Aijaz Hussain Sahaf vs State of J&K & ors.

This petition by the petitioner calls in question Government order no.347-PW(Hyd) of 2014 dated 29.08.2014 whereby, notwithstanding

finalization of the regular enquiry into his alleged misconduct of having tampered with, and changed, his date of birth in the service records, and

submission of a report by the Enquiry Officer, the Government has chosen to take recourse to its powers under Article 226 of the Jammu and

Kashmir Civil Service Regulations, 1956 and ordered his compulsory retirement from service with effect from 31.10.2013, with direction that the

excess salary / payments received by the petitioner for the period he unauhorisedly overstayed in service by tampering his date of birth shall be

recovered from him in full.

Before enumerating the facts of the case, it may be mentioned that much prior to the order impugned in this writ petition, the Chief Engineer,

Kashmir Irrigation and Flood Control Department, Srinagar, vide his endorsement no.EC/I?G/9663-65 dated 16.07.2012 had issued an order.

Therein it was stated that a complaint had been received that the petitioner and another officer of the department had tampered with, and changed,

their dates of birth recorded in their service books. The photocopy of the birth certificate produced by the petitioner was forwarded to the Joint

Secretary (Verification), State Board of School Education, Srinagar. The Joint Secretary, in turn, reported back that though his office did not have

the permission-cum-admission form of the petitioner in the records section of the organization, yet the school records provided by the Principal,

National High School, Srinagar, wherefrom the petitioner had passed his matriculation examination as a regular student, indicated that his date of

birth was 28.10.1955 and not 28.10.1958 as shown in the zerox copy of the qualification certificate produced by him under serial no.1223 bearing

Roll no.1979, and that the zerox copy was fake. The Chief Engineer by his aforesaid order directed the petitioner to record the actual date of

birth, i.e., 28.10.1955, on the front page of service book and furnish action taken report.

The above order was challenged by the petitioner in SWP no.1448/2013. In CMP no.2391/2012, accompanying the said writ petition, this

Court on 11.10.2013 ordered stay of the operation of the order impugned therein, with liberty to the Government/competent authority to hold a

proper enquiry in the matter in accordance with the rules.

Consequent to the above, the Commissioner / Secretary to Government, PHE and I&FC Department, vide Memorandum no.

PW/PHEK/58/2012-WP dated 27.05.2014, served a charge sheet on the petitioner. The article of charge so framed against the petitioner read as

under:

That Shri Aijaz Hussain Sahaf I/C Superintending Engineer, JKSPDC has been found to have manipulated the date of birth in the

service record and managed to record his date of birth in service book as 28.10.1958 instead of his actual date of birth which is

28.10.1955.

Thus Shri Aijaz Hussain Sahaf, I/C Superintending Engineer has failed to maintain absolute honesty and integrity in discharge of his

duties and thus acted in a manner which is unbecoming of a public servant, thereby violating the provisions of Rule 3 of J&K

Government Employees Conduct Rules 1971 for which departmental proceedings under rules 31 of J&K Civil Services

(Classification, Control and Appeal) Rules, 1956, have been decided to be initiated against him.

It is noticed that the aforesaid charge sheet was framed, formulated and signed by the Deputy Secretary to Government, PHE, I&FC Department

(HRM Branch).

Thereafter, the petitioner received communication no. PWQ/PHEK/58/2012-WP dated 17.06.2014 from the same Deputy Secretary to

Government, PHE, I&FC Department (HRM Branch), informing him that he had been appointed as Inquiry Officer to conduct enquiry into the

alleged manipulation of date of birth by the petitioner, and required him to attend the inquiry in his office chamber. The inquiry officer further

informed the petitioner that he could also submit any other documentary proof / evidence in support of his defence before him.

In response to the above communication, the petitioner submitted his replies in writing dated 23.06.2014 before the Inquiry Officer.

