Jammu & Kashmir High Court – Srinagar Bench
Union Territory Of J&K vs Aftab Ahmad Malik on 20 August, 2025
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA No. 197/2023
CM No. 5989/2023
Reserved On: 7th of August, 2025
Pronounced On: 20th of August, 2025
1. Union Territory of J&K,
Through Commissioner/ Secretary to Government,
Power Development Department,
Civil Secretariat, Srinagar/ Jammu.
2. Managing Director,
J&K State Power Development Corporation (SPDC), Srinagar.
3. Chief Engineer,
EM & RE Wing, Kashmir, Srinagar.
4. Chief Engineer,
Generation Wing, Power Development Corporation (JKPDC),
Kashmir, Srinagar.
5. Executive Engineer,
General Division, Lower Jehlum Hydel Project (LJHP),
Gantamulla, Baramulla.
... Appellant(s)
Through: -
Mr Ilyas Nazir Laway, Government Advocate.
V/s
Aftab Ahmad Malik, Age: 60 Years
S/O Abdul Qayoom Malik
R/O Mohra, Uri, District Baramulla.
... Respondent(s)
Through: –
Mr N. H. Shah, Senior Advocate with
Ms Saima Ghulam, Advocate.
CORAM:
Hon’ble Ms Justice Sindhu Sharma, Judge
Hon’ble Mr Justice Shahzad Azeem, Judge
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(JUDGMENT)
Shahzad Azeem-J:
I. SUBJECT MATTER OF CHALLENGE:
01. This intra Court appeal is directed against the Order and
Judgment dated 16th of June, 2023 passed by the learned Single Judge of
this Court [“the Writ Court”] in SWP No. 1954/ 2017 titled ‘Aftab Ahmad
Malik v. State of J&K and Ors, (PDD)’, whereby the Writ Court has
allowed the Writ Petition filed by the Respondent herein and quashed the
impugned Order No. JKSPDC/86 of 2017 dated 22 nd of February, 2017 qua
the Respondent and further the Appellants-Writ Respondents were directed
to release the retiral, along with all consequential, benefits in favour of the
Respondent-Writ Petitioner to which he is entitled to.
II. FACTS:
02. For better understanding of the controversy on hand, we deem
it expedient to take note of the relevant facts in brief:
03. At the relevant point of time, Respondent was entrusted with
the duty of Incharge Stores Officer, Lower Jehlum Hydel Project (LJHP),
along with two other employees of the Power Development Corporation. In
the Stores, under the charge of Respondent, theft of old copper bars alleged
to have taken place which were lying in the shed adjacent to the Power
House Building. Thereupon, the incidence was reported to the police of
Police Station, Boniyar. The concerned Police Station registered FIR No.
80/2012 on 3rd of November, 2012. The FIR was initially registered for the
commission of an offence punishable under Section 380 of the Ranbir Penal
Code (RPC), which was, however, later on altered to Section 409 of the
Ranbir Penal Code (RPC). Simultaneously, the Chief Engineer, Generation
Wing, JKPDC, vide office Order No. CEG/PDC/ADM/71 of 2012 dated 2 nd
of November, 2012, constituted a departmental Inquiry Committee to
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conduct inquiry in respect of theft of old copper bars said to have taken
place from the Store, near Power House. The Respondent, who was
incharge of the Stores, along with Mr Qazi Qamer-ud-Din (Technician-III)
and Mr Mohammad Akbar Dar (TPLA), were immediately placed under
suspension vide Order No. GD/LJHP/37 of 2012 dated 15 th of November,
2012 read with Order No. GD/LPJH/33 of 2012 dated 3 rd of November,
2012 respectively. It is also relevant to mention at this stage that the
Respondent, who was incharge of Stores, along with Mohammad Maqbool
Dar (Chowkidar), Nazir Ahmad Dar (Helper), Mashkoor Hussain Shah and
Gh. Mohammad Sheikh, both Station Attendants, were later placed under
suspension on 15th of November, 2012.
