Jugal Kishore Sharma vs Ut Of J&K And Ors
2022 Latest Caselaw 809 j&K

                                                                        Sr. No. 20

         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         AT JAMMU

                                                  WP(C) No. 2400/2021
                                                  CM Nos. 8374/2021 &
                                                  8375/2021


Jugal Kishore Sharma                                   .....Appellant(s)/Petitioner(s)


                        Through: Mr. Rahul Pant, Sr. Advocate with
                                 Ms. Shreya Nagpal, Advocate.

                  Vs

UT of J&K and ors.                                                ..... Respondent(s)

                        Through: Mr. Vishal Sharma, ASGI
                                 Mr. S.S. Nanda, Sr. AAG

Coram:     HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
           HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE

                                      ORDER

21.05.2022

(OPEN COURT) PER: THAKUR-J

1. The case set up by the learned counsel for the petitioner is that the

petitioner's actual date of birth is 17.6.1958, which was so reflected

in the matriculation certificate as also in the service book. The official

respondents, however, appear to have conducted an enquiry in which

it was sought to be established that the actual date of birth of the

petitioner was 17.6.1956 and not 17.6.1958. On that basis, it was

stated that the petitioner was sought to be superannuated from

service on the basis of his date of birth taken as 17.6.1956.

2. In the first round of litigation, the petitioner filed writ petition bearing

SWP No. 2827/13 challenging the order of removal dated 23.8.2013

in which it is stated that the writ court was pleased to stay the said

order and the petitioner is stated to have continued till he

superannuated based upon the date of birth recorded as 17.6.1958.

Finally, the petition was allowed in favour of the petitioner herein. An

LPA preferred by the respondents too came to be dismissed with

liberty to the respondents to initiate an enquiry in regard to the date

of birth of the petitioner, if they so desired. It was based upon such a

liberty granted that the enquiry was initiated, however, this was done

post the retirement of the petitioner.

3. The decision to initiate enquiry again came to be challenged in the

second round of litigation by the petitioner before this court in writ

petition SWP No. 273/2019, which subsequently came to be

transferred to the Central Administrative Tribunal, Jammu (for short,

Tribunal) and registered as Transfer Application No. 61/3970/2020.

4. It is stated that in the proceedings before the CAT, an objection was

taken that the enquiry could not be permitted to proceed further

inasmuch as the said enquiry was initiated after the retirement of the

petitioner since the master servant relationship had ceased to exist,

therefore, in the absence of any rule, which would authorize the

conduct of any such enquiry, the enquiry was without any legal

sanction.

5. On a perusal of the judgment and order impugned passed by the

Tribunal, it can be seen that while the argument has been registered,

the same has not been dealt with at all. What has been stated in

paragraphs 5, 6 and 7 of the judgment and order impugned is as

under:

"5. The main thrust of arguments of learned counsel for applicant is that the action of respondents in withholding his post retiral benefits on the ground that there is departmental enquiry pending against him is illegal since there is no provision in the Service

Rules which provide for holding of the departmental enquiry with respect to the date of birth of an employee after he has retired from service. It is further argued by learned counsel for the applicant that by no stretch of imagination can Article 168-A of Civil Services Regulations can be made applicable to the case of the applicant to deny him his retirement benefits and placed reliance on:-

1) Bhagirathi Jena Vs. Board, AIR 1999 SC 1841.

2) Ghulam Mohammad Vs. State, 2000 KLJ 401

3) Mohd. Shafi vs. State, 2009(1) JKJ 97

4) Sadur Ul Din Vs. State, 2015 (3) JKJ 231.

5) On the other hand, learned AAG submitted that the Government has power to initiate and conduct the enquiry against the applicant even though he has retired from Government services and therefore, the pensionary benefits cannot be disbursed till the enquiry is complete.

6) We find that the applicant has retired from service on 30.6.2018 and more than 3 years have passed thereafter. This inordinate delay of more than three years has been to the detriment of the applicant and this delay cannot be allowed to continue further. It is the duty of the administration to disburse the retiral dues to a retiring employee in the normal course. In the instant case, if departmental action had been initiated it should have been finalized at the earliest. We are of the view that the respondents should finalize the departmental proceedings and disburse the departmental dues of the applicant as per rules positively within six weeks from the date of receipt of a certified copy of this order.

