HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

LPA No. 197/2023

CM No. 5989/2023

Reserved On: 7

th

of August, 2025

Pronounced On: 20

th

of August, 2025

1. Union Territory of J&K,

Through Commissioner/ Secretary to Government,

Power Development Department,

Civil Secretariat, Srinagar/ Jammu.

2. Managing Director,

J&K State Power Development Corporation (SPDC), Srinagar.

3. Chief Engineer,

EM & RE Wing, Kashmir, Srinagar.

4. Chief Engineer,

Generation Wing, Power Development Corporation (JKPDC),

Kashmir, Srinagar.

5. Executive Engineer,

General Division, Lower Jehlum Hydel Project (LJHP),

Gantamulla, Baramulla.

… Appellant(s)

Through: -

Mr Ilyas Nazir Laway, Government Advocate.

V/s

Aftab Ahmad Malik, Age: 60 Years

S/O Abdul Qayoom Malik

R/O Mohra, Uri, District Baramulla.

… Respondent(s)

Through: -

Mr N. H. Shah, Senior Advocate with

Ms Saima Ghulam, Advocate.

CORAM:

Hon’ble Ms Justice Sindhu Sharma, Judge

Hon’ble Mr Justice Shahzad Azeem, Judge

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(JUDGMENT)

Shahzad Azeem-J:

I. SUBJECT MATTER OF CHALLENGE:

01. This intra Court appeal is directed against the Order and

Judgment dated 16

th

of June, 2023 passed by the learned Single Judge of

this Court [“the Writ Court”] in SWP No. 1954/ 2017 titled ‘Aftab Ahmad

Malik v. State of J&K and Ors, (PDD)’, whereby the Writ Court has

allowed the Writ Petition filed by the Respondent herein and quashed the

impugned Order No. JKSPDC/86 of 2017 dated 22

nd

of February, 2017 qua

the Respondent and further the Appellants-Writ Respondents were directed

to release the retiral, along with all consequential, benefits in favour of the

Respondent-Writ Petitioner to which he is entitled to.

II. FACTS:

02. For better understanding of the controversy on hand, we deem

it expedient to take note of the relevant facts in brief:

03. At the relevant point of time, Respondent was entrusted with

the duty of Incharge Stores Officer, Lower Jehlum Hydel Project (LJHP),

along with two other employees of the Power Development Corporation. In

the Stores, under the charge of Respondent, theft of old copper bars alleged

to have taken place which were lying in the shed adjacent to the Power

House Building. Thereupon, the incidence was reported to the police of

Police Station, Boniyar. The concerned Police Station registered FIR No.

80/2012 on 3

rd

of November, 2012. The FIR was initially registered for the

commission of an offence punishable under Section 380 of the Ranbir Penal

Code (RPC), which was, however, later on altered to Section 409 of the

Ranbir Penal Code (RPC). Simultaneously, the Chief Engineer, Generation

Wing, JKPDC, vide office Order No. CEG/PDC/ADM/71 of 2012 dated 2

nd

of November, 2012, constituted a departmental Inquiry Committee to

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conduct inquiry in respect of theft of old copper bars said to have taken

place from the Store, near Power House. The Respondent, who was

incharge of the Stores, along with Mr Qazi Qamer-ud-Din (Technician-III)

and Mr Mohammad Akbar Dar (TPLA), were immediately placed under

suspension vide Order No. GD/LJHP/37 of 2012 dated 15

th

of November,

2012 read with Order No. GD/LPJH/33 of 2012 dated 3

rd

of November,

2012 respectively. It is also relevant to mention at this stage that the

Respondent, who was incharge of Stores, along with Mohammad Maqbool

Dar (Chowkidar), Nazir Ahmad Dar (Helper), Mashkoor Hussain Shah and

Gh. Mohammad Sheikh, both Station Attendants, were later placed under

suspension on 15

th

of November, 2012.