04. Insofar as the investigation into the matter was concerned, the
Station House Officer (SHO), Police Station, Boniyar summoned the record
of the case for examination, which was furnished by the Appellants. The
police authorities concerned, after initial investigation, informed the
Appellants, vide letter dated 19th of March, 2013, that the Helpers, namely,
Mohammad Maqbool Dar, Nazir Ahmad Dar, Mashkoor Ahmed Shah and
Station Attendant-Gh. Mohammad Sheikh were not involved in the theft
case. The matter was considered in the Review Committee and it was
unanimously decided that pending final outcome of the departmental
inquiry, the Watch and Ward officials shall be re-instated vide Order dated
11th of July, 2014.
05. The Inquiry Committee constituted by the Chief Engineer to
look into the matter submitted its report to the Chief Engineer, Generation
Wing, Kashmir indicating therein that it was not a case of theft, but a case
of embezzlement of Government property by the officials, who were
responsible to protect it.
06. The Police of Police Station, Boniyar presented a final report
in the case before the Court of learned Judicial Magistrate, 1st Class,
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CM No. 5989/2023Page 4 of 18
Boniyar. The learned Judicial Magistrate, 1st Class, Boniyar, however,
discharged the Respondent along with other two co-accused in case FIR
No. 80/2012 under Section 409 of the Ranbir Penal Code (RPC) vide its
Judgment dated 4th of June, 2016 by holding that the material collected by
the Investigating Agency is not sufficient to connect the accused with the
commission of offence under Section 409 of RPC and, thus, the accused
were discharged.
07. The Managing Director, JKSPDC constituted time to time
inquiry committees and in this regard, last Committee came to be
constituted vide Order No. JKSPDC/69 dated 19th of February, 2017.
Subject to outcome of inquiry, the Respondent, along with Qazi Qamer-ud-
Din (Technician-III) and Mohammad Akbar Dar (Helper), were re-instated
vide Order No. PDC/86 dated 22nd of February, 2017. Meanwhile, the
Respondent stood retired from service on reaching the age of
superannuation w.e.f. 31st of July, 2017.
III. PROCEEDINGS BEFORE THE WRIT COURT:
08. Feeling aggrieved by Order No. JKSPDC/86 of 2017 dated
22nd of February, 2017, whereby the Respondent, along with other two
officials, were -reinstated, subject to outcome of inquiry to be conducted by
the Committee constituted vide Order dated 17th of February, 2017, the
Respondent filed the Writ Petition, being SWP No. 1954/2017. The
impugned Order dated 22nd of February, 2017 was called in question by the
Respondent, primarily, on the ground that since he has retired from service
on reaching the age of superannuation on 31st of July, 2017, as such, he
ceases to be the employee of the Department and no inquiry has been
conducted till date, therefore, after his retirement, he cannot be subjected to
any disciplinary proceedings.
09. Further ground urged by the Respondent in the Writ Petition
was that since he stood discharged by the competent Court of law,
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therefore, the departmental inquiry is not permissible and, thus, he is
entitled to all the service benefits which have been withheld by the
Department.
10. The Writ Petition was contested by the Appellants-Writ
Respondents on the ground that since embezzlement/ mis-appropriation of
huge amount involving the Respondent-Writ Petitioner and few others had
taken place, as such, the competent authority was well within its power to
hold an inquiry which, in fact, was going on from day-to-day basis. In
response to the contention of the Respondent-Writ Petitioner in the Writ
Petition that it was not permissible to subject him to any departmental
inquiry after his retirement from service on reaching the age of
superannuation, it was submitted by the Appellants-Writ Respondents in
their reply that simply because an employee had retired on superannuation
does not mean that he can go scot-free from facing the inquiry for alleged
misconduct.
