DB upholds removal of Judge

29/06/2022

SRINAGAR, Jun 28: A Division Bench of Jammu & Kashmir and Ladakh High Court Comprising Chief Justice Pankaj Mithal and Justice Sanjeev Kumar uphold dismissal of Judicial Officer Javed Ahmed Naik, Munisff, who was placed under suspension in 2013, following acomplaint against him of causing loss to the State exchequer by charging insufficient stamp duty.
The petitioner, who was serving as Munsiff Pulwama in Kashmir Division, was removed from the judicial service by the Governor of the then State of Jammu and Kashmir vide Government Order No.3337-LD(A) of 2019 dated 23.07.2019 ['the impugned order']. The impugned order has been passed by the Governor on the recommendations of the Full Court that the petitioner, in view of his proven misconduct, was not worthy of retention in the judicial service. Feeling aggrieved, the petitioner has invoked the extraordinary writ jurisdiction of this Court seeking quashment of the impugned order as also the enquiry report dated 06.07.2018 and a show cause notice issued by this Court proposing penalty of removal of the petitioner from service vide Registrar General's communication No. 49220/GS dated 31.12.2018. The petitioner additionally seeks to assail the recommendations made by the Full Court to the Governor of then State of Jammu and Kashmir for imposition of penalty of his removal from the judicial service. The petitioner also prays for a writ of mandamus to command the respondents to treat him in service with all consequential service benefits.
DB observed that it is abundantly clear that, in terms of Article 235 of Constitution of India which corresponds to Section 111 of the Constitution of Jammu and Kashmir, the control over the District Courts and the Courts subordinate thereto including the posting and promotion of, and the grant of leave to, the persons belonging to judicial service of the State and holding any posts inferior to the post of District Judges vests in the High Court. The expression "control" used in Article 235 of Constitution of India has been aptly dealt with by the Division Bench in T.R.Parihar's case.
DB further observed that in the instant case, there is no dispute that the enquiry report has been furnished to the petitioner though it was furnished after the Full Court had arrived at provisional conclusion in regard to imposition of major penalty upon the petitioner. The reply submitted by the petitioner to the show cause notice is detailed one and elaborate. The petitioner has dealt with the merits of the enquiry report extensively and requested the High Court to drop the charges. In that view of the matter, it can hardly be said that the petitioner has been prejudiced, in any manner, by not supplying him the enquiry report prior to the competent authority arriving at provisional conclusion with regard to imposition of one of the three major penalties upon the petitioner. As a matter of fact. Mr. Lone despite being pointedly asked could not demonstrate any prejudice having been caused to the petitioner due to non supply of copy of the report at the stage prior to the competent authority arriving at provisional conclusion with regard to the imposition of major penalty.
DB further observed that from pronouncement of the Constitution Bench of the Supreme Court which was rendered prior to 42nd constitution amendment, it is abundantly clear that what was envisaged under Article 311 of the Constitution as it stood prior to 42nd amendment and which was in pari materia with Section 126 of the Constitution of Jammu and Kashmir, was serving of notice upon the delinquent employee at two stages of the disciplinary proceedings. The first notice to the delinquent was to call upon him to meet the charge before the departmental enquiry commenced. At this stage, the delinquent would get an opportunity to offer his explanation. The second stage or the second occasion to give notice to the delinquent officer would come after the report of the enquiry officer was received by the disciplinary authority. Where the disciplinary authority, on the basis of the enquiry report, proposed to impose major penalty upon the delinquent, it would serve another notice, this time a show cause notice of proposed penalty. The object of the second notice was to enable the delinquent public servant to satisfy the disciplinary authority on both the counts, one that he was innocent of the charges framed against him and the other that even if the charges were held proved against him, the punishment proposed to be inflicted upon him was unduly severe.
DB have no doubt in mind that the High Court by providing a copy of the enquiry report to the petitioner along with show cause notice of proposed penalty envisaged under article 311 of Constitution of India read with Section 126 of Constitution of Jammu and Kashmir substantially complied with the principles of natural justice. It would be appropriate to clarify at this stage that Article 311 of Constitution as it was applicable to the State of Jammu and Kashmir at the time the impugned order was passed was in pari materia with section 126 of constitution of Jammu and Kashmir and envisaged a show cause notice of proposed penalty to be given to the delinquent before imposing any of the major penalties envisaged under Article 311 of the Constitution. The 42nd amendment to the Constitution which, inter alia, took away right of the delinquent employee to have show cause notice of proposed penalty was not extended to the State of Jammu and Kashmir. The position, however, changed after 5th/6th of August, 2019. supply of copy of the enquiry report prior to the competent authority arriving at a provisional conclusion with regard to imposition of major penalty upon the petitioner was neither required at the relevant point of time, nor its non-supply has, in any way, caused any prejudice to the petitioner. The petitioner was supplied the copy of enquiry report along with show cause notice of proposed penalty. He not only responded to the notice vis-a-vis the proposed penalty, but in his reply, also contested the enquiry report on merits. The argument of counsel, therefore, fails, DB said".
DB found no merit in this petition and the same is, accordingly, dismissed.

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