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2005 DIGILAW 178 (JK)

Showkat Ali Zargar (Dr. ) v. State

2005-06-10

NISAR AHMAD KAKRU

body2005
1. This writ petition questions order of removal of the petitioner-Associate Professor from the establishment of Sher-i-Kashmir Institute of Medical Sciences (SKIMS for short), emanating from overstay on leave. It is seen that in the year 1992 leave for 92 days was sanctioned in his favour which was availed of w.e.f. 14.03.1992 (see page 21 of the writ petition). Extension of leave was sought by him but was not conceded to, consequently, a show cause notice vide No.SIMS/Per/345/93-6101-4 dated 26.05.1993 which came to be challenged by medium of SWP No.1664/93, but the writ Court declined to place restraint on the respondents from going ahead with further proceedings in furtherance of impugned show cause notice and on the assumption that the petitioner did not respond to the notice, order of removal vide No.SIMS/Per/543/93-8864-76 dated 08.12.1993 was issued which reads: GOVERNMENT OF JAMMU & KASHMIR SHER-I-KASHMIR INSTITUTE OF MEDICAL SCIENCES SRINAGAR Sub: Removal of Dr. S. A. Zargar, Associate Professor, Deptt. of Gastroenterology from the services of SKIMS. Ref: Approval of H.E. the Governor, J&K State (Chairman, Governing Body, SK Institute of Medical Sciences) vide His No. 2263 dated 24.11.1993. Whereas 92 days earned leave w.e.f. 28.03.1992 to 27.06.1992 in continuation to winter vacation sanctioned vide No. SIMS 213 of 1992 dated 25.02.1992 was sanctioned in favour of Dr. S.A. Zargar (543), Associate Professor, Deptt. of Gastroenterology, and, On expiry of the leave the doctor did not resume his duties and instead asked for extension which was rejected and conveyed to him telegraphically vide this office No: SIMS/Per/543/92-3182 dated 15.07.1992. and. Inspite of the instructions conveyed to the doctor, he did not join duties back, and, The doctor has failed to resume duties and the institute cannot afford his continued absence, and, In terms of the rules as applicable to his services. unauthorized absence from duty involves loss of appointment, and, Dr. S. A. Zargar was charge sheeted vide No. SIMS/Per/543/93-3618-20 dated 21.08.1992 for remaining on unauthorized absence from duty and was asked to explain as to why action as contemplated under rules may not be initiated against him. His reply was supposed to reach this office within 21days from the date of issue of this letter, and, One Mr. S. A. Zargar was charge sheeted vide No. SIMS/Per/543/93-3618-20 dated 21.08.1992 for remaining on unauthorized absence from duty and was asked to explain as to why action as contemplated under rules may not be initiated against him. His reply was supposed to reach this office within 21days from the date of issue of this letter, and, One Mr. S.S. Zargar replied to the charge sheet on 02.11.1992 and same was not found satisfactory, and, An Enquiry Committee was constituted vide Office Order No. SIMS/345 of 1993 dated 26.04.1993 to enquire into the continued unauthorized absent case of Dr. S.A. Zargar from duty, and, The said Committee decided to give a chance of personal hearing to the doctor and accordingly the doctor concerned was requested to appear before the said committee on 17.05.1993 at 11 AM for personal hearing, and, The communication in this behalf was sent to the concerned doctor by registered A.D. post yet the doctor failed to appear before the said committee on schedule date, and, On going through the report of Enquiry Committee, the competent authority have come to the preliminary conclusion that Dr. Zargar be asked to show cause as to why he shall not be removed from the services of the Institute for remaining on continued unauthorized absence from duty, and, The said doctor was asked to show cause as to why his services shall not be removed from the Institute for remaining on continued unauthorized absence from duty vide this office No.SIMS/Per/543/93-6101-04 dated 26.05.1993 and the reply was supposed to reach this office within one month from the date of issue of this notice, and, Instead of replying the show cause notice, he approached Court of law and filed a writ petition SWP No. 1664/93 to evade resumption of duties in the Institute, and, In pursuance of court directives in the matter of above cited writ petition, Dr.S.A. Zargar was given an opportunity to appear before the enquiry committee constituted in this behalf to conduct enquiry into his unauthorized absence as mentioned above vide No: SIMS/Per/543/92-8069-71 dated 04.10.1993 and was supposed to appear before the committee constituted or approach the convenor of the committed (Joint Director. Admn.) for being heard in person within the stipulated period of 15 days form the date of issue of the notice as mentioned, and, The doctor failed to avail the opportunity of being heard by the committee constituted for the purpose as mentioned above. Now, therefore, Dr. S. A. Zargar (543), Associate Professor, Deptt. of Gastroenterology. S.K. Institute of Medical Sciences, Srinagar is hereby removed from the services of SKIMS for remaining willfully and unauthorized absent from duty w.e.f 18.06.1992 (FN). However this order is issued without prejudice to the recovery of outstanding in the books of SKIMS against his name. By order. Sd/- Director No: SIMS/Per/543/93-8864-76 Dated 8th, December, 1993.