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| DB upholds removal of judge | | |
Early Times Report
SRINAGAR, June 28: A division bench of Jammu & Kashmir and Ladakh High Court comprising Chief Justice Pankaj Mithal and Justice Sanjeev Kumar upheld dismissal of judicial officer Javed Ahmed Naik, Munisff, who was placed under suspension in 2013, following a complaint against him of causing loss to the state exchequer by charging insufficient stamp duty.
The petitioner, who was serving as Munsiff Pulwama in Kashmir Division, was removed from the judicial service by the Governor of the then state of Jammu and Kashmir vide government order 3337-LD(A) of 2019 dated 23-7-2019 ['the impugned order']. The impugned order has been passed by the Governor on the recommendations of the Full Court that the petitioner, in view of his proven misconduct, was not worthy of retention in the judicial service.
Feeling aggrieved, the petitioner has invoked the extraordinary writ jurisdiction of this Court seeking quashing of the impugned order as also the enquiry report dated 6-7-2018 and a show cause notice issued by this court proposing penalty of removal of the petitioner from service vide Registrar General's communication No. 49220/GS dated 31.12.2018. The petitioner additionally seeks to assail the recommendations made by the full court to the Governor of then state of Jammu and Kashmir for imposition of penalty of his removal from the judicial service.
The petitioner also prays for a writ of mandamus to command the respondents to treat him in service with all consequential service benefits. The DB observed that it is abundantly clear that, in terms of Article 235 of Constitution of India which corresponds to Section 111 of the Constitution of Jammu and Kashmir, the control over the District Courts and the Courts subordinate thereto including the posting and promotion of, and the grant of leave to, the persons belonging to judicial service of the State and holding any posts inferior to the post of District Judges vests in the High Court.
The DB observed that in the instant case, there is no dispute that the enquiry report has been furnished to the petitioner though it was furnished after the full court had arrived at provisional conclusion in regard to imposition of major penalty upon the petitioner. The reply submitted by the petitioner to the show-cause notice is detailed one and elaborate. The petitioner has dealt with the merits of the enquiry report extensively and requested the High Court to drop the charges. In that view of the matter, it can hardly be said that the petitioner has been prejudiced, in any manner, by not supplying him the enquiry report prior to the competent authority arriving at provisional conclusion with regard to imposition of one of the three major penalties upon the petitioner.
The DB said that it has no doubt in mind that the High Court by providing a copy of the enquiry report to the petitioner along with show cause notice of proposed penalty envisaged under article 311 of Constitution of India read with Section 126 of Constitution of Jammu and Kashmir substantially complied with the principles of natural justice. It would be appropriate to clarify at this stage that Article 311 of Constitution as it was applicable to the State of Jammu and Kashmir at the time the impugned order was passed was in pari materia with section 126 of constitution of Jammu and Kashmir and envisaged a show cause notice of proposed penalty to be given to the delinquent before imposing any of the major penalties envisaged under Article 311 of the Constitution.
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