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2013 DIGILAW 436 (JK)

Rubia Akhter (Mst. ) v. State Of J&K

2013-07-26

Hasnain Massodi

body2013
1. Petitioner, vide Government Order No. 393-GAD of 1996 dated 05.06.1996 was appointed against Class-IV vacancy and vide Order No. CEO/18234/Estt/ 105 dated 14th January 1997, adjusted as Laboratory Bearer in Government Girls Higher Secondary School, Nowhatta, Srinagar, against an available post. She was transferred to Government Girls Higher Secondary School, Nunar, Ganderbal, and joined at her place of posting on 1st January 2002. 2. The petitioner proceeded on maternity leave with effect from 1st June 2002 and availed different kinds of leave till 31st December 2003. She resumed her duty, after winter vacations of 2004 were over and continued to discharge her duties till 15th April 2004, where-after, according to respondents, she stayed away from her office and has not resumed her duty till date. 3. Director School Education-respondent No. 2, in the writ petition, vide his Order No. 4047 of 2004 dated 2nd September 2004, placed petitioner under suspension pending inquiry and attached her to Chief Education Officer, Srinagar. However, respondent No. 2 vide Order No. 763-DSEK of 2005 dated 12th April 2005, reinstated her and directed period of absence to be treated as leave whatsoever due to her including period of extra ordinary leave. 4. Petitioner is aggrieved that she, after her reinstatement, reported to Principal, Government Girls Higher Secondary School, Nuner, Ganderbal, but was not allowed to resume her duty. She, after her joining report dated 19th April 2005, was not entertained by concerned officer, claims to have approached higher-ups in the Department and thereafter on 9th December 2005, instituted a civil suit in the Court of District Judge, Srinagar. The stand taken in the civil suit was that petitioner continued to suffer from acute backache and had submitted application for grant of leave on medical grounds, with supporting material. She complained that respondents were not ready to release her salary from January 2004 onwards. She prayed for a direction to defendants to release her salary till she fully recovered and resumed her duty. 5. The civil suit was dismissed for want of prosecution on 18th October 2007. In the meantime, petitioner seemingly approached respondents with an application for her transfer from Girls Higher Secondary School, Nuner, Ganderbal. The petitioner's case, remained subject matter of correspondence between officers of respondent department at different levels without any relief to petitioner. 5. The civil suit was dismissed for want of prosecution on 18th October 2007. In the meantime, petitioner seemingly approached respondents with an application for her transfer from Girls Higher Secondary School, Nuner, Ganderbal. The petitioner's case, remained subject matter of correspondence between officers of respondent department at different levels without any relief to petitioner. The petitioner, in the said background, filed writ petition on hand and sought following relief: "A of writ of Mandamus: i) directing respondents to allow petitioner to join her duties immediately without any hitch or hindrance. ii) directing respondents to release the salary of petitioner from the date of submitting her joining report after reinstatement. iii) directing respondents to initiate enquiry against the concerned officials who have not allowed petitioner to perform her duties. iv) directing respondents to treat the intervening period from her reinstatement till she is permitted to resume her duties as on duty which will not cause any harm to her future service prospects or after superannuation to claim service benefits." 6. The respondents oppose writ petition on the ground that petitioner failed to resume duty after her reinstatement ordered vide No. 763-DSEK of 2005 dated 12th April 2005 and continues to be on unauthorised absence till date. It is pleaded that petitioner, in the facts and circumstances of the case, is to be taken to have "abandoned" her service, and not entitled to relief sought in the petition. The respondents deny that petitioner reported to Principal, Government Higher Secondary School, Nuner, Ganderbal, on 19th April 2005 or on any date thereafter. The respondents, however, do not claim to have issued any formal order declaring petitioner to have "abandoned" the service and lost employment under government. 7. The petitioner, in her rejoinder, reiterates grounds taken in the writ petition and refutes the stand taken by respondents in their Reply. The petitioner insists that had she absconded or "abandoned" the post, respondents would have taken disciplinary action under rules against petitioner. Explaining her decision to take medical treatment at Bandipora, petitioner points out that she permanently resides at Bandipora and lived at Housing Colony, Bemina temporarily and therefore, after she was taken ill, she shifted to her permanent residence at Bandipora and was admitted in Sub District Hospital, Bandipora. 8. I have gone through the pleadings and record available on the file. I have heard learned counsel for parties. 9. 8. I have gone through the pleadings and record available on the file. I have heard learned counsel for parties. 