� 2. The order aforementioned was challenged by medium of SWP 210/1994 and during pendency of the writ petition, the petitioner was re-employed on the post of Associate Professor by following order: GOVERNMENT OF JAMMU AND KASHMIR SHER-I-KASHMIR INSTITUTE OF MEDICAL SCIENCE SOURA SRINAGAR Subject : Appointment of Faculty. Ref: i) Recommendation of the committee constituted vide Government Order No. 26-IMS of 1997 dated November 18.1997. ii) Approval of Hon™ble Chief Minister (Chairman, Governing Body. SKIMS) conveyed vide No. CMS/886/98 dated 18.08.1998. GOVERNMENT ORDER NO. 24-IMS OF 1998. DATED: SEPTEMBER 10,1998. Sanction is hereby accorded to appointment of Dr. Showkat Ali Zargar as Associate Professor in the department of Gastroenterology in the pay scale of Rs. 5100-7300 on temporary basis. By order of the Government of Jammu and Kashmir.� The order of re-employment necessitated laying of a motion for amendment of the writ petition which was disposed of by the writ Court along with writ petition on 13.09.2000 in the following terms: Petitioner has filed an application seeking amendment of the petition. This is because of the certain intervening developments. This petition is accordingly disposed of with the following directions: - i) The petitioner may, if so advised prefer a fresh petition. Writ petition filed shall be registered in the current year. ii) In the event of petitioner filing the writ petition within a period of six weeks from today, the writ petition would be deemed to have been admitted: iii) Learned counsel who is appearing for the respondents today shall file counter within a further period of eight weeks. Thereafter the writ petition shall be listed for hearing. ii) In the event of petitioner filing the writ petition within a period of six weeks from today, the writ petition would be deemed to have been admitted: iii) Learned counsel who is appearing for the respondents today shall file counter within a further period of eight weeks. Thereafter the writ petition shall be listed for hearing. A copy of this order would be placed on the file of the writ petition which the petitioner wish to file in the period stipulated above. For a period of six weeks, from today, the present status quo of the petitioner shall not be touched. This order shall be subject to variation as and when the matter is brought before the Court after the amended petition is filed. In the event of failure to file amended petition within the time allowed the interim direction shall stand vacated automatically. The writ petition as also the CMP stands disposed of. Delay and latches for the period the petition was pending in this Court shall be excluded.� 3. Having been permitted to file a fresh writ petition, present amended SWP 1378/2000 was filed on 19.09.2000. The decision admits no ambiguity on the count that the petitioner had sought amendment of the SWP No. 210/1994 but the Court on its own directed him to file a fresh writ petition, consequently, the present writ petition on a variety of grounds, one being invidious discrimination. The contention is founded on the following Government orders: GOVERNMENT OF JAMMU AND KASHMIR SHER-I-KASHMIR INSTITUTE OF MEDICAL SCIENCES SOURA SRINAGAR Sub: Regularization of period of absence in favour of Dr. M. L. Babu, Assistant Professor, Neurosurgery, Sher-i-Kashmir, Institute of Medical Sciences, Srinagar. Ref: Director SKIMS Srinagar™s letter No.SIMS-Per-520/87-1453 dated 29.04.1987. Government Order No.209-ME of 1987 Dated 19.06.1987 Ex-Post Facto sanction is accorded to the grant of leave whatever kind due in favour of Dr. M.L. Babu, Assistant Professor, Department of Neurosurgery, Sher-i-Kashmir Institute of Medical Sciences, Srinagar w.e.f. 17.03.1985 to 25.11.1985. By order of the Government of J&K.� Government of Jammu & Kashmir� Health & Medical Education Department Subject: Rejoining of doctors whose services were terminated. Reference: Cabinet Decision No. 374 dated 22.09.1995. M.L. Babu, Assistant Professor, Department of Neurosurgery, Sher-i-Kashmir Institute of Medical Sciences, Srinagar w.e.f. 17.03.1985 to 25.11.1985. By order of the Government of J&K.