It appears that the Inquiry Officer made a report of his findings in terms of communication no.PW/PHEK/58/2012-WP dated 08.08.2014. On

receipt of the said report, the Government, instead of proceeding ahead in the matter in accordance with the relevant provision(s) of the

Classification, Control and Appeal Rules, 1956 (hereinafter, the CCA Rules) chose to have resort to its power under Article 226 of the J&K Civil

Service Regulations, 1956 (hereinafter, the CSRs), and issued the impugned order no.347-PW(Hyd) of 2014 dated 29.08.2014 with the

following operative portion and reasoning:

Whereas the Inquiry Officer has conducted the inquiry into the matter and submitted his report vide letter

No.PW/PHEK/58/2012-WP dated 08.08.2014. The Inquiry Officer in his inquiry report has drawn the following

conclusions:-

i) The Forensic Science Laboratory vide their Report No.FSL/102-Doc/Sgr dated 18.7.2014 has clearly established

the manipulation of the first page of the Service Book and has confirmed that the signatures of the attesting

officer/officials on the first page (pasted page) of the Service Book are forged. The Joint Secretary (Verification), J&K

State Board of School Education vide letter No. F(JSVeri- Fak)B/12 A-341 dated 9-7-2012 has stated the

qualification certificate in the name of Shri Aijaz Hussain Sahaf under sl.no.1223 bearing Roll No.4979 of the year 1970

be treated as absolutely fake and fabricated.

ii) On the basis of these two reports it is proved that the date of birth of Shri Aijaz Hussain Sahaf declared by him at the

time of appointment and accepted by the appointing authority is 28.10.1955 which has been duly confirmed from the

documentary evidence. He has later manipulated his Service Record and the first page of his service book has been

covered and pasted with existing written page on which date of birth has been written as 28.10.1958 instead of

28.10.1955 and it has been found that the signatures on the pasted page have been forged.

Whereas the inquiry report has been accepted by the Department and the departmental inquiry has established the actual date of birth

of Sh. Aijaz Hussain Sahaf as 28.10.1955 and the same has also been confirmed in the report of the Forensic Science Laboratory.

Now, therefore, in terms of Article 226 of J&K Civil Service Regulations Sh. Aijaz Hussain Sahaf I/C Superintending Engineer is

hereby compulsorily retired from the Government service w.e.f. 31.10.2013. The excess salary/payments received by the officer for

the period he overstayed in service unauhorisedly by tampering his date of birth shall be recovered from him in full.

When the present writ petition, challenging the said Government order no.347-PW(Hyd) of 2014 dated 29.08.2014 first came up for

consideration before the Court on 28.11.2014, the Court, while issuing notice, which was accepted by one of the Government counsels, namely,

Alla-ud-Din, Dy. AG, passed a detailed order staying the operation of the impugned order.

The petitioner has challenged the enquiry proceedings as a whole and the impugned order dated 29.08.2014 on numerous grounds taken in the

writ petition. Broadly speaking, inter alia, the grounds taken are that the charge sheet framed against the petitioner actually contained an opinion

and decision of the Government; therefore, the whole exercise of conducting the enquiry under Rule 31 of the CCA Rules was rendered a sham

exercise, and the proceedings as a whole are vitiated; that the enquiry was conducted not in adherence to the requirements of law; that the

petitioner was not given an opportunity to defend himself, muchless a reasonable and fair opportunity, inasmuch as neither any evidence was

produced, nor he was given an opportunity to rebut any evidence relied upon by the enquiry officer or to produce his own evidence in defence;

that the petitioner was not afforded a personal hearing; that, as a matter of fact, the enquiry, if at all any, was conducted at his back, without his

knowledge, so much so after he submitted his reply before the enquiry officer, refuting the allegations, nothing was heard by him thereafter from the

enquiry officer till he came to know about the issuance of the impugned order dated 29.08.2014.

