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J&K High Court · body

2010 DIGILAW 79 (JK)

Ab. Rashid Sheerwani (Dr. ) v. State

2010-02-22

MOHAMMAD YAQOOB MIR

body2010
1. Quashment of the Government order No.367-HME of 1996 dated 24.5.1996 is sought. In terms whereof services of the petitioner have been terminated with effect from 10.8.1984 by having recourse to the provisions of Article 128 of the J&K CSR. Furthermore letter No.MDA-565/68-A-127 dated 12.3.1997 and communication dated 29.5.1997, in terms whereof request of the petitioner for being permitted to join duties has been declined, are also sought to be quashed. 2. The factual matrix giving rise to the instant lis is that the petitioner was appointed as Assistant Surgeon substantively from 15.3.1968, later on he has also completed the post-graduation so has worked in different capacities at different places. After obtaining No Objection Certificate, the petitioner is stated to have proceeded abroad with effect from 30.4.1977 for a period of two years. On expiry continued to be abroad after 30.4.1979 i.e. the time of expiry of two years. Subsequently on 13.3.1982 he seems to have requested for extension of no objection, same has been allowed. In this behalf communication dated 10.8.1982 placed on record is quoted as under: "Government of Jammu and Kashmir Health, FW & Medical Education Department. The Deputy Under Secretary, For Education and Research, Ministry of Health, The Islamic Republic of Iran, (Tehran). NO:-MDA-568/68 Dated: 10-8-82 Subject:- Extension of no-objection in favour of Dr. A. R. Sheerwani, Surgeon Specialist. Sir, I am directed to refer your letter No.nil dated 13.3.1982, regarding the subjected noted above and to convey no objection of this department in favour of Dr. A.R. Sheerwani, Surgeon Specialist, for further period of 2 years, to enable him to continue his services at Iran. His period of absence up to 5 years will be treated as leave without pay and beyond 5 years as dies non. Yours faithfully, (Syed Razl-ullah) Under Secretary to Government, Health, F. W. & Medical Education Department. Copy to the:- 1/. Director Health Services, Kashmir for information. 2/. Dr. A. R. Sheerwani Surgeon Specialist for information." 3. The petitioner did not choose to return or to join the services till 1996, means after a gap of more than a decade of absence, in the year 1996 he moved an application for being permitted to join the services. Copy to the:- 1/. Director Health Services, Kashmir for information. 2/. Dr. A. R. Sheerwani Surgeon Specialist for information." 3. The petitioner did not choose to return or to join the services till 1996, means after a gap of more than a decade of absence, in the year 1996 he moved an application for being permitted to join the services. Same was not allowed and was communicated accordingly in terms of the letter and communication dated 12.3.1997 and 29.5.1997 as the services of the petitioner were terminated vide Government order No.367-HME of 1996 dated 24.5.1996 for having remained unauthorisedly absent. 4. The contention of the petitioner is that before imposing the punishment of termination, the authorities concerned were required to conduct enquiry as ordained by Rule 33 of the Jammu and Kashmir Civil Services(Classification, Control and Appeal) rules 1956 (hereinafter for short referred to as "the CCA Rules"). No such enquiry has been conducted, as a result thereof petitioner has been deprived of projecting genuineness for absence. In support of this contention reliance has been placed on the judgment reported in 1994 S.L.J 372. 5. Considered. 6. Apparently the approach of the petitioner in claiming to join after more than a decade of unauthorized absence does not appeal to any reason or conscience. But, however, he seems to have had some nexus with the authorities who from the year 1984 till May, 1996 have not initiated any action against the petitioner. This 12 years gap of inaction on the part of respondents seems to be somewhat astonishing. Why they have slept over the matter for such a long period has not been explained. Then why they have not initiated the enquiry in accordance with the applicable rules, also seem to have been done with the object of extending benefit to the petitioner. This aspect of the matter is left to the best wisdom of the concerned authorities to ponder over. 7. The communication dated 10.8.1982 where-under no objection has been conveyed has been couched in a language which seem to have been crafted to work to the advantage of the petitioner as the petitioner contends that he has not remained unauthorisedly absent because in the above quoted communication it has been mentioned that extension for further two years in favour of the petitioner is to enable him to continue his service at Iran. Additionally it is recorded that his period of absence up to five years will be treated as leave without pay and beyond