Abdul Rashid Durrani vs State Of Jk & Ors
2022 Latest Caselaw 1738 j&K/2

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR


                               SWP No. 190/2017
                                                              Reserved On: 21st of September, 2022.
                                                              Pronounced On: 11th of October, 2022.

Abdul Rashid Durrani
                                                                       ... Petitioner(s)
                                Through: -
                    Mr Altaf Haqani, Senior Advocate with
                        Mr Shakir Haqani, Advocate.

                                         V/s
State of JK & Ors.
                                                                    ... Respondent(s)

Through: -

Mr Ilyas Nazir Laway, Government Advocate.

CORAM:

Hon'ble Mr Justice Ali Mohammad Magrey, Judge.

(JUDGMENT)

01. The Petitioner, in this Petition, has sought the indulgence of this Court for granting him the following relief(s):

"A Writ, order or direction including one in the nature of Certiorari quashing the impugned Order (Annexure-P5).

A Writ, order or direction including one in the nature of Mandamus, commanding upon the respondents not to give effect to the order of termination-Annexure P5 and reinstate the petitioner into the services w.e.f. 31-5-2010 and grant him all the benefits of seniority, pay and grade and allowances as admissible under rules.

Any other Writ, order or direction which the Hon'ble Court may deem fit and proper in the facts and circumstances of the case, may also be passed in favour of the Petitioners and against the Respondents."

02. The precise case set up by the Petitioner is that he, in the year 1983, came to be appointed as a Waiter on ad hoc basis in the Respondent- Department, whereafter he is stated to have been regularized on substantive basis over the said post in 1985. Subsequently, the Petitioner claims to have been promoted to the post of Floor Supervisor in the year 2008. It is stated that the Petitioner was sent on deputation with the Tourism Department and attached to the Personnel Section of the then Tourism Minister till

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September, 2008, whereafter he was ordered to be posted at different places in the Corporation, including at TE Gulmarg and Cheshmashahi Hutments. The Petitioner is, again, stated to have been attached with the Member Legislative Council w.e.f. 1st of May, 2010 till 31st of December, 2011. Thereafter, the Respondents are stated to have, without any rhyme or reason, withheld the pay emoluments of the Petitioner since 1st of May, 2010 and subsequently, on 22nd of August, 2012, in terms of Order No. 152/Adm/JKTDC of 2012, the services of the Petitioner came to be terminated w.e.f. 31st of May, 2010 on the basis of allegation of unauthorized absence from duty. The Petitioner claims to have represented before the Respondents for seeking the redressal of his grievance qua the impugned termination order and non-release of salary, besides seeking reinstatement in service and treating the intervening period of his absence from duty w.e.f. 18th of February, 2007 till 22nd of July, 2013 as dies-non on the analogy of one Rouf Jan Sheikh, Sweeper, who too was terminated for unauthorized absence from duty, however, no action thereto was taken by the Respondents.

03. Objections stand filed on behalf of the Respondents, thereby resisting the claim made by the Petitioner in his Petition. It is submitted that, on the representation/ application of the Petitioner, the Earned Leave for the period of 90 days was sanctioned in his favour from 2nd of March, 2010 and the Petitioner was supposed to join back the services in the Corporation from 31st of May, 2010, however, the Petitioner did not join back the services and choose to remain continuously absent from duty. It is pleaded that the Petitioner was given ample opportunities to resume his duties by serving a number of explanations/ notices upon him, but the Petitioner failed to resume back the duties nor did he tender any reply to the said notices. It is contended that, in these circumstances, the Respondents, while following due procedure prescribed by law and after providing ample opportunities to the Petitioner, were compelled to pass an order of suspension against the Petitioner on 18th of November, 2011 with further direction to the inquiry officer to conduct inquiry into the unauthorized

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absence of the Petitioner. The inquiry officer, as stated, conducted a detailed inquiry and found that the Petitioner has remained unauthorizedly absent from his legitimate duties, thereby making him liable for administrative action as per rules. On the basis of the findings of the inquiry proceedings, it is submitted that a detailed charge sheet was framed against the Petitioner and the Petitioner was, through the medium of the said charge sheet, directed to show cause the reason of his unauthorized absence with further direction to resume the duties within a period of 15 days, however, the Petitioner never replied to the said charge sheet nor did he join back his duties. Accordingly, the final show cause notice is stated to have been addressed to the Petitioner on 10th of July, 2012 to show cause as to why the services of the Petitioner shall not be terminated, but the Petitioner, as claimed, did not reply to the said show cause notice. Upon noticing the casual approach of the Petitioner and after following due procedure prescribed by law, the Respondents terminated the services of the Petitioner on the grounds of unauthorized absence from duty. In the end, it is urged that the Petition of the Petitioner, in view of the above facts, be dismissed.