The respondents in their reply have stated that it was pursuant to the order dated 11.10.2013 passed by the Court in petitioner''s writ petition,

SWP no.1448/2012, that the department decided to hold a departmental enquiry into the matter consistent with the rules in vogue. Accordingly,

vide Government order no.165-PW(Hyd) of 2014 dated 08.05.2014, respondent no.2 was appointed as Inquiry Officer. Respondent no.2 after

conducting the inquiry and getting the record examined by the Forensic Science Laboratory for its genuineness or tampering thereof, submitted his

report to respondent no.1 in terms of communication no.PW/PHEK/58/2012-WP dated 08.08.2014. The report which was thus made by the

Inquiry Officer, i.e., respondent no.2, is quoted in para (v) under the heading Preliminary Objections of the reply. It is, word by word, the same as

has been reproduced in the impugned order, quoted in para 7 hereinabove. It is stated that the report so made by the inquiry officer was accepted

and it established that the actual date of birth of petitioner was 28.10.1955 which was confirmed by the J&K Forensic Science Laboratory and

corroborated by the Joint Secretary (Verification), J&K State Board of School Education. It is averred in the reply that, ""accordingly, petitioner''s

retirement was deemed to have been made from Government Service w.e.f. 31.10-.2013 in terms of Government Order No.347-PW(Hyd) of

2014 dated 29.08.2014"". Further that, the order envisaged that the excess salary/payment received by the officer for the period he has overstayed

in service unauthorisedly by tampering his date of birth shall be recovered from him in full.

In para (vi) of the reply under the heading preliminary objections, it is also submitted that the petitioner demitted his office prior to issuance of

the Government order no.347-PW(Hyd) of 2014 dated 29.08.2014 which was conveyed to respondent no.1 by the Managing Director,

JKSPDC, in terms of communication no. JKSPDC/Adm/3536 dated 19.07.2014, which clearly showed the guilt of the petitioner.

In their para-wise replies, the respondents have stated that the inquiry established the correct facts because the Forensic Science Laboratory,

J&K, vide their report bearing no.FSL/102-DOC/Sgr dated 18.07.2014, confirmed the alleged tampering in the Service Book of the petitioner

and that ""the Inquiry Officer, while proceeding in the matter, had given ample opportunities of being heard and the petitioner attended the office of

the Inquiry Officer on 23.06.2014 and was asked various questions during the proceedings which were replied by the petitioner, but the same did

not suffice the purpose in his favour as per the inquiry report submitted by the Inquiry Officer"" and that, ""the officer had on his own demitted office

on 21.07.2014, whereas the termination order was issued by the Department on 29.08.2014"".

During the course of arguments, the learned counsel for the parties, apart from making oral submissions, opted to make their submissions in

writing as well which they did. I have perused the same and considered the matter.

There are some serious lacunae, pointed out by the learned counsel for the petitioner, at each step in the whole process of the conduct of the

enquiry against the petitioner, right from framing of the charge sheet to the issue of the impugned order, which render the exercise wholly

unreasonable, arbitrary and, therefore, unconstitutional.

First and the foremost of the lacunae is that the Government appointed an enquiry officer vide order no.165-PW(Hyd) of 2014 dated

08.05.2014 before even framing the charge sheet against the petitioner; and secondly, the charge sheet has not been framed and signed by the

disciplinary authority, but by the very person who was appointed as Enquiry Officer vide Government order no.165-PW(Hyd) of 2014 dated

08.05.2014. Law is settled that on both these counts, the whole exercise is vitiated and rendered illegal.

It may be observed here that, admittedly, pursuant to the order dated 11.10.2013 passed by this Court in CMP no.2391/2013 accompanying

petitioner''s writ petition, SWP no.1448/2013, the Department decided to hold an inquiry against the petitioner in terms of the provisions of CCA

Rules. In fact, it was mentioned in the Memorandum dated 29.05.2014 served on the petitioner that the Government proposed to hold such an

inquiry against him. The relevant provision of the CCA Rules in this connection is Rule 33. Its sub-Rule (4) prescribes as under:

(4) The competent authority may inquire into the charges itself or if it considers it necessary so to do, it may appoint an inquiry officer

for the purpose.

The above provision of law has come up for consideration before the Court in Showkat Ali Zargar (Dr.) v State, 2005(Supp) JKJ 169 [HC]. The

Court in paragraph 6 of the judgment held as under:

6...[R]eference to the CCA rules which regulate the disciplinary proceedings as per stand of Respondent-SKIMS becomes

necessary, and relevant to the issue is sub rule 4 of rule 33, which reads:

''(4) The competent authority may inquire into the charges itself or if it considers it necessary so to do, it may appoint an inquiry

officer for the purpose.''

