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2005 DIGILAW 158 (JK)

Tasneem Gowhar (Dr. ) v. State

2005-05-28

HAKIM IMTIYAZ HUSSAIN

body2005
1. Dr. Tasneem Gowhar was working as Assistant Professor, Department of Gynaecology and Obstetrics, Government Medical College, Srinagar. In the year 1985 she applied for 35 days (half pay leave) in continuation of summer vacation w.e.f. 1.8.1985 with permission to leave the station to join her husband at Saudi Arabia. The leave was sanctioned in her favour by the Principal, Government Medical College, Srinagar on 19.7.1985. According to the petitioner she proceeded on leave as her husband who was in Saudi Arabia was not well and she had to join him to look after him. Latter she applied for extension of leave for a further period of one year w.e.f. 19.9.1986. The leave it appears was not sanctioned and a notice was issued to her by respondent No.1 threatening her that action of termination of service will be taken against her. According to the petitioner at that time she was in Saudi Arabia and was informed about the notice by her father-in-law namely Dr. Ghulam Nabi on Telephone. 2. Petitioner filed a petition SWP No. 655 of 1987 challenging the said notice. The petition was disposed of by this court on 9.5.1989. The Court directed the petitioner to join her duty on 1.7.1989. Petitioner applied to the court for review of the order with the permission to join in the month of January 1990. The petitioner™s case is that when she returned to Srinagar to join her duty she found that the entire valley had been plunged into deep turmoil and turbulence and the situation was so bad that the Kashmir valley had been declared as a disturbed area. On reaching Srinagar she for security reasons could not resume duty but intimated respondent No.2 that in view of horrifying situation it was not possible for her to resume duties, she accordingly requested for extension of leave for a further period of one year of whatever kind due. Later when the situation improved she came to Delhi, but was shocked to know that her brother-in-law namely Rasmasood Shahri was suffering from cancer. He was shifted to Bombay for immediate medical treatment. She accompanied her brother-in-law to Bombay and later Delhi where he was admitted in Rajiv Gandhi Memorial Cancer Institute. Her brother-in-law ultimately died on 8.6.1998. Later when the situation improved she came to Delhi, but was shocked to know that her brother-in-law namely Rasmasood Shahri was suffering from cancer. He was shifted to Bombay for immediate medical treatment. She accompanied her brother-in-law to Bombay and later Delhi where he was admitted in Rajiv Gandhi Memorial Cancer Institute. Her brother-in-law ultimately died on 8.6.1998. Immediately thereafter she approached respondents with the request to allow her to resume the duty but she came to know that her services had been terminated in terms of Article 128 of Jammu and Kashmir Civil Service Regulation. She was given copy of the Government Order No. 324-HME of 1998 dated 22.4.1998 issued by respondent No.1 by means of which the services of the petitioner have been terminated. 3. Aggrieved by the order of termination the petitioner has filed this petition for quashing the termination order. She submits that the order of termination was liable to be quashed as it has been passed in flagrant violation of the provisions of Article 311 (2) of the Constitution of Jammu & Kashmir. The petitioner further submits that the order of termination is also against the service rules and in violation of the principles of natural justice. The petitioner through the medium of this writ petition prays for a writ of certiorari to quash the impugned order No. 324-HME of 1998 dated 22.4.1998. Petitioner has further prayed that by a writ of mandamus respondents be directed to treat the petitioner in continuous service of the respondent-State holding the post of lecturer in the Department of Gynaecology and Obstetrics, Govt. Medical College Srinagar. 4. The State has filed reply to the petition in which it has been stated that the petitioner having remained absent for long time, has in fact abandoned her services. Respondents have further stated that after the expiry of the leave, the petitioner she failed to resume her duty and instead of joining the duty she prayed for extension of leave by one year which was not sanctioned by the respondents. Respondent No.2 informed the petitioner about rejection of her leave and the petitioner was advised to resume her duties. Respondents have further stated that after the expiry of the leave, the petitioner she failed to resume her duty and instead of joining the duty she prayed for extension of leave by one year which was not sanctioned by the respondents. Respondent No.2 informed the petitioner about rejection of her leave and the petitioner was advised to resume her duties. The respondents have admitted that in SWP No. 655/87 this Court directed the petitioner to join her duty on 1.7.1989 but according to the respondents she failed to join the service and the ground taken by the petitioner, that she could not join because of turbulence in the valley, is not a valid ground in the eye of law. The petitioner was given one more chance by issuing a notice asking her to join the duty within 21 days from the date of publication of notice but she did not respond to the said final notice and remained absent from duty unauthorisedly. 