11. The Writ Court, having considered the rival stand of the parties
and the material on record, came to the conclusion that in terms of Article
168-A read with Article 168-D of the J&K Civil Service Regulations, 1956
( for short “the Regulations of 1956”), it is not permissible to hold
departmental inquiry against the Respondent after he stood retired from
service on reaching the age of superannuation on 31st of July, 2017. The
Writ Court also took note of the fact that the Respondent had faced the
criminal proceedings and also stood discharged by the Court of learned
Judicial Magistrate, 1st Class, Boniyar vide Judgment dated 4th of June,
2016. It was, thus, concluded by the Writ Court that on the date of
superannuation, neither any judicial nor departmental proceedings were
pending against the Respondent.
12. On the basis of the aforesaid conclusion drawn, the Writ Court
allowed the Petition of the Respondent and quashed the Order impugned
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before it with a direction to the Appellants to release all the post-retiral
benefits in favour of the Respondent.
IV. THE CHALLENGE:
13. The Appellants have questioned the legal pregnability of the
impugned Judgment of the Writ Court, mainly, on the ground that when the
Respondent was in active service and was posted as Storekeeper, he, along
with other employees of the Department, were served with a charge sheet
dated 4th of March, 2013, however, in the meanwhile, during the currency
of inquiry, the Respondent retired from service on reaching the age of
superannuation, therefore, the provisional pension was sanctioned in his
favour as permissible under Article 168-D (1) of the Regulations of 1956.
14. The Appellants further contended that in terms of Article 168-
A of the Regulations of 1956, a disciplinary inquiry initiated while the
employee was in service, can be continued even after the retirement of the
said employee, as such, a retired employee is deemed to be in service and
on conclusion of the inquiry, penalty by way of recovery can be made from
the pension of the employee.
15. According to the Appellants, the disciplinary proceedings were
initiated against the Respondent for very serious allegations of misconduct
allegedly for causing substantial loss of more than Rs. 57.72 lacs in the
Stores due to his negligence and misconduct, therefore, if such a charge is
proved, the provisions of sub-section (6) of Section 4 of the Payment of
Gratuity Act, 1972 would be attracted and it would be within the discretion
of the Appellants to withhold the payment of gratuity due to the Respondent
during the pendency of the disciplinary proceedings, which is in
consonance with Article 168-D.
16. It is also contended that the Writ Court, vide Order dated 27 th
of September, 2017, has stayed the inquiry/ disciplinary proceedings in
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spite of the fact that charge sheet was served upon the Respondent and the
operation of the same continued till the passing of the Judgment by the Writ
Court, therefore, inquiry could not be taken to its logical end.
17. According to the Appellants, the Writ Court did not take into
consideration all the aforesaid facts and the rules governing the subject,
while passing the impugned Judgment, therefore, prayed for setting aside of
the impugned Judgment, in the interests of justice.
18. Per contra, Mr N. H. Shah, the learned Senior Counsel
appearing on behalf of the Respondent, vehemently argued that the
Appellants have constituted three committees to hold fact finding inquiry
and, in the meanwhile, the Respondent has retired from service on reaching
the age of superannuation, therefore, the Appellants, in law, cannot initiate
disciplinary proceedings after retirement of the Respondent.
19. It has also been canvassed at Bar by the learned Senior
Counsel that since at the time of the retirement of the Respondent, neither
judicial nor departmental proceedings were pending against him, inasmuch
as the Respondent was discharged in judicial proceedings, therefore, the
Writ Court, on sound legal principles, has shown indulgence by quashing
the impugned Order before the Writ Petition dated 22nd of February, 2017,
as such, no fault can be found with the Judgment under challenge. The
learned Senior Counsel, accordingly, prayed for dismissal of the appeal.
V. THE ISSUES:
20. After going through the impugned Judgment under challenge
and rival submissions made by the parties, the following issues crop up for
consideration:
i. Whether disciplinary inquiry with respect to an
employee, due to whose act(s) of omission and
commission while in active service losses were caused
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to the Government, can be initiated/ continued after his
retirement from service upon reaching the age on
superannuation; andii. Whether on acquittal/ discharge of an employee in the
criminal case, a departmental proceeding on the same
charges can be initiated.
