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| HC quashes dismissal of Judicial officer | | |
EARLY TIMES REPORT
Jammu, June 02- In a landmark judgment, the Jammu and Kashmir High Court, today quashed the order of removal from service of V K Atri, the then Chief Judicial Magistrate, Leh and held the petitioner entitled to reinstatement with all consequential benefits, minus the monetary benefits after the period of his over stay of leave with effect from February 18, 1994 to March 3, 1994 is settled by the competent authority.
While quashing the order of removal of service of then CJM, Justice Nirmal Singh observed that Court is of the opinion that the competent authority while passing the order impugned in the case of the petitioner should have taken into consideration the finding of the enquiry officer whereby he has observed that the act of then District and Sessions Judge Leh is worse than that of the petitioner and should have imposed a punishment commensurate with the act committed by the petitioner regarding overstay of the leave. During his posting as Chief Judicial Magistrate Leh, some complaints were received against V K Atri and an enquiry came to be conducted by the Vigilance Commissioner (Judicial) without the association of the petitioner. Report in this regard came to be submitted by the Vigilance Commissioner to the High Court. On the basis of report a departmental enquiry was contemplated against the petitioner. Pending departmental enquiry, the petitioner was placed under suspension on July 28, 1994; a charge sheet was framed and served upon the petitioner on October 29, 1994 along with the allegations. Reply to the charge was filed by the petitioner on December 22, 1994. In April, 1995 after considering the said reply the Full Court took the decision to appoint Justice VK Gupta (presently Chief Justice of Uttarakhand) as Enquiry Officer to hold enquiry against then CJM Leh. The Enquiry Officer recorded the evidence of the parties but on transfer of Justice VK Gupta, the Full Court appointed Justice Bilal Nazki (Presently Bombay High Court) as the enquiry Officer. On completion of the enquiry report, the Full Court after considering the report of the Enquiry Officer was of the view that the petitioner is not a fit person to be retained in service and that a major penalty of removal from service should be imposed upon him. After considering the said reply the Full Court made a recommendation to the state for imposing the penalty of removal from service on the petitioner under J&K Civil Service (Classification Control and Appeal) Rules 1956. Having accepted the said recommendation the order impugned dated August 29, 2000 came to be passed against the petitioner removing him from service with immediate effect. The petitioner challenged the said order in the present petition.
In the approved for reporting judgment Justice Singh, after hearing Advocate KK Pangotra and Advocate SK Raina appearing for the petitioner and Advocate HS Siddiqui appearing for the respondents, observed that the charge number one was held to be not proved against the petitioner by the enquiry authority but the disciplinary authority disagreed with the finding of the enquiry officer. The evidence given by the Gopal Singh, Surinder Singh and Head Constable Kirshan Kumar rather casts a doubt regarding involvement of then District and Sessions Judge Leh into the whole matter and also the speaks of malafide intention on his part to instigate Gopal Singh and Surinder Sing to make a false statement against the petitioner (then CJM Leh). The whole approach on the part of then District & Sessions Judge leads to nothing but to only conclusion that the petitioner has rightly attributed malafide on the part of his immediate controlling officer District & Sessions Judge, which malafide stands proved on the basis of record. In this regard, it would be relevant to mention that then District and Sessions Judge, wrote a letter to the petitioner when the petitioner was at Jammu. The malafide on the part of then District & Sessions Judge Leh is also apparent from the perusal of the finding of the enquiry officer that the enquiry officer also suggests that an enquiry be initiated against then District & Sessions Judge Leh at the relevant time. He has written a letter to Atri when he was at Jammu and asked him to take cognizance in a complaint at Jammu and he has also asked him to show that the complaint is entertained on a date when Atri was at Leh. If this is the conduct of a senior Judicial Officer, who is the Principal Judge of District, then God alone can save this institution. Since the then Principal District & Sessions Judge Leh has admitted having written letter to Atri, the Enquiry Officer observed that he thinks that then District & Sessions Judge is worse than Atri, therefore, it is recommended to the full Court to order enquiry into the conduct of then District & Sessions Judge.
Justice Singh further observed that a perusal of the statements show that the petitioner had in fact informed his controlling officer that he is leaving the station. The said aspect of the matter however, has also not been taken into the consideration of the enquiry officer and so far as period relating to February 18, 1994 to March 3, 1994 is concerned regarding which the charge against the petitioner is that he did not apply for the leave, the specific stand taken by the petitioner is that after availing leave up to February 17, 1994, he joined his duty on February 18, 1994 and attended the Court work also. It is however not borne out from the record that the petitioner after availing earned leave from January 18, 1994 to February 17, 1994 joined his duty on February 18, 1994. The period of absence from February 18, 1994 to March 3, 1994 has been attributed to the petitioner as a period of unauthorized absence. At this stage, it would be apt to notice the dictionary meaning of word unauthorized has been defined as without official permission. Therefore it cannot be said that the petitioner remained on unauthorized absence. He in fact has left the station with the permission from the immediate controlling authority from his statement. The said permission can be writing or verbal but this permission should be from the controlling authority. Court is of the opinion that the punishment of removal from service due to non-submitting of application for extension of leave for the above period would be a punishment not commensurate with the said act on the part of the petitioner. As already noticed the enquiry officer has observed in his finding that the act and conduct of immediate controlling officer of the petitioner, then District & Sessions Judge Leh has been worse than the act of the petitioner. The enquiry officer recommended an enquiry to be initiated against then District & Sessions Judge which enquiry was conducted by the High Court and punishment of withholding of promotion for a period of five years was imposed. JNF |
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