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2001 DIGILAW 190 (JK)

Ab. Rashid v. State Of J. &K.

2001-09-10

S.K.GUPTA

body2001
1. Petitioner, Abdul Rashid, Selection Grade Constable No. 300, in Jammu and Kashmir Police Department was visited with order of dismissal from service in terms of Article 128 of the Jammu and Kashmir Civil Services Regulation read with relevant provisions of the Jammu and Kashmir Police Rules and Section 126 of the Jammu and Kashmir Constitution, passed by the Deputy Inspector General of Police (Respondent No. 2) vide his Order dated: 24-07-1987, which reads as under:- "SG. Constable Ab. Rashid Shah No: 300/ BD was transferred from District Budgam to District Kargil vide KPO order No: 253 of 1984 dated: 06-06-1984. He was relieved on 25-07-1984. From 25-07-84 todate this SG Constable has not reported in District Kargil. To secure his presence, the following messages were sent but of no avail:- 1. Signal No: 15874-75 dated: 30-05-86, issued by Kashmir Police Office, Srinagar. 2. Notice issued from KPO vide No: 3237-39 of 03-03-1987. 3. Signal No: Estt/87-2159-60 dated: 24-03-87 from SP Kargil to SP Budgam. 4. Letter No: 9235-36/KPO dated: 02-07-87 from DIG Kashmir to SP Budgam and Ab. Rashid Shah SG Constable No: 300/BD. 5. Letter No: 10114-15/KPO dated: 17-07-1987 from DIG Kashmir to SP Budgam and Ab. Rashid Shah No: 300/BD. 6. Signal No: 5779/GB dated: 13-07-87, from SP Budgam to SHO Budgam for presence of SG. Constable Ab. Rashid Shah. 7. Signal No: Estt/86-5656-GB dated: 31 -05-87, from SP Budgam to SHO Budgam. 8.Signal No: 20057/KPO dated: 0906-86 from DIG Kashmir to Dispol Budgam. 9. Signal No: Estt/PF/87-3278 dated: 02-05-87, from SP Kargil to DIG Kashmir. 2. For this unauthorised absence, it was proposed to conduct an enquiry against him. Therefore, he was summoned to face the enquiry. Despite the efforts put in by the different offices, this SG. Constable has not responded to any notice and has not bothered to join the services. This clearly shows that he is not interested in continuing the departmental formalities. Keeping such an undesirable person on the rolls of Police will adversely affect the discipline and morale of the entire police force. 3. Now, therefore, I, Veerana Aivalli, IPS. DIG of police, Kashmir, in exercise of powers vested in me under article 128 of J&K CSR read with relevant provisions of the J&K Police Rules and Section 126 of Constitution of J&K, hereby order the dismissal from service of SG Constable Ab. 3. Now, therefore, I, Veerana Aivalli, IPS. DIG of police, Kashmir, in exercise of powers vested in me under article 128 of J&K CSR read with relevant provisions of the J&K Police Rules and Section 126 of Constitution of J&K, hereby order the dismissal from service of SG Constable Ab. Rashid Shah No: 300/Budgam from the date of his unauthorised absence (25-07-87)." 2. The petitioner challenges the legality, proprietary and validity of the order of dismissal dated: 24-07-87 passed by respondent No. 2 and the order dated: 10-10-1985 issued by Superintendent of Police, Kargil recommending petitioners compulsory retirement from service and seeks the issuance of writ in the nature of certiorari quashing the said order on the grounds that the order of dismissal has been passed without holding an enquiry, without issuance of show cause notice for alleged unauthorised absence from duty and following the prescribed procedure of law nor the principles of natural justice have been adhered to by the competent authority passing order of his dismissal. 3. The case of the petitioner portrated in narration is that he was an employee of Jammu and Kashmir Police Department and posted at Sursyar, as S.G. Constable when transferred vide order No: 253 of 1984 dated: 06-06-1984 to District Kargil by respondent No. 2. Petitioner represented against the transfer order in pursuance of Government Circular No: 36-CD of 1983 dated: 08-09-1983, which provides that touring officers of the age of more than 55 years and non-touring officers of 50 years exempted from being posted to Kargil, but without any response. The petitioner, however, suffered ailment and further made representation to respondent No. 2 and the latter vide order No: 3237-39/KPO dated: 03-03-1987 directed the petitioner to proceed and report to SP, Kargil. The petitioner, however, could not join his place of posting at Kargil on account of his ailment, road blockade and non-availability of the air ticket and, consequently, applied for leave on medical grounds, which did not merit positive response and the petitioner was served with dismissal order dated: 24-07-1987. The petitioner, however, could not join his place of posting at Kargil on account of his ailment, road blockade and non-availability of the air ticket and, consequently, applied for leave on medical grounds, which did not merit positive response and the petitioner was served with dismissal order dated: 24-07-1987. The rest of the entire averments are made to justify the illegality of the impugned order of dismissal from service and order passed by respondent No. 2 and the order recommending the petitioners compulsory retirement by Superintendent of Police, Kargil, which according to him, were without holding disciplinary enquiry as envisaged under Police Rules and Section 126 of the Jammu and Kashmir Constitution and affording any opportunity of being heard in violation of the principles of natural justice. 