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2005 DIGILAW 326 (JK)

Anil Singh v. State

2005-11-29

R.C.GANDHI

body2005
1. Petitioner seeks issuance of writ of Certiorari seeking to quash order No.331 of 1998 dated 15.12.1998 whereby the petitioner has been discharge from service. He further seeks writ of Mandamus directing the respondents to consider the case of the petitioner as being inservice candidate and grant all consequential benefits including the salary. 2. The petitioner has averred in the petition that the petitioner was appointed as Warder vide order-dated 05.06.1996. The petitioner absented himself from duty w.e.f. 23.03.1998 on account of illness of his wife. Subsequently, he also fell ill and could not report for duty. He, reported to resume duty but has not been permitted to resume his duty by the respondents. Under such circumstances, the petitioner filed SWP No.1244/2000, which came to be disposed of on 29.09.2000 directing the respondents to hold inquiry as services of the petitioner have not come to end by any specific order. The petitioner, thereafter, was served with the impugned Order No.331 of 1998 dated 15.12.1998, whereby respondent No.2 has discharged the petitioner from service w.e.f. 25.04.1998. 3. The impugned order has been challenged by the petitioner on the ground that it has been passed by the respondents to defeat the judgment of the Court delivered in SWP No.1244/2000. As per direction of the Court dated 29.09.2000, the respondents could not have prevented the petitioner from discharging duty. The impugned order has been passed without affording an opportunity of being heard, holding an inquiry or observing the principle of natural justice. The respondents have not appreciated the medical evidence produced by the petitioner and have arbitrarily termed it as fraudulent evidence. 4. The respondents have filed counter-affidavit stating therein that the petitioner was selected to undergo training course at PTC Udhampur vide order No. 855 of 1996 dated 01.10.1996. After completion of training, the petitioner joined late by six days. This period was treated as dies-non. The petitioner remained absent from PTC, Udhampur w.e.f. 08.04.1997 and was accordingly, relieved by the Director, PTC, Udhampur vide Order No.325 of 1997 dated 25.04.1997 on a representation filed on 09.06.1997, the period w.e.f. 08.04.1997 to 13.08.1997 was treated as dies-non, subject to the condition that the petitioner has to undergo training at PTC Udhampur. He was, accordingly, deputed to undergo training at PTC Udhampur w.e.f. 15.02.1998. He was, accordingly, deputed to undergo training at PTC Udhampur w.e.f. 15.02.1998. The petitioner again absented on 25.04.1998 and was again relieved by the Director PTC, Udhampur vide order No.191 of 1998 dated 14.05.1998. The medical evidence produced by the petitioner to make out that the petitioner because of his illness could not continue his duties, has not been believed by the respondents as no out door patient slip etc. was procured by the petitioner. On noticing the certificate, it was also found by the respondents that the medical certificate has been issued by Dr. B.R. Sharma while working as Chief Medical Officer whereas no such Doctor was working as Chief Medical Officer at that relevant time. 5. Heard learned counsel for the parties and perused the record. Mr. Thakur, learned counsel for the petitioner has submitted that the impugned order has been passed by the respondents without holding inquiry. It is not understandable as to why the respondents have not taken stand in their counter-affidavit in opposition to the SWP No.1248/2000 that the petitioner already stand discharged from service. Stand of the respondents in the counter-affidavit has been noticed in the order dated 29.09.2000 passed in SWP No.1248/2000, which is extracted below and reads as: - 1. That the petitioner is a habitual absentee right from the date when he joined in the office of respondent No.3. He was absented so many times and got punishments. It is submitted the while reporting at PTA Udhampur for training purpose has reported after six days accordingly his over stay period of six days was treated as dies non by Director, PTA Udhampur vide order dated 05.05.1997. The petitioner again remained unauthorisedly absent from PTA Udhampur w.e.f. 08.04.1997 and was discharged from PTA Udhampur, vide order 325 of 1997 dated 25.04.1997 issued by Director, PTA, Udhampur. The petitioner has not reported back after discharging from PTA, Udhampur, till 08.06.1997. 5- That subsequently again the petitioner was asked to undergo training at PTA, Udhampur and was relieved from the office of respondent No.3 on 12.02.1999 but the petitioner as his previous practice remained unauthorized absent from PTA, Udhampur and was again discharged from PTA, Udhampur, vide order No.191 of 1998 dated 14.05.1998.� 6. 5- That subsequently again the petitioner was asked to undergo training at PTA, Udhampur and was relieved from the office of respondent No.3 on 12.02.1999 but the petitioner as his previous practice remained unauthorized absent from PTA, Udhampur and was again discharged from PTA, Udhampur, vide order No.191 of 1998 dated 14.05.1998.� 6. On appreciation of the pleadings, the writ petition No.1248/2000 came to be disposed of with the following observation: - As no order of termination has been passed, respondents are left free to take any departmental action against him. If service tenure of the petitioner is to be brought to an end, that be done by following due course of law. The petitioner would now report for duty on 16th October 2000 before the Superintendent Central Jail, Jammu. The petitioner would be assigned the duties to be performed. As to how the intervening period is to be treated that would depend on the inquiry which the respondents may like to hold.� 7. Since the respondents had not taken the stand in the counter-affidavit filed in SWP No.1248/2000 that they have discharged the petitioner from service, therefore, it makes out that the order impugned, passed by the respondents, is anti dated as it was not existing on the day, it has been shown as issued. Had the impugned order been in existence, it would have been brought to the notice of the Court by the respondents taking specific ground in the counter-affidavit. 8. Another aspect of the matter is that if the order impugned was in existence and not brought to the notice of the court, it is admittedly served after the order dated 29.09.2000 passed in SWP No.1248/2000. The court has directed that as no order of termination has been passed by the respondents, they are free to take departmental action against the petitioner. If impugned order was in existence, the course open to the respondents was to seek review of the order or challenge it by means of LPA or to pass fresh order. The impugned order, therefore, cannot be acted upon by the respondents after the order-dated 29.09.2000. 9. The impugned order, under such circumstances, cannot be maintained and is, accordingly, quashed. The respondents are free to take departmental action against the petitioner for his alleged mis-conduct of absence. The petitioner would be permitted to discharge his duty as being in service. The impugned order, therefore, cannot be acted upon by the respondents after the order-dated 29.09.2000. 9. The impugned order, under such circumstances, cannot be maintained and is, accordingly, quashed. The respondents are free to take departmental action against the petitioner for his alleged mis-conduct of absence. The petitioner would be permitted to discharge his duty as being in service. It is left to the respondents to deal with the intervening period, which shall be dependent upon the result of inquiry. It is further directed that the petitioner shall get salary from the date he joins. If respondents initiate action for holding inquiry, it shall be completed within six months.