VI. ANALYSIS:
21. To begin with, it is important to notice in brief the relevant
Rules and Regulations providing for a procedural framework for initiating,
conducting and concluding disciplinary proceedings against an employee
for misconduct, inefficiency or violation of conduct rules and, on proved
misconduct, infliction of minor or major penalties. In this regard, at first
instance, we deem it important to take note of the Jammu & Kashmir Civil
Services (Classification, Control and Appeal) Rules, 1956 [hereinafter
referred to as “the Rules of 1956”], which are the cornerstone of service
jurisprudence governing the conduct, discipline and administrative control
of Government employees.
22. Rule 30 of the Rules of 1956 enumerates penalties that may,
for good and sufficient reasons, be imposed upon a member of service. The
penalties, inter alia, include dismissal from service, removal from service
and reduction to a lower post, etc.
23. For the purposes of present discussion, we are concerned with
the words used in Rule 30 of the Rules of 1956 viz. “member of a service”.
Therefore, as many as eight penalties which can be imposed for good and
sufficient reason can only be imposed upon a member of a service and Rule
2 (e) of the Rules of 1956 defines a member of service to mean a person
holding or appointed to a whole-time pensionable post.
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24. 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 is, thus, conspicuous that in terms of Rule 30 of the
Rules of 1956, it is not permissible to hold disciplinary proceedings against
the delinquent employee after he has retired from service on reaching the
age of superannuation.
25. However, there is no complete immunity to the delinquent
employee for alleged misconduct which, on being found in judicial or
departmental proceedings, has led to losses to the Government by
negligence or fraud of such delinquent employee during his service. Thus,
this is an exception to the general principle of service jurisprudence, as
discussed hereinbefore, which is contained in Article 168-A of the
Regulations of 1956 and same reads, thus:
“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 later;
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; andiv. Shall be concluded 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
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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.”
26. A plain reading of 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 of such
delinquent employee during his service. However, these proceedings would
be limited only to determine the amount to be recovered from the pension
of the Government employee on account of losses found to have been
caused to the Government by the negligent and fraudulent act of the
delinquent employee. There is, however, a rider to the exercise of this
power by the Government and the proviso is that where such departmental
proceedings are not initiated, while the employee was on duty, these
proceedings shall not be instituted, save with the sanction of the
Government. These proceedings shall be instituted before the retirement of
the delinquent employee from service or within a year from the date on
which he was last on duty or in respect of an event which has taken place
not more than one year before the date on which the delinquent employee
was last on duty, whichever is later.
27. It is, thus, evident that if the Government fails to institute
departmental proceedings for recovery of the amount on account of losses
found to have been caused to the Government by negligence and fraud of
the delinquent employee or not instituted while the employee was in service
shall not be instituted, unless the conditions laid down in the proviso to
Article 168-A of the Regulations of 1956 are fulfilled.
28. Here, we take a pause for a moment and when have a
flashback of the findings recorded in the impugned Judgment of the Writ
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Court, in this regard, we find that the impugned Judgment of the Writ Court
proceeds, mainly, on the premise that the Respondent retired from service
on reaching the age of superannuation on 31st of July, 2017 and stood
discharged of the criminal charges vide Judgment dated 4 th of June, 2016,
as such, as a matter of fact, on the date of his superannuation, no judicial or
departmental proceedings were pending against the Respondent. The Writ
Court further proceeded on the premise that under Article 168-A, the
departmental proceedings had to be instituted with the sanction of the
Government and before the employee’s retirement from service or within a
year from the date on which he was last on duty, whichever is later, and it
has to 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. The Writ Court also
went onto hold that the departmental inquiry in the case was ordered vide
impugned Order dated 22nd of February, 2017 by a Committee to be
constituted in terms of Order dated 17th of February, 2017, as such,
indisputably, such an inquiry was not a departmental inquiry as envisaged
under the Regulations of 1956, but, instead, is an inquiry regarding alleged
theft/ embezzlement, more so, in respect of an event which had taken place
in the year 2012, which per se is not in tune with the mandate of clause (iii)
of Article 168-A. The Writ Court also held that such an inquiry in terms of
impugned Order by the Appellants herein (Respondents before the Writ
Court) can also be said to be insignificant and inconsequential against the
Respondent herein (Petitioner before the Writ Court) in view of the fact that
the Respondent stands discharged/ acquitted of the criminal charge by the
competent Court in respect of allegations forming basis for holding of such
inquiry. For all these reasons, the Writ Court went onto quash the impugned
Order dated 22nd of February, 2017, by virtue of the impugned Judgement
under challenge before us.
