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2000 DIGILAW 137 (JK)

Syed Farooq Ahmad Bukhari v. State

2000-07-11

SYED BASHIR-UD-DIN

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1) Objections/ reply not filed. 2) Heard. Advocates. 3) Petitioner a helper in Irrigation Division Budgam, regularised on substantive post, was absent on leave from 1.9.1995 to 30.9.1995. He overstayed this leave spell. This followed with notice by the Executive Engineer respondent No. 3 ori21-4-1999(Annexure B) calling upon petitioner to report for duty within seven days and to explain the unauthorised absence. Pursuant to this direction petitioner-appeared and presented formal joining report to resume duties in the Irrigation Sub Division Budgam within said seven days (Annexure P4). Despite complying with the directions of the Executive Engineer, the said Executive Engineer again served a notice on petitioner requiring him to explain reasons for absence and further was notified that the joining report submitted by him, is not acceptable to Executive Engineer (Annexure P5). Executive Engineer vide communication dated 10.5.99 (Annexure P6) asked and directed Assistant Executive Engineer Sub-Division Budgam. respondent no. 4 are to accept joining report of the petitioner. The Executive Engineer also approached Superintending Engineer for advice in the matter, after the petitioner joined his duties in the Irrigation Sub-Division Budgam (Annexure P7). Over again Executive Engineer asked Assistant Executive Engineer on 31-5-99, not to accept joining report of the petitioner (Annexure P8). 4) Petitioner has challenged the communication (above annexures P6, P7, P8 and P9) in so far as petitioner is informed and Assistant Executive Engineer ordered not to accept joining report of the petitioner. 5) Mr. Mustafa conceeds that once petitioner has joined and resumed his duties pursuant to the notice of Executive Engineer Respondent No. 3 (Annexure P3, P4) and that too within the period indicated, the respondents cannot refuse to accept the joining report and stop him from resuming duties as a helper, leaving apart the question of enquiry and disciplinary action to be taken under rules for misconduct of absence of petitioner. Infact an impression is given by the then Executive Engineer respondent no. 3 that he wants in any case petitioner not to resume duty and see him out of service, irrespective of the merits of the case and rule position on the subject. Infact an impression is given by the then Executive Engineer respondent no. 3 that he wants in any case petitioner not to resume duty and see him out of service, irrespective of the merits of the case and rule position on the subject. 6) Petitioners counsel submits that once the petitioner resumes duties, he is to be allowed to work the question of his absence or mis-conduct thereto, if any, is a matter that has to be separately dealt and orders passed thereto in accordance with rules and the merits of the case. 7) Obviously, the case can be disposed of at this stage in so far as meeting ground is there to dispose of the petition consensually on submission of the parties. 8) The writ petition is disposed of with direction to respondents to allow the petitioner to work as a helper on resumption of duties from 29-4-1999, pursuant to the directions of Executive Engineer and he shall be paid for the period thereafter he has worked and rendered duties. The period of absence till 28.4.1999, is a matter that is left open for the disciplinary authority to be dealt with separately in accordance with rules and merits of the case. Whether the petitioners absence was authorised or unauthorised, if the absence entails loss of service or not question of entitlement of petitioner to pay and allowance, if any, during the period of absence and how the period of absence, if so required is to be treated are all matters that the disciplinary/ competent authority shall have to go into and determine on inquiry. The competent authority shall be free to take action for the misconduct of absence in accordance with law. Disposed of.