Jammu & Kashmir High Court - Srinagar Bench
Shahnawaz Shah vs High Court Of Jk And Others on 8 October, 2021
S. No. 42
After Notice
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP (C) no. 2043/2021
LPA no. 6739/2021
Shahnawaz Shah
.... Petitioner(s)
Through: Mr Faisal Qadri, Sr. Advocate with
Mr Salih Pirzada, Advocate
Ms Lyba, Advocate
V/s
High Court of JK and others
... Respondent(s)
Through:
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
Hon'ble Mr Justice Sanjay Dhar, Judge
ORDER
08.10.2021
Magrey, J (Oral)
The petitioner, in the instant petition, challenges the Order bearing No. 925
of 2021/Psy dated 30.09.2021 for short impugned order, in terms whereof the
service of the petitioner has been terminated with immediate effect in application
of Rule 21-(1) (b) of the Jammu and Kashmir Civil Services (Classification,
Control And Appeal) Rules, 1956, for short CCA Rules of 1956.
Briefly put the case of the petitioner is that he has been appointed against the
post of Orderly in terms of Order No. 427 dated 16.1.2020 against the available
vacancy in District Srinagar, issued by the Principal District & Sessions Judge,
Srinagar, on the basis of the selection made by the Selection Committee and as
approved by the Competent Authority, and while performing his duties as such in
the court of Principal Judge, Family Court, Srinagar, amidst the ongoing Covid-19
Pandemic, the petitioner proceeded on leave.
Taking note of the absence of the petitioner, the competent authority
initiated disciplinary action and issued the memorandum/ charges along with note
of explanation to the petitioner in terms of communication no.
3313/PDJS/Adm/2021 dated 31.08.2021. The articles of charges contained the
allegations against the petitioner vis-à-vis his unauthorized absence from duties
w.e.f. 22.05.2021 to 27.05.2021.
AMJAD AHMAD LONE
2021.10.08 16:31
I attest to the accuracy and
integrity of this document
Mr Faisal Qadri, learned senior counsel for the petitioner, has invited
attention of the court to the memorandum of charges served upon the petitioner on
31.08.2021 which has been replied by the petitioner on 9th September, 2021.
Mr Qadri, learned senior counsel, submits that the competent authority had
decided to hold a regular enquiry in the matter in terms of Rule 33 of the CCA
Rules of 1956 while taking into account the conduct of the petitioner as having
remained unauthorizedly absent from duties.
The learned senior counsel further submits that the respondents, in case not
satisfied with the reply submitted to the memorandum/ articles of charges, were
required under law to proceed further in the matter by appointing the enquiry
officer and adherence to the procedure of enquiry as established under law. But
instead of doing so, they have terminated the services of the petitioner with
application of Rule 21 (1) (b) of the CCA Rules of 1956, which as per the learned
senior counsel is not only against the mandate of the scheme of law but contrary to
it also. Learned counsel for the petitioner submits that the basis of the termination
order with reference to the Rule supra is not available to the Competent Authority
in the facts and circumstances of the case as the basis for termination in the instant
case have reference to the unauthorized absence from duties and not the
unsatisfactory performance of the duties.
Learned senior counsel further submits that the power of the Competent
Authority available under the Rule supra is only to discharge the services of the
probationer and not to terminate it. Mr Qadri, learned senior counsel, further
submits that the fundamental rights of the petitioner as guaranteed under the
Constitution as the ground pressed into service by the competent authority in
terminating are violated as his service cannot be terminated in the manner it has
been done and reflected in the order impugned. While reiterating the pleadings and
the grounds urged in support of his submissions, the learned senior counsel has
placed reliance on the judgment passed by the Hon'ble Supreme Court in case
titled V. P. Ahuja v. State of Punjab and others reported as AIR 2000 SC 1080 and
of the Division Bench of this Court passed in case titled State of J&K & others v.
Kamal Kumar reported as 2017 (3) JKJ 442.
Learned senior counsel, therefore, submits that the impugned order being
bad in law deserves to be set-aside.
We have heard learned counsel for the petitioner. Considered the
submissions made and examined the material made available. The Rule 21 (1) (b)
of the CCA Rules of 1956 is first required to be gone through, therefore, is taken
AMJAD AHMAD LONE
2021.10.08 16:31
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note of hereunder:
integrity of this document
"21. Suspension of probation period.
(1) At any time before the expiry of the prescribed period
of probation, the Appointing authority may_
(a)....
(b) at its discretion terminate the probation of a
probationer and discharge him from the service"
While going through the material placed on record, including the impugned
order as also the provision of law pressed into service, the impugned order prima
facie appears to against the Rules.
The petitioner is admittedly holding the post of Orderly against a clear
vacancy and while on probation, has been terminated from service by application
of Rule 21 (1) (b) of the CCA Rules of 1956 on the charges of absence from duties.
The power available with the competent authority under the said Rule is only to
discharge the probationer from probation in the event the performance is found not
satisfactory. We are fortified in our view by the judgment of this Court passed in
the case titled Mushtaq Ahmad Khan v. State of J&K and others reported as 2004
(3) JKJ 10. It would be profitable to reproduce paragraph 13 of the said judgment
herein, thus:
"13. In the above premises, we are of the view that absence
from duty, howsoever long, cannot result in automatic
cessation of employment. In all such cases the person
concerned has to be given an opportunity of hearing and,
depending on the nature of defence taken by him, further
action should be taken."
Prima facie, We are satisfied that the impugned order is against the
principles of law and being in violation of the Rules and the Constitution,
therefore, we propose to stay the operation of the impugned order.
We are conscious of the fact that the impugned order of which the
quashment is sought amounts to grant of principal relief, but at the same time the
petitioner cannot be made to suffer as the court has recorded its prima facie
satisfaction that the impugned order is bad in law. In that view of the matter, the
petitioner has satisfied the principles of grant of interim relief.
Notice returnable within four weeks.
Notice as above in CM also. In the meanwhile, the operation of the
impugned order shall stay and the petitioner shall be allowed to perform his duties
as Orderly.
List on 22nd November, 2021.
(Sanjay Dhar) (Ali Mohammad Magrey)
Judge Judge
Srinagar
08.10.2021
AMJAD AHMAD LONE
Amjad
2021.10.08 Lone PS
16:31
I attest to the accuracy and
integrity of this document