29. It seems that the reasoning which weighed with the Writ Court
while reaching to the conclusion as arrived at in the impugned Judgment
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was that there was no disciplinary proceedings, as envisaged under Article
168-A of the Regulations of 1956, was pending against the Respondent,
while he retired from service on reaching the age of superannuation, and
further that, at the relevant point of time, no judicial proceedings were
pending against him since he stood discharged much before the attaining
the age of superannuation. Therefore, in law, the Respondent cannot be
subjected to any disciplinary proceedings nor such proceedings can be
continued against him.
30. To the contrary, the bone of contention of the Appellants is
that for the alleged losses caused to the Government by the negligent and
fraudulent act(s) of the Respondent during his service, the Respondent,
along with other delinquent employees, were served with a charge sheet on
4th of March, 2013, on the serious allegations of misconduct by dishonestly
causing shortage of stores by way of embezzlement in league and
conspiracy with other delinquent employees, thereby causing substantial
losses to the Government for more than Rs. 57.72 lacs.
31. However, it is important to note that no such finding, as
contended by the Appellants, regarding serving of charge sheet dated 4th of
March, 2013 in the wake of initiation of regular inquiry came to be
mentioned in the impugned Judgment of the Writ Court. Therefore, it had
become imperative to ascertain as to whether the plea raised by the
Appellants is an after-thought which has been taken for the first time in the
instant Letters Patent Appeal (LPA) or factual foundation thereof was also
laid before the Writ Court, but, for some reason, the Writ Court could not
take note of such vital fact in coming to a different conclusion, which
otherwise, in law, could not have been arrived.
32. Confronted with the above position, we have marshalled the
Writ Court record and on a meticulous perusal thereof, it is found that the
Appellants herein (Respondents before the Writ Court), in their Counter
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Affidavit which came to be filed in compliance to Order dated 9th of
September, 2022 passed by the Writ Court, very categorically and
specifically mentioned in paragraph Nos. 4 to 6 as follows:
“4. After receiving the enquiry report, the Articles of
charges against Sh. After Ahmad Malik, the then In-charge
stores/store office of Lower Jehlum Hydel Electric Project,
Baramulla were served upon the petitioner and other two
official, copy enclosed as Annex (R-I). The replies to the
charge sheet were received by the Chief Engineer and same
have been send to the Corporate office alongwith various other
documents.
5. On examination of such replies and documents, the
competent authority considered that involved employees are
jointly concerned in the disciplinary case and inquiry officer
should be appointed to hold common proceedings against these
erring officials. Sh. Ajaz Ahmad Sahaf Chief Engineer CI&D,
who was appointed as Inquiry Officer to inquire into the
charges framed against the said employees, but he could not
conclude the enquiry due to superannuation subsequently,
Chief Geologist was appointed as Enquiry Officer but he too
could not proceed further due to some personal reasons.
6. The petitioner and two other officials were charge
sheeted during service tenure and prior to their retirement. The
petitioner and other two officials were reinstated vide order No.
JKSPDC/86 of 2017 dated 22.02.2017 subject to outcome of
the enquiry constituted vide office order No. DC/69 of 2017
dated 17.02.2017. However, the Enquiry office could not have
scrutinized and examined the replies furnished by the erring
officials including the petitioner, for the reasons, the Hon’ble
High Court vide its order dated 19.07.2017 in SWP No.