9. Section 125 Constitution of Jammu & Kashmir like Article 310 Constitution of India recognizes "doctrine of pleasure" in public service or service under the Government. In terms of the "doctrine" a person holding a civil post under the State holds office during pleasure of the Governor. However, the "doctrine" is not absolute and is subject to section 126 of the Constitution of Jammu & Kashmir as the "doctrine of pleasure" recognised under Article 310 Constitution of India is subject of Article 311 of the Constitution. Section 126 like Article 311 embodies certain safeguards to a civil servant or a person holding a civil post under the Government. One of the safeguards guaranteed under the aforesaid constitutional provision is that a civil servant or a person holding a civil post under the Government, shall not be dismissed or removed or reduced in rank except after an enquiry in which he is informed of the charges against him, given a reasonable opportunity of being heard in respect of those charges and where it is proposed after such enquiry, to impose on him any such penalty, until he is given a reasonable opportunity of making representation on the penalty proposed. Section 124 of the constitution like Article 309 Constitution of India empowers legislature to regulate recruitment, condition of Services of persons appointed to public service and posts in connection with affairs of the State. In terms of proviso to section 124, the Governor or such person as he may direct, is declared competent to make rules regulating the recruitment and conditions of service of the persons appointed to such service and posts until the provisions in this behalf is made by or under the Act, of the legislature and the rules made, are to have effect subject to the provisions to any such Act. 10. The Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 made by the Government in exercise of powers under sub-section (1) of section 3 of the Jammu & Kashmir Civil Servants (Removal of Doubts and Declaration of Rights) Ordinance, 1956 regulate different aspects of the recruitment / conditions of service of the persons appointed to public service and posts in connection with the affairs of the State. Rule 33 is relevant to the present controversy and needs to be noticed: 33. (1) Without prejudice to provisions of the Public Servants Inquiries Act, 1977, no order (other than an order based on facts which had led to his conviction in a criminal court or by a court-martial) of dismissal, removal, or reduction in rank which includes reduction to a lower post and /or lower time-scale, and/or to a lower stage in time scale but excludes the reversion to a lower post of a person, who is holding a higher post temporarily shall be passed on a person who is a member of a Civil service, or holds a Civil post under the State unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the person charged, together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be inquired, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desired, or if the authority concerned so directs, an oral inquiry shall be held in respect of such of the allegations as are not admitted. At that inquiry such oral evidence will be heard as the inquiring officer considers necessary. The person charged shall be entitled to cross examination the witnesses, to give evidence in person and to have such witnesses called as he may wish; provided that the officer conducting the inquiry may for sufficient reason to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof. (2) The rule shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to communicate with him, or where in the interest of the security of the State, it is considered not expedient to give to that person an opportunity of showing cause against the action proposed to be taken against him. All or any of the provisions of the rule may for sufficient reasons to be recorded in writing be waived, where there is difficulty in observing exactly the requirements of the rule and those requirements can in the opinion of the inquiring officer be waived without injustice to the persons charged. (3) This shall also not apply where it is proposed to terminate the employment of a probationer whether during to at the end of the period of probation, or to dismiss, remove or reduce in rank a temporary Government servant, for any specified fault or on account of his unsuitability for the service. (4) The competent authority may inquire into the charges itself of if it considers it necessary so to do, it may appoint any inquiry officer for the purpose. 11. It is admitted case of the respondents that though an enquiry into unauthorised absence of the petitioner was initially contemplated when she was placed under suspension vide order No. 4047-DSEK of 2004, no such inquiry was ever conducted and the petitioner vide order No. 763-DSEK of 2005 dated 12.4.2005 was not only reinstated but her period of absence was also finally dealt with in terms of aforesaid order. It is no where pleaded by the respondents that once the petitioner failed to resume her duty after she was reinstated vide order dated 12.4.2005, any inquiry was directed or has been conducted till date. 12. It is no where pleaded by the respondents that once the petitioner failed to resume her duty after she was reinstated vide order dated 12.4.2005, any inquiry was directed or has been conducted till date. 12. The case set up by the respondents to seek dismissal of the writ petition and denial of relief sought by the petitioner, is that the petitioner because of her failure to resume her duty after her reinstatement and her continued absence for next six years i.e till the writ petition was filed, is taken to have "abandoned" her service and in terms of Rule 33 (2) J&K Civil Service (Classification, Control and Appeal) Rules 1956, the respondents are not under obligation to conduct inquiry contemplated under Rule 33 (1) of J&K Civil Service (Classification , Control and Appeal) Rules 1956 and that the petitioner having voluntarily abandoned her service, the relationship of employer and employee has come to an end even in absence of a formal termination order. There is least difficulty in understanding rationale behind exception carved out by sub rule (2) Rule 33 to the general principle that a person holding civil post under the Government cannot be dismissed, removed or reduced in rank except after enquiry contemplated under sub rule(1) of Rule 33 J&K civil Service (Classification, Control and Appeal) Rules 1956, that enables the Government to dismiss or remove such a person without inquiry where he absconds or abandoned service. The object of Rule 33 sub rule (1) is to provide the person holding the civil post under the Government an adequate opportunity to explain his stand viz-a-viz the misconduct alleged against him and also to convince the authority in the event misconduct is proved that the proposed punishment is disproportionate to the misconduct proved. However, where a civil servant absconds or abandons his service he by his own conduct makes it impossible to hold an enquiry into the misconduct alleged against him and therefore the disciplinary authority cannot be held under obligation to conduct the enquiry before proceeding against civil servant. 