SHIV CHARAN SHARMA Vs. COMMISSIONER, GEOLOGY AND MINING DEPARTMENT, SRINAGAR

JUDGEMENT

(1.) THE petitioner, who was serving as Assistant Driller Grade I (also known by the designation of Drilling Assistant( was rendering help to the concerned officer dealing with Petrol, Oil, and Lubricants) (for short called P - O. L) in the Directorate of Geology & Mining. It, is alleged that on enquiry, the petitioner was held guilty of having pilfereed P. O. L. from the Departmental stock, in consequence where of the petitioners services were terminated by order No. DGM/PA/39 40/76 dated April 19, 1976 and a further penalty was imposed on him of the realisation of an amount of Rs. 3.800/ - as cost of" P.O.L. Lost". Subsequent to the said order the respondents started recovery as arrears of land revenue of the said amount against the petitioner by endorsing a requisition for recovery to Deputy Commissioner, Jammu. The petitioner is aggrieved by the said order of recovery and has challenged the said action as illegal and ultra vires the powers of the respondents by this writ petition.

(2.) AFTER a very long time on Februray 27,1987 learned Additional Advoate General filed the reply to the writ petition without filing the counter, as such it shall be deemed that no counter has been filed because that simple reply cannot be termed as such. The petition was, therefore, heard finally.

(3.) THE short question, which arises for determination in the instant case pertains to the right of the respondents to recover the said mount of Rs. 3,800/ - as arrears of land revenue under the provisions of Section 90 of the Land Revenue Act. As pointed out, the facts are not controverted by the counter affidavit. Learned counsel for the respondents on the face of the order impugned, by which the services of the petitioner were terminated by order dated April 19, 1976, also does not disputes that it imposes a penalty of recovery of amount of loss caused to the Government to the tune of Rs.3,800/ -which falls within the definition of penalty as prescribed by clause (v) of Rule 30 of the J&K Civil Services (Classification, Control & Appeal) Rules 1956 (hereinafter called the rules). Thus it is clear that by the same order, double penalty has been imposed on the petitioner, i e. the termination of the services and the realisation of the loss caused to the Govt. The petitioner has not challenged in this petition the termination of his services, he has, however, challenged only to this part of the order, which pertains to the recovery of the said amount. Learned counsel for the respondents was unable to point out that such an amount, which is declared as recoverable as one of the punishments under Clause (v) of Rule 30 of the Rules is cove red by the definition of sums due under section 90 of the Land -Revenue Act. similarly the requisition issued by the Commissioner, Geology and Mining to Deputy Commissioner, Jammu for the recovery of the said amount from the petitioner issued on June 18, 1976 does not show that the procedure prescribed for the determination of the amount due was ever adopted by the concerned Department and said requisition can in any manner be termed as the Certificate of recovery. It also appears that the amount was also determined without affording an opportunity of being heard to the petitioner, which is violative of the principles of natural justice as well