� Government of Jammu & Kashmir� Health & Medical Education Department Subject: Rejoining of doctors whose services were terminated. Reference: Cabinet Decision No. 374 dated 22.09.1995. Government Order No.713 HME of 1985 Dated: 30.09.1985 In supersession of Government order No.263-HME of 1984 dated 13.04.1984 Government Order No.579-HME of 1985 dated 1.8.1985 and Government Order No.442-HME of 1984 dated 21.06.1984, the following doctors are hereby permitted to rejoin in the institutions in the disciplines shown against each. 1. Dr. Mohd. Ashraf Wani Lecturer Blood Bank and Hematology, Medical College, Srinagar. 2. Dr. Altaf Hussain Asstt. Prof. Orthopedics Medical College, Srinagar. 3. Dr. Masood Nehvi Asstt. Surgeon/Medical College, Psychiatry, Medical College, Srinagar. By order of the Government of J&K." Subject: Ex-India leave availed by Dr. M.I. Qadri, Asstt. Prof. Clinical Hematology, SKIMS, Srinagar, regularization thereof. Reference: Director, SKIMS Memo No.SIMS/PER/227/86/1864 dated 11.10.1986. Government Order No.941-HME of 1986 Dated 14.10.1986 It is, hereby ordered that: - i. The order of termination of Dr. M.I. Qadri, Asstt. Professor, Department of Clinical Hematology SKIMS issued vide Government order No. 126-IMS of 1985 dated 17.10.1985 is revoked and his previous service restored. ii. Dr. M.I. Qadri, is granted extra ordinary leave w.e.f. 1.05.1985 to September 29, 1985. iii. The joining report of Dr. M.I. Qadri, submitted on September 30th , 1985 is hereby accepted. iv. Joining report of Dr. Qadri, for the post of Associate Professor submitted on September 30th ,1985 is also accepted. v. The period from September 30, 1985 to November 7, 1985 is treated as period on duty rendered by Dr. Qadri. By order of the Government of Jammu & Kashmir.� The orders aforementioned indicate that the Government has not only regularized the period of absence but extended the leave also. Dealing with the contention, Mr. Magray submitted that when Dr. Qadri had absented second time regularization was denied. The argument is advanced simply to be rejected because the petitioner first timer absentee has pressed into service first time treatment accorded to Dr. Qadri to claim similarity. It may be reiterated that Dr. Dealing with the contention, Mr. Magray submitted that when Dr. Qadri had absented second time regularization was denied. The argument is advanced simply to be rejected because the petitioner first timer absentee has pressed into service first time treatment accorded to Dr. Qadri to claim similarity. It may be reiterated that Dr. Qadri™s termination was revoked and period of his absence was treated on leave and in respect of other doctors leave was extended, conversely, extension was denied to the petitioner, thus subjected to hostile discrimination violating the mandate of article 16(1) of the Constitution of India, which envisages equality of opportunity in respect of employment. 4. Next it was contended that order of the writ Court was also not cared about. To appreciate the contention, it is imperative to revert to the judgment of the writ Court in SWP No.1664/1993, and the relevant observation is extracted: ¦However, if he appears before the Enquiry Committee in good faith and wants to associate himself with the enquiry, he shall be allowed to do so, and in that case the enquiry shall be conducted strictly in accordance with law and he shall be afforded full opportunities of being heard before passing any adverse order against him. He shall be furnished with the necessary documents and copy of the enquiry proceedings to enable him to make an effective representation/reply to the charge sheet or to represent his case properly. In case he does not appear before the Enquiry Committee, even then the enquiry shall be conducted strictly in accordance with law¦� It is seen from operative part of the judgment that the petitioner could not succeed in getting the relief™s sought excepting a direction requiring the respondents to afford an opportunity to him of being heard before passing any order adverse to his rights with further direction to furnish documents and copies of the enquiry proceedings to enable him to make an effective representation with a further observation that if petitioner does not appear before the enquiry committee even then the respondent-competent authority shall have to conduct the enquiry strictly in accordance with law. In pursuance of the said decision dated 16.09.2003 the petitioner laid a demand through a legal notice dated 30.09.1993 for