1351/2017 had stayed for conducting if Enquiry by the
committee constituted vide order dated 22.02.2017, therefore,
the Enquiry remained inconclusive due to stay imposed by the
Hon’ble High Court in the above writ petition. Further,
suspension period was to be determined in terms of findings of
the Enquiry Committee, which could not be done by the
answering respondents due to stay imposed.”
33. At this stage, little correction of facts is required with regard to
the number and date of the Writ Petition as mentioned in paragraph No.6 of
the Counter Affidavit that the High Court vide its Order dated 19th of July,
2017 in SWP No. 1351/2017 had stayed the conducting of inquiry.
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However, to the contrary, perusal of Writ Court record shows that the
operation of the impugned Order before the Writ Court dated 22nd of
February, 2017 came to be stayed in the Writ Petition filed by the
Respondent bearing SWP No. 1954/2017 titled ‘Aftab Ahmad Malik v.
State of J&K and Ors.‘ vide Order dated 27th of September, 2017,
therefore, same appears to be a typographical mistake as the interim Order
passed by the Writ Court on 27th of September, 2017 is itself part of the
Writ Court record.
34. It is equally important to place on record that the Respondent
herein (Petitioner before the Writ Court) has also filed his Rejoinder
Affidavit in response to the Counter Affidavit filed by the Appellants, but
he nowhere denied that the Respondent, along with other two delinquent
officials, have not been served with charge sheet while in active service,
precisely on 4th of March, 2013, as submitted by the Appellants in the
memo of appeal at paragraph No.7 (a). The Appellants have also placed on
record the ‘Articles of Charges’ and ‘Statement of Imputation’ in support of
each charge which stood served upon the Respondent vide memorandum
dated 4th of March, 2013, requiring the Respondent and other two
delinquent employees to submit their written defence within 21 days from
the date of issuance of the said memorandum.
35. Therefore, from the above discussion, it is deducible that much
before the retirement of the Respondent on reaching the age of
superannuation, i.e., on 4th of March, 2013, the Appellants have issued the
memorandum containing the ‘Articles of Charges’ and ‘Statement of
Imputation’ in support of each charge. Inquiry Officers were also
appointed, but meanwhile, the Respondent-Writ Petitioner got stay order, as
noted hereinbefore, therefore, the inquiry could not be concluded, as such,
the Respondent cannot be allowed to blow hot and cold in the same breath.
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36. In the context of Article 168-A of the Regulations of 1956, the
word “instituted” refers to the formal initiation or commencement of
judicial or departmental proceedings against a Government servant.
Specifically, it denotes the official act of starting an inquiry or legal process
to investigate alleged misconduct, negligence or fraud by an officer during
his service, which may lead to recovery of losses from his pension. The
term “instituted” in this context implies the formal commencement of the
disciplinary proceedings, which in the given facts and circumstances are
deemed to have “instituted” when a Statement of Charges is formally
served upon the Government servant (Respondent herein).
37. Therefore, to say that till the time the Respondent retired from
service on reaching the age of superannuation no inquiry was pending or
only fact finding inquiry was pending is factually incorrect and, thus,
confronted with this factual narration, it is established that the
memorandum containing the ‘Articles of Charges’ and ‘Statement of
Imputation’ dated March 04, 2013 was issued by the disciplinary authority
while the Respondent was on active duty and, therefore, the proviso to
Article 168-A of the Regulations of 1956 is not attracted.
38. Having said so, we are of the firm opinion that the Appellants
are well within their right to proceed with the departmental inquiry against
the Respondent, but this inquiry would only be limited to find out and
determine the amount of losses, if any, found to have been caused to the
Government by the negligent and fraudulent act(s) of the Respondent. The
departmental proceedings in question would not lead to any of the penalties
enumerated in Rule 30 of the Rules of 1956, as we have discussed
hereinbefore at length. This is the clear position emerging from careful
reading of the relevant provisions of the Regulations of 1956 as well as the
Rules of 1956, respectively.
