Jammu & Kashmir High Court - Srinagar Bench
Adil Afzal Kuchay vs Union Territory Of Jk & Ors on 6 May, 2021
Serial No. 227
Supplementary-1 List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
WP(C) No.688/2021; CM No.2030/2021 c/w
SWP No.36/2008
Dated: 6th of May, 2021.
Adil Afzal Kuchay
..... Petitioner(s)
Through: -
Mr M. S. Latif, Senior Advocate with
Mr Zahid Khan, Advocate.
V/s
Union Territory of JK & Ors.
..... Respondent(s)
Through: -
Mr B. A. Dar, Sr. AAG.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
Hon'ble Mr Justice Vinod Chatterji Koul, Judge
(JUDGMENT)
Per Magrey; J (Oral);
WP(C) No.688/2021; CM No. 2030/2021:
01. The case of the petitioner, as set up by him in the instant petition,
is that the petitioner, vide order No. 2549/2006 dated 31st of October, 2006,
was removed from service for his alleged unauthorized absence. Feeling
aggrieved thereby, the petitioner assailed the said order before the Single
Bench of this Court by way of Writ petition bearing SWP No.36/2008,
wherein the Court, in terms of order dated 23rd of January, 2008, stayed the
operation of the aforesaid order of removal of the petitioner dated 31st of
October, 2006. Consequently, the petitioner was permitted to resume his
duties in DPL, Srinagar in terms of order No.543/2008 dated 4th of March,
WP(C) No.688/2021 c/w SWP No.36/2008
2008. Thereafter, the petitioner claims that he lost track of the case before the
Court particularly when the counsel for the petitioner suffered heavily in the
devastating floods of 2014 that hit the Kashmir Valley and the office of the
counsel of the petitioner got completely damaged. The petitioner, however, is
stated to have continuously attended his duties post his reinstatement in
service in compliance of the order of the Court and, in between, was even sent
on deputation to SKIMS Hospital, Soura, Srinagar. The petitioner has
proceeded to state that on 17th of January, 2020 he was shocked when he came
across order bearing No. 41 of 2020 dated 17th of January, 2020 issued by the
respondent No. 3, in terms whereof the petitioner has been struck off from the
rolls of J&K Police w.e.f. 2009 on the ground that the Writ petition of the
petitioner has been dismissed by the Court for non-appearance of the parties.
The petitioner, thereafter, immediately filed a restoration application before
the Court, along with application seeking Condonation of delay in filing the
said restoration application, which came to be numbered as CM No.
1698/2020. Simultaneously, the petitioner also assailed the order No. 41 of
2020 dated 17th of January, 2020 before the Central Administrative Tribunal,
Jammu Bench (hereinafter referred to as 'the Tribunal') through OA No.
721/2020 by virtue of which the petitioner has been struck off from the rolls
of the Department. The Tribunal, as stated, in terms of order dated 18th of
February, 2021, however, has declined to pass the interim relief in favour of
the petitioner, constraining the petitioner to knock at the portals of this Court
through the medium of the instant petition.
WP(C) No.688/2021 c/w SWP No.36/2008
02. Mr M. S. Latif, the learned Senior counsel, representing the
petitioner, submitted that the learned Tribunal has failed to appreciate the fact
that the impugned order issued by the respondent No. 3 was bad in law having
been issued in absolute violation of the rules of natural justice inasmuch as
before passing the order impugned an opportunity of being heard had to be
afforded to the petitioner. It is contended that the right of hearing is not a mere
formality, but is a substantive right by which a party has to be given an
effective hearing and that the respondents ought to have given a show cause
notice to the petitioner so that he could have placed his stand before the
authority when the petitioner had a long service career and certain rights had
accrued in favour of petitioner. It is further submitted that the learned Tribunal
has also failed to take into consideration the fact that the absence of the
petitioner before the Writ Court was neither intentional nor deliberate which
is substantiated by the order impugned itself, as such, the Tribunal ought to
have exercised its discretion in favour of the petitioner by passing the relief in
his favour. It is pleaded that the learned Tribunal also failed to appreciate that
the petitioner even after dismissal of the Writ petition had been continuing in
the Department for more than 12 years as such certain rights had accrued in
his favour and that the petitioner could have not been stuck off from the rolls
in the manner the order impugned has been passed.
03. Objections stand filed on behalf of the respondents resisting and
controverting the averments made by the petitioner in his petition. It is
submitted that the issuance of the order impugned is purely in consonance,
compliance and in concurrence to the directions of the learned Writ Court,
WP(C) No.688/2021 c/w SWP No.36/2008
whereby the petition of the petitioner bearing SWP No.36/2008 stands
dismissed. It is pleaded that the conduct of the petitioner was inimical to the
discipline to which Police force is bound to and that, if such delinquent
individuals are not dealt sternly, a very negative effect is going to be felt
through the rank and file of the Police force.
04. We heard the learned counsel for the parties; perused the
pleadings on record; and have considered the matter.
