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| HC turns down plea of ex-BOPEE Chairman challenging quashing of order withdrawal of pension | | | Early Times Report
JAMMU, Apr 30: Justice Sanjeev Kumar of Jammu & Kashmir and Ladakh High Court Srinagar Wing while dismissing a petition observed that the petitioner cannot claim that since appeal against his conviction is pending adjudication before the High Court, as such, he be not treated as a person convicted for the purposes of applying the provisions of Article 168 of J&K CSR.
The petition has been filed by Mushtaq Ahmed Peer Ex-BOPEE Chairman who was involved in MBBS scam and convicted by the Anticorruption Court Kashmir, the order of University of Kashmir (hereinafter "respondent-University") issued by its Assistant Registrar Administration bearing No.F.451.Pen.WH-Adm-TW/KU/18/5718 dated 28th August, 2018, whereby the monthly pension drawn by the petitioner has been withdrawn with immediate effect in terms of Article 168 of the J&K Civil Service Regulations.
Justice Kumar while passing the judgment observed that the plea of the petitioner that he was not provided a prior opportunity of being heard is not tenable in law. This is so because had the petitioner been given an opportunity of being heard, the position would not have changed. The petitioner could not have, by any stretch of reasoning, demonstrated before the respondent-University that the offences for which he has been convicted are not serious or do not constitute grave misconduct. Therefore, issuance of notice of hearing to the petitioner before passing of the order impugned, in the given facts and circumstances would have been a useless formality.
The judge observed that principles of natural justice supplement the enacted statute with necessary implications. Accordingly, the administrative authorities performing public functions are generally required to adopt fair procedure and in relation to variety of different circumstances. Ordinarily, when an administrative authority proposes to take action adverse to the interest of a person, it would adhere to the principles of natural justice and provide an opportunity of being heard to the person concerned irrespective of whether the statute governing such action specifically provides for such notice of hearing or not. As observed above, like many other legal provisions and principles, this rule is also not absolute and is subject to well defined exceptions.
Justice Kumar observed that in the instant case, the facts are not in dispute. The petitioner is a public servant and is convicted by a competent court of law for various offences and has been sentenced to undergo sentence of various descriptions and heavy fine. The offences under Prevention of Corruption Act constitute grave misconduct and are always treated as serious offences. No amount of opportunity of hearing granted to the petitioner could have changed this decision and the notice of hearing, if given, would have turned out to be a futile exercise. I am, therefore, of the considered view that failure of the respondents to provide an opportunity of being heard to the petitioner before passing the impugned order does not vitiate the impugned order in any manner.
Justice Kumar observed that in the case in hand neither conviction nor sentence awarded to the petitioner is stayed and, therefore, for the purposes of Rule 168 CSR, the petitioner is a convict and continues to be so till exonerated by the appellate Court by reversing the judgment of conviction. Consequently, the order impugned is upheld and the writ petition along with connected application is dismissed. |
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