Justice Sindhu Sharma, Justice Shahzad Azeem, Jammu & Kashmir & Ladakh High Court
Acquittal In Criminal Case Does Not Bar Government From Initiating Departmental Proceedings Against A Delinquent Employee: Jammu & Kashmir And Ladakh High Court
|The Court held that the Government has the discretion to initiate or continue departmental proceedings against a delinquent employee even after acquittal or discharge in a criminal case, provided such action is taken in accordance with law.
The High Court of Jammu & Kashmir and Ladakh has ruled that the acquittal or discharge of a government employee in criminal proceedings does not bar the Government from instituting or continuing departmental proceedings on charges of misconduct arising from the same set of facts.
The ruling came in an appeal filed by the Union Territory of J&K and the J&K Power Development Department, challenging the decision of a Single Judge Bench which had quashed the departmental proceedings against a retired employee.
A Division Bench of Justice Sindhu Sharma and Justice Shahzad Azeem, while passing the order, observed: “There is nothing in the Rules or the general law which would support the contention that once the delinquent employee is acquitted or discharged in judicial proceedings, 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.”
Advocate Ilyas Nazir Laway (GA) represented the appellants, while N. H. Shah, Senior Advocate, appeared for the respondent.
Background
The respondent, an employee of the J&K State Power Development Corporation, was serving as In-charge Stores Officer at the Lower Jehlum Hydel Project when a theft of old copper bars was reported from the premises in 2012. Following this, an FIR was registered, and a departmental inquiry was initiated alongside the criminal investigation.
While the Inquiry Committee concluded that the case involved embezzlement rather than theft, the Judicial Magistrate discharged the respondent in 2016, holding that the evidence collected was insufficient to connect him with the alleged offence.
The respondent retired on superannuation in July 2017 and filed a writ petition challenging the continuation of departmental proceedings. He contended that the discharge order absolved him of any misconduct and argued that no inquiry could be pursued after his retirement. He also claimed that the pending proceedings were illegal and caused undue hardship, particularly when he had already been cleared in a criminal court.
The appellants, on the other hand, argued that a charge sheet had been issued as early as March 2013 while the respondent was still in service, making the inquiry valid. They further submitted that Article 168-A of the J&K Civil Service Regulations, 1956, permits recovery of financial losses caused by an employee’s negligence or misconduct even after retirement.
According to them, the departmental proceedings were not intended to impose penalties but to determine whether any financial loss had been caused to the Government, which could be recovered from the respondent’s pension.
Court’s Observations
The Court examined the scope of Article 168-A of the J&K Civil Service Regulations, 1956, which empowers the Government to recover losses caused by the negligence or misconduct of an employee from pensionary benefits. It clarified that while penalties under Rule 30 of the 1956 Rules cannot be imposed after retirement, proceedings to determine financial liability are permissible if initiated during service or within the prescribed timeframe.
The Bench rejected the respondent’s argument that his discharge barred the continuation of departmental proceedings. It was observed that there is nothing in the Rules or the general law preventing the Government from instituting or continuing an inquiry after the conclusion of criminal proceedings.
The Court clarified that the Government retains the discretion to initiate departmental proceedings based on the circumstances of each case, observing: “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 after the closure of the criminal proceedings, if instituted.”
The Bench further noted that the discharge order passed by the Magistrate was a result of investigative lapses and non-compliance with directions for further inquiry, and not a judicial finding of innocence. Therefore, acquittal or discharge could not automatically foreclose departmental proceedings.
To support its reasoning, the Court referred to the Supreme Court’s rulings in S. Pratap Singh v. The State of Punjab and Airports Authority of India v. Pradip Kumar Banerjee.
Conclusion
Allowing the appeal, the Division Bench set aside the Single Judge’s decision and restored the Government’s right to continue with the departmental inquiry. However, it clarified that such proceedings would be limited to determining the quantum of financial loss, if any, caused to the Government and would not result in penalties under Rule 30 of the 1956 Rules.
The Court also directed that until the inquiry concludes, the respondent will continue to receive pensionary benefits as per Article 168-D of the J&K Civil Service Regulations, 1956.
Cause Title: Union Territory Of J&K & Ors. v. Aftab Ahmad Malik
Appearances
Appellants: Ilyas Nazir Laway, Government Advocate
Respondent: N. H. Shah, Senior Advocate, with Saima Ghulam, Advocate