Ghulam Ahmad Malik vs State Of J&K & Others
2023 Latest Caselaw 1321 j&K/2

      IN THE HIGH COURT OF JAMMU & KASHMIR AND
                  LADAKHAT SRINAGAR
                                                 Reserved on: 05.10.2023
                                                 Pronounced on:13.10.2023

                           SWP No.1500/2013

GHULAM AHMAD MALIK                            ...PETITIONER(S)
      Through: - Mr. Syed Faisal Qadiri, Sr. Advocate,
                 with Ms. Tayba Gulnar, Advocate.

Vs.

STATE OF J&K & OTHERS                         ...RESPONDENT(S)
      Through: -   Mr. Altaf Haqani, Sr. Advocate,
                   With Mr. Asif, Advocate.

CORAM:HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                 JUDGMENT

1) The petitioner was holding the post of Junior Assistant with the

respondent No.5 and claims to have unblemished service record. It is

stated that in the year 2006, false and frivolous allegations were levelled

against the petitioner that he had misappropriated the funds of the

respondent-Corporation by resorting to illegal practice and subsequently

FIRs bearing No.50/2016, 51/2016, 52/2016, 53/2016 and 54/2016 were

registered with Police Station, Crime Branch, Srinagar, against the

petitioner and other accused persons. The petitioner was placed under

suspension with immediate effect vide order dated 01.12.2006 and vide

order dated 04.12.2006, he was relieved from his place of posting with a

direction to report to the office of respondent No.5, for the purpose of

facing enquiry in respect of the allegations levelled against him. It is

stated that only a charge sheet came to be framed and served upon the

petitioner which was duly replied by him thereby denying all the charges

levelled in the said charge sheet and thereafter no departmental enquiry

into the matter was ever undertaken and culminated thereby providing

any opportunity of hearing to the petitioner. Feeling aggrieved of his

continuous suspension, the petitioner filed a writ petition bearing SWP

No.1768/2011 for grant of subsistence allowance with a further prayer

for quashing of the order of suspension and this Court vide order dated

18.08.2011 directed the respondents to consider the case of the petitioner

and take a decision within a period of four weeks.

2) As the order mentioned above was not complied with by the

respondents, the petitioner filed a petition for initiating contempt

proceedings wherein the statement of facts was filed by the respondents

therein and for the first time the petitioner was informed that his services

had been terminated in the year 2009.

3) The petitioner has filed the present petition thereby challenging

the order dated 09.02.2009, whereby his services were terminated by the

respondent No.3with effect from 01.12.2006, inter alia, on the ground

that the petitioner was never informed about the initiation, conduct or

culmination of the departmental enquiry proceedings in respect of the

allegations levelled against him and it was incumbent upon on the part of

the respondents to afford him an opportunity of hearing during the

course of departmental proceedings, in order to defend himself against

the false and frivolous allegations levelled against him. In nutshell, the

petitioner has impugned the order on the ground of violation of

principles of natural justice that no one should be condemned unheard.

4) The reply stands filed by the respondents wherein it has been

stated that the petition is hit by the principle of delay and laches and also

that the petitioner has not availed an alternative remedy of appeal as

provided by the Regulations of the Corporation. It is stated that while the

petitioner was discharging functions of Cashier in the office of Depot

Manager, Kupwara, certain allegations of misappropriation of funds of

the Corporation were reported necessitating reconciliation of accounts

for the period w.e.f. 2002 to 2006. The reconciliation revealed

misappropriation of huge amount of Rs.25,58,786/ by the petitioner

during the above mentioned period. The modus operandi adopted was to

deposit less amount of revenue in the bank account and the counter-folio

of the bank receipt would be tampered by him thereby converting the

amount of the credit slips to correspond with the revenue reflected in the

books of accounts of the Corporation. The petitioner was placed under

suspension pending enquiry vide order dated 01.12.2006. Initially, a

preliminary enquiry was conducted and in view of prima facie case of

embezzlement, the petitioner was charge-sheeted on 21.04.2008. The

petitioner was asked to submit his response and thereafter a full-fledged

departmental enquiry was ordered vide order dated 09.07.2008 but

despite notices sent to the petitioner, personally, by registered post and

publication in local newspaper to participate in the enquiry proceedings

and establish his innocence, the petitioner did not choose to participate

in the enquiry and the departmental enquiry culminated into a detailed

report, thereby establishing the guilt of the petitioner in respect of

embezzlement of Rs.25,58,786/. In view of above report, the services of

the petitioner were terminated. It is further stated that the order has been

passed by the Corporation strictly by observing rules governing the

services of the petitioner in the Corporation with due observance of rules

of natural justice. The gist of the response filed by the respondents is that

the departmental enquiry was held against the petitioner in accordance

with the Service Rules of the Corporation and due opportunity of hearing

was afforded to the petitioner but the petitioner did not choose to

participate in the enquiry proceedings and ultimately the impugned order

was passed.

