petitioner in his official discharge of duties, no motive or allegation of corruption are made. Hence a lenient view may be taken at least in respect of

the punishment as the writ petitioner had served for more than 30 years. The legal heirs of the writ petitioner who are the widow as well as

daughter also filed affidavits stating that the deceased writ petitioner reached the age of superannuation (58 years) on 31.12.2003 and the

punishment may be modified as compulsory retirement from the said date so that the legal heirs will be in a position to get the retrial benefits,

arrears of pension and family pension.

The High Court has not given any answer with regard to the jurisdiction to proceed with the person, who reached the age of retirement during

pendency of the Disciplinary Proceedings without retaining him in service for the purpose of completing the departmental proceedings initiated

against him.

Learned counsel for the petitioners submitted that the writ petitioner may not be eligible to get extension of service up to 60 years in view of his

alleged delinquency as he was placed under suspension on 31.05.2003. Therefore, he will not press the prayer to extend his service up to 60 years

or seeking benefit up to the age of 60 years. The said submission is recorded. Mr. A.V. Gupta, learned Sr. counsel for the High Court was not in a

position to answer about the jurisdiction to continue with disciplinary proceedings after reaching the age of retirement.

We have considered the rival submissions, perused the suspension order, charge memo, date of retirement, dismissal order with retrospective

effect, death of the writ petition as well as the affidavits filed by the legal heirs of the deceased writ petitioner and the Jammu and Kashmir Civil

Service Regulations, 1956.

It is not in dispute that the writ petitioner served in the judiciary from the cadre of Munsiff to District Judge for about 30 years i.e. from August,

1974 to December, 2003. The allegation levelled against the writ petitioner, though serious, there was no allegation of corruption. The

departmental enquiry was conducted beyond his date of superannuation i.e. 31.12.2003 and no order retaining the writ petitioner to proceed with

the departmental enquiry was issued by the High Court. If a person has reached the age of superannuation and is required to be proceeded

departmentally, he has to be retained in service and he shall be paid provisional pension even if he was placed under suspension and issued with

charge memo before he reached the age of superannuation. Article 226 of J&K Civil Service Regulations, 1956 is the relevant provision applicable

to retire a Judicial Officer, which reads thus:-

[(1) An officer shall retire compulsorily on his attaining the age of 55 years, unless the competent authority considers him efficient and permits

him to remain in service]. He may, however, be retained in service after the date of compulsory retirement with the sanction of the Government on

public grounds which must be recorded in writing but he must not be retained after the age of 60 years except in very special circumstances:

Provided that the Government servants who were in service on 10-10-1966 and were treated inferior as per Schedule II, will retire on attaining the

age of 60 years.

Provided further that a Government servant in service on 1-1-1987 or appointed on or after that date shall retire on his attaining the age of 58

years.

Provided further that the retirement of a Government employee in service on 1-1-1976 or appointed on or after that date, shall take effect from the

afternoon of last day of month in which the employee concerned attains the age of superannuation instead of the actual date of his superannuation:

Provided further that:-

[(1) Subject to provisions of sub-clause (2) a member of the State-Judicial Service shall retire from service in the afternoon of the last day of the

month in which he attains the age of 60 years;

(2) The High Court shall assess and valuate the record of the Judicial Officers for his continued utility before he attains the age of 58 years by

following the procedure for compulsory retirement under the service rules applicable to him and if he is not found fit and eligible he will compulsory

retire on his attaining the age of 58 years.

In this case The High Court has not found the writ petitioner fit and eligible to continue in service up to 60 years. Even if the writ petitioner was

deemed to be under continued suspension beyond 31.12.2003, no provisional pension was paid to the writ petitioner as per the records. Thus, the

respondents lost their jurisdiction to proceed with the writ petitioner after the date of superannuation, i.e. 31.12.2003 as he was not retained in

service. It is also to be noted at this juncture that even if the delinquent officer is deemed to be retained in service on legal fiction he was not paid

subsistence allowance not exceeding the provisional pension from 31.12.2003 to 12.10.2010.

Hon'ble Supreme Court in paragraph No. 29 of its judgment reported as (2008) 5 SCC 257 (UCO Bank v. Rajinder Lalcapoor), has held:-

We have noticed in para 15 of our judgment that ordinarily no disciplinary proceedings can be continued in absence of any rule after an employee

reaches his age of superannuation. A rule which would enable the disciplinary authority to continue proceeding despite the officer reaching the age

of superannuation must be a statutory rule. A fortiori it must be a rule applicable to disciplinary proceedings.

As stated supra the learned senior counsel appearing for respondent No.2 was not in a position to rely on any rule empowering the disciplinary

authority to continue with the disciplinary proceedings even after the writ petitioner reached the age of superannuation and in fact learned counsel

fairly submitted that there is no specific rule to proceed with the departmental enquiry even after reaching the age of suppuration.

Considering the over all aspect in the matter and the fact that the writ petitioner passed away during the pendency of the writ petition on

31.03.2013, and having regard to the affidavits filed by the LRs of the deceased writ petitioner namely, widow as well as daughter dated

01.03.2016 and the fact that the writ petitioner served in subordinate judiciary for about 30 years, we are of the view that the order of dismissal

passed against the writ petitioner is too harsh and the same can be modified to that of compulsory retirement from the date when the writ petitioner

has completed his 58 years of age i.e. 31.12.2003 so that legal heirs will get the retrial benefits, arrears of pension from the date of retirement to

the date of death and family pension from the date of the death. The retiral benefits, arrears of pension payable to the deceased writ petitioner,

family pension payable to the widow etc. shall be calculated and paid to the LRs of the writ petition within a period of three months from the date

of receipt of copy of this order.

Before parting with the case, we need to point out that this order having been passed on peculiar facts and circumstances of the case need not

be mis-construed as giving an impression that this Court is not serious about the allegations levelled against the writ petitioner particularly with

regard to proven charges Nos. 1, 2 and 7, which are serious.

Writ petition is partially allowed with above directions. No costs.