HC dismisses plea challenging quashment of order regarding withdrawal of pension of former Chairman BOPEE

STATE TIMES NEWS

JAMMU: In a petition filed by one Mushtaq Ahmed Peer, ex-BOPEE Chairman who was involved in MBBS scam and convicted by Anticorruption Court Kashmir, the order of University of Kashmir (hereinafter ‘respondent-University’) issued by its Assistant Registrar Administration bearing No.F.451.Pen.WH-Adm-TW/KU/18/5718 dated 28th August, 2018, whereby the monthly pension drawn by petitioner has been withdrawn with immediate effect in terms of Article 168 of J&K Civil Service Regulations, Justice Sanjeev Kumar of Jammu & Kashmir and Ladakh High Court Srinagar Wing, while dismissing the petition, observed that the petitioner cannot claim that since appeal against his conviction is pending adjudication before the High Court, as such, he be not treated as a person convicted for purposes of applying the provisions of Article 168 of J&K CSR.
Justice Sanjeev Kumar, while issuing the judgment, observed that plea of the petitioner that he was not provided a prior opportunity of being heard is not tenable in law. This is so because had the petitioner been given an opportunity of being heard, the position would not have changed. “The petitioner could not have, by any stretch of reasoning, demonstrated before the respondent-University that the offences for which he has been convicted are not serious or do not constitute grave misconduct. Therefore, issuance of notice of hearing to the petitioner before passing of the order impugned, in the given facts and circumstances would have been a useless formality. The legal position in this regard is well settled. The Supreme in the case of Dharmpal Satyapal Limited v. Dy. Commissioner of Central Excise, Guwahati, has held that principles of natural justice in particular principle of audi alteram partem is not a straightjacket rule having universal application. There may be situations where it is felt that a fair hearing would make no difference—meaning that hearing would not change the ultimate conclusion reached by decision maker. In such situations fair procedure appear to serve no purpose since the right can be secured without according such treatment to the individual. The validity of any such order passed without hearing is to be adjudged on the touchstone of prejudice. It is, thus, trite law that principles of natural justice supplement the enacted statute with necessary implications. Accordingly, the administrative authorities performing public functions are generally required to adopt fair procedure and in relation to variety of different circumstances. Ordinarily, when an administrative authority proposes to take action adverse to the interest of a person, it would adhere to the principles of natural justice and provide an opportunity of being heard to the person concerned irrespective of whether the statute governing such action specifically provides for such notice of hearing or not. As observed above, like many other legal provisions and principles, this rule is also not absolute and is subject to well defined exceptions. Useless formality theory is one such exception but must not be readily resorted to in all cases. It is only where an exceptional case is made out for its exercise, this theory can be resorted to, to uphold the action even if it is taken without affording an opportunity of being heard to the person affected by such action,” the Court observed.
Justice Sanjeev Kumar further observed that in instant case, the facts are not in dispute. The petitioner is a public servant and is convicted by a competent Court of law for various offences and has been sentenced to undergo sentence of various descriptions and heavy fine. The offences under Prevention of Corruption Act constitute grave misconduct and are always treated as serious offences. No amount of opportunity of hearing granted to the petitioner could have changed this decision and the notice of hearing, if given, would have turned out to be a futile exercise. I am, therefore, of the considered view that failure of the respondents to provide an opportunity of being heard to the petitioner before passing the impugned order does not vitiate the impugned order in any manner.
Justice Sanjeev Kumar further observed that in the case in hand neither conviction nor sentence awarded to the petitioner is stayed and, therefore, for the purposes of Rule 168 CSR, the petitioner is a convict and continues to be so till exonerated by the appellate Court by reversing the judgment of conviction. “Rule 168 CSR shall, therefore, operate and there is, thus, no illegality or infirmity in the impugned order. Consequently, the order impugned is upheld and the writ petition along with connected application is dismissed,” the Court directed.