5. In her rejoinder filed on 16.7.2002 the petitioner has reiterated her stand that her order of termination has been passed in violation of Art. 311 (2) of the Constitution of India. According to the petitioner the status of the petitioner was that of a permanent member of the Medical Education Gazetted Service as such in view of the constitutional mandate her service could not be terminated except on due observance and compliance with the constitutional mandate. 6. Heard. I have considered the matter and have gone through the record which was made available by Mr. Magray. 7. Ld. Counsel appearing for the petitioner would argue that this is the case of flagrant violation of the provisions of the Constitution as well as service rules as the services of the petitioner have been terminated without holding any enquiry and affording the petitioner an opportunity of being heard. According to the Id. Counsel the petitioner being a permanent member of the Medical Education Gazetted Service was governed by the Jammu & Kashmir Civil Service Leave Rules, 1979 (for short Leave Rules of 1979) and her termination by invoking the provisions of Article 128 of Jammu and Kashmir Civil Service Regulations (for short the Regulations) is not valid. Clearly in violation of the rules. Chapter XI of the Regulations, according to the Id. Clearly in violation of the rules. Chapter XI of the Regulations, according to the Id. counsel, is not applicable to the case of the petitioner; as such the order passed under the said regulations was clearly without jurisdiction and in violation of the Rules. Learned counsel would argue that the services of an employee, even if on unauthorized absence, cannot be terminated without holding a formal enquiry and without giving him an adequate opportunity of being heard. 8. Learned counsel for the State submitted written arguments in the case in which it has been stated that the petitioner proceeded on earned leave for 35 days but thereafter did not report back as such her services were terminated. According to the ld. counsel the petitioner as a responsible member of the medical profession ought to have reported back to her duties within due time. She failed to report back so there was no alternative left with the respondents but to terminate her service. It has been submitted that the leave cannot be claimed as a matter of right so the petitioner should have ascertained about the fate of her request about extension of leave, instead of ascertaining it she remained on unauthorized absence for such a long time. Unauthorised absence for such a long time, according to the respondents, amounts to abandonment of service. 9. Perusal of the record as well as the pleadings would show that the petitioner proceeded on 35 days half pay leave in continuation of summer vacations w.e.f. 1.8.1985. On expiry of leave she did not join her duties. On 24.6.1987 respondents gave 30 days period to the petitioner to join the duty but without waiting for the expiry of the time another notice was issued on July 16, 1987 in a newspaper giving particulars of the petitioner. The petitioner approached this court with a petition which was disposed of by a Division Bench of this court on 9.5.1989. The Court ordered as under; - We, therefore, dispose of the petition quashing the said notice. Learned counsel for the petitioner undertakes to direct the petitioner to join her duties on July 1st, 1989, on which the learned counsel for the respondents undertakes to inform the concerned competent authority to allow the petitioner to join on her duties in-so-far as the matter of absence from duty or of leave whatever the case may be, is concern. Learned counsel for the petitioner undertakes to direct the petitioner to join her duties on July 1st, 1989, on which the learned counsel for the respondents undertakes to inform the concerned competent authority to allow the petitioner to join on her duties in-so-far as the matter of absence from duty or of leave whatever the case may be, is concern. We leave it open to the respondents after joining the petitioner on her duties, to proceed according to law after associating the petitioner in disposing of the matter of leave or absence, as the case may be, in accordance with the ruels applicable to the services of the petitioner. However, any of the defaulty party will not be entitled to get any further benefit flowing from the present order, and in case the petitioner fails to join on 1st. Day of July, 1989, she will forfeit her right of joining the duties and the necessary consequences will follow. Equally so, if the respondents fail to join the petitioner and create any hurdle, in her joining, she shall be deemed to continue on duty despite the fact that she has not been assigned with any work and will be entitled to all the consequential benefits available to an employee under law.