A Division Bench of the Jammu & Kashmir High Court comprising Justice Sanjeev Kumar and Justice Sanjay Parihar held that disciplinary proceedings cannot be initiated against a government servant after retirement for alleged misconduct during service. The Court further clarified that recovery from pension is permissible only if a specific charge of financial loss to the government by fraud or negligence is both framed and proved while the employee is still in service.
The case concerned a petitioner who had joined the Jammu & Kashmir Police as a Sub-Inspector in 1990 and was later promoted to Inspector and placed in charge as Deputy Superintendent of Police. In 2015, it was discovered that he had been simultaneously serving as Joint Secretary of the Jammu & Kashmir Cricket Association (JKCA) and had received an honorarium for this role without obtaining prior permission as required under Rule 21(2) of the Jammu & Kashmir Government Employees (Conduct) Rules, 1971. A complaint was made alleging that his association with JKCA interfered with his official responsibilities.
The petitioner sought post-facto permission in 2016, but this was not granted. In 2018, departmental proceedings were recommended, and he eventually retired on 31 May 2021. After his retirement, the Home Department issued a memorandum initiating an inquiry under Rule 33 of the Jammu & Kashmir Civil Services (Conduct) Rules, 1956. A charge sheet was served, and following an inquiry, he was found guilty of violating conduct rules. Consequently, the Government ordered recovery of the honorarium he received from his pension. The Tribunal upheld the recovery but regularized his promotion, leading the petitioner to challenge the decision before the High Court.
The Court observed that once an employee retires, the competent authority loses jurisdiction to impose penalties under the Conduct Rules, rendering the proceedings initiated after retirement invalid. It also held that Article 168-A of the Jammu & Kashmir Civil Service Regulations, 1956, permits recovery from pension only when a charge of financial loss due to fraud or negligence has been specifically framed and proved during service. Since the petitioner faced only allegations of misconduct and no proof of financial loss was established, the recovery order was unsustainable.
Additionally, the Court noted that other officers who had engaged in similar conduct did not face comparable action, indicating discrimination. On these grounds, the High Court set aside the Tribunal’s order to the extent that it upheld recovery of the honorarium and allowed the petitioner’s writ petition.
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