The language of the rule aforementioned makes it manifestly clear that it is the competent authority which can frame the charge,

however, after charge is framed it has the power to appoint an enquiry officer to enquire into the charge so framed. Situations are

conceivable where rules do not indicate the officers competent to initiate the departmental proceedings and in absence of rules to the

contrary it cannot be canvassed that appointing authority alone can initiate enquiry, but where rules specifically cite the authority

competent to frame the charge, it has to be that authority. In the case on hand it is the CCA Rules which are applicable to the

SKIMS and sub rule 4 of rule 33 is very clear to the effect that competent authority alone can frame the charge....

Who is the competent authority, the Court in the very same paragraph of the judgment in Showkat Ali Zargar (Dr.) v State (supra), held as under:

... What is deducible from a conjoint reading of sub-rule 4 of rule 33 and 34 is that competent authority is the one which has the

power to impose penalty and such authority is spelt out in sub section 1 of the Section 126 of the Constitution of Jammu and Kashmir

which admits no ambiguity on the court that it is the appointing authority which has the competence to impose penalty...

In the above case, the charge was framed by the Administrative Officer and signed by the Joint Director - not either by the Government or by

the Chairman of the Governing Body. The Court proceeded to lay down the fall out of such incompetent action and in that connection, relied upon

the earlier judgment of the Court in Ghulam Qadir Bhat v. University of Kashmir, 1984 SLJ 311. Therein, while dealing with the point, the Court

had ruled as under:

A plain reading of the Rule shows that it prescribes that the competent authority or the appointing authority shall on being satisfied on

the basis of the facts and material available before it, that charges are required to be framed against the delinquent officer, shall so

frame definite charges and serve the same on the delinquent concerned alongwith the statement of allegations seeking his explanation

by way of written statement of defence and further enquiring from him if he wants personal hearing. If the delinquent denies the

charges, the competent authority, on the basis of the material before it, may decide either to proceed or not to proceed against the

delinquent. Should, however, the competent authority decide to proceed further, it shall order an enquiry into the charges, which

stand already served on the delinquent by the competent authority and an Enquiry Officer would then be appointed by the authority.

The Enquiry Officer shall, thereafter, hold an enquiry into these charges and conclude the enquiry in accordance with the rules of

natural justice.

The Court in para 7 of the judgment in Showkat Ali Zargar (Dr.) v State (supra), concluded that the ratio decedendi of the judgment makes it

manifestly clear that if charge sheet is framed by an enquiry officer and not by the competent authority, entire proceedings including the order of

punishment are bound to vitiate.

In the instant case, as already mentioned, the charge sheet against the petitioner has been framed, formulated and signed not by the disciplinary

authority. So applying the law laid down by the Court in the above two judgments, the proceedings as a whole are vitiated.

Then there is yet another grave factor involved in the matter, which is that the very person who has framed, formulated and signed the charge

sheet, has been appointed as the Enquiry Officer. There can be no denial to the fact that principles of natural justice have to be strictly followed in

departmental proceedings. Nemo judex in causa sua or Nemo judex in sua causa is the celebrated principal of natural justice which tells us that no

one can be a judge in which he has an interest. This principle has to be strictly followed and applied to any appearance of a possible bias. True it is

that the Rule does not preclude the disciplinary authority from holding the enquiry himself after he has framed the charge sheet and, therefore, the

aforesaid principle of natural justice may not always be attracted in every case, inasmuch as a disciplinary authority is authorised not only to frame

the charge, but also given the discretion to hold the enquiry as well himself. But in the instant case, whereas the charge against the petitioner was

contained in the first paragraph of the charge sheet, the second paragraph, looking at its contents from any angle, constitutes an opinion, rather the

finding of the person framing the charge. The enquiry officer, therefore, had commenced the enquiry proceedings with a predetermined mind that

the charge framed has to be, in any case, held to be proved against the petitioner. This was and is, therefore, a case where the above principle of

natural justice is attracted with all gravity - the bias being writ large on the face of the contents of the charge sheet. Given the scenario that the

charge sheet contained a definite finding of fact in its second para in relation to the article of charge contained in the first paragraph thereof, the

enquiry proceedings as a whole are rendered and tantamount to a sham process where the petitioner was hanged and then asked why he should

not be so hanged. That being the position, the enquiry proceedings are wholly vitiated and any report made by the enquiry officer, being rendered

illegal, could not and cannot be relied upon for any purpose whatsoever. Consequently, the impugned order founded on any such enquiry report

cannot be sustained.