� 10. Later the petitioner applied to this court through a review petition praying therein that the time be extended to January, 1990. The Division Bench of this Court on 7.7.1989, kept the condition of joining on a particular date mentioned in the order in-abyeance. On 22.4.1998 the Govt. terminated the services of the petitioner by means of impugned order No. 324-HME dated 22.4.1998 Annexure D) which reads as under: - Whereas Dr. (Mrs.) Tasneem Gowhar, Lecturer Gynae & Obst. Government Medical College, Srinagar proceeded on earned leave for 35 days w.e.f. 15.5.1986. Whereas, the said leave expired on 18-6-1986 and the said Dr. On 22.4.1998 the Govt. terminated the services of the petitioner by means of impugned order No. 324-HME dated 22.4.1998 Annexure D) which reads as under: - Whereas Dr. (Mrs.) Tasneem Gowhar, Lecturer Gynae & Obst. Government Medical College, Srinagar proceeded on earned leave for 35 days w.e.f. 15.5.1986. Whereas, the said leave expired on 18-6-1986 and the said Dr. failed to resume her duties; Whereas, the Principal Government Medical College, Srinagar informed the said doctor about the rejection of extension in leave and advised her to resume duties; Whereas, the said doctor was informed by the Health & Medical Education Department through chain of notices las dated 26.6.1987 to resume her duties; Whereas, a final notice was issued by the Health & Medical Education Department vide No; ME-GH-76/78 dated 12.3.1997 asking the doctor to join her duties within a period of 21 days form the date of Publication of the notice in the local dailies failing which action for termination of her service under Article 128 of J&K CSRs for remaining on unauthorised absence shall be initiated; Whereas, the aforesaid doctor did not respond to the final notice and continued to remain absent from duty un-authorisedly and willfully. Now, therefore, the services of the said doctor Tasneem Gowhar, Lecturer, Gynae & Obst Govt. medical College, Srinagar are hereby terminated w.e.f. 19.6.1989 in terms of Article 128 J&K CSRs.� 11. Perusal of the record further shows that before issuing the termination order impugned in the present petition on enquiry was conducted by the respondents viz relating to unauthorised absence. 12. According to the respondents the petitioner has, by remaining on long absence, abandoned her service. Word ˜abandoned™ is not defined in the service rules. Its dictionary meaning as contained in the Concise Oxford English Dictionary (10th Edn.) is to (1) give up (an action or practice) completely (2) desert or leave permanently. Sanaraditya Pal in ˜The Law Relating to public Service™ (1998 Ed.- Calcutta) about abandonment of service writes: ˜Abandonment of service is a voluntary act of the employee which brings about cessation of relationship between the employer and the employee. It is always a question of intention of the employee as to whether he intended to bring about such cessation.™ In Buckingham & Carnatic Co. It is always a question of intention of the employee as to whether he intended to bring about such cessation.™ In Buckingham & Carnatic Co. v. Venkatiah AIR 1964 SC 1272 it was observed by the Supreme Court that under common law an inference that an employee has abandoned or relinquished service and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. 13. This case was followed by the Supreme Court in G.T.Lad v. Chemical & Fibres of India Ltd. AIR 1979 SC 582 and it was held that to constitute abandonment there must be ˜total™ and ˜absolute relinquishment™. The failure to perform the duties pertaining to office must be with actual or imputed intention on the part of the officer to abandone and relinquish the office. The court further observed that temporary absence is not ordinarily sufficient to constitute an ˜abandonment of office™. The court said: In the Act, we do not find any definition of the expression ˜abandonment of service™. In the absence of any clue as to the meaning of the said expression, we have to depend on meaning assigned to it in the dictionary of English language. In the unabridged edition of the Random House Dictionary, the word ˜abandon™ has been explained as meaning to leave completely and finally; forsake utterly, to relinquish, renounce, to give up all concern in something.