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2000 DIGILAW 74 (JK)

Mohd. Khalil Hajam v. State Of J. &K.

2000-04-18

NISAR AHMAD KAKRU

body2000
1. The petitioner, a Hajam (Barber) in Jammu and Kashmir Armed Police was shown the door on the ground of unauthorised absence by an order of discharge passed by the Commandant (Respondent 5 herein) bearing No. 109 of 1993 dated 12-3-1993 without an inquiry. This order is called in question. 2. The writ petition was filed in the year 1993. It had come up for final hearing on several dates but had to be adjourned either because of non appearance of the petitioner™s counsel or at the request of Mr. Qadri. On 24-2-2000 when the case was taken up for final hearing the petitioner appeared in person before the court. He stated that being hard hit by poverty, he is incapable of making legal assistance available to the court and sought disposal of the case in the light of averments made in the writ petition. Mr Qadri who represents the respondents was neither present nor any request was made on his behalf for adjournment. In this background I proceed to dispose of the petition finally on the strength of pleadings of the parties. 3. The facts which have given rise to this petition are that the petitioner having taken ill had applied for sick leave. To ascertain the factual position, the leave application was got enquired into by the Respondent 5 on his own through SHO Police Station, Bejbehara. The inquiry substantiated the factum of ailment besides inability of the petitioner to discharge the duties being bed ridden, consequent upon which, the leave was sanctioned for 180 days in the first instance in his favour. These are the admitted facts and are reflected in the sanction of leave accorded vide order No. 463 of 1988 dated 2-7-1988 (annexure-P-1 to the writ petition) by the respondent 5 which was followed by extension on the basis of Medical certificate for ninety and sixty days vide order No. 703 of 1988 dated 12-10-1988 (annexure P2 to the writ petition) and order dated 4-5-1989 (annexnre-P3) respectively. 4. The petitioner did not improve and the ailment aggravated. He had to be hospitalised in District T.B. Hospital, Anantnag under MRD NO. 2232 and remained under treatment both as an indoor and outdoor patient for a long time. In the meanwhile he came to be discharged from services by the respondent 5 vide Order No. 309 of 1993 dated 12-3-1993 (impugned order for short hereinafter). He had to be hospitalised in District T.B. Hospital, Anantnag under MRD NO. 2232 and remained under treatment both as an indoor and outdoor patient for a long time. In the meanwhile he came to be discharged from services by the respondent 5 vide Order No. 309 of 1993 dated 12-3-1993 (impugned order for short hereinafter). The cause for discharge of the petitioner is attributed by the respondents to his alleged failure to respond to the notice dated 12-2-1993 through which he was asked to resume the duties within thirty days from the date of notice. 5. It is clear from the order impugned that no inquiry, whatsoever, was conducted before passing the order of discharge and the reasons for dispensing with the enquiry are couched by the respondent 5 in the following words: An open enquiry is not possible in view of the conduct of the follower by remaining unauthorised absent. As a result the latest three cases of his unauthorised absence are yet to be decided. Now taking recourse of Article 311 of Jammu and Kashmir Constitution, Article 128 of the Jammu & Kashmir C.R.Vol., 1st. and 208 (G) Vol. II and 359 Sub rule II (B) of the J&K police Manual, the follower F-56 XI Mohammad Khalil is discharged from service with immediate effect. The period of absence mentioned in para 3 is treated as dies non.� 6. From the contents of the order, it transpires that the inquiry was dispensed with by the respondent 5 by exercising the power under Article 311 of the J&K Constitution, least knowing that 311 is an Article which finds place on the Constitution of the country and not on the constitution of Jammu & Kashmir State. All this suggests that the order suffers from gross non application of mind in as much as the authority has failed to appreciate even the provision of law under which he was exercising the power. Be that as it may he has taken recourse to the provision of Jammu & Kashmir Constitution and the relevant provision being section 126(2)(b), same is reproduced hereunder: 126. Dismissal, reduction or removal of persons employed in civil capacities under the State-(1) No person who is a member of a civil service of the state or holds a civil post under the State shall be dismissed or removed by an authority subordinate to that by which he was appointed. Dismissal, reduction or removal of persons employed in civil capacities under the State-(1) No person who is a member of a civil service of the state or holds a civil post under the State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry: - Provided that this sub-section shall not apply- (a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge: or (b) Where the authority empowered to dis-miss or remove a person or to reduce him in rank is satisfied that for some reasons, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) Where the Governor is satisfied that in the interest of the security of the state, it is not expedient to hold such inquiry. (3) If, in respect of any such person as aforesaid, a question arises whether it is reasonable to hold such inquiry as is referred to in sub-section (2) the decision hereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.