It may also be mentioned here that two of the other fundamental principles of natural justice are that no one can be condemned unheard and

that justice should not only be done but should manifestly appear to have been done. The nature, aim and scope of these principles and the extent

of their applicability were first articulated by the Supreme Court in A. K. Kraipak v. Union of India, (1969) 2 SCC 262. Grant of opportunity of

hearing to a delinquent includes giving him an opportunity to rebut any evidence that is proposed to be read against him. In the instant case, the

enquiry officer of his own has proceeded to send the documents to the Forensic Science Laboratory. Not only that, not a single piece of paper,

characterized by the enquiry officer as evidence against the petitioner, including such report of the Forensic Science Laboratory, has been put to

the petitioner for his rebuttal during the course of enquiry so as to afford him an opportunity to rebut the same. Instead, the enquiry officer has

adopted a novel method of relying on such documents/reports and proceeded to formulate its report. The persons who have made such reports

have not been called as witnesses and the petitioner has not been given any opportunity to cross-examine them. The whole proceedings have been

held in a shoddy and novel manner.

There is yet another very crucial aspect of the matter. Rule 30 of the CCA Rules prescribes the penalties which may, for good and sufficient

reason, be imposed upon a member of a Service in the manner as provided in the said Rules. Sub-Rule (vi) thereof prescribes premature

retirement on proportionate pension other than that specified in Article 226(2) of the CSRs as one of the major punishments. Under Article 226(2)

of the CSRs the Government has the discretion, if it is of the opinion that it is in the public interest to do so, to require any specified Government

servant to retire at any time after he has completed 22 years / 44 completed six monthly periods of qualifying service or on attaining 48 years of

age; provided that the appropriate authority shall give in this behalf a three months'' prior notice in one of the prescribed forms to such Government

servant or 3 months'' pay and allowances in lieu of such notice. Though Article 226(2) does not speak about the nature of the retirement it would

constitute, but the language thereof itself makes it abundantly clear that such a retirement would constitute premature compulsory retirement. The

concept of premature compulsory retirement has come into existence and force to remove a public servant whose services are no longer useful to

the general administration or in public interest; if it is felt that for better administration, for augmenting efficiency, it is necessary to chop off the

deadwood. The order of premature compulsory retirement made in public interest does not constitute or postulate a punishment and it carries no

stigma. On the other hand, the premature retirement envisaged by Sub-rule (vi) of Rule 30 of the CCA Rules is clearly a measure of major

punishment for proved misconduct. Therefore the two retirements - one envisaged by Subrule (vi) of Rule 30 of the CCA Rules and the other by

Article 226(2) CSRs - are entirely different in their objectivity, essence, effect and field of operation: one is to augment efficiency in the Service and

the other is to inflict punishment for proved misconduct. In fact, Sub-rule (vi) of Rule 30 of the CCA Rules itself speaks ""premature retirement on

proportionate pension other than that specified in Article 226(2) of the Jammu and Kashmir Civil Service Regulations"". The two retirements can be

ordered in context of the peculiar set of facts, following a separate set of procedures provided under the two sets of Rules governing these

retirements. One retirement cannot be ordered on the set of facts, reasoning and following the procedure prescribed vis-a-vis the other. For

instance, after holding an enquiry into the allegation of any kind of misconduct against a Government servant under the provisions of CCA Rules,

the Government can award the punishment of premature retirement after following the procedure laid down in the said Rules, which would include

holding of enquiry in accordance with the procedure laid down therein and giving of a show cause notice to a delinquent against the penalty

proposed; whereas under Article 226(2) of the CSRs the Government is only required to formulate its opinion, of course, on the basis of entire

service record of a government servant as to his utility. The Government or the competent authority, therefore, while seeking to act upon the report