documents and for fixation of date of hearing delivered against receipt on 01.10.1993. In pursuance of the said decision dated 16.09.2003 the petitioner laid a demand through a legal notice dated 30.09.1993 for documents and for fixation of date of hearing delivered against receipt on 01.10.1993. Stand of the respondents is that in compliance with the judgment a notice was issued to the petitioner vide No. SIMS/Per/543/92-8069-71 dated 04.10.1993 but despite opportunity neither original copy of notice nor acknowledgement receipt was produced. So much so, record has miserably failed the respondents to name the date on which the petitioner was required to appear for hearing before the enquiry officer. Thus, not only an inference of failure on the part of the respondents to comply with the direction of the Court does arise but such omission at the same time amounts to breach of rule 33 of the Jammu and Kashmir (Classification, Control and Appeal) Rules, 1956 (CCA Rules for short) and cumulative effect of such failure tantamounts to unheard condemnation. 5. It was also contended that charge sheet is without jurisdiction. To appreciate the contention, it may not be impertinent to notice that the petitioner had marked his entry in the Institute on the strength of recommendation of Apical Selection Committee constituted for selection as is evidenced by his order of appointment itself which reads. Subject: Appointment of Lecturer in the Department of General Medicine, Sher-I-Kashmir Institute of Medical Sciences, Srinagar. Reference: i. Recommendations of the X meeting of the Apical Selection Committee held on April 16 and 17, 1983. ii. Decision of the Governing Body taken on 30.04.1983. iii. Cabinet Decision No. 176 dated 7.5.1983. Government Order No. 71- IMS of 1983 Dated June 14, 1983. Sanction is hereby accorded to the appointment of following Sr. Residents as Lecturers in the Sher-I-Kashmir Institute of Medical Sciences, Srinagar in the scale of 1400-60-1760 on regular/temporary basis against the posts shown against each: - S. No. Name of the appointee Adjusted against 1. .............. 2. Dr. Showkat Ali Zargar Lecturer in the department Of General Medicine for Gastroenterology. -do- 3. .............. By order of the Government of Jammu & Kashmir..." He was appointed as Associate Professor vide Government Order No. 25-IMS of 1989 dated 24.07.1989 which is reproduced hereunder: GOVERNMENT OF JAMMU AND KASHMIR SHER-I-KASHMIR INSTITUTE OF MEDICAL SCIENCES SOURA SRINAGAR Subject: Appointment of Faculty Staff Ref: i) Recommendation of the XVIII meeting of Apical Selection Committee held on July 6, 1989. ii) Approval of Hon™ble Chief Minister (Chairman, Governing Body) dated 19.07.1989. GOVERNMENT ORDER NO. 25-IMS OF 1989 DATED JULY 24, 1989 Sanction is hereby accorded to the appointment of following persons in Sher-i-Kashmir Institute of Medical Sciences, Srinagar as per details given hereunder on temporary basis: - 1. Dr. Showkat Ali Zargar Asso. Prof. Gastroenterology (5100-7300) 2. ------- ---- By order of the Government of Jammu and Kashmir.� 6. With a view to understand the challenge thrown in its right perspective it needs to be borne in mind that there is no dispute to the effect that the impugned order of removal has been passed by dint of Section 126 of the Jammu and Kashmir Constitution, 1956 which may be extracted. 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 holds a civil post under the State shall be dismissed or removed by an authority subordinate to that by which he was appointed.� A plain reading of the above referred constitutional provision depicts that a member of civil service shall not be dismissed or removed from service by an authority subordinate to the appointing authority but it makes no mention of the authority competent to initiate the disciplinary proceedings, therefore, reference to the CCA rules which regulate the disciplinary proceedings as per stand of Respondent-SKIMS becomes necessary and relevant to the issue is sub rule 4 of rule 33, which reads: (4) The competent authority may inquire into the charges itself or if it considers it necessary so to do, it may appoint an inquiry officer for the purpose. The language of the rule aforementioned makes it manifestly clear that it is the competent authority which can frame the charge, however, after charge is framed it has the power to appoint an enquiry officer to enquire into the charge so framed. Situations are conceivable where rules do not indicate the officers competent to initiate the departmental proceedings and in absence of rules to the contrary it cannot be canvassed that appointing authority alone can initiate enquiry but where rules