04. Insofar as the investigation into the matter was concerned, the

Station House Officer (SHO), Police Station, Boniyar summoned the record

of the case for examination, which was furnished by the Appellants. The

police authorities concerned, after initial investigation, informed the

Appellants, vide letter dated 19

th

of March, 2013, that the Helpers, namely,

Mohammad Maqbool Dar, Nazir Ahmad Dar, Mashkoor Ahmed Shah and

Station Attendant-Gh. Mohammad Sheikh were not involved in the theft

case. The matter was considered in the Review Committee and it was

unanimously decided that pending final outcome of the departmental

inquiry, the Watch and Ward officials shall be re-instated vide Order dated

11

th

of July, 2014.

05. The Inquiry 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.

06. The Police of Police Station, Boniyar presented a final report

in the case before the Court of learned Judicial Magistrate, 1

st

Class,

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Boniyar. The learned Judicial Magistrate, 1

st

Class, Boniyar, however,

discharged the Respondent along with other two co-accused in case FIR

No. 80/2012 under Section 409 of the Ranbir Penal Code (RPC) vide its

Judgment dated 4

th

of June, 2016 by holding that the material collected by

the Investigating Agency is not sufficient to connect the accused with the

commission of offence under Section 409 of RPC and, thus, the accused

were discharged.

07. The Managing Director, JKSPDC constituted time to time

inquiry committees and in this regard, last Committee came to be

constituted vide Order No. JKSPDC/69 dated 19

th

of February, 2017.

Subject to outcome of inquiry, the Respondent, along with Qazi Qamer-ud-

Din (Technician-III) and Mohammad Akbar Dar (Helper), were re-instated

vide Order No. PDC/86 dated 22

nd

of February, 2017. Meanwhile, the

Respondent stood retired from service on reaching the age of

superannuation w.e.f. 31

st

of July, 2017.

III. PROCEEDINGS BEFORE THE WRIT COURT:

08. Feeling aggrieved by Order No. JKSPDC/86 of 2017 dated

22

nd

of February, 2017, whereby the Respondent, along with other two

officials, were -reinstated, subject to outcome of inquiry to be conducted by

the Committee constituted vide Order dated 17

th

of February, 2017, the

Respondent filed the Writ Petition, being SWP No. 1954/2017. The

impugned Order dated 22

nd

of February, 2017 was called in question by the

Respondent, primarily, on the ground that since he has retired from service

on reaching the age of superannuation on 31

st

of July, 2017, as such, he

ceases to be the employee of the Department and no inquiry has been

conducted till date, therefore, after his retirement, he cannot be subjected to

any disciplinary proceedings.

09. Further ground urged by the Respondent in the Writ Petition

was that since he stood discharged by the competent Court of law,

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therefore, the departmental inquiry is not permissible and, thus, he is

entitled to all the service benefits which have been withheld by the

Department.

10. The Writ Petition was contested by the Appellants-Writ

Respondents on the ground that since embezzlement/ mis-appropriation of

huge amount involving the Respondent-Writ Petitioner and few others had

taken place, as such, the competent authority was well within its power to

hold an inquiry which, in fact, was going on from day-to-day basis. In

response to the contention of the Respondent-Writ Petitioner in the Writ

Petition that it was not permissible to subject him to any departmental

inquiry after his retirement from service on reaching the age of

superannuation, it was submitted by the Appellants-Writ Respondents in

their reply that simply because an employee had retired on superannuation

does not mean that he can go scot-free from facing the inquiry for alleged

misconduct.

11. The Writ Court, having considered the rival stand of the parties

and the material on record, came to the conclusion that in terms of Article

168-A read with Article 168-D of the J&K Civil Service Regulations, 1956

( for short “the Regulations of 1956”), it is not permissible to hold

departmental inquiry against the Respondent after he stood retired from

service on reaching the age of superannuation on 31

st

of July, 2017. 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, 1

st

Class, Boniyar vide Judgment dated 4

th

of June,

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.

12. On the basis of the aforesaid conclusion drawn, the Writ Court

allowed the Petition of the Respondent and quashed the Order impugned

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before it with a direction to the Appellants to release all the post-retiral

benefits in favour of the Respondent.