of an enquiry officer purportedly made in consequence of conduct of such enquiry into the alleged misconduct under the CCA Rules cannot hop

the rules and take resort to the discretion under Article 226(2) of the CSRs. This is so simple that the retirement under Article 226(2) is retirement

simplicitor; whereas the retirement under Sub-rule (vi) of Rule 30 of the CCA Rules is a measure of punishment which can be inflicted only after

following the procedure for awarding such a punishment. By hopping the Rules and the procedure, the respondents have greatly prejudiced the

petitioner in as much as he has been deprived of an opportunity to defend himself and to explain why the proposed punishment should not be

awarded to him. On that count also the procedure so adopted by the respondents is vitiated and consequently the impugned order is not

sustainable in law. This clearly speaks of a close-minded-rush-through mannerism demonstrated by the respondents which renders the whole

exercise arbitrary.

Apart from the above, it becomes axiomatic from the contents of the Memorandum dated 29.05.2014, the petitioner was not informed what

oral or documentary evidence the Government proposed to produce or rely upon to establish the charge so framed against him. There is also

nothing brought on record, or even pleaded in any return, that the written-statement of defence submitted by the petitioner was perused and

considered by the competent authority and that it was after accord of such consideration that the competent authority was satisfied that the

allegation was such as required to be probed into in a regular enquiry. Further, admittedly, the Enquiry Officer had asked the petitioner to appear

before him only once on 23.06.2014 on which date he was required to answer certain questions which he did. He was not, thereafter, associated

with any proceedings conducted by the Enquiry Officer. As a matter of fact, admittedly, after 23.06.2014, when the petitioner submitted his

answers to the questionnaire put to him, he was neither called nor any further proceedings were conducted by the Enquiry Officer. It is reiterated

that neither the Forensic Science Expert concerned was called and examined by the Enquiry Officer, nor was the petitioner afforded an

opportunity to cross-examine the Forensic Science Expert as to his findings recorded by him in his report. Similarly, the Enquiry Officer did not call

and examine, or afford an opportunity to the petitioner to cross-examine the Joint Secretary (Verification), J&K State Board of School Education.

Again, the Enquiry Officer did not call and examine, or afford an opportunity to the petitioner to cross-examine the Principal, National High

School, Srinagar, at whose behest and instance the Joint Secretary (Verification), J&K State Board of School Education, had reported and opined

that the petitioner''s date of birth was 28.10.1955 and that the photocopy of the certificate produced by him was fake. Furthermore, the report of

the Principal, National High School, Srinagar, sent by him to the Joint Secretary (Verification), J&K State Board of School Education pursuant to

the latter''s communication no. F(JS-Veri- Fak)B/12A-341 dated 09.07.2012 nor the report/opinion of the Joint Secretary (Verification), J&K

State Board of School Education, were, admittedly, furnished or put to the petitioner.

One can go on end, enumerating the lacunae in the enquiry process which go to the root and, in any case, have grossly prejudiced the

petitioner in defending himself. On all these aspects there are innumerable judgments denouncing such practices and failures on the part of the

authorities at the helm in such enquiries. I think it unnecessary to burden this judgment with the quotations of the law so laid down by the courts

from time to time, especially the Apex Court. However, in my view, it would suffice to give the citations of the judgments referred to and relied

upon at the Bar. These are (i) Fakhruddin v. State of M. P., AIR 1967 SC 1326; (ii) decision of this Bench in Ghulam Mohammad Ganai v State

of J&K, SWP no.1305/2004, decided on 31.05.2016; (iii) decision of the Court in HC Abdul Rehman Bhat v State & ors, SWP no.1310/2009

decided on 24.10.2011; (iv) State of Orisa v Binapani Dei, AIR 1967 SC 1269; (v) Ram Ekbal Sharma v. State of Bihar, AIR 1990 SC 1368;

(vi) Union of India v Mohd. Ramzan Khan, AIR 1991 SC 471; (vii) Mohd. Sammandar Malik v State of J&K, 2011(1) SLJ 142; (viii) Khurshid