specifically cite the authority competent to frame the charge, it has to be that authority. Situations are conceivable where rules do not indicate the officers competent to initiate the departmental proceedings and in absence of rules to the contrary it cannot be canvassed that appointing authority alone can initiate enquiry but where rules specifically cite the authority competent to frame the charge, it has to be that authority. In the case on hand it is the CCA Rules which are applicable to the SKIMS and sub rule 4 of rule 33 is very clear to the effect that competent authority alone can frame the charge. Who is the competent authority, rule 34 of CCA Rules, 1956 assumes significance which reads: 34. After the inquiry against a Government servant has been completed, and after the authority competent to impose penalty has arrived at provisional conclusions in regard to the penalty to be imposed, the Government servant charged shall, if the penalty proposed is dismissal, removal or reduction in rank be supplied with a copy of the proceedings prepared under rule 33 excluding the recommendations, if any, in regard to punishment, made by the officer conducting the inquiry and asked to show cause by a particular date which affords him reasonable time, why the proposed penalty should not be imposed on him. (Emphasis Supplied by me) What is deducible from a conjoint reading of sub rule 4 of rule 33 and 34 is that competent authority is the one which has the power to impose penalty and such authority is spelt out in sub section 1 of the Section 126 of the Constitution of Jammu and Kashmir which admits no ambiguity on the court that it is the appointing authority which has the competence to impose penalty. Who is the appointing authority of the petitioner parties are at variance. According to learned counsel for the petitioner, it is the Government, whereas contention of the Respondent-SKIMS is that it is the Chairman of the Governing Body. This controversy need not detain the Court because admittedly the charge is neither framed by the Government nor by the Chairman of the Governing Body and fact remains that charge is signed by the Joint Director and framed by the Administrative Officer and both of them lack the jurisdiction. This controversy need not detain the Court because admittedly the charge is neither framed by the Government nor by the Chairman of the Governing Body and fact remains that charge is signed by the Joint Director and framed by the Administrative Officer and both of them lack the jurisdiction. What is the fall out of such incompetent action reference to the judgment in case Ghulam Qadir Bhat Versus University of Kashmir and other reported in SLJ 1984 page 311 becomes imperative and the relevant para may be noticed: (2) ¦.. (3) ¦.. (4) The competent authority may inquire into the charges itself or if it considers it necessary so to do it may appoint an inquiry officer for the purpose. A plain reading of the Rule shows that it prescribes that the competent authority or the appointing authority shall on being satisfied on the basis of the facts and material available before it, that charges are required to be framed against the delinquent officer, shall so frame definite charges and serve the same on the delinquent concerned along with the statement of allegations seeking his explanation by way of written statement of defence and further enquiring from him if he wants personal hearing. If the delinquent denies the charges, the competent authority. On the basis of the material before it, may decide either to proceed or not to proceed against the delinquent, should, however, the competent authority decide to proceed further, it shall order an enquiry into the charges, which stands already served on the delinquent by the competent authority and an Enquiry Officer would then be appointed by the authority. The Enquiry Officer shall thereafter, hold an enquiry into these charges and conclude the enquiry in accordance with the rules of natural justice. (Emphasis supplied by me) (5) ¦. (6) The grievance of the petitioners therefore, that they have been greatly prejudiced by the non-compliance with the requirement of the Rule cannot be said to be unfounded. The counter affidavit filed by Mr. S.S Rizvi, then Registrar of the University admits that the charges were framed not by the competent authority before the appointment of Dr. Z.U. Ahmad as the Enquiry Officer but by the enquiry officer himself after he was so appointed. The counter affidavit filed by Mr. S.S Rizvi, then Registrar of the University admits that the charges were framed not by the competent authority before the appointment of Dr. Z.U. Ahmad as the Enquiry Officer but by the enquiry officer himself after he was so appointed. The procedure adopted in all these cases, therefore, is clearly in violation of Rule 33 (Supra) and that violation itself renders not only the order of punishment bad, illegal and invalid but also vitiates the entire proceedings from the stage Dr. Z. U. Ahmad was appointed as the Enquiry Officer. In taking this view, I am fortified by a judgment of the Calcutta High Court in 1982 Labour and Industrial Cases, 1578 wherein under some what similar circumstances identical view has been expressed.