Serial No. 8 Regular Cause list IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR LPA No. 38/2023 CM No. 902/2023 C/w LPA No. 197/2023 CM No. 5988/2023 UT of J&K and Ors. ….. Appellant/petitioner(s) Through: - Mr. Ilyas Nazir Laway, GA with Mr. Mohammad Younis, AC V/s Qazi Qamer U Din ….. Respondent(s) Through: - Mr. N. H. Shah, Sr. Advocate with Ms. Saima Ghulam, Advocate CORAM: HON’BLE MR JUSTICE SANJEEV KUMAR, JUDGE HON’BLE MR JUSTICE SANJAY PARIHAR, JUDGE (ORDER) 19.05.2025 (Oral) 01. Impugned in this intra Court appeal is an order and Judgment dated 06.05.2022, passed by the learned Single Judge of this Court [“the writ Court”] in SWP No. 1351/2017 titled Qazi Qamer-u-Din Vs. State of J&K and Ors., whereby, the writ Court has allowed the writ petition of the respondent and quashed an order bearing No. JKSPDC/86 of 2017 dated 22.02.2017. The writ Court has also directed the appellants herein, to release the retiral benefits in favour of the respondent herein. Before alluding to the grounds of challenge urged by Mr. Ilyas Nazir Laway, learned GA in support of the appeal, we deem it necessary to set out few facts, which are material to the disposal of this appeal. Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document 02. The respondent was working as Technician-III (Store Assistant) in the office of Executive Engineer, Generation Division, Lower Jehlum Hydel Project (LJHP), Gantamulla Baramulla. In the Store under the charge of respondent, alleged theft of old copper bars took place which was, at the relevant point of time, stored in the Shed adjacent to the Power House Building. The matter was reported to the Police of Police Station, Boniyar. The concerned Police Station registered FIR No. 80/2012 on 03.11.2012. The FIR was initially registered for commission of offence punishable under Section 380 RPC, which was, however, later on changed to Section 409 RPC. Simultaneously with the registration of FIR, the Chief Engineer, Generation Wing, JKPDC, Kashmir vide office Order No. CEG/PDC/ADM/71 of 2012 dated 02.11.2012, constituted a Departmental Enquiry Committee to conduct enquiry with regard to theft of old copper bars from the Store/Shed, near Power House. The respondent, who was incharge of Stores along with one Mr. Aftab Ahmed Malik, were immediately placed under suspension vide Order No. GD/LJHP/33 of 2012 dated 03.11.2012. Mr. Mohammad Maqbool Dar, Chowkidar, Mr. Nazir Ahmed Dar, Helper, Mr. Mashkoor Hussain Shah and Mr. Gh. Mohammad Sheikh, Station Attendants were later placed under suspension on 15.11.2012. So far as the investigation was concerned, the SHO, Police Station, Boniyar summoned the record of the case for examination, which was furnished by the appellants. The Police after initial investigation informed the appellants vide letter dated 19.03.2013, that the Helpers namely Mohammad Maqbool Dar, Nazir Ahmed Dar, Mashkoor Ahmed Shah and Station Attendant Mr. Gh. Mohammad Sheikh, were not involved in the theft case. The matter was considered in the Review Committee and it Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document was unanimously decided that pending final outcome of the departmental enquiry, the Watch and Ward officials shall be re-instated. Accordingly, the aforesaid four persons were re-instated vide order dated 11.07.2014. The Enquiry 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. While the fact finding proceedings in the department were going on, the Police of Police Station, Boniyar, presented a final report in the case before the learned Judicial Magistrate, 1st Class, Boniyar. The learned Judicial Magistrate 1st Class, Boniyar, however, discharged the respondent in case FIR No. 80/2012 under Section 409 RPC. 03. With a view to ascertaining the real truth behind misappropriation and embezzlement of Government Property, the Managing Director, JKSPDC, constituted another committee vide Order No. JKSPDC/69 dated 17.02.2017. Pending report of the committee, constituted by the Managing Director, the respondent along with Mr. Aftab Ahmad Malik and Mr. Mohammad Akbar Dar, (Helper), were re-instated vide order No. PDC/86 dated 22.02.2017, subject to outcome of enquiry. The enquiry was initiated under the directions of Managing Director, JKSPDC on 17.02.2017 and by that time, the respondent stood retired on superannuation, w.e.f. 31.10.2016. 04. Feeling aggrieved by the order bearing No. JKSPDC/86 of 2017 dated 22.02.2017 whereby, the respondent along with two other officials were re- instated subject to outcome of enquiry to be conducted by the committee, constituted vide order dated 17.02.2017, the respondent filed SWP No. Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document 1351/2017. The impugned order of 22.02.2017, was called in question by the respondent primarily on the ground that in view of his discharge by the Court of learned Judicial Magistrate, 1st Class, Boniyar in case FIR No. 80/2012, the impugned order directing initiation of enquiry against the respondent could not have been passed. The writ petition was essentially premised on the ground that with the discharge of the respondent in case FIR No. 80/2012, which was essentially with regard to misappropriation of Government property (copper bars), the departmental enquiry against the respondent for self-same charge was not permissible. It was also pleaded by the respondent that he having retired on superannuation, w.e.f. 31.10.2016, could not have been subjected to departmental enquiry. 