IV. THE CHALLENGE :

13. The Appellants have questioned the legal pregnability of the

impugned Judgment of the Writ Court, mainly, on the ground that when the

Respondent was in active service and was posted as Storekeeper, he, along

with other employees of the Department, were served with a charge sheet

dated 4

th

of March, 2013, however, in the meanwhile, during the currency

of inquiry, the Respondent retired from service on reaching the age of

superannuation, therefore, the provisional pension was sanctioned in his

favour as permissible under Article 168-D (1) of the Regulations of 1956.

14. The Appellants further contended that in terms of Article 168-

A of the Regulations of 1956, a disciplinary inquiry initiated while the

employee was in service, can be continued even after the retirement of the

said employee, as such, a retired employee is deemed to be in service and

on conclusion of the inquiry, penalty by way of recovery can be made from

the pension of the employee.

15. According to the Appellants, the disciplinary proceedings were

initiated against the Respondent for very serious allegations of misconduct

allegedly for causing substantial loss of more than Rs. 57.72 lacs in the

Stores due to his negligence and misconduct, therefore, if such a charge is

proved, the provisions of sub-section (6) of Section 4 of the Payment of

Gratuity Act, 1972 would be attracted and it would be within the discretion

of the Appellants to withhold the payment of gratuity due to the Respondent

during the pendency of the disciplinary proceedings, which is in

consonance with Article 168-D.

16. It is also contended that the Writ Court, vide Order dated 27

th

of September, 2017, has stayed the inquiry/ disciplinary proceedings in

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spite of the fact that charge sheet was served upon the Respondent and the

operation of the same continued till the passing of the Judgment by the Writ

Court, therefore, inquiry could not be taken to its logical end.

17. According to the Appellants, the Writ Court did not take into

consideration all the aforesaid facts and the rules governing the subject,

while passing the impugned Judgment, therefore, prayed for setting aside of

the impugned Judgment, in the interests of justice.

18. Per contra, Mr N. H. Shah, the learned Senior Counsel

appearing on behalf of the Respondent, vehemently argued that the

Appellants have constituted three committees to hold fact finding inquiry

and, in the meanwhile, the Respondent has retired from service on reaching

the age of superannuation, therefore, the Appellants, in law, cannot initiate

disciplinary proceedings after retirement of the Respondent.

19. It has also been canvassed at Bar by the learned Senior

Counsel that since at the time of the retirement of the Respondent, neither

judicial nor departmental proceedings were pending against him, inasmuch

as the Respondent was discharged in judicial proceedings, therefore, the

Writ Court, on sound legal principles, has shown indulgence by quashing

the impugned Order before the Writ Petition dated 22

nd

of February, 2017,

as such, no fault can be found with the Judgment under challenge. The

learned Senior Counsel, accordingly, prayed for dismissal of the appeal.

V. THE ISSUES:

20. After going through the impugned Judgment under challenge

and rival submissions made by the parties, the following issues crop up for

consideration:

i. Whether disciplinary inquiry with respect to an

employee, due to whose act(s) of omission and

commission while in active service losses were caused

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to the Government, can be initiated/ continued after his

retirement from service upon reaching the age on

superannuation; and

ii. Whether on acquittal/ discharge of an employee in the

criminal case, a departmental proceeding on the same

charges can be initiated.

VI. ANALYSIS:

21. To begin with, it is important to notice in brief the relevant

Rules and Regulations providing for a procedural framework for initiating,

conducting and concluding disciplinary proceedings against an employee

for misconduct, inefficiency or violation of conduct rules and, on proved

misconduct, infliction of minor or major penalties. In this regard, at first

instance, we deem it important to take note of the Jammu & Kashmir Civil

Services (Classification, Control and Appeal) Rules, 1956 [hereinafter

referred to as “the Rules of 1956”], which are the cornerstone of service

jurisprudence governing the conduct, discipline and administrative control

of Government employees.