five years as dies-non. The wording "beyond five years as dies-non" according to the petitioner would mean that he has been permitted to stay abroad indefinitely as his being abroad for such an indefinite period is absence to be treated as "dies-non". It is in the background of this communication dated 10.8.1982 referred above, the petitioner contended that he could explain his position before the concerned authorities but has not been given a chance, as a result thereof has been condemned unheard and major punishment has been inflicted upon him. 8. The interim proceedings recorded from time to time in the case would indicate that the record pertaining to the petitioner based on which impugned order of termination has been issued was directed to be produced but same could not be produced. In ability for production of such record based on communication No.HD/Gaz/Legal/2008 dated 12.5.2008 taken on record is reflected in the order of this Court recorded on 3.8.2009, so now in absence of such record matter is considered. 9. The short point for consideration is "as to whether the order of termination can be maintained even though passed dehors the observance of the procedure prescribed under CCA Rules". The answer is in negative for the reasons to follow. 10. Rule 33 of the CCA Rules provides that for dismissal/removal of an employee, the employee is to be informed, in writing, of the grounds on which action is proposed to be taken and has to be afforded an adequate opportunity of defending himself. It further provides that the grounds on which action is proposed to be taken shall be reduced in the form of a definite charge or charges. Same has to be communicated to the said person together with a statement of allegations on which charge is based. The person is then required to be given a reasonable time to put in a written statement of his defence as to whether he desires to be heard in person. He is also to be given a chance to cross examine the witnesses and also to give evidence in person or to produce such witnesses as he may have subject to exceptions. 11. He is also to be given a chance to cross examine the witnesses and also to give evidence in person or to produce such witnesses as he may have subject to exceptions. 11. Sub-rule 2 of Rule 33 would provide that sub-rule (1) shall not apply where it is impracticable for the reasons to be recorded to communicate the grounds or to hear the person against whom action is proposed or where a person is absconder. Then the authority concerned is required to record sufficient reasons for the same. 12. In the instant case neither the record is available nor it is anywhere pleaded that the petitioner was not available or it was impracticable to communicate him the grounds on which action was proposed nor it is recorded anywhere that the requirement was waived. 13. Rule 34 of the CCA Rules would provide that when the enquiry has been completed, before imposing penalty, the employee has to be given opportunity to show cause as to why such penalty should not be imposed. The record would reveal that no such show cause notice has been served upon the petitioner. 14. Non observance to the provisions of Rule 33 and Rule 34 of the CCA Rules would render the order of termination as illegal, so cannot sustain. The Division Bench judgment captioned State v. S. Qamar Ali (1994 SLJ 372) has been rendered in the background of its peculiar facts and features. But, however, principle as has been laid down that the procedure which has to be followed by a competent authority has a mandate of law, so observance is imperative for imposing punishment. Furthermore absence of government servant without leave or after end of leave which involves loss of appointment is also covered by the definition of misconduct. So the procedure laid down in the CCA Rules has to be followed by the competent authority before taking action under Article 128 of the CSR. 15. The principle as has been laid down also covers the case of the petitioner. Therefore, order of termination is rendered unsustainable. The other two letters under challenge dated 12.3.1997 and 29.5.1997 shall be ignored. 16. Viewed thus, the petition succeeds. Order impugned is set aside. 15. The principle as has been laid down also covers the case of the petitioner. Therefore, order of termination is rendered unsustainable. The other two letters under challenge dated 12.3.1997 and 29.5.1997 shall be ignored. 16. Viewed thus, the petition succeeds. Order impugned is set aside. The absence of the petitioner for a prolonged period of time has to be deal with by the competent authority strictly in accordance with Article 128 of the CSR and in accordance with the procedure prescribed by CCA Rules. After following the procedure as applicable, the competent authority shall be free to pass such order as shall be warranted notwithstanding the observations made hereinabove. Disposed of as above.