Jammu & Kashmir High Court - Srinagar Bench
Abdul Khaliq Malik vs Ut Of J&K And Ors on 14 May, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Serial No. 33
Regular Cause list
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA No. 49/2025 in
WP(C) No. 396/2025
Abdul Khaliq Malik
..... Appellant/petitioner(s)
Through: -
Mr. Suhail Mehraj, Advocate
V/s
UT of J&K and Ors.
..... Respondent(s)
Through: -
CORAM:
HON'BLE MR JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR JUSTICE SANJAY PARIHAR, JUDGE
(ORDER)
14.05.2025
01. This intra Court appeal filed by the appellant Abdul Khaliq Malik is
directed against an order and Judgment dated 28.02.2025, passed by the
learned Single Judge of this Court ["writ Court"] in WP(C) No. 396/2025
titled Abdul Khaliq Malik Vs. UT of J&K and Ors., whereby, the writ
petition of the appellant has been dismissed.
02. Briefly put the facts leading to filing of this appeal are that vide
Order No. WC/119 dated 29.04.2003 passed by the Principal,
Government College for Women, M. A. Road, Srinagar, the appellant
came to be engaged as Local Fund Employee on consolidated wages of
Rs. 3,000/- per month. The initial engagement of the appellant was for a
period of 60 days, which, however, came to be extended from time to
time.
03. Undoubtedly, the appellant being a Local Fund Employee also
figures in the seniority list of Local Fund candidates, engaged in the
department of Higher Education from time to time in Kashmir Division.
In the year 2024, a written complaint came to be filed by a girl inmate of
Government College for Women Girls Hostel against the appellant that
the appellant had subjected her to sexual harassment, which led to
registration of FIR No. 69/2024 dated 29.11.2024 in the Police Station
Kothi Bagh, Srinagar for commission of offences under Sections 74 and
75 of Bharatiya Nyaya Sanhita (BNS), 2023. The matter also came to be
considered in an emergency meeting by the College Hostel Committee on
29.11.2024. The complainant and the appellant herein, were heard by the
Committee along with other witnesses. The statements were recorded and
the Committee unanimously recommended the expulsion of the appellant
from the Hostel till the completion of the enquiry. The College handed
over the matter to the Committee against the sexual harassment
(CASH/ICC) to investigate the matter. The Cash/ICC also provided an
opportunity of being heard to the appellant. The appellant could not
provide any satisfactory explanation for his uncalled-for behaviour. The
Committee recorded the statements of complainant and her witness and
found the allegations and testimonies credible and consistent. It is on the
basis of enquiry conducted, the CASH/ICC, unanimously recommended a
stern action against the appellant.
04. Before taking an appropriate action against the appellant, the
College also gave an opportunity to the appellant to defend and respond to
the allegations. The appellant, however, failed to defend his case. Taking
stock of the entire happening and the evidence that had come before the
CASH/ICC, the competent Authority decided to disengage the services of
the appellant in the larger interest of students. Accordingly, the order,
which was impugned before the writ Court was passed.
05. Feeling aggrieved of his disengagement, the appellant filed WP(C)
No. 396/2025, and challenged his disengagement primarily on the ground
that the disengagement was without affording him an opportunity of being
heard and therefore, violative of principles of natural justice.
06. The writ Court considered the entire issue and came to the
conclusion that the appellant was only a temporary/Local paid employee
and had been given an adequate opportunity to defend the allegation. The
writ Court found no merit in the aforesaid petition filed by the appellant
and dismissed the same.
07. Being dissatisfied and aggrieved of the impugned order passed by
the writ Court, the appellant has filed this appeal primarily on the ground
that no departmental enquiry giving the appellant an adequate opportunity
to defend his case has been conducted by the respondents before passing
the disengagement order and that the writ Court has failed to appreciate
the matter in correct perspective.
08. Having heard learned counsel for the appellant and perused the
material on record, we are of the considered opinion that the impugned
Judgment passed by the writ Court is well reasoned and the view taken by
the writ Court is unexceptional. Admittedly, the appellant does not hold a
civil post in the Government of UT of J&K. He was only a Local Fund
Employee, engaged on consolidated salary. The initial engagement of the
appellant was for a period of 60 days, which, however, came to be
extended from time to time. During his working as a Local Fund
/temporary employee, the appellant indulged in misconduct, in that, a
serious complaint was made by a girl inmate of the Hostel against him,
which complaint was supported by another girl, who stood as witness to
what had happened to her colleague.
09. True it is that before disengaging the appellant on the alleged
misconduct it was incumbent upon the respondents to give an adequate
opportunity to the appellant to defend himself and respond to the
allegation made by the complainant.
10. In the instant case, not only the appellant was heard by the Hostel
Committee, but the appellant was also heard in person and given
opportunity to defend by the CASH/Internal Complaint Committee of the
College. Even before issuing disengagement order, the College also
provided an opportunity to the appellant to respond to the allegations. The
appellant, however, chose not to contest the allegations before the
authority. In these circumstances, the respondents were left with no option
but to disengage the services of the appellant in the larger interest of the
Institution and the girl students, living in the Girls Hostel. The plea of
learned counsel for the appellant that the appellant has been condemned
unheard is contrary to the fact situation obtaining in the case. Obviously,
the appellant not being a holder of civil post in the State was not entitled
to protection of Article 311 of the Constitution of India. He was only a
temporary employee being paid consolidated wages out of the Local Fund
and thus was liable to be disengaged at any time. In the instant case, the
appellant has been disengaged for good reasons that too after affording
him fair opportunity of hearing. No formal departmental enquiry was
required for the reason that the appellant being a 'Local Fund Employee'
was not holding any civil post under the State, entitling him to the
protection available to civil servants under Article 311 of Constitution of
India. He was entitled only to be heard before passing the order of his
disengagement which requirement has been amply complied with in the
case of appellant.
11. For the foregoing reasons, we find no merit in this appeal, same is
accordingly, dismissed. However, nothing said hereinabove shall
prejudice the appellant in any manner in the trial, which is pending before
the court of competent jurisdiction.
(SANJAY PARIHAR) (SANJEEV KUMAR)
JUDGE JUDGE
SRINAGAR
14.05.2025
"Mohammad Yasin Dar"
Whether the ORDER is reportable: Yes/No