22. Rule 30 of the Rules of 1956 enumerates penalties that may,

for good and sufficient reasons, be imposed upon a member of service. The

penalties, inter alia, include dismissal from service, removal from service

and reduction to a lower post, etc.

23. For the purposes of present discussion, we are concerned with

the words used in Rule 30 of the Rules of 1956 viz. “member of a service”.

Therefore, as many as eight penalties which can be imposed for good and

sufficient reason can only be imposed upon a member of a service and Rule

2 (e) of the Rules of 1956 defines a member of service to mean a person

holding or appointed to a whole-time pensionable post.

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24. There is no manner of doubt that with the retirement of an

employee from service, the relationship of employee and employer gets

severed and, thus, no departmental proceedings for imposing any penalty

for any misconduct can be instituted against such employee after his

superannuation. It is, thus, conspicuous that in terms of Rule 30 of the

Rules of 1956, it is not permissible to hold disciplinary proceedings against

the delinquent employee after he has retired from service on reaching the

age of superannuation.

25. However, there is no complete immunity to the delinquent

employee for alleged misconduct which, on being found in judicial or

departmental proceedings, has led to losses to the Government by

negligence or fraud of such delinquent employee during his service. Thus,

this is an exception to the general principle of service jurisprudence, as

discussed hereinbefore, which is contained in Article 168-A of the

Regulations of 1956 and same 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 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 concluded 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

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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.”

26. A plain reading of Article 168-A of the Regulations of 1956

clearly suggests that the Government is empowered to order the recovery

from the pension of a delinquent employee of any amount which represents

the losses caused to Government by negligence or fraudulent act of such

delinquent employee during his service. However, these proceedings would

be limited only to determine the amount to be recovered from the pension

of the Government employee on account of losses found to have been

caused to the Government by the negligent and fraudulent act of the

delinquent employee. There is, however, a rider to the exercise of this

power by the Government and the proviso is that where such departmental

proceedings are not initiated, while the employee was on duty, these

proceedings shall not be instituted, save with the sanction of the

Government. These proceedings shall be instituted before the retirement of

the delinquent employee from service or within a year from the date on

which he was last on duty or in respect of an event which has taken place

not more than one year before the date on which the delinquent employee

was last on duty, whichever is later.

27. It is, thus, evident 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 and fraud of

the delinquent employee or not instituted while the employee was in service

shall not be instituted, unless the conditions laid down in the proviso to

Article 168-A of the Regulations of 1956 are fulfilled.

28. Here, we take a pause for a moment and when have a

flashback of the findings recorded in the impugned Judgment of the Writ

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Court, in this regard, we find that the impugned Judgment of the Writ Court

proceeds, mainly, on the premise that the Respondent retired from service

on reaching the age of superannuation on 31

st

of July, 2017 and stood

discharged of the criminal charges vide Judgment dated 4

th

of June, 2016,

as such, as a matter of fact, on the date of his superannuation, no judicial or

departmental proceedings were pending against the Respondent. The Writ

Court further proceeded on the premise that under Article 168-A, the

departmental proceedings had to be instituted with the sanction of the

Government and before the employee’s retirement from service or within a

year from the date on which he was last on duty, whichever is later, and it

has to 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. The Writ Court also

went onto hold that the departmental inquiry in the case was ordered vide

impugned Order dated 22

nd

of February, 2017 by a Committee to be

constituted in terms of Order dated 17

th

of February, 2017, as such,

indisputably, such an inquiry was not a departmental inquiry as envisaged

under the Regulations of 1956, but, instead, is an inquiry regarding alleged

theft/ embezzlement, more so, in respect of an event which had taken place

in the year 2012, which per se is not in tune with the mandate of clause (iii)

of Article 168-A. The Writ Court also held that such an inquiry in terms of

impugned Order by the Appellants herein (Respondents before the Writ

Court) can also be said to be insignificant and inconsequential against the

Respondent herein (Petitioner before the Writ Court) in view of the fact that

the Respondent stands discharged/ acquitted of the criminal charge by the

competent Court in respect of allegations forming basis for holding of such

inquiry. For all these reasons, the Writ Court went onto quash the impugned

Order dated 22

nd

of February, 2017, by virtue of the impugned Judgement

under challenge before us.