05. Admitted position as emerge is that the petitioner, in the year
2006, was removed from the services of the respondent Department on the
allegation of unauthorized absence from duty, which action was challenged
by the petitioner through the medium of Writ petition bearing SWP
No.36/2008, wherein the Court kept in abeyance the order of removal of the
petitioner and, resultantly, the petitioner was allowed to continued discharging
his duties in the Department. The fate of the petitioner, thus was dependent
on the final decision to be rendered by the Court in the said Writ petition,
however, the Writ petition aforesaid got dismissed for want of prosecution, on
the basis of which the respondent Department issued order No. No. 41 of 2020
dated 17th of January, 2020, whereby the petitioner stands struck off from the
rolls of the respondent Department w.e.f. from the date the aforesaid petition
was dismissed. That apart, it has, vide order dated 17th of January, 2020, also
been ordered that the SP (Hqrs.), Srinagar will hold a formal Departmental
enquiry into the matter in order to ascertain as to whether the lapse is
inadvertent or deliberate which led the State exchequer to a huge loss as the
WP(C) No.688/2021 c/w SWP No.36/2008
delinquent official is drawing his salary and other monetary benefits
uninterruptedly without being entitled for the same. Further, recovery of
salary drawn by the delinquent official/ petitioner since the date of the
dismissal of the Writ petition has been kept subject to outcome of the full-
fledged Departmental Enquiry. This order was put to challenge by the
petitioner before the learned Tribunal which has declined to grant any interim
relief in favour of the petitioner.
06. The question that arises herein this case before us is that whether
the respondent Department could have issued the final order dated 17 th of
January, 2020 with regard to the case of the petitioner on dismissal of his Writ
petition for want of non-prosecution. Having gone through the pleadings on
record and after hearing the counsel for the parties, coupled with the
appreciation of the overall facts and circumstances of the case, we feel that
this course of action adopted by the respondent Department in issuing the final
order on the basis of dismissal of the Writ petition of the petitioner for want
of prosecution without any discussion on the merits thereof is not only harsh,
but also in violation of the principles of natural justice. The case was supposed
to be decided on merits after hearing both the parties and appreciating the
overall attending facts and circumstances, however, same got dismissed for
want of prosecution. It goes without saying that the said Writ petition,
thereafter, stands restored to its original number in terms of order dated 22 nd
of April, 2021 and the same is also clubbed herewith this petition for decision.
In such circumstances and in order to meet the ends of justice, the respondent
Department was obliged under law to apprise the petitioner about the
WP(C) No.688/2021 c/w SWP No.36/2008
dismissal of his Writ petition and the course of action that the Department was
contemplating to take against him prior to issuance of the final order dated
17th of January, 2020. The respondent Department, however, without seeking
any response or issuing any prior show cause notice to the petitioner, have
straightway proceeded to pass the order dated 17th of January, 2020, whereby
the petitioner has been struck off from the rolls of the Department. This has
definitely resulted in infringement of the rights of the petitioner, that too
without hearing him. The principles of natural justice, which are imbibed from
the Constitution itself and adherence whereof in any administrative action
involving civil consequences is recognized by all civilized States as of
supreme importance, have been given a complete goby. These principles of
natural justice have been formulated and enshrined so as to ensure that no one
is condemned unheard and notice is the first limb of these principles. Besides,
it is fully documented that even God had not passed the sentence upon Adam
before he was called upon to make his defence.
07. At the cost of repetition, it needs to be mentioned here that an
opportunity of being heard is the sine-qua-non of every order/decision
involving termination of a Government servant, besides reasons justifying so
have to be clearly spelt in the order/ decision itself. In the instant case, the
respondents have issued the final order dated 17 th of January, 2020, which
amounts to major punishment of dismissal from service, without seeking any
reply/ response from the petitioner, as a consequence whereof, the petitioner
has been condemned unheard. Justice is not only law and its administration,
but is, in most cases, above law and is done to safeguard the individual from
WP(C) No.688/2021 c/w SWP No.36/2008
whatever he or she seeks protection from. Our country aims at the goal of
achieving the welfare state were everyone is/has to be, as far as possible,
looked after. The learned Tribunal, while declining the interim relief in favour
of the petitioner, has clearly not appreciated the aforesaid aspects of the matter
which were of great importance and a vital bearing on the entire controversy
involved in the matter.
08. In the light of the foregoing analysis, we allow the instant petition
on the following terms:
i. The order of the learned Tribunal dated 18th of
February, 2021 passed in OA No. 721/2020 is hereby
set aside;
ii. The OA aforesaid filed by the petitioner before the
learned Tribunal is allowed and the order No. 41 of
2020 dated 17th of January, 2020 issued by the
respondent No.3 is quashed; and
iii. The respondents are directed to allow the petitioner to
continue discharging his duties in the Department in
tune with the interim order dated 23rd of January, 2008
passed by the Single Bench in SWP No. 36/2008, which
shall, however, be subject to final decision in the said
Writ petition.
09. Writ petition disposed of on the aforementioned terms, along
with all connected CMs.
WP(C) No.688/2021 c/w SWP No.36/2008
SWP No. 36/2008:
10. In view of the decision rendered in WP(C) No.688/2021
hereinabove, this Writ petition, given the nature of relief sought for and the
mandate of the Administrative Tribunals Act, 1985, shall stand transferred to
the Central Administrative Tribunal, Jammu Bench for its decision in
accordance with law. Registry to transmit the record of this petition to the
Central Administrative Tribunal, Jammu Bench, retaining a soft copy thereof.
The parties are directed to appear before the Registrar, Central Administrative
Tribunal, Jammu Bench, on 12th of July, 2021 for further proceedings.
11. Registry to place a copy of this order on each connected file,
besides sending a copy thereof to the Registrar of the Central Administrative
Tribunal, Jammu Bench, for information and necessary follow up action.
(Vinod Chatterji Koul) (Ali Mohammad Magrey)
Judge Judge
SRINAGAR
May 6th, 2021
"TAHIR"
i. Whether the Judgment is speaking? Yes/No.
ii. Whether the Judgment is reportable? Yes/No.
TAHIR MANZOOR BHAT
2021.05.11 11:23
I attest to the accuracy and
integrity of this document