4. The stand of the respondents in their counter is the petitioner was transferred to Kargil vide order dated: 06-06-1984 from District Budgam and accordingly relieved on 25-07-1984, but did not join duty and absented unauthorisedly till dismissed from service vide order dated: 24-07-1987 by respondent No. 2. That the petitioner did not inform about his where abouts to the Department for a period of more than three years nor reported to duties and thereby absconded, abandoned his service. The petitioner also did not avail remedies available to him under Police Rules, by which he is covered byway of appeal or review, nor filed any representation in this behalf. The Government Circular dated: 08-09-1993 relied upon the petitioner is not applicable to him as he was a non-touring official at the time of his transfer and below 50 years of age. Whatever the representation made by the petitioner were considered and found with out merit. It is further submitted that the petitioner was summoned to appear before enquiry officer, but without any response to any such notice despite all endeavours by the respondents nor he joined service. Lastly, it is submitted that the petitioner absconded and given up service by resorting to an adamant attitude, which resulted in his ouster and in such case, even no enquiry is required to be conducted in view of the facts that unauthorised absence came to be admitted by the petitioner and all other facts are almost admitted and stood revealed itself, and apparent from the face of the record. Plea of bad health of the petitioner that prevented him from joining the duties also is unsustainable for want of genuine certificate from a competent authority necessitated under Police Rules. 5. Heard and considered the rival contentions of the parties. Mr. Tassaduq Hussain, learned senior counsel appearing for the petitioner, vehemently urged that in order to put an end to the service of an employee by visiting him with a dismissal order, requirement of the Article 311 (2) of the Indian Constitution corresponding to Section 126 of the Constitution of Jammu and Kashmir State compels the appointing authority to hold a full dressed enquiry with witnesses and opportunity to cross-examination the witnesses, which has not been done in this case and, thus, rendered the order of dismissal illegal. His further contention is that no opportunity of being heard has been provided to the delinquent before taking such a drastic step of showing him the door leading to his removal from service. The petitioner, in fact, could not join his duty on account of his ailment for which he submitted medical certificate and made representations as well, but without any positive response from the respondents. That prolonged absence is no ground to dispense with the department enquiry mandatorily required under the Police Rules and the provisions of the Constitution. Mr. M.I. Qadiri, learned senior AAG, on the other hand, in dispelling the contention of the petitioners advocate,, submitted, it was no necessary to hold an enquiry in view of the admitted facts of the case. The petitioner did not respond to the communication sent to him through various signals from time to time. That the petitioner also came to be summoned to face the enquiry and despite putting efforts by different offices, the delinqent constable did not respond to any notice and also did not bother to joining the service. That the petitioner has abandoned the post by his absence for more than three years. A notice was also sent to the delinquent constable by the respondents directing him to report to SP, Kargil forthwith in pursuance with the transfer order, otherwise he will be dealt with under rules, but the petitioner did not resume the duty, which itself revealed that he was not interested in continuing the service nor was willing to participate in the enquiry and complete the departmental formalities. Although number of communications/notices explicitly delineated in the dismissal order were addressed to the petitioner by the respondents right from his unauthorised absence after failing to join his place of posting at Kargil, though relieved from the office on 25-07-1984 also did not inform the Department about his whereabouts, and the last one is dated: 03-03-1987, which reads as under: - "NOTICE Shri Abdul Rashid Shah S.G.Ct.No:300/BD S/o Ab. Ahad Shah R/o Kash Rangair C/oSupdt. of Police, Budgam. You were transferred from District Budgam to District Kargil vide KPO order No: 253 of 1984 dated: 06-06-1984. But as per the report of SP Kargil you have not joined your place of posting till date. Therefore, you are directed to report to SP Kargil forthwith, otherwise you will be dealt under rules Sd/- Dy. Inspector General Police, Kashmir. 6. The petitioner was, thus, asked to resume the duty failing which he will be dealt under rules. It is not disputed that all these communications were sent at his correct address, but the petitioner neither resumed the duties for communicated his whereabouts, nor participated in the enquiry nor replied the communications to justify his absence. It was further submitted by Mr. Qadiri that in such circumstances, there was no occasion for holding an enquiry because all this spelt out the defiance attitude of the petitioner. As a matter of fact, the petitioner is deemed to be absent from 25-07-1984 when he was relieved from District Budgam to join his posting at Kargil where he was transferred, but failed to join for over three years. 