5) Mr. Faisal Qadiri, learned senior counsel, appearing for the

petitioner submitted that the departmental enquiry conducted by the

respondents is, in fact, an ex-parte enquiry wherein no opportunity of

hearing was afforded to the petitioner and on that solitary ground alone,

the order impugned deserves to be quashed. He further submitted that

the petitioner was not heard by the respondents before inflicting

punishment of termination of services.

6) Per contra, Mr. Mr. A. H. Haqani, learned senior counsel

appearing for the respondents, submitted that the notice was sent to the

petitioner through the Officer of the Corporation but the petitioner did

not choose to accept the notice. Thereafter registered notice was also

sent to the petitioner at his residential address but still the petitioner did

not choose to participate in the enquiry proceedings. As a last resort, the

notice was published in a local newspaper calling upon the petitioner to

participate in the enquiry but for the reasons best known to the

petitioner, still he did not participate in the enquiry proceedings and the

respondent Corporation was left with no other option but to conduct the

enquiry in absentia of the petitioner. He also raised preliminary objection

in respect of maintainability of the writ petition that the petitioner has

not availed the remedy of appeal provided under the regulations before

filing the present writ petition.

7)    Heard and perused the record.

8)    A preliminary objection has been raised by Mr. Haqani, learned

counsel for the respondents, that the petitioner did not avail the remedy

of appeal as provided under Regulation 154 of the Jammu & Kashmir

State Road Transport Corporation Employees Service Regulations,

1979 (hereinafter referred to as "the Regulations of 1979). It needs to

be noted that this petition has been pending before this Court since

2013. No doubt, the remedy of appeal was available to the petitioner

when the order of termination of his service was passed by the

respondents but equally true is that the present petition has been

pending before this Court for the last one decade. Disposing of this

petition at this stage by directing the petitioner to avail the remedy of

appeal as provided under the Regulations of 1979 would be a travesty

of justice. Accordingly, the contention of Mr. Haqani is rejected.

Reliance is placed upon the decision of Apex Court in Krishan Lal v.

Food Corporation of India, (2012) 4 SCC 786, where in it has been

held as under:

17. On behalf of the respondent Corporation it was argued that the appellant ought to have resorted to the

arbitration clause under the agreement instead of filing a writ petition in the High Court. Alternatively, it was argued that the security deposit having been made under the orders of the High Court, the entire amount of Rs 10 lakhs was liable to be forfeited on the failure of the appellant to work once the same was allotted to him.

18. It is true that there was an arbitration clause in the agreement executed between the parties. It is equally true that, keeping in view the nature of the controversy, any claim for refund of the amount deposited by the appellant could be and ought to have been raised before the arbitrator under the said arbitration. The fact, however, remains that the High Court had entertained the writ petition as early as in the year 2002 and the present appeals have been pending in this Court for the past ten years or so. Relegating the parties to arbitration will not be feasible at this stage especially when the proceedings before the arbitrator may also drag on for another decade. Availability of an alternative remedy for adjudication of the disputes is, therefore, not a ground that can be pressed into service at this belated stage and is accordingly rejected.

(emphasis added)

9) In order to appreciate the contention raised by learned counsel

for the petitioner that the enquiry has been conducted ex-parte without

affording any opportunity of hearing to the petitioner, this Court deems

it proper to extract the relevant Regulation of the Regulations of 1979

governing the imposition of major penalty:

148.PROCEDURE FOR IMPOSING MAJOR PENALITIES:

(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 allegation on which they are based, shall be communicated in writing to the employee who shall be required to submit within such time as may be specified by the Disciplinary Authority (not exceeding 15 days), a written statement or 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 and defending his case but he will not be allowed to engage a legal practitioner for this purpose.

Note: The inquiring Authority shall be the sole judge to decide what is a reasonable opportunity.