04. Mr Altaf Haqani, the learned Senior Counsel, appearing on behalf of the Petitioner, submitted that the impugned order of termination of the services of the Petitioner with retrospective effect on the basis of the unauthorized absence from duty is arbitrary in nature having been passed by the Respondents without notifying the Petitioner about the allegations made or granting him adequate opportunity of being heard. It is further submitted that it was only under valid orders of the Respondents that the Petitioner was ordered to be attached to the personnel section of the then Minister and that the same could not be treated as unauthorized absence from duty, as such, the impugned Order not only amounts to violation of the mandate of Articles 14 and 16 of the Constitution but also of the mandate of the rules governing the service of the Petitioner. It is pleaded that the Respondents, before doing away with the services of the Petitioner, were required to notify him the allegations framed and to call for his explanation and, in the event of the reply not being satisfactory, hold an enquiry in accordance with

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the rules of natural justice, thereby enabling the Petitioner to defend the charges so framed against him. It is argued that the Respondents have not followed the procedure prescribed by law while dealing with the case of the Petitioner and, therefore, the instant Petition deserves to be accepted and the impugned action of the Respondents set at naught.

05. Mr Ilyas Nazir Laway, the learned Government Advocate, appearing on behalf of the Respondents, submitted that the impugned order of termination of the services of the Petitioner was issued after following the due procedure established by law. It is pleaded that the Petitioner unauthorizedly absented himself from duty, whereafter a proper inquiry was conducted in the matter. The Petitioner, as stated, participated in the inquiry conducted by the inquiry officer, wherein he failed to justify the cause of his unauthorized absence from duty. It is also submitted that the Petitioner was provided ample opportunity to defend his case before the inquiry officer, which he failed to do.

06. I have heard the learned appearing Counsel for the parties, perused the pleadings on record and have considered the matter. I have also gone through the relevant records made available before me by the learned appearing Counsel for the Respondents.

07. At the very outset, what requires to be stated, herein this case, is that the services of the Petitioner were/ are admittedly governed by the mandate of the Employees Service Rules of J&K Tourism Development Corporation Limited (fort short "the Rules"). Rule 145 of the aforesaid Rules, running under the caption 'Procedure for imposing major penalties', provides as under:

"145. Procedure for imposing major penalties:

(i) When an employee is charged with misconduct which may lead to the imposition of a major penalty, the Disciplinary Authority shall frame definite charges on the basis of the allegations against him. The charges, together with a statement of allegations on which they are based, shall be communicated in writing to the employee, who shall be required to submit

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within such time as may be specified by the Disciplinary Authority (not exceeding 15 days), a written statement of his defence.

(ii) On receipt of the written statement of the employee or if no; such statement is received within the time specified, an enquiry may be held by the Disciplinary Authority itself, or by an officer or committee appointed for the purpose (hereinafter called the Inquiring Authority) by the Disciplinary Authority.

(iii) At the enquiry a reasonable opportunity shall be afforded to the employee for explaining defending his case but he will not be allowed to engage a legal practitioner for this purpose.

(iv) At the conclusion of the enquiry, the Inquiring Authority shall prepare a report of the enquiry and record its findings on each of the charges, together with the reason therefor."

On a plain reading of the above provision of law, coupled with a perusal of the relevant records, as made available to this Court, it can be seen from a naked eye that the enquiry, as provided under the Rules governing the service of the Petitioner, has not been conducted in the process of inflicting the major punishment of termination from service. The Petitioner has been thrown out by an order of discharge without following the due procedure of law, with a premeditated design to divest him of his right to participate in the enquiry. An opportunity of being heard is the 'sine-qua-non' of every enquiry and in case of any departure, reasons justifying so have to be spelt out. The principles of natural justice appear to have been violated with impunity in this case. The defence of the Petitioner has been shut by deception and the conduct of a full dressed enquiry has been given a complete go by.

08. Justice is not only law and its administration, but is, in most cases, above law and is done to safeguard an individual from whatever he/she seeks protection. Our country aims at the goal of achieving a welfare State where everyone is/ has to be, as far as possible, looked after. The principles of natural justice are imbibed from the Constitution itself. These are of paramount importance and nobody can be condemned unheard.

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09. In 'AIR 2005 SC 2090: Canara Bank v. V. K. Awasthy', the Hon'ble Apex Court, while dealing with the extent and scope of the principles of natural justice, held as under:

"10. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta". The classic exposition of Sir Edward Coke of natural justice requires to "vacate interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of Works, [1963] 413 ER 414, the principle was thus stated:

"Even God did not pass a sentence upon Adam, before he was called upon to make his defence. "Adam", says God, "where art thou has thou not eaten of the tree whereof I commanded thee that though should not eat".