� 7. The ratio decedendi of the judgment makes it manifestly clear that if charge sheet is framed by an enquiry officer and not by the competent authority, entire proceedings including the order of punishment are bound to vitiate. Infirmity goes deeper because the Joint Director is not the enquiry officer even. Law is settled that when a statute prescribes exercise of power by a particular authority, it has to be exercised by that authority alone unless there is a proper sub delegation which is wanting. There is another difficulty for the respondents. According to the statement made at the bar by Mr. Magray power was delegated to the Director by the Chief Minister and not by the cabinet that too somewhere in the year 1993, whereas charge was framed against the petitioner in the year 1992. There being no power available to the Director at the relevant point of time to frame the charge, sub delegation of power is a nullity, resultantly, both charge sheet as also order of removal are rendered liable to be set aside and are quashed. 8. Back to the orders of appointment of the petitioner as Lecturer and Associate Professor reproduced hereinabove, it transpires that his appointing authority is the Government which position is disputed by appearing counsel for the respondents contending that the Chief Minister in the capacity of Chairman of the Governing Body of the Institute is possessed of the power of appointment of the faculty members. Regarding framing of charge by the Joint Director Mr. Regarding framing of charge by the Joint Director Mr. Magray placed reliance on contemporaneous record to canvas that power was conferred by the Director upon the Joint Director, Notes 70 to 72 authors of which have been identified by Mr. Magray may be extracted: Note 70. May kindly peruse & sign the charge sheet placed across the file. Sd/- A.O Sd/- Joint Director. Note 71. Spoken to A/Director, who has desired that the doctor be Charge sheeted and the notice to this effect may be Issued over the signatures of Joint Director (Adm) hence Submitted please. Sd/- A.O. Sd/- Joint Director. Note 72. Director may kindly see and confirm the action taken. Signed on 22.08.1992 Signature of the Director on 27.08.1992.� It transpires from above reproduction that charge was framed by the Administrative Officer and was put up before A/Director who instead of signing it, proposed that same be signed by the Joint Director. That is how the Joint Director signed the charge sheet on 21.08.1992. It is apposite to notice here that as per stand of the respondents, the charge sheet was issued by the Joint Director on 21.08.1992, apparently, subsequent to the framing of charge. Is such confirmation valid in law, answer is readily available from judgment of the Division Bench of this Court in Syed Showkat Hussain Vs. State of J&K and others reported in 1989 SLJ 296, which dealt with an order of suspension confirmed by the competent authority on a subsequent date. Dealing with the confirmation, the bench ruled: A bare reading of the rule shows that an employee of the Corporation can be placed under suspension by the appointing authority or by any other authority to which the appointing authority is subordinate or any other authority empowered by the Corporation in that behalf. That the Secretary of J&K Tourism Development Corporation is neither the appointing authority nor the authority who had been empowered by the Corporation to place the petitioner under suspension is not disputed. The impugned order, issued on 1.4.1988 was, therefore, issued by an authority which was not competent to place the petitioners under suspension. The submission of Mr. Hakim that on 15.7.1988, the action of the Secretary was confirmed by the Commissioner and Secretary to Government Tourism Department and therefore the impugned order got validated requires a notice only to be rejected. The impugned order, issued on 1.4.1988 was, therefore, issued by an authority which was not competent to place the petitioners under suspension. The submission of Mr. Hakim that on 15.7.1988, the action of the Secretary was confirmed by the Commissioner and Secretary to Government Tourism Department and therefore the impugned order got validated requires a notice only to be rejected. The order issued on 1.4.1988 was issued by an authority which was not competent and the subsequent confirmation of the action on 15.7.1988 cannot cure the defect which had rendered the order dated 1.4.1988 as an unauthorized order and which for all intents and purposes was non est.