J&K Civil Service Regulations | Competent Authority Must Form Bonafide Opinion Based On Relevant Record For Compulsory Retirement: High Court
The Jammu and Kashmir and Ladakh High Court has ruled that to enforce an order of 'compulsory retirement' upon a government servant, the competent authority must reach a bona fide opinion, based on relevant material, that such order is necessary in public interest.“Merely because the committee has made recommendations for retirement of writ petitioner, he cannot be compulsorily retired...
The Jammu and Kashmir and Ladakh High Court has ruled that to enforce an order of 'compulsory retirement' upon a government servant, the competent authority must reach a bona fide opinion, based on relevant material, that such order is necessary in public interest.
“Merely because the committee has made recommendations for retirement of writ petitioner, he cannot be compulsorily retired unless the competent authority comes to a conclusion after forming a bona fide opinion of its own that the writ petitioner can be subjected to compulsory retirement in the interest of the institution”, a bench of Justices Tashi Rabstan and Mohan Lal observed.
The court's ruling came in response to a Letters Patent Appeal challenging the single bench order setting aside an order compulsorily retiring the petitioner from service, in exercise of powers under Article 226(2) of the Jammu and Kashmir Civil Services Regulations.
Observing that the term "compulsory retirement" denotes the premature termination of an employee's service before reaching the prescribed retirement age the court emphasized that such retirements are aimed at eliminating inefficiency, corruption, dishonesty, or non-performing employees from the government sector. Thus, it said the onus of proof in such cases is on the authority.
When an order is contested on grounds of being arbitrary or mala fide, the government must provide necessary documents for inspection, Court said.
“...Not only the employer is obliged to produce the materials, but the onus of establishing that the order was made in public interest is also on the employer…it is a terminal step to justify which the onus is on the Administration, nor a matter where the victim must make out the contrary”, the bench maintained while referring to Baldev Raj Chadha v. Union of India 1980.
Upon examining the specifics of the case, including the absence of adverse remarks in the appellant's Annual Performance Reports (APRs), which indicated a satisfactory employment record, the bench said,
“In the present case, admittedly, except FIR No.92/2006, no other material was placed before the Committee on the basis of which the Committee could form a bonafide opinion that the writ petitioner can be subjected to compulsory retirement. Thus, without looking into the relevant record, the decision to compulsorily retire the writ petitioner was taken by the Committee only in view of registration of FIR No.92/2006 registered at Police Station, Nowshera”, the court recorded.
Relying on State of Gujarat v. Suryakant Chunilal Shah and Nand Kumar Verma v. State of Jharkhand, the court emphasized that mere involvement in a criminal case does not automatically justify compulsory retirement, as guilt is yet to be proven in a court of law. Mere involvement in a criminal case would constitute relevant material for compulsory retirement or not would also depend upon the circumstances of each case and the nature of offence allegedly committed by the employee, the bench underscored.
In view of these observations, the court upheld the Single Judge's decision and dismissed the appeal.
Case Title: State Of J&K vs Narayan Dutt
Citation: 2023 LiveLaw (JKL) 211