™ According to the Dictionary of English Law by Earl Jowitt (1959 edition) ˜abandonment means™ relinquished of an interest or claim™. According to Balck™s Law Dictionary ˜abandonment™ when used in relation to an office means ˜voluntary relinquishment™. It must be total and under such circumstances as clearly to indicate an absolute relinquishment. The failure to perform the duties pertaining to the office must be with actual or imputed intention., on the part of the officer to abandon and relinquish the office. The intention may be inferred from the acts and conduct of the party, and is a question of fact. Temporary absence is not ordinarily sufficient to constitute as ˜abandonment of office™. From the connotations reproduced above it clearly follows that to constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not to resume the same. In Buckingham Co. Temporary absence is not ordinarily sufficient to constitute as ˜abandonment of office™. From the connotations reproduced above it clearly follows that to constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not to resume the same. In Buckingham Co. v. Venkatiah, (1964) 4 SCR 265 (AIR 1964 SC 1272), it was observed by this Court that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect an be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment or service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf. Thus whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstances of each case.� 14. Thus it is a matter of inference to be drawn from facts and surrounding circumstances of the case as to whether there has been a voluntary relinquishment on the part of the employee. Overstayal will not be itself amount to abandoning employment. 15. In the present case we find that the petitioner has proceeded on leave which had been duly sanctioned in her favour. She applied for its extension also but the same was not allowed. Later when her services were terminated she challenged the same before this court and even applied to this Court to fix her date of joining in January 1990. She could not joint her duty as according to her, she had to attend on her ailing brother-in-law and later when she resumed her duty she was told that her services stood terminated. All these circumstances indicate that the petitioner had not abandoned her service not she intended to do so but had remained on temporary absence. For her absence she has shown a cause and it was for the respondents to provide her a chance to establish the cause as even in such case the inference of abandonment of service and the consequent termination must be drawn consistent by with the principles of natural justice and fair play. For her absence she has shown a cause and it was for the respondents to provide her a chance to establish the cause as even in such case the inference of abandonment of service and the consequent termination must be drawn consistent by with the principles of natural justice and fair play. Reliance in this behalf may be placed on D.K. Yadav v. J.M.A. Industries ltd. (1993) 3 SCC 259. The argument that the petitioner had abandoned her services, therefore, cannot sustain. 16. Order of termination in the present case has been passed under Art. 128 J&K CSR. There are two main articles in the J&K CSR which deal with Overstayal of leave and loss of employment on the ground of absence from duty. Article 128 of the Regulations provides: - Absence without leave or after the end of leave involved loss of appointment, except as provided in Article 203 (b) or when due to ill-health in which case the absentee must produce the certificate of Medical Officer.� Article 113 of the Regulations deals with circumstances where an employee remains on five years continuous absence on leave. It provides: - After five years continuous absence on leave, an officer is considered to be out of State employ. 17. Whether unauthorised absence of an employee beyond the period of five years results in automatic cessation of employment? Was the question before a Division Bench of this court in Mushtaq Ahmad Khan v. State 2004 (2) SLJ 445. Hon™ble Chief Justice who delivered the judgment, relying on Jai Shanker v. State AIR 1966 SC 492 and Deokinandan Prasad v. State of Bihar (1971) 2 SCC 330 held that absence from duty, however long, cannot result in automatic cessation of employment. The court held: 11. The Assistant Director of Education has filed a counter-affidavit on behalf of the respondents. According to the respondent the orders of censure passed on September 2, 1953 and of reversion, dated March 5, 1960 are valid and legal and in passing those orders no violation of any rules has been made. The petitioner was given full opportunity to participate to the inquiry proceedings and it was after considering the report as well as the explanation furnished by the petitioner that the order of reversion was passed. The petitioner was given full opportunity to participate to the inquiry proceedings and it was after considering the report as well as the explanation furnished by the petitioner that the order of reversion was passed. The petitioner is not entitled to challenge any of these orders as they are concluded by the decision of the Patna High Court, dated March 4, 1967, in Second Appeal No.640 of 1964. 