NISAR AHMAD BHAT Vs. UT OF J&K

JUDGEMENT

(1.) Challenge in this petition, preferred under Sec. 482 of the Code of Criminal Procedure, is thrown to FIR No.23/2020, registered at Anti Corruption Bureau, Kashmir, Srinagar (for brevity "ACB") on 17/11/2020, under Ss. 5(1)(c), 5(1)(d) read with Sec. 5(2) of Jammu and Kashmir Prevention of Corruption Act, 2006, and Ss. 467, 468, 471 and 120-B RPC.

(2.) The case set up by petitioner is that he has retired on attaining the age of superannuation as In charge Chief Engineer, PWD(R&B), on 30/6/2018 and at that time, neither there had been any criminal case registered or under investigation against him, nor had there been any departmental enquiry contemplated or pending against him. It is stated that in the year 1998, while petitioner was posted as Assistant Executive Engineer, PWD(R&B), Budgam, the Telecom Department intended to lay cables along the Humhama-Budgam and Budgam-Yechgam general roads, for which it had to dig the berms of the roads. The Telecom Department, in terms of the Rules, was asked to deposit restoration charges of the roads to the tune of Rs.1,44,500.00 before undertaking the work, which the Department did. After cables were laid by Telecom Department, given the fact that these were general roads, with a view to ensuring safety of commuters and to avoid any vehicular accident/mishap and, thereby, avert human loss, they needed immediate repairs and restoration and, therefore, PWD (R&B) Division, Budgam, got restoration works done through contractors on emergency basis. It is averred that about a year or so thereafter, ACB, on some complaint, initiated a Preliminary Enquiry under PE No.C-02/2000 into these works done by the R&B Division Budgam. Since on enquiry by ACB, no case was found made out, the matter was closed way back in 2003. It was, however, submitted that it was left open to R&B Department to initiate departmental enquiry as regards irregularities against concerned officers/officials. It is maintained that no enquiry was initiated against petitioner or, for that matter, against any officer or official and petitioner was promoted from time to time and he rose through ranks and was posted and working as In charge Chief Engineer at the time of retirement.

(3.) It is also the case of petitioner that after retirement, he was required to full fill certain prerequisites to get his promotions regularised and pensionary benefits settled. And in this regard, he approached the Department/Government to issue certificates, including No Demand Certificate, Vigilance Clearance Certificate etcetera. According to the petitioner, it was during the course of fulfilling these formalities that it was thought appropriate to have an enquiry conducted as had been mentioned in PE report made by ACB way back in 2003. Consequently, the Government in Public Works Department, referring to aforesaid PE No.C-02/2000, issued Order No.244-PW(R&B) of 2019 dtd. 16/5/2019, according sanction to the appointment of Mr.Syed Arif Yasvi I/C Chief Engineer, PW(R&B) Department, Kashmir, as Inquiry Officer to enquire into the allegations leveled against petitioner in his capacity as Assistant Executive Engineer, R&B Division, Budgam. Petitioner maintains that Inquiry Officer, i.e., the Chief Engineer, by his letter No.CE/RBK/PS/ 8416 dtd. 26/6/2019, submitted report on the enquiry, recording his finding that the charges leveled against petitioner were totally baseless, recommending that allegations against retired officer be dropped. In consequence thereof, the Government of Jammu and Kashmir in the Public Works (R&B) Department, vide Government Order No.511 JK-PW(R&B) of 2019 dtd. 6/12/2019, dropped the allegations against petitioner and closed departmental proceedings against him. According to the petitioner, the actions so taken by the Government were communicated by it to the Director, ACB, for information who accepted the same and communicated the acceptance of the Action Taken Report (ATR) to Commissioner/Secretary to Government, PW(R&B) Department, vide letter No.ACB-PE-C-02/2000-1149 dtd. 22/1/2020. In is, thus, submitted, that PE No.C-02/2000 stood closed. It is, nevertheless, asserted that about 09 months thereafter, respondent no.2 addressed a letter No.ACB-PE-C-02/2000-1585 dtd. 28/10/2020 to Chief Engineer PW(R&B) Department, Srinagar, directing him to furnish copy of entire enquiry file and supporting record for further course of action as desired by General Administration Department, whereafter impugned FIR has been registered. It is this FIR, of which petitioner is aggrieved and seeks quashment thereof on the grounds mentioned in the instant petition.