6. Although an objection appears to have been taken by the respondents

that they did have the power to hold an enquiry after the retirement

of the petitioner, no rule appears to have been referred to other than

Article 168-A of the Civil Services Regulations, which envisages as

under:

"168-A. The Government reserves to itself the right to order the recovery from the pension of an officer of any amount on account of losses found in judicial or Departmental proceedings to have been caused to Government by the negligence or fraud of such officer during his service provided that-

(a) Such departmental proceedings if not instituted while the officer was on duty-

(i) shall not be instituted save with the sanction of Government;

(ii) shall be instituted before the officer's retirement from service or within a year from the date on which he was last on duty, whichever is latter;

(iii) shall be in respect of an event which took place not more than one year before the date on which the officer was last on duty; and

(iv) shall be conducted by such authority and in such places as the Government may direct;

(b) all such departmental proceedings shall be conducted if the officer concerned so requests in accordance with the procedure applicable to departmental proceedings on which an order of dismissal from service may be made;

                                and

                        (c)     such    judicial  proceedings     if not

instituted while the officer was on duty, shall have been instituted in accordance with sub-clauses (ii) and (iii) of clause(a) above.

7. A bare perusal of the provisions (supra) would show that the

provisions apply only to cases where loss is occasioned by an officer,

which is found in judicial or departmental proceedings due to

negligence or fraud of such an officer during his service. In the

present case, in our opinion, the said provision would not apply.

Moreover, the provision does not envisage a situation where an

enquiry could be conducted in regard to the date of birth of the

petitioner post his retirement.

On the other hand, learned senior counsel for the petitioner has

placed reliance upon the Apex Court Judgment in Bhagirathi Jena

vs. Board of Directors, O.S.F.C and others, (1999) 3 SCC page

666 in which the Apex Court in paragraph 7 held thus:

"In view of the absence of such provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30.6.95, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such authority, it must be held that the enquiry had

lapsed and the appellant was entitled to full retiral benefits on retirement."

Apart from the fact that there is a clear pronouncement of the

Apex Court Judgment on the issue as discussed hereinabove, it

appears that even the matriculation certificate issued in favour of the

petitioner reflects the date of birth of the petitioner as 17.6.1958

which certificate has neither been cancelled nor withdrawn by the

concerned Board. In this regard, reliance can be placed upon the

Apex Court judgment in R. Kandasamy vs. Chief Engineer,

Madras Port Trust, (1997) 7 SCC 505, wherein it held that a

community certificate issued to a scheduled tribe candidate was good

and valid for all purposes till it was cancelled.

The aforementioned view was followed by a Division Bench of

the Madras High Court in Tamil Nadu Public Service Commission

vs. R. Manikandan and anr, (2012) 1 JCR 258 wherein it was held

thus:

"6. In our opinion, the stand of the Public Service Commission cannot be accepted and is totally unjustified. When the certificate is issued by the competent authority to a person or individual, it should be presumed to be valid till such time it is cancelled by the competent authority in the manner known to law. This law has been laid down by the Apex Court in the judgment R. Kandasamy vs. Chief Engineer, Madras Port Trust, (1997) 7 SCC 505 and the said law holds the field as of now."

8. In the present case, learned counsel for the petitioner has

vehemently urged that not only was the matriculation diploma issued

by the Board, the contents of the same have subsequently been

verified as 17.06.1958. This can be seen from a document dated

23-10-2009, which forms a part of the record issued by the Board of

School Education.

9. In view of the facts mentioned hereinabove, we are convinced that

since no enquiry was initiated and conducted by the respondents

during the time the petitioner remained in service notwithstanding the

liberty granted by the Division Bench in LPASW No. 138/2017, no

such enquiry could be conducted post the retirement of the petitioner.

The Petitioner has since superannuated and, therefore, cannot be

made to suffer on account of non-payment of his retiral dues and

pensionary benefits. Any such enquiry, which is sought to be initiated

or pending before the concerned authority, in our opinion, would be

nonest in the eyes of law and without any legal sanction.

10. For the reasons mentioned above, the petition is allowed. The

judgment and order impugned dated 22.10.2021 passed by the

Tribunal is set aside. The petitioner shall be granted all service/

pensionary benefits within a period not later than one month from the

date a copy of this order is available to the concerned.

11. Disposed of accordingly along with connected application(s).

                         (Rahul Bharti)             (Dhiraj Singh Thakur)
                             Judge                          Judge

Jammu
21.05.2022
Naresh