7. Mr. Tassaduq Hussain, petitioners advocate, it is meaningful to point out, in unequivocal terms conceded during debate the factual position of the case with regard to the unauthorised absence of the petitioner and communications addressed from time to time and pleaded that dismissing authority did not consider the long service of the petitioner, and without satisfying that the unauthorised absence of the petitioner amounted to gravest acts of misconduct, passed the order of dismissal in depriving him of pensionary benefits and also raised an argument of equity, good conscious and mercy to be extended to the petitioner. 8; Now, the question is whether in the circumstances of the case, it was possible/ necessary to hold an enquiry when the petitioner did not acknowledge the communications, did not joining the place of posting at Kargil and remained on unauthorised absence from 25-07-1984 till visited with an order of dismissal, also did not inform the Department about his where abouts and did not face the enquiry when proposed to conduct an enquiry against him and summoned by the competent authority. 9. In Dharmarathmakara Raibahadur Arcot Ramaswamy Mudaliar Education Institution Vs. The Educational Appellate tribunal and another, AIR 1999 SC 3219, the Apex Court observed as under:- u... Giving of opportunity or an enquiry of course is a check and balance concept that no ones right be taken away without giving him/her opportunity or without enquiry in a given case or where statute require. But this cannot be in a case where allegation and charges are admitted and no possible defence is placed before the authority concerned. What enquiry is to be made when one admits violations? When she did not report back to her duty which is against her condition of leave and contrary to her affidavit which is the charge, what enquiry was to be made? In a case where facts are almost admitted, the case reveals itself and is apparent on the face of record, and in spite of opportunity no worthwhile explanation is forthcoming as in the present case, it would not be a fit case to interfere with termination order." 10. Therefore, no enquiry was neeessary in view of what has been laid down in the aforesaid judgment by the Honble Supreme Court. The petitioner in this case had absconded and by remaining absent unauthorisedly after he was relieved on transfer from Budgam, given up his service and did not report back. This fact remained undisputed and uncontroverted. It is also found that the petitioner did not inform the Department about his whereabouts nor resumed his duties in Kargil at his new place of posting. Besides, the petitioner did not respond to the communication sent to him through various means by way of notices, signals nor resorted to remedies provided under Police Rules against the order of dismissal for appeal or revision. He even did not approach the respondents with a representation for mercy. 11. Besides, the petitioner did not respond to the communication sent to him through various means by way of notices, signals nor resorted to remedies provided under Police Rules against the order of dismissal for appeal or revision. He even did not approach the respondents with a representation for mercy. 11. Rule 359 Sub-Rue 11 of the Jammu and Kashmir Police Manual prescribed procedure relating to the departmental enquiries is in perimeteria with provisions of Section 126 of the Constitution of Jammu and Kashmir corresponding to Article 311 of the Constitution of India and reads as under:- (11) (1) As laid down in section 126 of the constitution of Jammu and Kashmir, no officer shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2)No police officer shall be dismissed or moved or reduced in rank until he has been given a reasonable opportunity of showing cause orally and also in writing against the action proposed to be taken in regard to him, provided that this clause shall not apply:- (a) where a person is dismissed or removed or his conviction on a criminal charge; (b) where an authority empowered to dismiss or remove an officer or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing it is not reasonably practicable to give to that person an opportunity of showing cause; or (c) where the Sadar-i-Riyasat is satisfied that in the interest of the security of the State it is not expedient to give to that officer such an opportunity. (3) If any question arises whether it is reasonably practicable to give to any officer an opportunity of showing cause under clause (2) above, the decision thereon of the authority empowered to dismiss or remove such officer or to reduce him in rank, as the case may be, shall be final." 