� Applying the ratio of the judgment it emerges that power has to be exercised by an officer in whom it has been vested unless sub delegation of power is authorized by the statute itself but no provision of law is brought to the notice of the Court which would empower the Director to sub delegate the power. Obviously, the charge sheet is without jurisdiction. 9. This brings me to the argument of Mr. Magray that the Director has the power to frame the charge and initiate enquiry against an Associate Professor. Contention of Mr. Magray is that the Chief Minister is the Chairman of the Governing Body of the SKIMS and he has empowered the Director to frame the charge by a general order. Refuting the contention, Mr. Jan has placed reliance on the decision of the Governing Body of the Institute taken in its XX meeting, held on June, 4, 1991 vide Agenda Item No.12, which may be noticed: 2. that the Hospital will have a Governing Body with Chief Minister and other members of the Cabinet as its members to facilitate easy and expeditious disposal of its cases.� Relying on the said governing body™s decision, it is contended that the power is with the Governing Body which comprises of the Chief Minister and the Cabinet which would mean that conferment of power by the Chief Minister alone is invalid. Apart from that power is said to have been conferred on the Director somewhere in the year 1993 whereas charge was framed in the year 1992. Admittedly in the year 1992 Director was not possessed of the power at all. Faced with unescapable legal snag all other grounds were given up by learned counsel for the respondents. Apart from that power is said to have been conferred on the Director somewhere in the year 1993 whereas charge was framed in the year 1992. Admittedly in the year 1992 Director was not possessed of the power at all. Faced with unescapable legal snag all other grounds were given up by learned counsel for the respondents. Viewed thus, sub delegation of power to the Joint Director is devoid of legal sanction rendering the charge sheet abinitio void. 10. I will be failing in my duties if it is not noticed that learned counsel for the petitioner vehemently staked claim for salary in the eventuality of petitioner™s success in the writ petition on the strength of judgment of the apex Court in Union of India and another Vs. Sr. Babu Ram Lalla reported in AIR 1988 SC 344 which reads: We agree wholly with the reasoning and conclusion of the High Court. Since the order of termination of service of the respondent was rightly held to be a nullity he was entitled to be paid salary on the footing that he had always continued in service and the void order was never in existence in the eye of law. The appeal, therefore, fails and is dismissed with no order as to costs.� The claim for salary has been advanced on the plea that it was critical ailment of petitioner™s father in law which forced the petitioner to rush to PGI Chandigarh and no such cause was available to those doctors who overstayed on leave and they were in no manner on better footing as compared to the petitioner, yet Government conceded to the prayer for extension/regularization of the period of their absence. It was further contended that petitioner™s conduct and performance has all along been satisfactory, that is why he was reinducted by the respondents independently of indulgence of the Court way back in the year 1998 and petitioner™s employer has absolutely no complaint against his performance. No doubt the judgment supra has allowed salary to the petitioner therein and the mandate of the judgment has to be followed but condition precedent is similarity of facts which is wanting as is evident from reinduction of the petitioner into service that too during the pendency of the writ petition and without any direction from the Court. That is an event which makes world of difference. That is an event which makes world of difference. Thus while adhering to the mandate of the judgment to the effect that petitioner shall be deemed to be in continuous service treating the impugned order of removal as non est, there shall be a direction against grant of pecuniary benefits for the period he has remained out of service. Disposed of along with all connected CMPs. No order as to costs.