29. It seems that the reasoning which weighed with the Writ Court

while reaching to the conclusion as arrived at in the impugned Judgment

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was that there was no disciplinary proceedings, as envisaged under Article

168-A of the Regulations of 1956, was pending against the Respondent,

while he retired from service on reaching the age of superannuation, and

further that, at the relevant point of time, no judicial proceedings were

pending against him since he stood discharged much before the attaining

the age of superannuation. Therefore, in law, the Respondent cannot be

subjected to any disciplinary proceedings nor such proceedings can be

continued against him.

30. To the contrary, the bone of contention of the Appellants is

that for the alleged losses caused to the Government by the negligent and

fraudulent act(s) of the Respondent during his service, the Respondent,

along with other delinquent employees, were served with a charge sheet on

4

th

of March, 2013, on the serious allegations of misconduct by dishonestly

causing shortage of stores by way of embezzlement in league and

conspiracy with other delinquent employees, thereby causing substantial

losses to the Government for more than Rs. 57.72 lacs.

31. However, it is important to note that no such finding, as

contended by the Appellants, regarding serving of charge sheet dated 4

th

of

March, 2013 in the wake of initiation of regular inquiry came to be

mentioned in the impugned Judgment of the Writ Court. Therefore, it had

become imperative to ascertain as to whether the plea raised by the

Appellants is an after-thought which has been taken for the first time in the

instant Letters Patent Appeal (LPA) or factual foundation thereof was also

laid before the Writ Court, but, for some reason, the Writ Court could not

take note of such vital fact in coming to a different conclusion, which

otherwise, in law, could not have been arrived.

32. Confronted with the above position, we have marshalled the

Writ Court record and on a meticulous perusal thereof, it is found that the

Appellants herein (Respondents before the Writ Court), in their Counter

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Affidavit which came to be filed in compliance to Order dated 9

th

of

September, 2022 passed by the Writ Court, very categorically and

specifically mentioned in paragraph Nos. 4 to 6 as follows:

“4. After receiving the enquiry report, the Articles of

charges against Sh. After Ahmad Malik, the then In-charge

stores/store office of Lower Jehlum Hydel Electric Project,

Baramulla were served upon the petitioner and other two

official, copy enclosed as Annex (R-I). The replies to the

charge sheet were received by the Chief Engineer and same

have been send to the Corporate office alongwith various other

documents.

5. On examination of such replies and documents, the

competent authority considered that involved employees are

jointly concerned in the disciplinary case and inquiry officer

should be appointed to hold common proceedings against these

erring officials. Sh. Ajaz Ahmad Sahaf Chief Engineer CI&D,

who was appointed as Inquiry Officer to inquire into the

charges framed against the said employees, but he could not

conclude the enquiry due to superannuation subsequently,

Chief Geologist was appointed as Enquiry Officer but he too

could not proceed further due to some personal reasons.

6. The petitioner and two other officials were charge

sheeted during service tenure and prior to their retirement. The

petitioner and other two officials were reinstated vide order No.

JKSPDC/86 of 2017 dated 22.02.2017 subject to outcome of

the enquiry constituted vide office order No. DC/69 of 2017

dated 17.02.2017. However, the Enquiry office could not have

scrutinized and examined the replies furnished by the erring

officials including the petitioner, for the reasons, the Hon’ble

High Court vide its order dated 19.07.2017 in SWP No.

1351/2017 had stayed for conducting if Enquiry by the

committee constituted vide order dated 22.02.2017, therefore,

the Enquiry remained inconclusive due to stay imposed by the

Hon’ble High Court in the above writ petition. Further,

suspension period was to be determined in terms of findings of

the Enquiry Committee, which could not be done by the

answering respondents due to stay imposed.”

