Safiya Malik

The High Court of Jammu & Kashmir and Ladakh, Division Bench of Justice Sindhu Sharma and Justice Shahzad Azeem set aside the judgment of the Writ Court which had directed release of retiral benefits to a former government employee. The Division Bench allowed the appeal filed by the authorities, holding that departmental proceedings instituted during service could continue after retirement, but only for the limited purpose of determining financial losses caused to the Government. The Bench dismissed the writ petition, clarified that no penalty under the Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, could be imposed upon a retired employee, and directed that pensionary benefits under Article 168-D of the J&K Civil Service Regulations, 1956, must continue until conclusion of proceedings.

The dispute arose from alleged embezzlement at the Lower Jehlum Hydel Project (LJHP), Baramulla, where the respondent had served as Incharge Stores Officer. Allegations centered around theft of old copper bars from stores under his charge in November 2012. Following registration of FIR No. 80/2012 at Police Station Boniyar initially under Section 380 RPC and later altered to Section 409 RPC, the departmental authorities suspended several officials, including the respondent. A departmental inquiry was ordered by the Chief Engineer, Generation Wing, JKPDC, on 2 November 2012.

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The police investigation resulted in discharge of the respondent and co-accused by the Judicial Magistrate, 1st Class, Boniyar, on 4 June 2016, who found the material insufficient to connect them to the offence. The departmental side, however, continued inquiries through various committees, the last being constituted by order dated 19 February 2017. Meanwhile, by order dated 22 February 2017, the respondent was reinstated, subject to inquiry outcome. He retired on 31 July 2017.

The respondent approached the Writ Court against the reinstatement order, contending that no inquiry could be pursued post-retirement, particularly since he had been discharged by a competent court. He argued that all retiral benefits were wrongfully withheld. The appellants countered that disciplinary proceedings had been initiated through a charge sheet dated 4 March 2013 during the respondent’s service, concerning alleged losses exceeding Rs. 57.72 lakhs. They maintained that under Article 168-A of the 1956 Regulations, proceedings lawfully instituted during service could continue after retirement to determine recoverable losses, with provisional pension sanctioned accordingly.

The Writ Court, in its judgment dated 16 June 2023, found that no judicial or departmental proceedings were pending as on the date of superannuation and held departmental inquiry impermissible after retirement. Consequently, it quashed the order dated 22 February 2017 and directed release of benefits.

The appellants challenged this before the Division Bench, arguing that the charge sheet was indeed served during service, and departmental proceedings were pending when the respondent retired. They submitted that inquiry could not be concluded due to a stay order by the High Court itself, and thus the Writ Court’s conclusions were erroneous.

The respondent’s counsel reiterated that since no valid proceedings were pending at retirement, the inquiry stood barred. He further asserted that acquittal in criminal proceedings precluded departmental action on the same charges.

The Division Bench examined the statutory framework under the J&K Civil Services (Classification, Control and Appeal) Rules, 1956 and the J&K Civil Service Regulations, 1956. The Court stated: “There is no manner of doubt that with the retirement of an employee from service, the relationship of employee and employer gets severed and, thus, no departmental proceedings for imposing any penalty for any misconduct can be instituted against such employee after his superannuation.” It added: “However, there is no complete immunity to the delinquent employee… Article 168-A of the Regulations of 1956 clearly suggests that the Government is empowered to order the recovery from the pension of a delinquent employee of any amount which represents the losses caused to Government by negligence or fraudulent act.”

On whether proceedings had been instituted in time, the Bench recorded: “Confronted with the above position, we have marshalled the Writ Court record… It is found that the Appellants herein, in their Counter Affidavit, very categorically and specifically mentioned… that the Articles of charges… were served upon the petitioner… on 4th of March, 2013.” The Court observed that neither in rejoinder nor otherwise was this fact denied by the respondent.

The Court clarified the meaning of “instituted”: “In the context of Article 168-A… the word ‘instituted’ refers to the formal initiation or commencement of judicial or departmental proceedings… deemed to have ‘instituted’ when a Statement of Charges is formally served.” Thus, the Court held that proceedings were validly pending at the time of retirement.

Addressing the effect of discharge in criminal case, the Court stated: “There is nothing in the Rules or the general law which would support this contention that once the delinquent employee is acquitted or discharged in judicial proceedings, then no departmental proceedings can be initiated against him.” It cited Supreme Court precedent: “We are fortified in our view by the law laid down by Hon’ble Supreme Court in cases titled ‘S. Pratap Singh v. The State of Punjab’… and ‘Airports Authority of India v. Pradip Kumar Banerjee’.”

It further recorded that discharge by the Magistrate was due to failure of investigating officer: “The discharge of the Respondent-accused was just on account of failure of the investigating officer to carry out further investigation.”

Thus, the Court concluded that departmental proceedings lawfully initiated could continue after retirement, but only to assess losses, not to impose service penalties.

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The Court issued the following directives: “For the foregoing reasons, we are of the considered opinion that the impugned Judgment passed by the Writ Court is unsustainable in the eyes of law. Accordingly, the appeal is allowed and the impugned Judgment dated 16th of June, 2023 passed by the Writ Court is set aside.” It continued: “Consequently, the Writ Petition filed by the Respondent-Writ Petitioner is dismissed.”

The Court specified the scope of permissible proceedings: “We, however, make it clear that the Appellants may proceed against the Respondent for the purposes of determining the amount on account of losses, if any, caused to the Government by any negligent or fraudulent acts of the Respondent, but would not proceed for the purposes of imposing any of the penalties prescribed in the Rules of 1956.”

Finally, the Court directed: “We also make it clear that till the culmination of the said proceedings, the Respondent shall be entitled to pensionary benefits as envisaged under Article 168-D of the Regulations of 1956.”

Advocates Representing the Parties

For the Appellants: Mr Ilyas Nazir Laway, Government Advocate

For the Respondent: Mr N. H. Shah, Senior Advocate with Ms Saima Ghulam, Advocate

Case Title: Union Territory of J&K & Ors v. Aftab Ahmad Malik

Case Number: LPA No. 197/2023, CM No. 5989/2023

Bench: Justice Sindhu Sharma, Justice Shahzad Azeem