Since then, the principle has been chiseled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond."

The records bear testimony to the fact that adequate opportunity of hearing has not been provided to the Petitioner and the rules of natural justice have been made a casualty. The rules relating to reasonableness, good faith, justice, equity and good conscience, which are a part of law and relate to administration of justice and fairness, have been followed in breach and, resultantly, it has caused miscarriage of justice.

10. It goes without saying that the condition precedent for initiating a disciplinary action against any member of the Government service in general, and to which the Petitioner belongs in particular, is not only the conduct of an enquiry, but it should also appear that due adherence and strict compliance to the manner and procedure as laid down under Rule

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145 of the Rules has been followed in its letter and spirit and any deviation thereof will render the order imposing penalty bad and liable to be set aside. In the case of the present Petitioner, although an enquiry appears to have been conducted into the alleged callousness in duty on the part of the Petitioner, but it is clear beyond any shadow of doubt that the provisions of Rule 145 of the Rules had not been complied with while conducting the enquiry and, therefore, the impugned order imposing penalty of dismissal upon the Petitioner is unconstitutional, illegal and bad in law. The record placed by the Respondents before this Court does not provide even an inkling of how and in what manner the enquiry was conducted into the matter of the unauthorized absence of the Petitioner. There is no evidence on record to state and show that the statement summarizing the alleged misconduct on the part of the Petitioner was read over and explained to him. Not even a murmur has been made to state that any evidence was recorded in the case. The procedure laid down for conducting the enquiry as prescribed in the Rules cited above does not appear to have been followed at any stage, as a consequence of which, the impugned order of dismissal cannot survive and sustain in the eyes of law.

11. The view taken hereinabove, as aforesaid, is also fortified by a judicial dictum rendered by a Division Bench of this Court in LPA No. 46/2004 titled 'Mushtaq Ahmad Khan v. State of J&K and Ors.', reported as '2004 (II)SLJ 445', paragraph Nos. 8 to 15, being relevant are reproduced hereinbelow:

"8. As indicated above, it is not the stand of the Advocate General that absence from duty results in automatic termination of service of the person concerned. According to him, the scope of enquiry would be limited to finding out only the period of absence. If the period of absence is five years or more, he would be treated to have abandoned the job by virtue of Regulation 113 of the CSR. The submission proceeds on the assumption that in all cases of unauthorized absence from duty, the person concerned has no defence to offer. Such a presumption is not sustainable in law. The notion that the employee has no defence in the facts and circumstances of a particular case was disapproved by the supreme court in Board of High School and Intermediate Education v. Kumari Chitra Srivastava, U. P., 1970(1) SCC 121. In that case, the respondent was denied admission to the examination on the ground of deficiency of attendance. The fact that she was short in attendance was not in dispute.

The principal of the institution, however, had recommended her case

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stating that she could not attend the requisite of classes as the concerned teacher was on leave. The High Court upheld the case of the respondent holding that by cancelling the examination the Board "inflicted a penalty" and if opportunity had been given to the petitioner to present her case, she might have persuaded the Board not to cancel the examination. In appeal before the Supreme Court, it was submitted on behalf of the Board that as the facts were not in dispute no useful purpose would have been served if the Board had served a show cause notice on the petitioner. The Supreme Court rejected the contention observing:

'...Whether a duty arises in a particular case to issue a show cause notice before inflicting a penalty does not depend on the authority's satisfaction that the person to be penalized has no defence but on the nature of the order proposed to be passed.'

A similar view was expressed, though in a somewhat different context, earlier in State of Mysore v. K. Manche Gowda, AIR 1964 SC

506. Dealing with the question as to whether in awarding the particular punishment, the past record of the employee (of which he apparently must be aware) could be taken into consideration, without informing him and giving opportunity to explain the same, the Supreme Court observed thus:

'...It would be no answer to suggest that every Government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on him; nor would it be an adequate answer to say that he knew as a matter of the fact that the earlier punishments were imposed on him or that he knew of his past record. This contention misses the real point, namely, that, what the Government servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him.

It is not possible for him to know what period of his past record or what acts or omissions of his in a particular period would be considered. If that fact was brought to his notice, he might explain that he had no knowledge of the remarks of his superior officers, that he had adequate explanation to offer for the alleged remarks or that his conduct subsequent to the remarks had been exemplary or at any rate approved by the superior officers. Even if the authority concerned took into consideration only the facts which he was punished, it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities concerned till the time of the present enquiry. He may have many other explanations. The point is not whether his explanation would be acceptable, but whether he has been given an opportunity to give his explanation. We cannot accept the doctrine of 'presumptive knowledge' or that of 'purposeless enquiry', as their acceptance will be subversive of the principle of 'reasonable opportunity.'