12. Regarding the order, dated August 5, 1966, it is admitted by the respondents that the petitioner was on duty till March 10, 1960. He ceased to attend office only from March 11, 1960. It is further admitted that it has been stated by mistake in the order that the petitioner has not been on duty for more than five years since March 1, 1960. The date March 1, 1960� should be read as March 11, 1960�. The respondents dispute the averment of the petitioner that he left the headquarters from March 11, 1960 with the permission of the authorities. On the other hand, according to them, the petitioner had put in an application in the office of the Sub-Divisional Education Officer for leave on March 11, 1960 and that he did not obtain any prior permission for leaving the headquarters. It is further averred that the order, dated March 5, 1960, reverting the petitioner came into effect immediately and the petitioner was also informed of the same. It is specifically pleaded by the respondent as follows: In other words since March 11, 1963 till August 5, 1968 he was continuously not in service for more than 5 years. By virtue of Rule 76 of Bihar Service Code of 1952 the petitioner ceased to be in the service of the Government as he remained absent from duty continuously for five years and this itself amounts to misconduct an inefficiency in the service. In the present case the provisions of Article 311 do no apply to the facts of this case because his services are not terminated on account of any charge but are automatically terminated by virtue of the statute i.e. Rule 76 of the Bihar Service Code, 1952. Article 311 applies where the services of a Government servant are terminated in respect of any charge. Article 311 applies where the services of a Government servant are terminated in respect of any charge. But it does not apply where a Government servant ceases to be a Government servant by virtue of any statute.� According to the respondent there has been no breach committed of Article 311 of the Constitution when the order, dated August 5, 1966, was passed on the basis of Rule 76 of the Bihar Service Code, 1952 (hereinafter to be referred as the Service Code). It is to be noted at this stage that there is a variation regarding the dates of continuous absence for over five years mentioned in the order and in the counter-affidavit. They will be dealt with by us when the attack of the petitioner on the order, dated August 5, 1966, is considered. It is further admitted by the respondents that even after the injunction order was passed by the Munsiff, the Department was always insisting on the petitioner to join in the lower grade to which post he has been reverted and that the petitioner never joined that post.� 18. It was argued by Mr. Jan that provisions of Article 128 or Article 113 J&K CSR cannot be made applicable in the present case as the petitioner being a member of Jammu & Kashmir Medical Service (Gazetted) was subject to J&K Civil Service Leave Rules, 1979 which contains no provision for termination from services on the ground of overstayal of leave or unauthorized absence. 19. We need not to go this issue in this case, as under both the rules i.e. under the Regulations and Leave Rules of 1979, an employer before initiating action against an employee who has overstayal leave, must hold an enquiry into the cause of such overstayal or unauthorized absence. Unauthorized absence by reason of overstayal could amount to misconduct and could even be a deserving circumstance for removal but merely because an employee has overstayal, the employer would not be entitled to terminate him from service without any enquiry. Supreme Court in Jai Shankar v. State of Rajasthan AIR 1966 SC 492 was of the view that any service rule which purports to authorise such a course would be violative of Article 311 of the Constitution. Chapter III of the Leave Rules, 1979 deals with grant of and return from leave. Supreme Court in Jai Shankar v. State of Rajasthan AIR 1966 SC 492 was of the view that any service rule which purports to authorise such a course would be violative of Article 311 of the Constitution. Chapter III of the Leave Rules, 1979 deals with grant of and return from leave. Rule 25 of the service rules deals with absence after expiry of leave. It provides: - Absence after expiry of leave. - (1) Unless the authority competent to grant leave extends the leave a Government servant who remains absent after the ends of leave is entitled to no leave salary for the period of such absence and that period shall be debited against his leave account an though it were half-pay leave, to the extent such leave is due, the period in excess of such leave due being treated as extraordinary leave. (2) Willful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action.� 20. Under this provision therefore whenever an employee willfully absents himself from duty after the expiry of leave, he is liable to disciplinary action. The punishment which is imposed by the employer on an employee for misconduct is the action taken by the employer for enforcing discipline. But it is well settled now that any such action which has a penal consequence is to be taken only after the employer has held a kind of enquiry or proceeding against the employee. 