12. In order to terminate services of an employee, procedure prescribed therein has to be followed, but where the employee stays away from duty for over three years together, as it is in the instant case, which constitutes a misconduct by unauthorised absence and which would constitute a basis for presuming that he has surrendered the employment. The opportunity of being heard alone is to be given under Article 311. This legal position was also considered by this Court in Munshi Ram Vs. The opportunity of being heard alone is to be given under Article 311. This legal position was also considered by this Court in Munshi Ram Vs. State and others, SLJ 1997 266, which reads as under:- ".....But, there could be cases where an employees services could be treated to have ended by his conduct and under the force of circumstances. If an employee stays away from duty years on and does not express his desire and intention to return, even after a decade or so, and where his fitness for duty is under cloud, it cannot be said or held that he should be treated in service because the employer had omitted to put him on notice or to pass a formal order of termination. In such cases the conduct of the employer would constitute a base for concluding that he had surrendered his employment even if he was not removed from service by a formal order. Otherwise an delinquent employee can stay away from duty for years on and return one day at the fag end and cash on the employers omission to put him on notice or to pass on formal order which could result in his reinstatement on a technicality. In the circumstances I find it easy to hold that the petitioner can no longer be treated in service in the facts and circumstances of the case even when no formal order of his termination of service was passed. It would also be administratively inexpedient at this stage to allow him to return to duty when he is at the verge of retirement and when his fitness for such duty is in doubt." 13. It, therefore, follows that no enquiry is required to be held where it is impracticable to do so in circumstances brought about by the employee, who has surrendered the employment intentionally throwing to winds all cannos of service. It, therefore, follows that no enquiry is required to be held where it is impracticable to do so in circumstances brought about by the employee, who has surrendered the employment intentionally throwing to winds all cannos of service. Where a Government employee does not join his place of posting after transfer, fails to communicate With the Department and does not provide about his whereabouts for over three years and remains unauthorisedly absent and also does not face enquiry proposed to be conducted against him in not putting appearance despite summoned, besides, not reporting SP, Kargil forthwith at his new place of posting despite notice cautioning him to be dealt under rules in case otherwise, without taking steps to seek proper sanction of his remaining away and displaying the conduct to defy the service discipline, he shall be treated to surrender his employment of his own volition and that would not have served to benefit his constitutional safeguards or any procedure established by law contemplating an enquiry into his service. The petitioner, in the instant case, has closed all the doors by his own conduct and does not sense any logic that he should be allowed to return to the post in the facts and circumstances of the case. It is evident from the record that he earlier also earned punishment thrice- two major for unauthorised absence and third through Deputy Secretary, General Department Vigilance which fact has also not been dispusted by Mr. Tassaduq Hussain, petitioners advocate during arguments. It is not understandable how does it now lie in the mouth of the petitioner to claim the benefit of enquiry into his alleged absence. Nothing more warranted to be done by the disciplinary authority in the matter in the existing circumstances. 14. In Ghulam Mohammad Vs. Tassaduq Hussain, petitioners advocate during arguments. It is not understandable how does it now lie in the mouth of the petitioner to claim the benefit of enquiry into his alleged absence. Nothing more warranted to be done by the disciplinary authority in the matter in the existing circumstances. 14. In Ghulam Mohammad Vs. State of Jammu and Kashmir, SLJ1998 351, also the legal position came to be noticed with regard to an opportunity of being heard to be afforded in the circumstances of this case, which also bears similarity of the facts of this case and reads as under:- "....It may be true that holding of inquiry as envisaged in Article 311 of Constitution of India, Section 136 of J&K Constitution and Rule 33 (1) of J&K Civil Services (Classification, Control and Appeal) Rules, 1956 is necessary before service of any employee is terminated for absence without leave or absence after expiry of leave, as held in Dr. I.P. Kohli Vs. State of Jammu and Kashmir (1990 KLJ 374), Syed Zaffar Mehdi Vs. State (1992 SLJ143) and State Vs. S. Qamar Ali (1994 SLJ 372). But this principle of law has no universal application. In case facts disclosed that employee had absconded or where it is for other reasons impracticable to communicate with him or where in the interest of the security of the State, it is considered not expedient to give to that person an opportunity of showing cause against the action proposed to be taken against him, Sub-Rule (2) of Rule 33, J&K CS (CCA) Rules, 1956 is attracted." 