Anwar Shah v State of J&K, 2016(1) SLJ 377(HC); (ix) another decision of this Bench in Shamim Ahmad Laherwal v State of J&K, SWP

no.1381/2015 decided on 13.12.2016; (x) another decision of the Court in Bashir Ahmad Bhat v. State & ors., SWP no.762/2000 decided

on27.04.2011; and (xi) Pt. Gopi Nath Wali v State of J&K, AIR 1958 J&K 11. As against the above judgments, the law cited and relied upon by

the learned State counsel, viz. Prem Nath Bali v Registrar, High Court of Delhi, AIR 2016 SC 101; Bank of India v T. Jogram, AIR 2007 SC

2703; Rajasthan SRTC v Bajrang Lal, (2014) 4 SCC 693; and Diwan Singh v LIC, (2015) 2 SCC 341, are not attracted in the facts and

circumstances of the present case.

To put the nut into the shell, the whole exercise has been conducted in a novel manner and in total disregard of the procedure established by

law. The Enquiry Officer has straight away proceeded to formulate his report relying only on the opinion of the FSL Expert, obtained by the

Enquiry Officer at the back of the petitioner, without his knowledge, and without putting the same to the petitioner, and the opinion of the Joint

Secretary (Verification), J&K State Board of School Education which had been made by him earlier to the Chief Engineer, Kashmir Irrigation and

Flood Control Department, vide communication no. F(JS-Veri-Fak)B/12A-341 dated 09.07.2012, not on the basis of the records of the Board

itself, but on the basis of some report obtained from Principal, National High School.

What is more striking in the instant case is the novel procedure adopted by the Government to do away with the services of the petitioner,

highlighted above.

The crux of the matter, or the core feature of the action so taken by the respondents against the petitioner, essentially requiring resolution or

determination by the Court, relates to the question which is this: On completion of a departmental enquiry initiated against a public servant in terms

of the provision of Rule 31 of the Jammu and Kashmir (Classification, Control and Appeal) Rules, 1956, whether, acting on the final report of the

enquiry officer, even if it is made in due regard of the procedure established by law, it is permissible for the Government to resort, or, have

recourse, to Article 226(2) of the Jammu and Kashmir Civil Service Regulations and compulsorily retire the public servant? The answer, as

discussed above, has to be big and categorical, no. And if it is so done, the fall would be that the whole exercise would be vitiated. It is so held in

the instant case.

Now, the question arises what relief can be granted to the petitioner at this stage. Before coming to that aspect, yet another novelty attendant

to the case is that by the impugned order the petitioner has been compulsorily retired from Government service with effect from 31.10.2013 which

is the date commensurate to the date of superannuation of the petitioner calculated on the basis of his date of birth viz. 28.10.1955 which allegedly

was originally recorded in his service book and is alleged to have been changed to 28.10.1958. If we go by the date 28.10.1958, the date of

superannuation of the petitioner on attaining the age of 60 years would come to 31.10.2018. That means, if his date of birth turns out to be

28.10.1958, the petitioner still has one year and 7 months of service left. It is note worthy that the operation of the impugned order was stayed by

the Court order dated 28. 11.2014. Consequently, the petitioner has continued in service. Now that the Court has come to a definite conclusion

that the enquiry has been conducted not in accordance with the procedure, I think it would be appropriate to quash the impugned order. The

respondents need to bear in mind that they have not till date alleged that the petitioner has turned into deadwood or imbibed any of the attributes

on the basis of which he could even now be termed as having lost his utility to the Service and could, therefore, be compulsorily retired in public

interest in exercise of the powers under Article 226(2) of the CSRs.

In view of the above, this petition is allowed. The impugned Government order no.347-PW(Hyd) of 2014 dated 29.08.2014 is quashed.

Consequently, the respondents are directed to reinstate and treat the petitioner in service, entitled to all the benefits, as if the impugned order had

not at all been issued. To accelerate such process, the petitioner is directed to report for duty before Commissioner Secretary to Govt. PHE,

Irrigation & Flood Control Department, Civil Secretariat, Jammu, within seven days from today, preferably, with a certified copy of this judgment.

This also disposes of the connected CMP(s). The interim direction passed shall stand merged in the above directions of the Court.

No order as to costs. Record produced be returned to State counsel in open Court.