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39. Once factual foundation has sufficiently been laid by the
Appellants regarding initiation of disciplinary proceedings by serving the
memorandum containing ‘Articles of Charges’ and ‘Statement of
Imputation’ upon the Respondent much before the attaining the age of
superannuation, in that event, to say that no judicial or departmental
proceedings were pending at the time of his retirement is not legally and
factually tenable, as has been held by the Writ Court vide the impugned
Judgment under scrutiny.
40. While testing the case on hand on the anvil of legal and factual
expositions as discussed hereinbefore, there left no scope for doubting the
clear legal position emerging from the Regulations of 1956 and the Rules of
1956 that, while the Rules of 1956, in particular Rule 30, clearly envisage
disciplinary proceedings for inflicting the enumerated minor and major
penalties upon ‘a member of service’, which expression, as held
hereinabove, would not include a retired employee of the Government,
however, at the same time, Article 168-A of the Regulations of 1956 does
permit the Government to conduct departmental proceedings to find out and
determine the amount of losses, if any, caused by a delinquent employee,
whether serving or retired, due to his acts of negligence or fraud, of course,
with few restrictions, as discussed hereinbefore.
41. We, however, reiterate that if such departmental proceedings
are continued against a retired Government employee, same shall be only to
find out and determine the amount on account of losses caused to the
Government by said employee due to his negligence or fraud and would
not, in any manner, be applied for imposing any of the punishments
enumerated in Rule 30 of the Rules of 1956.
42 Accordingly, issue No.(i) is answered in the above terms.
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43. This now takes us to the issue No. (ii) that once the
Respondent stood acquitted/ discharged in judicial proceedings, whether,
thereafter, he can be subjected to departmental proceedings.
44. In this regard, suffice it to say that 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 is for the
Government to decide what action can be taken against the Government
servant for certain misconduct. Such a discretion in the Government does
not mean that the provision for the departmental inquiry on such charges of
misconduct is in violation of the provisions of Article 14.
45. The Government has the discretion in every case considering
the nature of the alleged misconduct and other circumstances whether a
criminal prosecution should be launched or not. The Government is free to
take departmental proceedings against the close of the criminal
proceedings, if instituted. Therefore, there is nothing illegal in the
Government instituting the departmental proceedings against the delinquent
official/ officer after the closure of criminal/ judicial proceedings. 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‘, reported as ‘1964
AIR 72′ and ‘Airports Authority of India v. Pradip Kumar Banerjee’
passed in Civil Appeal No(s). 8414 of 2017 dated February 4th, 2025.
46. Notwithstanding the above noted legal position, even
otherwise, the learned Magistrate, Boniyar, while passing the order of
discharge, specifically mentioned that on presentation of challan on 26th of
April, 2013, on noticing defective investigation, order for further
investigation under Section 173 (8) of Cr. P. C. was passed. However,
despite lapse of sufficient time, further investigation was not carried out,
therefore, the matter was taken up by the Magistrate without ensuring
LPA No. 197/2023
CM No. 5989/2023
Page 18 of 18
compliance of order of further investigation and, as a necessary corollary,
the accused was discharged. Therefore, the discharge of the Respondent-
accused was just on account of failure of the investigating officer to carry
out further investigation.
VII. RELIEF:
47. 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.
Consequently, the Writ Petition filed by the Respondent-Writ Petitioner is
dismissed. 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. 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.
48. Let Writ Record be dispatched with due diligence.
49. Letters Patent Appeal is, accordingly, disposed of on the
above terms, along with the connected CM(s).
(Shahzad Azeem) (Sindhu Sharma)
Judge Judge
SRINAGAR
August 20th, 2025
"TAHIR"
i. Whether the Judgment is approved for reporting? Yes.
Tahir Manzoor Bhat
I attest to the accuracy and
authenticity of this
document