21. Even under Article 128 of the Regulations, an action for overstayal of leave or unauthorized absence can be initiated only on initiating an enquiry under the provisions of J&K Civil Service (Classification, Control and Appeal) Rules 1956. The law in this behalf is well settled now. This court has in catena of authorities held that if an employee over stays the leave sanctioned in his favour, he cannot be terminated from service unless a proper and regular enquiry is conducted in to his absence. 22. In Noor Mohd. v. Director, Fisheries & Anr. 1972 JKLR 135 the petitioner was dismissed from service by the Director of Fisheries on the ground of absence from duty and disobedience of orders. The court setting aside the order of dismissal observed: That leaves me with the charges about the absence from duty and disobedience of orders by the petitioner. In Noor Mohd. v. Director, Fisheries & Anr. 1972 JKLR 135 the petitioner was dismissed from service by the Director of Fisheries on the ground of absence from duty and disobedience of orders. The court setting aside the order of dismissal observed: That leaves me with the charges about the absence from duty and disobedience of orders by the petitioner. The power of Director of Fisheries to proceed on these charges may not be questionable but the order of dismissal based thereon could not be passed until he had complied with the requirements of Section 126 of the State Constitution¦� The court further held: - ¦it was therefore, incumbent on the Director of Fisheries to give notice of the charges based on absence from duty and disobedience of orders to the petitioner and given him an opportunity for explanation and then to commence an enquiry into the matter if he held that the explanation was not satisfactory. During such enquiry it was also incumbent on him to allow the petitioner to cross-examine the witnesses relied upon in support of the charges and to provide him an opportunity to produce defence, if any. Having done so he should have come to a finding whether the charges were established and if he found that the charges were established he was required further to make up his mind about the provisional punishment and then to issue a show cause notice to the petitioner why such punishment should not be inflicted on him. Along with the show cause notice he should also have made a copy of the inquiry available to the petitioner. The petitioner had a right to make representation against the show cause notice on consideration whereof the Director of Fisheries could make up his mind whether any punishment, if at all, should be imposed on him. The Director of Fisheries has miserably failed to follow these requirements. He has not at all framed any charge sheet about the disobedience of orders, leave alone its service on the petitioner. The absence from duty was related to two occasions. About the first occasion a charge sheet was framed and served on the petitioner and explanation submitted by him but even so nothing further was done in respect thereof until the order of termination was made. The absence from duty was related to two occasions. About the first occasion a charge sheet was framed and served on the petitioner and explanation submitted by him but even so nothing further was done in respect thereof until the order of termination was made. With regard to the absence on the second occasion a charge-sheet was framed by the Director of Fisheries and according to him served on the petitioner which the petitioner disputes, and not without any ground as I find nothing on the departmental file or even could it be indicated by the counsel appearing for the respondent that it was in fact served on the petitioner. The mere fact therefore that a show cause notice was issued to the petitioner in respect of this charge when no charge-sheet was served on the petitioner does not improve the matter. The Director of Fisheries has carved out a procedure of his own and brought the matter to an end by terminating the services of the petitioner which obviously is not tenable. In this state of circumstances the allegation made by the petitioner that the order of termination was the culmination of a consistent and studied course of persecution of the petitioner by the Director of Fisheries for venting out his private spite against the petitioner cannot be wholly excluded as irrelevant. It is really unfortunate that a poor and petty man like the petitioner should have been denied even subsistence allowance, a fact highlighted in the petition and not denied by the respondent in the counter affidavit.