15. On facts, the petitioner clearly abandoned the job as is unambiguously gatherable from his conduct without any intention of resuming it. Therefore, this case does not require holding of an enquiry in terms of Sub-Rule (11), Rule 359 of Police Rules. Therefore, holding of an enquiry and giving of an opportunity to the petitioner was not necessary nor practicable. Similar view has been taken in Dr. (Mrs.) Shashi Chaudhary Vs. State of Jammu and Kashmir, Services Law Reporter 1969 236 and it was observed as under:- "....This is not one of those cases in which the requirements of the Constitution compel the appointing authority to hold a full dressed enquiry with witnesses and opportunity to cross examine the witnesses which have been the foundation of the rulings given by this court. This is an exceptional case of complete dereliction of duty and pretense of serving without even intending a day on duty." 16. Mr. Tassaduq Hussain, appearing for the petitioner further contended that the petitioner was prevented to resume his duty on account of his ailment in respect of which he has also produced a medical certificate. In this context, it may be pointed out that Police Rules governing the employment of the petitioner are very much clear. An employee of the Police Force is required to take treatment from police Hospital from an authorised medical attendant, which means the Principal Medical Officer appointed by the Government to attend its Officers in the station or district to which the member of the service is posted. In case there is no Principal Medical Officer appointed by the Government at the station at which member of the service fells ill, the Principal Medical Officer shall be the officer appointed by the State Government in which the station or the district is situated as is contemplated under the rules applicable to the petitioner. The certificate found on record by some Dr. Farooq Ahmad is undated. This certificate being not issued by an authorised Officer, far from being genuine, has rightly not been considered by the competent authority. In the certificate, the petitioner has also been shown to be fit to resume to his duties. It is not the case of the petitioner that after he was medically fit to attend his duties ever approached the competent authority and expressed desire to return to the duty till he was served with dismissal order. Therefore, manifestly, his case seems to that of surrendering his employment on account of his unauthorised absence and abscondance. Undoubtedly, cases are inconceivable where employee was terminated by unfavourable circumstances from joining his duty efforts made by him in this behalf, but that situation is found to be missing in the present case, viz, staying away from the duty by the petitioner is self-explanatory and required no further explanation. The contention of the petitioners advocate, therefore, on this account also, is both legally and factually unfounded. Another limb of argument advanced by Mr. The contention of the petitioners advocate, therefore, on this account also, is both legally and factually unfounded. Another limb of argument advanced by Mr. Hussain was that there is no finding of the competent authority of gravest act of misconduct on the part of the petitioner, which led to the dismissal of the petitioner from service in the order impugned in the writ petition, nor the length of service has been taken into consideration. It is pertinent to point out that no such ground exists in the Police Rules, which mandates its existence in the texture of the dismissal order passed by the competent authority nor the one has been shown by Mr. Hussain during the course of debate. His further contention that length of service should also be taken into account while determining the proportionality of the punishment by the competent authroity. This does not find place in the Police Rules necessitating the competent authority to consider this aspect at the time of awarding punishment. The action taken against the delinquent by the competent authority was on the ground of unauthorised absence, abandonment of the job evidence from his conduct rendering him undesirable person on the roll of the Police, which otherwise is bound to affect the discipline and morale of the entire police force. The order of dismissal of the petitioner from service by the competent authority, in my opinion, does not suffer from any legal infirmity on factual frailty on this count also, necessitating indulgence of the Court. The judgment brought to my notice and relied upon by the learned counsel for the petitioner turns on their own facts and have no application to the facts of this case. This case is of piquant nature, one of a person, who did not join to his place of posting of transfer, remained unauthorisedly absent for a space of over three years and even after notice did not report to his place of posting on transfer, refrained from responding to the enquiry proposed to be initiated against him on account of gravest act of misconduct of unauthorised absence, defying attitude thereby surrendering his service till he was visited with an order of dismissal. If there was no enquiry, it was because he did not court for enquiry. If there was no enquiry, it was because he did not court for enquiry. On entire concatenation of facts and circumstance discussed above, there is, in my opinion, no merit in this writ petition and the same is accordingly dismissed. Under the peculiar circumstances of this case, there is no order as to costs.