HC Picks Holes In Govt’s Rationale In Declaring Account’s Officer Deadwood

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Srinagar—The Jammu and Kashmir High Court picked holes in government’s action against Chief Accounts Officer in Directorate of School Education Kashmir, who was one among 63 “deadwood” officials sacked in 2015 by ruling PDP-BJP government. 

The CAO, Mushtaq Ahmad Baba, was ordered to prematurely retire from service with effect from the forenoon of the 1 July 2015.

“Merely that a case or cases have been registered against (Baba) by the Vigilance Organization cannot form the basis of retiring him prematurely,” a bench of Justice M K Hanjura said and quashed government’s order prematurely retiring the CAO. The court directed the government to reinstate him and to grant him all consequential benefits, within a period of one month.   

Baba had alleged that he was declared deadwood and prematurely ordered to retire for opposing hiring of a private vehicle by then Joint Director in the Directorate of School Education, an IAS officer of 2012 batch. Baba said that the Joint Director approached the Government under the plea that “I was creating hurdles in his functioning in the office.”

“He was very close to the then Education Minister and it was at his behest that the State Government issued the order,” he said.  

The bottomline of the order of compulsory retirement of Baba, the court observed was “his conduct and the registration of two FIRs against him, in which, it is stated, that the investigation has commenced or concluded, but the chargesheets have not been laid before the Court.”

“Whether the compulsory retirement of (Baba) could have been directed under the facts and circumstances of the case is the moot question that requires to be determined in this petition?” the court observed and eventually answered the query in negative.      

“Resort to the practice which has been followed by the State in directing the compulsory retirement of (Baba) will have serious ramifications in some cases. It will lead to consequences which can be disastrous for the smooth functioning of the official machinery,” the court said.

 To illustrate this, the court said, it must need to be said that most of the employees have to deal with the cases of the public at large and the employees cannot practically keep every ‘Tom, Dick and Harry’ in good humour. 

“That being so, if this ‘Sword of Damocles’ is kept hanging high on the heads of the employees, any Tom, Dick and Harry, can lodge a complaint against the public servant before the Vigilance Organization which, ultimately, will pave way to show him the exit,” the court said. Not only this, the court said, such a practice cuts at the very root of the basic tenets and the elements of the age old adage and axiom of law that a person accused of an offence is presumed to be innocent unless and until his guilt has been proved. 

“The State has applied this principle in the reverse, perhaps, labouring under the belief that the maxim of law is that every person is presumed to be guilty unless and until he proves his innocence, and to accept this principle in the reverse order will be carrying a load of crap and rubbish,” the court said and underlining that it was only on the culmination of the trial that if the charges are proved against the accused and, as a consequence thereto, he is convicted and sentenced, that such an opinion can be framed. 

“The whole exercise has been conducted on the basis of the involvement of (Baba) in two criminal cases about which an explanation appears to have been given by him in his rejoinder affidavit, which, however, may not be relevant to determine at the moment.”

The court said that if the contention, as propounded by the State, that the involvement of Baba came into limelight in two cases and, therefore, he was shown the door is accepted, the meaning that will flow from it is that a presumption will be drawn against each public servant facing the changes of corruption that in the ultimate analysis, he will be convicted in the offence(s) levelled against him, as a corollary to which, he will lose his service. 

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