� 23. In Gh. Qadir v. D.F.O. 1981 SLJ 81 the court held that an enquiry was required when the employee (a Doctor in the said case) absented himself from duty. The view was followed later in Syed Zaffer Mehdi™s Case 1988 JKLR 1489 the Court held: - Admittedly, the termination of services of the petitioner was by way of punishment for unauthorisedly over-staying on leave. The view was followed later in Syed Zaffer Mehdi™s Case 1988 JKLR 1489 the Court held: - Admittedly, the termination of services of the petitioner was by way of punishment for unauthorisedly over-staying on leave. For imposing any punishment on a member of service, it is a Constitutional obligation as provided under Article 311 (2) of the Constitution of India read with Section 103 of the Constitution of the J&K as also in Rule 33 of the Rules, that a proper inquiry specifying the charge against the delinquent officer an affording him a reasonable opportunity to explain his conduct should be held before any order terminating his services is passed against him. All this is lacking in the case on hand. The irresistible and inevitable conclusion to be drawn is that the respondent has not complied with the mandatory provisions of the law which are required to be followed in such cases. No doubt, the petitioner has, allegedly, over-stayed his authorized leave and the extention sought by him was refused, which too was not conveyed to him. Never the less, on that score, it cannot be said that he is not entitled to the protection given to him by the Constitution and the Rules as mentioned above. Needless to say that the petitioner has a right to know the specific charge that is levelled against him and also the allegation on which it is based, and must be given an adequate opportunity to show cause against the punishment proposed to be imposed on him. It is a wrong impression with the authorities that the action taken in terms of Section 128 of the J&K CSR does not call for an inquiry. As already stated above, in our democratic State which is governed by rule of law, as enshrined in our Constitution, nobody can be condemned un-heard. Whatever action is to be taken against any civil servant, it must be strictly within the four corners of law. Any punishment to be awarded must be after giving the person concerned a reasonable opportunity of being heard. As no such opportunity has been given to the petitioner, the action taken against him therefore, is un-constitutional, arbitrary and bad in law, which is liable to be struck down.� 24. Similarly in Ab. Any punishment to be awarded must be after giving the person concerned a reasonable opportunity of being heard. As no such opportunity has been given to the petitioner, the action taken against him therefore, is un-constitutional, arbitrary and bad in law, which is liable to be struck down.� 24. Similarly in Ab. Gaffar Sheikh v. State of J&K 1990 SLJ 208 the petitioner™s services were terminated on the ground of unauthorized absence, without any proper enquiry. The court observed as under: - From the bare perusal of the order it appears that the services of the petitioner have been terminated presumably for his continued absence and without any response to the notice in the Govt. Gazette for resuming duties by him, but no enquiry appear to have been conducted as is warranted under rule 33 of the J&K Civil Service (Classification, Control and Appeal) Rules, 1956 and also under Art. 311 (2) of the Constitution of India. Even if the services are terminated for absence due to application of Art. 128 CSRs still on medical grounds inquiry is warranted under the rule and an explanation from the employee concerned as under Art. 128 CSRs, if an employee projects his illness supported by a medical certificate the application of Art. 128 CSRs can be waived and an employee can escape loss of service even under Art. 128 CSRs. In this case, the respondents while giving previous history of the petitioner™s absence in the order and consequently his reinstatement and then termination on similar grounds under the pretext of issuing notice in the Govt. Gazette, the petitioners services have been terminated but without any inquiry as warranted under the rule and the constitutional provision indicated above. The respondents having failed to file the counter or to contest the petition and in the absence of inquiry the order of termination against the petitioner appears arbitrary and hits the service rules as also Constitution of India. Since the termination in question amounts to removal which cannot be justified without proper inquiry, therefore, the order in question is not only illegal but unconstitutional therefore, deserves to be quashed. Since the termination in question amounts to removal which cannot be justified without proper inquiry, therefore, the order in question is not only illegal but unconstitutional therefore, deserves to be quashed. I therefore, by a writ of certiorari while allowing the petition quash order No. SDA/VC/1347-52 dated 8.6.1988 passed by respondent No.2 and order that the petitioner be treated in service from the date of the order but disbursement of emoluments for absence from duties will be governed by Leave Salary Rules after enquiry as the petitioner having taken plea that he was ill and his absence was not voluntary.