Jammu & Kashmir High Court - Srinagar Bench
Qazi Ghulam Jeelani vs Jitendra Kumar on 12 May, 2021
HIGH COURT OF JAMMU AND KASHMIR AT
SRINAGAR
` SWP No. 845/2019
[WP (C) no. 1343/2019]
CCP (S) no. 173/2020
Reserved on: 28.04.2021
Pronounced on: 12.05.2021
1. Qazi Ghulam Jeelani
...Petitioner (s)
Through:- Mr M. S. Reshi, Advocate
(Through video call from residence)
v.
State and another
...Respondents
2. Qazi Ghulam Jeelani
...Petitioner(s)
v.
Shri Ajit Kumar Sahu and others
...Respondent(s)
Through:- Mr B. A. Dar, Sr. AAG
Mr Irfan Andleeb,Dy.AG
(Through Video Call from residence)
Coram:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
JUDGMENT
1. 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.
AMJAD AHMAD LONE
2021.05.12 14:50
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2. The controversy, as per the pleadings, is simply that petitioner retired as
Executive Engineer in the respondent department on 31 st 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.
3. 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.
4. Aggrieved of the inaction of respondents, petitioner has filed the instant
petition to seek redressal of his grievances
5. 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.
6. 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
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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.
7. 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.
8. Heard learned counsel for the parties.
9. Admit.
10. 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 based 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.
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11. 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.
12. 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.
13. Considered the submissions made.
14. 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.
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Mohi-ud-Din Lone v. State of J&K and others reported as 2020 (6) JKJ 346 has
also taken a similar view.
15. 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.
16. 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.
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17. Disposed of along with all CMs on the above lines.
CCP (S) no. 173/2020
18. 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.
19. Registry to keep copy of this order on each file.
(Ali Mohammad Magrey)
Judge
SRINAGAR
12.05.2021
Amjad lone PS
Whether approved for reporting: Yes/No.
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