05. The writ petition was contested by the appellants herein, and in the reply affidavit filed by the appellants it is stated that since embezzlement/ misappropriation of huge amount involving the respondent and few others had taken place, as such, the competent authority was well within its powers to constitute an Enquiry Committee to unveil the truth. It was thus submitted by the appellants that in the enquiry that has been ordered by the competent authority, the respondent shall have ample opportunity to put forth his defence. In response to the contention of the respondent in the writ petition that it was not permissible to subject the respondent to any departmental enquiry after superannuation, it was submitted by the appellants in reply that simply because an employee has retired on superannuation does not mean that he can get away with the embezzlement charge and escape from facing the consequences of his misconduct. Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document 06. The writ Court, having considered the rival stand of the parties and gone through the material on record, came to the conclusion that in terms of Article 168-A read with Article 168-D, it was not permissible to hold a departmental enquiry against the respondent after he stood retired on superannuation, w.e.f. 31.10.2016. 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 04.06.2016. 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. On the basis of aforesaid conclusions drawn, the writ Court allowed the petition of the respondent and quashed the order impugned before it with the direction to the appellants to release all the post retiral benefits in favour of the respondent. 07. Having heard learned counsel for the parties and perused the material on record. We are of the considered opinion that following two questions arise for determination in this appeal:- 1. Whether in view of provisions of Article 168-A CSR, an employee, who has retired on superannuation, can be subjected to departmental proceedings in respect of any loss caused to the Government either by the negligence or by fraud of such an employee during his service? Connected with it is an allied question: when can the departmental proceedings in terms of Article 168-A, be said to have been instituted against such employee. Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document 2. Whether in the face of discharge of an employee in the criminal case, departmental proceedings in respect of self-same charge can be instituted by the disciplinary authority. 08. So far as the question No. 1 is concerned, answer is not for to seek. With the retirement of an employee from service, the relationship of employer and employee gets severed and no departmental proceedings for imposing any penalty for any misconduct can be instituted against such employee after his superannuation. There is, however, exception to this general principle of service jurisprudence and that is contained in Regulation in Article 168-A of J&KCSR, 1956 [hereinafter “the Regulation of 1956”]. Article 168-A 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 latter; (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; and (iv) Shall be conducted 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 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.” 09. The plain reading of Regulation 168-A, clearly suggests that the Government is empowered to order the recovery from pension of an officer Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document of any amount, which represents the losses caused to Government by the negligence or fraudulent act of such officer during his service. This loss caused to the Government on account of negligence or fraud is required to be established either in judicial or departmental proceedings, such recovery is, however, subject to the following conditions (i) such departmental proceedings, if not instituted while the officer was on duty, shall not be instituted save with the sanction of the Government; (ii) shall be instituted before the retirement of such officer 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; and (iv) shall be conducted by such authority and in such places as the Government may direct. Article 168-A further provides that all such departmental proceedings leading to recovery from pension shall be conducted, if the officer concerned so requests, in accordance with the procedure applicable to the departmental proceedings on which an order of dismissal from service may be made. 10. It is, thus, abundantly clear that in terms of Rule 30 of J&K Civil Services (Classification, Control and Appeal) Rules, 1956, it is not permissible to hold disciplinary proceedings against the delinquent employee after he has retired on superannuation and this would be the position even if the disciplinary proceedings are initiated while such delinquent employee is in service. However, as provided in Article 168-A, nothing prevents the Government to