33. At this stage, little correction of facts is required with regard to

the number and date of the Writ Petition as mentioned in paragraph No.6 of

the Counter Affidavit that the High Court vide its Order dated 19

th

of July,

2017 in SWP No. 1351/2017 had stayed the conducting of inquiry.

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However, to the contrary, perusal of Writ Court record shows that the

operation of the impugned Order before the Writ Court dated 22

nd

of

February, 2017 came to be stayed in the Writ Petition filed by the

Respondent bearing SWP No. 1954/2017 titled ‘Aftab Ahmad Malik v.

State of J&K and Ors.’ vide Order dated 27

th

of September, 2017,

therefore, same appears to be a typographical mistake as the interim Order

passed by the Writ Court on 27

th

of September, 2017 is itself part of the

Writ Court record.

34. It is equally important to place on record that the Respondent

herein (Petitioner before the Writ Court) has also filed his Rejoinder

Affidavit in response to the Counter Affidavit filed by the Appellants, but

he nowhere denied that the Respondent, along with other two delinquent

officials, have not been served with charge sheet while in active service,

precisely on 4

th

of March, 2013, as submitted by the Appellants in the

memo of appeal at paragraph No.7 (a). The Appellants have also placed on

record the ‘Articles of Charges’ and ‘Statement of Imputation’ in support of

each charge which stood served upon the Respondent vide memorandum

dated 4

th

of March, 2013, requiring the Respondent and other two

delinquent employees to submit their written defence within 21 days from

the date of issuance of the said memorandum.

35. Therefore, from the above discussion, it is deducible that much

before the retirement of the Respondent on reaching the age of

superannuation, i.e., on 4

th

of March, 2013, the Appellants have issued the

memorandum containing the ‘Articles of Charges’ and ‘Statement of

Imputation’ in support of each charge. Inquiry Officers were also

appointed, but meanwhile, the Respondent-Writ Petitioner got stay order, as

noted hereinbefore, therefore, the inquiry could not be concluded, as such,

the Respondent cannot be allowed to blow hot and cold in the same breath.

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36. In the context of Article 168-A of the Regulations of 1956, the

word “instituted” refers to the formal initiation or commencement of

judicial or departmental proceedings against a Government servant.

Specifically, it denotes the official act of starting an inquiry or legal process

to investigate alleged misconduct, negligence or fraud by an officer during

his service, which may lead to recovery of losses from his pension. The

term “instituted” in this context implies the formal commencement of the

disciplinary proceedings, which in the given facts and circumstances are

deemed to have “instituted” when a Statement of Charges is formally

served upon the Government servant (Respondent herein).

37. Therefore, to say that till the time the Respondent retired from

service on reaching the age of superannuation no inquiry was pending or

only fact finding inquiry was pending is factually incorrect and, thus,

confronted with this factual narration, it is established that the

memorandum containing the ‘Articles of Charges’ and ‘Statement of

Imputation’ dated March 04, 2013 was issued by the disciplinary authority

while the Respondent was on active duty and, therefore, the proviso to

Article 168-A of the Regulations of 1956 is not attracted.

38. Having said so, we are of the firm opinion that the Appellants

are well within their right to proceed with the departmental inquiry against

the Respondent, but this inquiry would only be limited to find out and

determine the amount of losses, if any, found to have been caused to the

Government by the negligent and fraudulent act(s) of the Respondent. The

departmental proceedings in question would not lead to any of the penalties

enumerated in Rule 30 of the Rules of 1956, as we have discussed

hereinbefore at length. This is the clear position emerging from careful

reading of the relevant provisions of the Regulations of 1956 as well as the

Rules of 1956, respectively.

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39. Once factual foundation has sufficiently been laid by the

Appellants regarding initiation of disciplinary proceedings by serving the

memorandum containing ‘Articles of Charges’ and ‘Statement of

Imputation’ upon the Respondent much before the attaining the age of

superannuation, in that event, to say that no judicial or departmental

proceedings were pending at the time of his retirement is not legally and

factually tenable, as has been held by the Writ Court vide the impugned

Judgment under scrutiny.