9. Learned Advocate General submitted that where a person remains absent for a long period, he would be deemed to have abandoned the job and in such a case he cannot insist on opportunity of hearing and a full-fledged enquiry; a mere notice calling upon him to report for duty and failure of the person to do so should be considered enough to treat him as having abandoned the service. He placed reliance on Dharmaratkmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution v. Educational Appellate Tribunal, (1999) 7 SCC 332 and Syndicate Bank v. General Secy., Syndicate Bank Staff Assn., (2000) 5 SCC 65.

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10. These cases were decided on their own facts. In the former case, the delinquent did not dispute the facts nor offered any plausible explanation when opportunity was given to her to do so. In such situation, the plea that enquiry ought to have been conducted as provided under the statutory rules was rejected by the Supreme Court observing that giving opportunity is a check and balance concept so that no one's right is taken away without giving opportunity or without enquiry where statute so requires, but this is not necessary where charges are admitted and no plausible defence is placed before the authority concerned. In the latter case, the employee was unauthorisedly absent beyond the permissible limit of ninety days. In terms of the relevant clause of the Bipartite Settlement, notice was given to him to join the work within the prescribed period of thirty days, informing him that otherwise he would be deemed to have retired in terms of the Bipartite Settlement. Notice was refused by the person. In these facts, the Supreme Court held that the Bank rightly treated the employee to have voluntarily retired from service. Such voluntary retirement/termination without holding enquiry was not violative of the principles of natural justice.

11. As is often said, rules of natural justice are not strait-jacket formulae to be applied uniformly in all cases. Its application varies from case to case depending upon the facts and circumstances of the particular case. In other words, what shall be the extent of requirement of rules of natural justice would depend on the facts of a particular case. While in one case mere opportunity of hearing may satisfy the requirement of the rules, in another case a full-fledged enquiry may have to be held depending on the rules, if any. It would also depend, among other things, on the response of the delinquent - the nature of defence, if any, taken by him and the nature of action proposed. No hard and fast rule can be laid down. What is of essence is that he should be given a reasonable opportunity to offer defence. The requirements of rules of natural justice are: firstly, that the employee should know the nature of charge or accusation against him; secondly, that opportunity should be given to him to state his case; and thirdly, that the employer should act in good faith, that is to say, the action of the employer should be fair and reasonable. Proceeding on the assumption that on account of absence from duty beyond the prescribed period, he would be deemed to have abandoned his job and, accordingly, treated as out of employment would amount to acting on a presumption that he has no defence to offer. There may be genuine cases in which the person remained away from duty for good reasons, such as, law and order situation; illness or incarceration. Unless an opportunity is given to him to state his case, he cannot explain his absence. In the cases cited by learned Advocate General, as seen above, opportunity was given to the delinquent. They either did not respond to the notice or did not offer any plausible defence.

12. 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.

13. Whether a full-fledged enquiry as per Rule 33 of the Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956 should be held or not will depend upon the facts of the case and be left to the discretion of the authority, subject to scrutiny and judicial review in future if such an occasion would arise.

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14. Coming to the instant case, it is true that the appellant in his joining application himself stated that his absence was unauthorized from 1992, but the circumstances under which he remained absent have to be seen and for this an opportunity of hearing has to be given to the appellant. He cannot be treated to have abandoned the job or treated out of employment under Regulation 113 of the CSR. The respondents are, therefore, directed to consider the appellant's case in light of the findings and observations made hereinabove.

15. This appeal as well as the writ petition stand disposed of accordingly."

12. Viewed in the above context and having regard to the law quoted hereinabove, the penalty imposed upon the Petitioner, being contrary to the law and reason, cannot be upheld, as a corollary to which, the impugned Order bearing No. 152/ADM/JKTDC of 2012 dated 22nd of August, 2012, is quashed. The Respondents are directed to release all the consequential service benefits in favour of the Petitioner to which he is found entitled in accordance with the law and the rules governing the field.

13. Writ Petition disposed of as above, along with the connected CM(s).

14. The records produced by the learned Government Counsel shall be returned to him with due dispatch.

(Ali Mohammad Magrey) Judge SRINAGAR October 11th, 2022 "TAHIR"

                                i.      Whether the Judgment is speaking?            Yes.
                               ii.      Whether the Judgment is reportable?          Yes.




TAHIR MANZOOR BHAT
2022.10.11 14:46
I attest to the accuracy and
integrity of this document