� 7. (3) If, in respect of any such person as aforesaid, a question arises whether it is reasonable to hold such inquiry as is referred to in sub-section (2) the decision hereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.� 7. It is manifest from the constitutional mandate that certain guarantees and safeguards flow to a member of a civil service or who holds a civil post which include placing a restraint on the power of dismissal or removal from service or reduction in rank on an authority empowered in this behalf, unless an enquiry is conducted in which the Government servant has to be informed of the charges and has to be afforded a reasonable opportunity of being heard in respect of such charge but proviso(b) envisages an exception to the general rule which is quite similar to Article 311 (2) (b) of the Indian constitution and empowers the authority to do away the inquiry if the authority is satisfied that: a) it would not be reasonably practicable to hold the enquiry; b) the satisfaction so arrived at is based on reasons; c) the reasons are reduced into writing. 8. Thus it is obligatory upon the authority to follow the aforementioned conditions. The question arises, whether these conditions were observed. This question needs to be appreciated in the light of the counter filed by the respondents, but significantly there is not even a whisper in the counter to indicate any reason whatsoever which would constitute the basis for the satisfaction of the authority to hold that it was not reasonably practicable to hold the inquiry. Moreso, there is no averment even worth the name in the counter, which would suggest that the reasons to dispense with the inquiry were recorded. Obviously, there was no material before the authority to hold that an enquiry was not reasonably practicable and such omission renders the impugned order liable to be set aside. 9. Moreso, there is no averment even worth the name in the counter, which would suggest that the reasons to dispense with the inquiry were recorded. Obviously, there was no material before the authority to hold that an enquiry was not reasonably practicable and such omission renders the impugned order liable to be set aside. 9. Here arises a question, whether judicial scrutiny is permissible notwithstanding the mandate of Article 311(3) of the Indian Constitution and Section 126(3) of Jammu & Kashmir Constitution, which attaches finality to the decision of the authority to dispense with the inquiry To have an answer to the question, it is advantageous to refer to the judgment in Union of India Versus Tulsi Ram Patil reported in AIR 1985 SC page 1416, in which the Apex Court has observed. A disciplinary authority is not expected to dispense with the disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry because the Departments case against the government servant is weak and must fail. The finality given to the decision of the disciplinary authority by article 311(3) is not binding upon the court so far as its power of judicial review is concerned.� The answer to the question being in affirmative, the court is within its powers to go for a judicial review. 10. The text of the order impugned leaves no room for a dispute that a right of opportunity of being heard has been denied to the petitioner on the ground of availability of the power under article 128 of the Jammu and Kashmir Civil Service Regulations, which is noticed hereunder: 128. Absence without leave or after the end of leave involves loss of appointment, except as provided in article 203(b) or when due to ill health, in which case, the absence must produce a certificate of the Medical Officer.� 11. No doubt a plain reading of the Regulation reveals that the unauthorised absence renders an employee liable to removal from service but a moot question arises as to whether such absence ipso facto results in his removal. No doubt a plain reading of the Regulation reveals that the unauthorised absence renders an employee liable to removal from service but a moot question arises as to whether such absence ipso facto results in his removal. If the answer would be in affirmative it would mean that an unbridled power and uncontrolled discretion is conceded to an employer offending article 14 of the Constitution besides, violation of article 311(2) and Section 126 of the J&K Constitution which place a restraint on the authority from exercising the power of dismissal/ removal from service or reduction in rank unless an opportunity to show cause is given to such employee Moreso, audi alteram partem facet of natural justice enshrined in the Constitution has to be read in the statute even if it is silent about the procedural safeguards guaranteed to a member of the civil service