(iv) At the conclusion of the enquiry, the Inquiring Authority shall prepare a report of the enquiry recording its findings on each of the charges, together with the reasons thereof.

10) The perusal of the Regulation (supra), would reveal that where

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 and the

same shall be communicated in writing to the employee who shall be

required to submit written statement or his defence within a period not

exceeding fifteen days. In the instant case, the charges were framed

against the petitioner on 21.04.2008 and the articles of charges and the

statement of imputations were served upon the petitioner and in

response thereof, the petitioner submitted his reply on 05.05.2008. In

the response there was denial of the allegations levelled against the

petitioner. Therefore, the requirement of Regulation 148(i) (supra)

stands complied with.

11) In terms of Regulation 148(ii), an enquiry may be held by the

disciplinary authority itself or by an officer or committee appointed for

the purpose, after taking note of the written statement filed by the

employee and also in the event when no such statement is received

within the period stipulated under Regulation 148(i). Further

Regulation 148 (iii) provides that reasonable opportunity shall be

afforded to the employee for explaining and defending his case.

12) The perusal of the enquiry record produced by Mr. Altaf Haqani

reveals that vide order dated 09.07.2008, after examining the reply

submitted by the petitioner to the charge sheet served upon him, Shri A.

H. Chesti, FA&CAO was appointed as enquiry officer to examine the

reply submitted by the suspendee official (petitioner herein) and he was

further enjoined upon to give personal hearing to the erring official, if

he desired so. The respondent No.5 vide communication dated

10.07.2008, directed the petitioner to appear before the enquiry officer

for personal hearing, so that the departmental enquiry could be

completed. The Traffic Manager, JKSRTC, Sopore, was directed to

take necessary action and in compliance thereof, the petitioner was

approached and asked to receive the sealed envelope but he did not

accept the said sealed envelope and, as such, the same in original was

returned. The said communication is on record in respect of refusal on

the part of the petitioner to accept the notice. Again, vide

communication dated 18.07.2008, the petitioner was asked to present

himself before the enquiry officer on 22.07.2008 and thereafter vide

notice dated 24.07.2008 sent through registered post, the petitioner was

again informed to appear before the enquiry officer on 30.07.2008 at

11.00 AM at JKSRTC Headquarters M. A. Road, Srinagar, and it was

simultaneously mentioned that in the event of failure of the petitioner to

attend the enquiry, the same shall proceed ex-parte. From the record it

transpires that the petitioner did not appear before the enquiry officer

on 30.07.2008 till 4.00 PM, which prompted the enquiry officer to

publish a notice in a local newspaper and the perusal of the newspaper

cutting reveals that the petitioner was granted last and final opportunity

to appear before the enquiry officer on 09.08.2008 at 11.30 AM for

personal hearing, failing which the enquiry was ordered to be held ex-

parte without any further notice. This notice is dated 01.08.2008. The

record further depicts that the petitioner despite publication of the

aforesaid notice did not appear before the enquiry officer. Faced with

such situation, Enquiry Officer proceeded ahead with the enquiry and

held the charges proved against the petitioner. The enquiry report was

submitted before respondent No.3, who by virtue of order impugned

terminated the services of the petitioner. The petitioner despite repeated

notices did not participate in the enquiry proceedings. Due opportunity

was afforded to the petitioner to defend himself in the enquiry

proceedings but he did not opt to do so, therefore this court does not

find any procedural infraction on the part of the respondents while

terminating the services of the petitioner.

13) It was also urged by Mr. Qadri, learned Senior Counsel for the

petitioner that no opportunity of hearing was afforded to the petitioner

before imposing major penalty upon the petitioner. This submission

deserves to be rejected as the Rules of the Corporation do not

contemplate any such requirement before inflicting major punishment.

In this context it would be proper to take note of the judgment of the

Hon'ble Apex Court in National Fertilizers Ltd. v. P.K. Khanna,

(2005) 7 SCC 597, wherein it was held that as far as the second

question is concerned, neither the decision in Karunakar nor Rule 33

quoted earlier postulate that the delinquent employee should be given

an opportunity to show cause after the finding of guilt as to the

quantum of the punishment.

14) In view of above, this court does not find any merit in this writ

petition, accordingly, the same is dismissed. Record be returned to the

respondents.

(Rajnesh Oswal) Judge SRINAGAR 13.10.2023 "Bhat Altaf, PS"

                   Whether the order is speaking:      Yes/No
                   Whether the order is reportable:    Yes/No