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2012 DIGILAW 339 (JK)

State of J&K & Ors. v. Mohd. Sultan Reshi

2012-06-13

M.M.KUMAR, MANSOOR AHMAD MIR

body2012
1. The short question which arises for consideration of this Court in the instant Letters Patent Appeal is whether wilful absence from duty is a misconduct which would require a regular departmental enquiry before imposition of any major penalty like dismissal or removal from service. 2. The aforesaid issue is no longer res integra and has been settled by a catena of judgments of the Supreme Court. The leading judgment of a Constitutional Bench was rendered by Hon'ble Supreme Court in Jai Shankar v. State of Rajasthan, AIR 1966 SC 492 . Unauthorised or wilful absence from duty is a misconduct which necessitate holding of a disciplinary enquiry. The view of their Lordship is discernible from the following extracts:- "It is true that the Government may visit the punishment of discharge or removal from service on a person who has absented himself by overstaying his leave, but we do not think that Government can order a person to be discharged from service without at least telling him that they propose to remove him and giving him an opportunity of showing cause why he should not be removed. If this is done the incumbent will be entitled to move against the punishment for, if his plea succeeds, he will not be removed and no question of reinstatement will arise. It may be convenient to describe him as seeking reinstatement but this is not tantamount to saying that because the person will only be reinstated by an appropriate authority, that the removal is automatic and outside the protection of Art. 311. A removal is removal and if it is punishment for overstaying one's leave an opportunity must be given to the person against whom such an order is proposed, no matter how the Regulation describes it. To give no opportunity is to go against Art. 311 and this is what has happened here." 3. The aforesaid view has been repeatedly followed and applied by Hon'ble Supreme Court in subsequent pronouncements, including Prithipal Singh v. State of Punjab (2002) 10 SCC 133 and State of Punjab v. Bakhshish Singh 1997 (4) SLR 590. 4. We have prefaced this order to state the position of law in regard to the question which arises for determination in this appeal. 5. Facts have not been disputed. On 08.08.2005 the writ petitioner-respondent was dismissed from service by passing order No. 1567 of 2005. 4. We have prefaced this order to state the position of law in regard to the question which arises for determination in this appeal. 5. Facts have not been disputed. On 08.08.2005 the writ petitioner-respondent was dismissed from service by passing order No. 1567 of 2005. The aforesaid order highlighted that the writ petitioner-respondent was appointed as Driver-Constable in District Srinagar vide order dated 28.07.1999 and was allotted Belt No. 4028/S. He absented himself unauthorized on 01.04.2005 which was reflected in DD of DPL Srinagar vide DDR No. 35 dated 01.04.2005. He was then placed under suspension on 25.07.2005 for his continuance absence. He was informed through a notice issued on 25.07.2005 through the concerned Police Station which was published in the Local Dailies of Kashmir Valley, asking him to resume duty within seven days. However, all in vain. His service record would reveal that his annual increment was stopped for a period of one year for his unauthorised absence for 53 days. It was thus concluded that the writ petitioner-respondent was not interested to serve the department. In the concluding para of the impugned order, the holding of regular departmental enquiry was found reasonably impracticable and dispensed with in terms of Rule 359 (11) 92 (b) of Police Manual read with Section 126 (2) of the Jammu and Kashmir Constitution. 6. The learned Single Judge, after quoting two paragraphs from the petition, has held that the allegation of absence from duty from 01.04.2005 till 08.08.2005 were false and in fact the writ petitioner-respondent had discharged duly during that period. The aforesaid averments were not controverted by filing counter affidavit. It is in the aforesaid factual backdrop that the learned Single Judge set aside impugned order dated 08.08.2005 dismissing the writ petitioner- respondent from service. The view of the learned Single Judge is discernible from the last two paragraphs which read as under:- "Petitioner was appointed as Driver Constable in the Police Force in District Srinagar on 28.07.1999. He was dismissed from service in terms of order dated 08.08.2005. Petitioner having assumed status and his services being governed by rules, respondent no. 3 was duty bound in law to initiate action in accordance with the J&K Police Rules. He was dismissed from service in terms of order dated 