of the State. While holding so, I am fortified by a judgment of the Apex Court in Basudea Tiwary Versus Sico Kanhu University reported in AIR 1998 SC 3261 at 3264 para 10 in which the Court has held: 10. In order to impose procedural safe guards, this court has read the requirement of natural justice in many situations when the statute is silent on this point. The approach of this court in this regard is that omission to impose the hearing requirement in the statute under which the impugned action is being taken does not exclude hearing- it may be implied from the nature of the power-particularly when the right of a party is affected adversely. The Justification for reading such a requirement is that the court merely supplies omission of the legislation, (vide Mohinder Singh Gill Vs. The Chief Election Commissioner, AIR 1978 SC 851) and except in case of direct legislative negation or implied exclusion (vide S.L. Kapoor Vs. Jagmohan, R 1981 SC 136).� 12. In the light of above principle of law, it becomes imperative upon the authority of the State to adhere to the principles of natural justice while taking action under Regulation 128 Civil Service Regulations. Jagmohan, R 1981 SC 136).� 12. In the light of above principle of law, it becomes imperative upon the authority of the State to adhere to the principles of natural justice while taking action under Regulation 128 Civil Service Regulations. It may not be of place to mention here that for good governance of the State, Regulation like 128 appears to be a requirement so as to apply corrective measures to the system and it is a well conceived provision, but in such action the employer has to be fair, just and reasonable and this object can be achieved by adhering to the procedure laid down under the Jammu and Kashmir Civil (Classification Control and Appeal) 1956. The Division Bench while deliberating upon a similar question in state versus S. Ali reported in SLJ 1994 page 372 at 376, has laid down: 12. It is an established principle of law that a government servant enjoys the protection of his service, as contained in Article 311 of the Constitution of India, corresponding to section 126 of the constitution of J&K. The Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, provides the procedure which is to be followed by a competent authority, as a mandate of law, which imposing a punishment on any government servant for any misconduct. The absence of a government servant without leave or after the end of leave, which involves loss of appointment cannot be deviated from the definition of misconduct in the broader terminology of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, and thus the procedure as laid down in the Appeal Rules mentioned above, was to be followed by the competent authority, before taking action against the respondent within the purview of Article 128 of the aforesaid Regulations, by virtue of which a Govt. servant loses his appointment if found absent without leave or after the end of the leave.� 13. Thus what emerges is that the authority is within its powers to take an action under Article 128 of the Civil Service Regulations, but while doing so it has to follow the procedure established by the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. 14. Thus what emerges is that the authority is within its powers to take an action under Article 128 of the Civil Service Regulations, but while doing so it has to follow the procedure established by the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. 14. The respondent No.5, while passing the order impugned, appears to have been in a fix as to whether he would exercise the power under police Rules or Civil Service Rules and to sustain the order he has referred to both. Assuming that the power was exercised under police rules, yet it was incumbent upon him to follow the procedure as prescribed under Rule 359 of the Police Rules. Moreover, the Police Rules do not provide for discharge from the service without an inquiry and the discharge being a major punishment, its infliction is not permissible without observing the procedure. He has neither followed the procedure nor a reasonable opportunity to deny the guilt and establish the innonce was granted to the petitioner, therefore, order impugned is not sustainable in law. 15. This case is unique of its kind in as much as the affected party, the petitioner herein, could succeed in getting the copy of the impugned order by the indulgence of the court only, that too, when costs to the tune of Rs. 5000/- were imposed on the Commandant (respondent No. 5 herein). The petitioner is not facing an allegation of threat on his part to the security of the State but it is a case of over stay on medical leave and the fact of ailment is evident from the communication addressed by the D.I.G. of Police to the I.G. of Police (annexure 6 to the writ petition). This communication further depicts that the DIG could not permit the petitioner to resume the duties because respondent No. 5 had withheld the relevant information from him and the DIG was, therefore, constrained to take up the matter with the IG (responded No. 3). Thus it is clear that respondent