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2000 DIGILAW 134 (JK)

S. Bashir Ahmad (Dr. ) v. State Of J. &K.

2000-07-07

SYED BASHIR-UD-DIN

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1. Petitioner or his counsel is not present to avail the opportunity of being heard. Matter is quite old and taken up for final disposal. 2. Annexure 5, discharging petitioner from service way back on 13-09-1983 vide Government Order No: 579-HME of 1983, dated: 13-09-1983 is impugned in this petition on grounds that the petitioner has not been served a show cause notice and he was not given an opportunity before the order of termination impugned in this petition was passed. 3. Petitioner claims that he had gone abroad and was away when the show cause notice was reportedly serve on him. The law providing for termination of service in terms of Article 128 of the J&K CSR has not been addressed to. At the most of petitioner could have come within misconduct for willful absence for which disciplinary authority could have initiated the action, but not terminated his service. Despite opportunities, counter has not been filed. 4. Mr. J.A. Kawoosa, AAG, submits that show cause notice was sent to petitioner absentee Doctor on the address left by him with employer respondent State Govt. but he was not traceable on this address (recorded in his service records). The address with the Government and Medical College, Jammu, left by petitioner Doctor was 1675-Lodhi Complex New Delhi�. He was sent show cause notice Annexure-III with forwarding letter of Principal Jammu Government Medical College (Annexure IV) under postal certificate. The petitioner as per his own averments in writ petition admits that at the relevant time when this notice and communication giving him an opportunity to show cause as to why his service should not be terminated for unauthorised absence was sent to him, he was not available in the State and country in so far as he was away on a foreign assignment in Kingdom of Saudi Arabia. This submission based as it is on record also goes to show that the employer (State Govt. of J&K) has made every reasonable effort to trace and serve him in order to offer him opportunity(ies) before passing the impugned order. Mr. Kawoosa, AAG, further submits that till date petitioner has at no point of time returned to resume or in any case to indicate his intention or willingness or may be eagerness to resume duties or join back the service from which he stood discharged. Mr. Kawoosa, AAG, further submits that till date petitioner has at no point of time returned to resume or in any case to indicate his intention or willingness or may be eagerness to resume duties or join back the service from which he stood discharged. The conduct of petitioner, although is one of*abandoning the post, service and duties. 5. Mr. Kawoosa, AAG, has cited 1997 KLJ 76 and 1997 KLJ 537 for the preposition that as in this case employee having abandoned the service the formal notice need not be issued. 6. Once a person is on unauthorised absence, show cause notice is required to be issued. In absence of show cause, termination or discharge from service is vitiated. In this case, as already noted, show cause notice was issued to the petitioner on the address left by him with the employer and in his service records. The Principal Medical College, Jammu, where the petitioner worked as Associate Professor of Bio-Chemistry before taking up the foreign assignment on absenting himself has sent the show cause notice to the petitioner on his New Delhi™s address under postal certificate. This address was left with him by petitioner and available with principal in the petitioner™s service records. Petitioner on his own has admitted that he was not within the State or country and therefore, could not have received notice. In such circumstances, the authorities are not expected to embark on a roving enquiry and to launch a search operation to trace the absentee employee within and outside the country. 7. Petitioner had absented himself, accepted the foreign assignment in the Kingdom of Saudi Arabia for his gain and own benefit without permission. The over stayel of initial leave of few months sanctioned by the Principal is no justification for petitioner to turn around and contend that he had left and accepted the foreign employment after obtaining the required permission under service rules governing the terms and conditions of the petitioner. The petitioner can be fairly said to have abandoned and scarified his employment for trying his luck else where and in pursuit of better pastures. 8. In Ghulam Mohd. Vs. State of J&K and others (1997 KLJ: 537) learned Single Judge of this Court observed: 7. The petitioner can be fairly said to have abandoned and scarified his employment for trying his luck else where and in pursuit of better pastures. 8. In Ghulam Mohd. Vs. State of J&K and others (1997 KLJ: 537) learned Single Judge of this Court observed: 7. I accordingly hold that where a Government servant abandons his post without any permission or authorisation by the Competent Authority and stays away from duty for years on and fails to remain in contact with the Authority and to take steps to seek proper sanction for his remaining away and displays a conduct to defy the service discipline, he shall be treated to have surrendered his employment of his own volition and that he would have not right to claim benefit of any constitutional safeguards or any procedure established by law envisaging an inquiry into his absence.� In appeal against this judgment, a Division Bench, of which I was a party observed: - ...Found on facts, he abandoned the job without any intention of resuming it. Therefore, this case does not require holding of inquiry in terms of Sub-Rule (1) of Rule 33 of J&K CS(CCA) Rules, 1956. It is squarely covered under Sub Rule (2) thereof. Therefore, holding of inquiry and giving of opportunity to the petitioner was not necessary nor practicable...� It is true that holding of inquiry as envisaged by Article 311 of Constitution of India, Section 126 of J&K Constitution and Rule 33 (1) of J&K Civil Services (Classification, Control and Appeal) Rules, 1956 is pre-requisite of termination of service of an employee for absence without leave or absence of over-stayel of leave, but the fact remains that where an employee abscond or where an employee despite being service notice on the address left by him with authorities, could not be served due to his being on the foreign assignment at the relevant time, it is impracticable to communicate with him. The appointing authority cannot be said to embark on roving enquiry for purpose of serving the delinquent. Such an authority cannot be insisted to do something impracticable. Obviously, in such a case it may neither be expedient nor practicable to serve the delinquent. It is in such a like situation that Sub Rule (2) of Rule 33 J&K CS (CSA) Rules, 1956 is attracted. Such an authority cannot be insisted to do something impracticable. Obviously, in such a case it may neither be expedient nor practicable to serve the delinquent. It is in such a like situation that Sub Rule (2) of Rule 33 J&K CS (CSA) Rules, 1956 is attracted. A petitioner who has remained on unauthorised absence without leave and/or over-stayed the leave unauthorisedly and took foreign assignment without permission in the Kingdom of Saudi Arabia and yet claims to be in service and complains that he is not being given opportunity while his service is terminated, cannot in the facts and circumstances of this case, voice that he is discharged illegally or unjustly. At the same time to take the foreign job and to pretend to serve in the State service, is not a fair preposition. Dereliction of duty and practically abandonment of service on one hand and pretension of serving even without attending his duties even for a day for decades together is an odd kind of service. The delinquent cannot complain that he has not been given opportunity to show cause of loss of appointment when he himself is not available on the address left with the authorities. In the opinion of this court the impugned order of discharge form service of the petitioner is in order. In the facts and circumstances of the case the Government of Jammu and Kashmir was justified to discharge him from service. In result, for aforesaid reasons, writ petition is dismissed.