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2008 DIGILAW 84 (JK)

State Of J. &K. v. C. N. Malla (Dr. )

2008-03-26

K.S.RADHAKRISHNAN, NISAR AHMAD KAKRU

body2008
K. S. Radhakrishan. CJ. 1. Writ petition was preferred by the respondent herein seeking a writ of certiorari to quash order dated June 16, 1987 terminating the services of the petitioner and also for issuance of writ of mandamus directing the respondents to reinstate him, and also for the consequential reliefs. While the writ petition was pending, the petitioner had attained the age of superannuation on April 30, 1998. The learned Single Judge though set aside the order of termination, ordered that the petitioner would be entitled to get back wages from the date of filing of the writ petition, i.e., from May 16, 1994 till the date of superannuation, the legality of which has been challenged before us by the State and its officers. 2. The petitioner was working as Assistant Surgeon. On October 31, 1970 he was posted in the SMHS Hospital, Srinagar. Later, the petitioner had occupied various posts in the Directorate of Health Services and ultimately was posted as Lecturer in Government Medical College, Srinagar. He was later promoted as Assistant Professor in Government Medical College, Srinagar vide Government Order dated March 13, 1981. Petitioner claimed that he was sent on deputation to Stainley Medical College, Madras for undergoing specialized training in Microvascular and Hand Surgery from January 1986. Thereafter, the petitioner proceeded on 30 days leave with effect from March 24, 1986. After the period of sanctioned leave got expired, the petitioner had to report back for duty. However, he did not join the duty. The State sent letters to the petitioner to join his duty and finally by notice dated July 16, 1987 asked him to show cause why his services should not be terminated as per Article 128 of the Jammu and Kashmir Civil Service Regulations. Later, he was served with order of termination dated June 16, 1987 stating that his services stood terminated in terms of Article 128 of the J&K CSR from the date of his unauthorized absence. 3. The petitioned challenged the above-mentioned order on various grounds. It was pointed out that he had sent several applications for extension of leave for undergoing further training and seeking service in foreign country. These representations were not responded and his services were illegally terminated without conducting any enquiry or following the laid down procedure. 3. The petitioned challenged the above-mentioned order on various grounds. It was pointed out that he had sent several applications for extension of leave for undergoing further training and seeking service in foreign country. These representations were not responded and his services were illegally terminated without conducting any enquiry or following the laid down procedure. The State and its officials had stated that the petitioner had abandoned his job and was not interested in joining his duty. He was trying to get job in foreign countries and was also otherwise gainfully employed. Further, it was also stated that several communications sent to the petitioner were not replied by him as he was not interested in joining his duty. Further, it was also stated though he was intimated about the termination of his services and the same was also published in Government Gazette no. XVIII dated July 13, 1987 as also in the Newspaper and the writ petition challenging the order of termination was filed only on May 16, 1994, that means, after lapse of nearly seven years from the date of termination and, hence, it was pointed out that the writ court could not have exercised its jurisdiction due to latches and delay on the part of the petitioner. Further, it was pointed out that if the judgment of the learned Single Judge is given effect, amount running to several lacks would have to be paid to the petitioners without turning out any work, which would be against public interest. 4. The learned Single Judge noticed that no enquiry was conducted before terminating the service of the petitioner and, hence, placing reliance on the decisions of the Apex Court in Deokinandan Prasad v. State of Bihar, AIR 1971 SC 1409 and State of Assam v. Akshaya Kumar Deb, AIR 1976 SC 37 and various other decisions took the view that the termination of the petitioner vide Government Order dated September 18, 1987 cannot be supported in law. It was also found that the case of the petitioner did not fall within the ambit of Article 311(2) of the Constitution of India read with Section 126 of the Constitution of Jammu and Kashmir. Holding so, the learned Single Judge set aside the order of termination. It was also found that the case of the petitioner did not fall within the ambit of Article 311(2) of the Constitution of India read with Section 126 of the Constitution of Jammu and Kashmir. Holding so, the learned Single Judge set aside the order of termination. The learned Single Judge also examined whether the writ petitioner should be non-suited for delay and latches and took the view that the technical plea should not be permitted to be raised by none else but the welfare State to deny the legitimate claim of its subject. Holding so, the learned Single Judge ordered that the petitioner would be entitled to get back wages from the date he filed the writ petition to the date of superannuation. 