� 25. In Subash Chander v. State & Ors. 1994 KLJ 145 was also a case of termination under Article 128 on the ground of absence from duty. The Court set aside the termination on the ground that procedure as contained in Rule 33 of J&K Civil Service (Classification, Control & Appeal) Rules, 1956 had not been followed. The court held: It is now an established law that even in Article 128, a Government servant cannot be dismissed or removed from service without an inquiry and without following the procedure as established by law. The court further observed: Absence from duty no doubt involves loss of appointment but after following the set procedure. Article 311 of the Constitution guarantee the service rights of Government servants and the law is laid down there under as to how and in what circumstances termination of service can be effected. The procedure is also provided in Rule 33 of the J&K Civil Services (Classification, Control and Appeal) Rules 1956 which is to be followed necessarily. After all, we are governed by rule of law and therefore, nobody can be condemned un-heard. If any adverse action is to be taken against any person affecting his vested rights, it can be effectuated only after affording him a reasonable opportunity of being heard. In absence of such opportunity such action is not maintainable and is bad in law.� 26. In Gh. Mohd. Kala v. State and Ors. 1995 SLJ 133 the Court held: - From the perusal of the impugned order, removing the petitioner from service, it is manifest that no inquiry whatsoever has been held into the alleged unauthorized absence of the petitioner from duty. It is only stated that notices were given to him through the SHO concerned to resume his duty. 1995 SLJ 133 the Court held: - From the perusal of the impugned order, removing the petitioner from service, it is manifest that no inquiry whatsoever has been held into the alleged unauthorized absence of the petitioner from duty. It is only stated that notices were given to him through the SHO concerned to resume his duty. The respondents have not produced any proof that any notice was actually issued to the petitioner, or if issued, was served upon him. Neither any record has been produced to substantiate this, nor the receipt of notice has been produced. Moreover the mere issuance of notice for resumption of duty is not sufficient to impose a major punishment on a delinquent. The law is very clear on the subject as to how a Government servant is to be punished for any misconduct. Not only the Police Rules and the Service Rules are clear on this subject, but even Article 311 of the Constitution of India corresponding to Section 126 of the Constitution of Jammu & Kashmir has in unambiguous terms mandated the principle that no punishment can be imposed without affording the delinquent a reasonable opportunity of being heard. This matter is no more re-integral in our country. Not only almost all the High Court in the country but even the Apex Court has finally settled the controversy. After all we are governed by rule of law and therefore passing of an order against a person without giving him an opportunity to defend himself, is not only arbitrary and unreasonable but an absolute negation of the principles of natural justice.� 27. Though Punjab & Haryana High Court (in State of Punjab v. Parkash Chand 1992 (1) SLR 174 is of the view that absence without leave does not amount to gravest act of misconduct but Supreme Court in Shahooldul Haque v. The Registrar AIR 1974 SC 1896 held that where an employee remains absent from duty without leave, he can be validly removed from service. Keeping in view the law laid down by the Supreme Court in Mafat Lal Narain Das Barot v. Divisional Controller AIR 1966 SC 1364, even in such cases, the employee must be given a reasonable opportunity to deny his guilt. Keeping in view the law laid down by the Supreme Court in Mafat Lal Narain Das Barot v. Divisional Controller AIR 1966 SC 1364, even in such cases, the employee must be given a reasonable opportunity to deny his guilt. Thus as has been held by this Court in Ahmed Hussain v. State 1996 SLJ 282 termination cannot be ordered on the ground of overstaying of leave unless the concerned employee is provided an opportunity of being heard. The Court in the said case further held that if enquiry is not possible, the disciplinary authority is under obligation to record reasons as to why it is not possible to hold an enquiry. 28. Law laid down by these authorities squarely applied to the facts of this case. Admittedly no enquiry has been held while initiating action against the petitioner. Her services terminated without any enquiry under the provisions of Jammu & Kashmir Civil Service (Classification, Control & Appeal) Rules, 1956. It is however being submitted by the respondents that due notices was given to the petitioner to resume duty but she failed to do so. Notice cannot be substitute of an enquiry. In Subash Chander 1994 KLJ 145 it was held that mere issuing notice to the absentee to resume his duty or issuing of a notice in the Government Gazette in this behalf is not sufficient to terminate his services. 29. Under these circumstances I find that the impugned order has been passed in violation of the constitutional provisions as well as the Service Rules governing the field. This petition is, therefore, allowed and the order of termination No. 324-HME dated 22.4.1998 is hereby quashed. Petition allowed. Order accordingly.