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2002 DIGILAW 335 (JK)

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

2002-10-30

B.L.BHAT, T.S.DOABIA

body2002
Per : T.S. Doabia, Judge (Oral) The respondent-authorities resorted to Article 128 of the Jammu and Kashmir Civil Service Regulations and came to the conclusion that the respondent (writ-petitioner) was on unauthorised absence and, therefore, his services are liable to be brought to an end. An order dated 12th March, 1993 came to be passed. For facility of reference, this order is being reproduced below : "Headquarters J&K Armed Police XI Battalion, Manigam. Order No. 309 of 1993 Dated 12.3.1993. F-56/XI Mohammad Khalil JKAP XI Battallion was enrolled as follower on 5.10.1987. In about 51/2 years of service the follower has earned six punishments upto January, 1993 which involves five major punishments. During the year 1992 four major punishments have been awarded to the follower as per following orders : 1. Order No.146 of 1992 dated 31.1.1992. 2. Order No. 724 of 1992 dated 30.6.1992. 3. Order No. 880 of 1992 dated 27.8.1992. 4. Order No. 984 of 1992 dated 30.9.1992. 2. The follower has spend 137 days on earned leave. In most of the cases the period of absence has been treated as earned leave after it was decided by the enquiry officer. Besides, he has availed the following period as leave after the cases of unauthorised absence were decided by the competent authorities from time to time mostly on sympathetic grounds : 1. From 26.2.1988 to 21.2.1989 = 360 days as leave not due. 2. From 26.7.1989 to 12.8.1989 = 18 days as extra ordinary leave. The following periods of unauthorised absence are still undecided : 1. From 23.8.1992 to 10.10.1992 = 48 days. 2. From 16.11.1992 to 5.12.1992 = 19 days. 3. From 9.1.1993 to 11.3.1993 = 61 days. 3. From the above it is clear that out of five years and five months of service, the follower has spend 643 days at home on leave and while on unauthorised absence. This is in addition to the amount of casual leave, gazetted holidays and sundays, which he has availed during this period. Several notices were issued to the follower and final notice was served upon him vide this office No.Estt/1876-77/XI dated 12.2.1993. This notice was received by the said follower under his own signature but still he failed to report for duty. Several notices were issued to the follower and final notice was served upon him vide this office No.Estt/1876-77/XI dated 12.2.1993. This notice was received by the said follower under his own signature but still he failed to report for duty. A reasonable time of 30 days was given to him from the date of final notice to resume duties, but he has chosen not to do so and continues to remain unauthorisedly absent from duty. 4. From the facts and figures given above it is clear that the follower, F-56/XI, Mohammad Khalil is not interested in service and is a regular and habitual absentee. Inspite of giving him ample chances to mend his behaviour., the follower F-56/XI, Mohammad Khalil seems to be not only arrogant indisciplined, but is likely to infest others in the Battalion if he allowed to continue in service. An open enquiry is also not possible in view of the conduct of the follower by remaining unauthorisedly absent. As a result the latest three cases of his unauthorised absence are yet to be decided. Now taking recourse to Article 311 of J&K Constitution, Article 128 of J&K CSR Volume I and 208 (G) Volume II and 598 Sub-rule II(B) of 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. 5. A perusal of the above order makes it apparent that the appellant was absent on earlier occasions also. In addition to this, it was observed that an open enquiry was not possible in view of the conduct of the appellant, being on unauthorised absence. As a result, taking recourse to Article 311 of the Constitution, Article 128 of J&K CSR Volume I and 208 (G) volume II and 359 sub-rule II (B) of Jammu and Kashmir Police Manual, the appellant was discharged from service. The period of absence mentioned in para 3 of the order was treated as dies non. 6. It be seen that if service of an employee is to be brought to an end, an enquiry is to be held with a view to determine as to whether act of absence is willful or not. The respondent (writ-petitioner) was supposed to be put on notice before passed the order of punishment. This has not happened in this case. It be seen that if service of an employee is to be brought to an end, an enquiry is to be held with a view to determine as to whether act of absence is willful or not. The respondent (writ-petitioner) was supposed to be put on notice before passed the order of punishment. This has not happened in this case. As such the view expressed by the learned Single Judge is a view to which no exercise can be taken. 7. Independently of the reasoning given by the Learned Single Judge, it be seen that the Supreme Court in case of State of Mysore v. Mache Gowda, AIR 1964 SC 506, observed that if previous misconduct is to be taken into consideration, then the concerned employee should be put on notice.. What is said by the Supreme Court in para 7 of the judgment (supra) is reproduced below : "7. Under Article 311 (2) of the Constitution, as interpreted by this Court, a Government servant must have a reasonable opportunity not only to prove that he is not guilty of the charges levelled against him, but also to establish that the punishment proposed to be imposed is either not called for or is excessive. The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the Government servant must be told of the grounds on which it is proposed to take such action. If the grounds are not given in the notice, it would be well high impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular Punishment; he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the proposed punishment was mainly based upon the previous record of a Government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld from the knowledge of the Government servant. If the proposed punishment was mainly based upon the previous record of a Government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld from the knowledge of the Government servant. It would be no answer to suggest that every Government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on him; nor would it be an adequate answer to say that he knew as a matter of fact that the earlier punishments were imposed on him or that he knew of his past record. This contention misses the real point, namely, that, what the Government Servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him. It is not possible for him to know what period of his past record or what acts or omissions of his in a particular period would be considered. If that fact was brought to his notice, he might explain that he had no knowledge of the remarks of his superior officers, that he had adequate explanation to offer for the alleged remarks or that his conduct subsequent to the remarks had been exemplary or any rate approved by the superior officers. Even if the authority concerned took into consideration only the facts for which he was punished it would be open to him to out forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities concerned till the time the present enquiry. He may have many other explanations. The point is not whether his explanation would be acceptable but whether he has been given an opportunity to give his explanation. We cannot accept the doctrine of `presumptive knowledge or that of `purposeless enquiry, as their acceptance will be subversive of the principle of `reasonable opportunity...." 8. Thus, in view of the reasoning given by the learned Single Judge and in view of what is said by the Supreme Court in State of Mysore v. Mancha Gowda (supra), the order dated 12th March, 1993 passed by the respondent concerned cannot be sustained. 9. Thus, in view of the reasoning given by the learned Single Judge and in view of what is said by the Supreme Court in State of Mysore v. Mancha Gowda (supra), the order dated 12th March, 1993 passed by the respondent concerned cannot be sustained. 9. The appeal as such is found to be without merit and is dismissed.