5. We have heard learned counsel on either side at length. Several decisions were cited at the Bar by counsel in support of their respective contentions. 6. We are of the considered view that before termination of service of a Government servant, the procedure established under the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 as well as the provisions of Section 126 of the Constitution of the State have to be followed. We also concur with the view of learned Single Judge that it was not a case where no enquiry could have been conducted before terminating the services of the petitioner. All the same, we are not inclined to exercise our extra ordinary jurisdiction to order payment of back wages to the petitioner as ordered by the learned Single Judge. 7. Petitioner is a highly qualified Doctor and a duty is cast on him as a public servant to report for duty once the leave period was over. Filing of representations would not come to the rescue of the petitioner. The moment the period of sanctioned leave is over, if the government servant does not report for duty, he would on unauthorized leave. Reasons for not joining duty is a matter, the Government servant has to explain and establish. Duty is cast on him to establish the same. It is for him to get that unauthorized leave regularized. The moment the period of sanctioned leave is over, if the government servant does not report for duty, he would on unauthorized leave. Reasons for not joining duty is a matter, the Government servant has to explain and establish. Duty is cast on him to establish the same. It is for him to get that unauthorized leave regularized. If there is delay on the part of the State or the competent authorities in granting extension of leave as requested for, or do not respond to the public servants request for further leave, other remedies as provided by law are available to such a public servant and the conduct of a public servant to remain on unauthorized leave cannot be countenanced which will be against public interest and a Constitutional Court shall not come to the rescue of such a person. 8. Petitioner never thought of even approaching this Court seeking a writ of mandamus directing the respondents to consider his request for further leave or seeking permission to join duty. Further, he had not cared to challenge the order of termination which was passed in 1987 for several years which was published in Government Gazette. The first time he had approached this Court was in the year 1994, i.e., over seven years after the termination order was issued. Petitioner is not a class IV employee or an illiterate person, but a highly qualified professional doctor and he is expected to set an example for others in the service. Unauthorised absence of Medical Officer, would affect the running of the Hospital and the patients would be the sufferers. If the petitioner had approached this Court in time, this Court could have directed the Government to conduct an enquiry as per rules and the complaint of the petitioner that no departmental enquiry was conducted could have been redressed. 9. The question of delay and latches have been examined by the Apex Court in numerous decisions. Reference may be made to the decision of the Apex Court in U.P. Jal Nigam v. Jawant Singh, 2006(11) SCC 464 and Harwindra Kumar v. Chief Engineer, Karmik, 2005(13) SCC 300. The Apex Court has categorically held that if a person chose to sit over the matter and then woke up after a long delay, he would be disentitled to the discretionary relief of a Constitutional Court. The Apex Court has categorically held that if a person chose to sit over the matter and then woke up after a long delay, he would be disentitled to the discretionary relief of a Constitutional Court. Reference may also be made to a decision of the Division Bench of the Kerala High Court in State of Kerala v. Thirumeni, 2007(4) KLT 938 of which one of us (Radhakrishnan, CJ) was a member. The Division Bench of the Kerala High Court has held that while granting relief in a writ petition, the High Court is entitled to consider the fact situation obtaining in each case including the conduct of the petitioner. In doing so, the Court is entitled to take into consideration the fact as to whether the writ petitioner had chosen to sit over the matter and then wake up after several years. If it is found that the appellant approached the court after a long delay, the same may disentitle him to obtain the discretionary relief. 10. We are of the view that the principles laid down in the above decisions squarely applies to the facts and circumstances of this case. It will be travesty of justice if this Court orders payment of back wages to the petitioner which, will be against public interest and also will drain the public exchequer. 11. In the circumstances, allow the appeal and set aside the order of learned Single Judge directing payment of back wages to the petitioner.