40. While testing the case on hand on the anvil of legal and factual

expositions as discussed hereinbefore, there left no scope for doubting the

clear legal position emerging from the Regulations of 1956 and the Rules of

1956 that, while the Rules of 1956, in particular Rule 30, clearly envisage

disciplinary proceedings for inflicting the enumerated minor and major

penalties upon ‘a member of service’, which expression, as held

hereinabove, would not include a retired employee of the Government,

however, at the same time, Article 168-A of the Regulations of 1956 does

permit the Government to conduct departmental proceedings to find out and

determine the amount of losses, if any, caused by a delinquent employee,

whether serving or retired, due to his acts of negligence or fraud, of course,

with few restrictions, as discussed hereinbefore.

41. We, however, reiterate that if such departmental proceedings

are continued against a retired Government employee, same shall be only to

find out and determine the amount on account of losses caused to the

Government by said employee due to his negligence or fraud and would

not, in any manner, be applied for imposing any of the punishments

enumerated in Rule 30 of the Rules of 1956.

42 Accordingly, issue No.(i) is answered in the above terms.

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43. This now takes us to the issue No. (ii) that once the

Respondent stood acquitted/ discharged in judicial proceedings, whether,

thereafter, he can be subjected to departmental proceedings.

44. In this regard, suffice it to say that there is nothing in the Rules

or the general law which would support this contention that once the

delinquent employee is acquitted or discharged in judicial proceedings, then

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. Such a discretion in the Government does

not mean that the provision for the departmental inquiry on such charges of

misconduct is in violation of the provisions of Article 14.

45. 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 against the close of the criminal

proceedings, if instituted. Therefore, there is nothing illegal in the

Government instituting the departmental proceedings against the delinquent

official/ officer after the closure of criminal/ judicial proceedings. We are

fortified in our view by the law laid down by Hon’ble Supreme Court in

cases titled ‘S. Pratap Singh v. The State of Punjab’, reported as ‘1964

AIR 72’ and ‘Airports Authority of India v. Pradip Kumar Banerjee’

passed in Civil Appeal No(s). 8414 of 2017 dated February 4

th

, 2025.

46. Notwithstanding the above noted legal position, even

otherwise, the learned Magistrate, Boniyar, while passing the order of

discharge, specifically mentioned that on presentation of challan on 26

th

of

April, 2013, on noticing defective investigation, order for further

investigation under Section 173 (8) of Cr. P. C. was passed. However,

despite lapse of sufficient time, further investigation was not carried out,

therefore, the matter was taken up by the Magistrate without ensuring

LPA No. 197/2023

CM No. 5989/2023

Page 18 of 18

compliance of order of further investigation and, as a necessary corollary,

the accused was discharged. Therefore, the discharge of the Respondent-

accused was just on account of failure of the investigating officer to carry

out further investigation.

VII. RELIEF:

47. For the foregoing reasons, we are of the considered opinion

that the impugned Judgment passed by the Writ Court is unsustainable in

the eyes of law. Accordingly, the appeal is allowed and the impugned

Judgment dated 16

th

of June, 2023 passed by the Writ Court is set aside.

Consequently, the Writ Petition filed by the Respondent-Writ Petitioner is

dismissed. We, however, make it clear that the Appellants may proceed

against the Respondent for the purposes of determining the amount on

account of losses, if any, caused to the Government by any negligent or

fraudulent acts of the Respondent, but would not proceed for the purposes

of imposing any of the penalties prescribed in the Rules of 1956. We also

make it clear that till the culmination of the said proceedings, the

Respondent shall be entitled to pensionary benefits as envisaged under

Article 168-D of the Regulations of 1956.

48. Let Writ Record be dispatched with due diligence.

49. Letters Patent Appeal is, accordingly, disposed of on the

above terms, along with the connected CM(s).

(Shahzad Azeem) (Sindhu Sharma)

Judge Judge

SRINAGAR

August 20

th

, 2025

“TAHIR”

i. Whether the Judgment is approved for reporting? Yes.