No Compulsory Retirement Merely On Committee Recommendation, Sans Departmental Enquiry & Sufficient Material: J&K&L High Court

The observations were made by the Division Bench comprising Justices Tashi Rabstan and Sindhu Sharma while hearing a Letters Patent Appeal (LPA) preferred by the UT against the order of a Single Bench whereby impugned order regarding compulsory retirement of KAS Officer Bhumesh Sharma was quashed.

After hearing the counsel appearing for the parties, considering their rival contentions and perusal of record, the DB observed that it is well settled that when an order is challenged as arbitrary or mala fide in the petition under Article 226 of the Constitution, it is the Government's duty to provide documents for inspection of court.

"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. The Supreme Court has clearly held that 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 observed .

Elaborating on the law on the subject, the bench observed that the power to retire compulsory a Government servant in terms of service rules is absolute, provided the authority concerned forms a bona fide opinion that compulsory retirement is in public interest, further adding,

"although the scope of judicial review is limited, it has repeatedly been held by the Apex Court that when an order of premature retirement is challenged, the authorities concerned must disclose the materials on the basis of which the order was made".

The bench explained that the order of compulsory retirement cannot be based on the sole basis of recommendations of the committee which has to be considered by the competent authority in accordance with law and merely because the committee has made recommendations for retirement of a person, 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.

Dealing with the contention of the petitioner that an FIR stood registered against the petitioner by the Vigilance Organization, which later on transferred to the Central Bureau of Investigation and the CBI after conducting investigation submitted the closure report before the Special Judge Anti-Corruption, which came to be accepted by the trial Court, the bench observed that compulsory retirement cannot be sustained merely because an FIR was lodged against the writ petitioner by the Vigilance Organization.

"The practice followed by the State in directing compulsory retirement of the writ petitioner was completely unwarranted because that would violate the basic maxim of "innocent until proven guilty". Thus, via the impugned order of compulsory retirement, the State has applied this principle in the reverse", the bench maintained.

The bench placed reliance on the Supreme Court judgement in State of Gujarat Versus Suryakant Chunilal Shah 1999, and observed that merely being involved in a criminal case would not per se establish the person's guilt and hence, a compulsory retirement based on such a factor would not stand. Formation of opinion for compulsory retirement is to be based on the subjective satisfaction of the authority concerned but such satisfaction must be based on a valid material and it is permissible for the courts to ascertain whether a valid material exists or otherwise, on which the subjective satisfaction of the administrative authority is based, the bench underscored.

Applying the said preposition of Law to the case at hand the bench noted that record clearly reveals that compulsory retiring the writ petitioner (Bhumesh Sharma) from service was based on no material, in as much as the writ respondent even did not conduct any departmental inquiry with respect to the act of alleged misconduct on the part of writ petitioner.

The DB further said, "even the writ petitioner has specifically claimed in the writ petition that the Transport Commissioner vide communication dated 11.07.2011 had recommended his name for gold medal for his honesty, integrity and meritorious service. In such a situation, the reputation of writ petitioner cannot be termed as doubtful, as projected, nor could his conduct be determined only on spoken words in the absence of any material on record, which was the fundamental flaw in the order issued against the petitioner compulsory retiring him from service", the bench recorded

Dismissing the appeal and while upholding the judgment of writ court the bench concluded by stating,

"Since the State has failed to disclose the material forming the basis for compulsory retiring the writ petitioner from service, as such it can be said to be a case of no material or no evidence and the same can certainly be held to be arbitrary or without application of mind", the DB said, adding "we are not inclined to take a view other than the one taken by the Single Judge."

Case Title : State of J&K Vs Bhumesh Sharma.

Citation : 2022 LiveLaw (JKL) 189

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