No. 5 did not respond to the direction of his superior even, how he could be expected to respond to the request of a barber lowest in the hierarchy. Such conduct of respondent No. 5 further debases his stand that he had served the notice on the petitioner. Thus it is clear that respondent No. 5 did not respond to the direction of his superior even, how he could be expected to respond to the request of a barber lowest in the hierarchy. Such conduct of respondent No. 5 further debases his stand that he had served the notice on the petitioner. The petitioner has also specifically stated in his rejoinder that no notice was served on him but nothing has been said by the respondents in opposition to such statement. They have not deemed it proper to take the court into confidence in respect of the material, which would indicate service of the notice on the petitioner. The petitioner has also averred that he was hospitalised and was struggling for life. This averment has also gone unrebutted. How unjust is it to require a person, whose ailment is substantiated by the certificates and the record of the hospital, to resume the duties at the risk of his life. Moreso, it is not sufficient to allege that notice was served on the petitioner but the onus is on the respondent No. 5 to satisfy the court that the service was made, which is wanting. Even if it is assumed that the petitioner had not responded to the notice yet the respondent No. 5 was required to be alive to the fact that his action was going to deprive the petitioner of his legal and constitutional right to hold the post and it could not be taken away unless he was heard because the rules, under which action against him is said to have been taken, do entitle him to a reasonable opportunity of being heard. Therefore, it was obligatory upon the respondent No. 5 to serve the notice on the petitioner through an effective mode, which includes registered post and publication through News paper/s. The respondent No. 5 appears to have acted in utter violation of the rules, which afford sufficient protection to an ailing employee provided ailment is supported by a medical certificate, which is not lacking in the case on hand and it sufficiently establishes the fact that the petitioner had not opted for absence to be on a pleasure trip but it is his ill health which had constrained him to continue on leave. I find no hesitation to say on the strength of the undisputed documents that the respondent No. 5 has dealt with the matter very casually and the order suffers from non application of mind. 16. Viewed thus, this writ petition succeeds and the order impugned bearing No. 109 of 1993 dated 12-03-1993 is quashed with the direction to the respondents that the petitioner shall be put back to duty with all consequential benefits including arrears and salary. While directing so, it needs to be observed that as per the communication of the DIG bearing No. PE 5899/AROK dated 15-06-1993, the petitioner had reported for duties after regaining health on 07-05-1993, which suggests that he was on medical leave till the said date, therefore, from his first date of over stayal to 07-05-1993, the petitioner shall be treated on medical leave, which period shall be settled by the competent authority according to the rules governing his services, for purposes of salary as also for other benefits including seniority. 17. I would now like to deal with the review petition, contempt petition and other miscellaneous petitions. It is seen from the order dated 26-07-1996 that the court had come to a conclusion that the Commandant. XI Battalion had withheld the order of discharge of the petitioner to his prejudice with a view to deprive him of his right to seek remedy against the order, thereby, he was prevented to challenge the order impugned and his right to move the court was infringed in the process and for this lapse the court had burdened respondent No 5 with costs to the tune of Rs. 5000/-, which were ordered to be recovered from his salary. One Shri Abdul Subhan Lone has filed review petition before this court, contending therein that he was not in position of the post of Commandant when the lapse occurred. Since this fact was not brought to the notice of the court when the order dated 26-07-1996 was passed, therefore, it was modified and the process was initiated to identify the person who was the Commandant at the relevant point of time and the endeavour of the court appears to compensate the petitioner suitably and this purpose has been achieved now, for. the petitioner stands compensated by this judgment, I, therefore, choose to recall the order dated 26-07-1996, which has the effect of burdening the respondent No. 5 with Rs. the petitioner stands compensated by this judgment, I, therefore, choose to recall the order dated 26-07-1996, which has the effect of burdening the respondent No. 5 with Rs. 5000/ - and the order shall be deemed to be non-est, consequently, review petition, contempt petition and other miscellaneous petitions, having become infructuous, are dismissed. 18. In the result, writ petition is allowed as indicated in para (15) hereinabove. 19. No order as to costs.