08.08.2005. Petitioner having assumed status and his services being governed by rules, respondent no. 3 was duty bound in law to initiate action in accordance with the J&K Police Rules. Rule 359 of the J&K Police Rules provides that when a major penalty is to be inflicted on a member of the force then the procedure provided therein is to be followed by the competent authority. A detailed and comprehensive procedure provided in Rule 359 of Police Rules is that the preliminary enquiry is to be conducted, charge sheet is to be framed, evidence is to be recorded and show cause notice is to be issued to the delinquent official. Admittedly, Rule 359 of J&K Police Rules is observed in complete breach by respondent no. 3. Constitutional guarantees available to the petitioner under Section 126 of the Constitution of J&K read with Article 311 of Constitution of India have also been thrown to winds by the authority who has passed the impugned order. Respondent No. 3 has dismissed the petitioner from services in exercise of powers conferred on him under clause 2 (b) of Section 126 of Constitution of J&K. In terms of said clause, the competent authority is to record the reasons that it is not reasonably practicable to hold enquiry. No reason is given in the impugned order which would show that it was not reasonably practicable to hold the enquiry in the case. The constitutional provisions having been abused, consequently the order impugned is rendered illegal. Since the petitioner has been dismissed from in cruel disregard to the settled legal norms he will be entitled to receive a part of back wages as well. For the above stated reasons this petition is allowed in the following manner. By issuance of writ of Certiorari Order No. 1567 of 2005 dated 08.08.2005 is quashed. Respondents, however, are at liberty to initiate disciplinary proceedings against the petitioner if they so choose. As petitioner has been dismissed from service without conducting any enquiry, he will be entitled to 50% back wages from the date impugned order is passed. Disposed of along with CMPs." 7. Mr. A. M. Magray, learned Senior Additional Advocate General has not been able to defend the non initiation of enquiry into the allegations of wilful absence from duty levelled against the writ petitioner-respondent. Disposed of along with CMPs." 7. Mr. A. M. Magray, learned Senior Additional Advocate General has not been able to defend the non initiation of enquiry into the allegations of wilful absence from duty levelled against the writ petitioner-respondent. All that submitted by Mr. Magray is that the award of 50% back wages from the date of order of dismissal, namely, 08.08.2005, is wholly unwarranted because the principle of no work-no pay would apply. 8. We have given serious thought to the submissions made by Mr. Magray, and regret our inability to accept the same. When the State violates the Constitutional mandates or the provisions of Statutory Rules then co blame a delinquent employee would not be a proper course. If the conduct of delinquent employee was blameworthy then the submissions made by Mr. Magray might have some merit. What we find in the present case is that Rule 359 of J&K Police Rules has been observed in complete breach by the appellants. Likewise, the Constitutional guarantees available to the writ petitioner-respondent under Section 126 of the Constitution of Jammu and Kashmir read with Article 311 of the Constitution of India have also been completely shelved. In terms of clause 2 (b) of Section 126 of the Constitution of Jammu and Kashmir, the Competent Authority was required to record reasons to indicate that it was not reasonably practicable to hold a departmental enquiry. There are no reasons forthcoming in the impugned order in support of any such conclusion. The learned single Judge has rightly held that the Constitutional provisions have been abused, rendering the impugned order as wholly unsustainable. Therefore, the principal of no work — no pay would not be applicable. 9. Mr. Magray has not been able to cite any principle of law or any judgment of the Court that in such circumstances back wages to the extent of 50% could not be awarded. Even otherwise we find that there is no rule of law which will guide us that in a case of present nature back wages are not to be granted. Moreover, the learned Single Judge has used his discretion and we are not inclined to interfere with the exercise of discretion. 10. The appeal of the State is wholly misconceived, devoid of merit and the same does not warrant admission. 11. Moreover, the learned Single Judge has used his discretion and we are not inclined to interfere with the exercise of discretion. 10. The appeal of the State is wholly misconceived, devoid of merit and the same does not warrant admission. 11. Accordingly the appeal fails and the same is dismissed.