hold departmental proceedings into the conduct of the officer/official, which has resulted into a financial loss to the Government. These proceedings, however, would be limited only to determination of negligence and fraud of the delinquent employee and the Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document amount to be recovered from the pension of such employee on account of losses found to have been caused to the Government by the negligence or fraudulent act of the delinquent officer. There is, of course, a caveat to the exercise of this power by the Government and the caveat is that if the departmental proceedings are not initiated against the officer while he was on duty, these proceedings shall not be instituted after his retirement without sanction of the Government. These proceedings could 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 or in respect of an event which has taken place not more than one year before the date on which the officer was last on duty. It is, thus, axiomatic 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 or fraud of delinquent officer/official while he was in service, such proceedings shall not be instituted unless the conditions laid down in the proviso to Regulation 168-A are fulfilled. 11. In the instant case, the respondent retired on superannuation on 31.10.2016 and as is rightly observed by the writ Court that no judicial or departmental proceedings against him were pending. There were two Fact Finding Enquiry Committees, constituted by the appellants, but the proceedings had not even culminated into submission of a final report to the competent authority. It was only after the retirement of the respondent, the Managing Director, JKSPDC vide order No. JKSPDC/69 of 2017 dated 17.02.2017, constituted a four-member committee headed by the Superintending Engineer, Generation Circle-II, Srinagar to conduct a fresh enquiry regarding the theft/embezzlement of copper bars stolen from a Shed near LJHP, Power Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document House. The committee was to conduct an enquiry to fix the responsibility upon the officers/officials on account of whose lapse the financial loss to JKSPDC had occasioned. The enquiry was not strictly speaking, initiated against the respondent and by its nature was a third Fact Finding Enquiry. It was thus only after submission of report by this committee, the competent authority could have formulated its opinion to proceed against the respondent and others if indicted by the Enquiry Committee for recovery of the losses. In the enquiry to be instituted by the competent authority, the delinquent employee was entitled to make a request to conduct the departmental proceedings in accordance with the procedure applicable to the departmental proceedings, in which the order of dismissal from service may be made. 12. From the aforesaid discussion, it is crystal clear that the departmental proceedings in terms of Article 168-A against an employee after his retirement can only be conducted by an authority as may be appointed by the Government. 13. Viewed from any angle, in the instant case, the departmental enquiry as envisaged under Article 168-A was yet to be instituted. We are aware that in view of interim directions passed by the writ Court on 19.07.2017, the order impugned in the writ petition dated 22.02.2017 to the extent of conduct of enquiry was stayed. However, having regard to the facts and circumstances of the case and the fact that even the fact-finding report by the Committee constituted by the Managing Director, JKSPDC vide order dated 17.02.2017, was not available till 19.07.2017, we can safely say that it was not possible for the Government to take a decision and institute departmental proceedings in terms of Article 168-A, CSR within a period of one year from the date of retirement of the respondent. As held above, the departmental proceedings in terms of Article 168-A shall be deemed to have been instituted only when the Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document Government appoints an authority and decides the place for conduct of such proceedings. 14. In view of our answer to question No. 1, given hereinabove, there is hardly any necessity to advert to the question No. 2, as the same has been rendered only academic in nature. 15. Viewed from any angle, the impugned Judgment passed by the writ Court cannot be found fault with. 16. For the foregoing reasons and also for the reasons given above, we do not find any merit in this appeal and the same is, accordingly, dismissed along with all connected CM(s). CM No. 5988/2023 in LPA No. 197/2023 The application for the reasons stated therein is allowed and delay in filing the appeal is condoned. LPA No. 197/2023 Admit. Notice, waived by Mr. N. H. Shah, learned Senior Advocate on behalf of respondent. Registry to segregate the instant appeal from LPA No. 38/2023 and list the same separately for consideration on 28.05.2025. Registry shall also place copy of this order on each of the file. (SANJAY PARIHAR) (SANJEEV KUMAR) JUDGE JUDGE SRINAGAR 19.05.2025 “Mohammad Yasin Dar” Whether the ORDER is reportable: Yes/No Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document