13. There is hardly any dispute regarding factual aspects of the matter. However, where a civil servant absconds or abandons his service he by his own conduct makes it impossible to hold an enquiry into the misconduct alleged against him and therefore the disciplinary authority cannot be held under obligation to conduct the enquiry before proceeding against civil servant. 13. There is hardly any dispute regarding factual aspects of the matter. The disagreement is restricted to resumption of duty by the petitioner after her reinstatement vide order dated 12.4.2005, her absence from duty and whether such absence is to be taken as "abandonment" of service making it unnecessary for the respondents to conduct any inquiry into her absence. Against the said backdrop it is required to be examined whether in the facts and circumstance of the case the petitioner is to be deemed to have "absconded" or abandoned service. 14. It is well settled law that abandonment of his service is a question of intention of the employee gatherable from the attending circumstances. Where a public servant remains absent from duty for pretty long time and does not even respond to the notice(s) published in the Govt. Gazette or the news paper having circulation in his area, he may very well be taken to have absconded or abandoned the service rendering it impracticable to hold an enquiry in such a situation. Prolonged absence of the govt. employee would bring about cessation of relationship between him and his employer and would not even require a formal termination order, to bring an end to his service. However, abandonment of service is to be distinguished from unauthorised absence. In case of abandonment, the facts and circumstances lead to the irresistible conclusion that the government employee has no intention to resume his duty. In case of mere unauthorised absence any such intention is not discernable from the attending circumstances. The employee is ready and willing to resume his duty, the moment he overcomes the difficulty not attributable to him, that prevents him from resuming the duty. 15. In the present case petitioner initially proceeded on maternity leave w.e.f 1.6.2002. She after availing leave and the leave on medical grounds resumed her duty when the schools reopened after winter vacation of 2004. 15. In the present case petitioner initially proceeded on maternity leave w.e.f 1.6.2002. She after availing leave and the leave on medical grounds resumed her duty when the schools reopened after winter vacation of 2004. She continued to discharge her duties till 15.4.2004 and thereafter she submitted an application for grant of leave whatever due w.e.f 16.4.2004 and without waiting for formal sanction of leave in her favour stayed away from her duty. She was placed under suspension vide order No. 4047-DSEK of 2004 dated 2.9,2004. However, she was reinstated vide order No. 763-DSEK of 2005 dated 12.4.2005 and her period of absence directed to be treated on leave of whatever kind due to her, implying thereby that competent authority was satisfied with the grounds projected by her to justify her absence. She though reinstated did not resume her duty, and instead filed a civil suit on 9.12.2005 i.e a few months after her reinstatement. She attributed her failure to resume her duty even after her reinstatement, to her continued ill health and medical advice to avoid travelling and to take bed rest. She claimed to have submitted a leave application to the authorities, for grant of leave in her favour insisting that the leave sought was due to her. The petitioner extending an assurance that she would resume her duty once she recovers, sought a direction to the respondents commanding them to release salary due to her in her favour. Petitioner prosecuted the civil suit till 14.8.2007 and failed to appear on the aforesaid date or the next date fixed in the matter probably because of her ill health and the suit was dismissed for want of prosecution on 18.10.2007. Petitioner appears to have submitted an application for her transfer from Higher Secondary School, Nuner (Ganderbal). The application finds reference in communication No. CEO/ Esstt/Lit/22833-54 dated 13.2.2006 addressed by Chief Education Officer Srinagar to the Director School Education, Kashmir, No. DSEK/Legal/NT/L-20/40-41 dated 17.4.2006 addressed by Personnel Officer to Director School Education to Principal Government Girls Higher Secondary School Nunar (Ganderbal) followed by communication No. DSEK/NT/23/05/Sgr/SWP/48/844 dated 19.5.2006 and No. CEO/Estt/Lit/8893-94 dated 22.6.2006 addressed by Chief Education Officer Srinagar to Director School Education Kashmir, No. DSEK/NT/Pay/46/07/Bla/1006 dt. 19.7.2007 addressed by Personal Officer to Director School Education, Kashmir to Chief Education Officer Baramulla, communication No. GHSSN/659 dated 8.11.2007 addressed by Principal Govt. 19.7.2007 addressed by Personal Officer to Director School Education, Kashmir to Chief Education Officer Baramulla, communication No. GHSSN/659 dated 8.11.2007 addressed by Principal Govt. Girls Higher Secondary School Nunner to Chief Education Officer Srinagar, No. CEO/ Lit/ 19816-17 dated 26.11.2007 and communication No. DSEK/NT/Pay/46/07/Bla/166 dt. 29.1.2008 addressed by Joint Director (EE) School Education Kashmir to Chief Education Officer Srinagar. The petitioner thereafter came up with writ petition on hand filed on 18.4.2011 seeking inter alia a direction to the respondents to allow her to join her duties. The fact that the petitioner after her reinstatement, resorted to litigation and thereafter filed a representation that triggered inter se communication between officers of the Education Department at different levels and finally came up with present writ petition, makes it abundantly clear that the petitioner at no point of time intended to abscond or to abandon her service. It is convincingly established that the petitioner was keen to resume her duty once she was declared medically fit to discharge her duties and in a position to avoid the sick bed. 16. In the circumstance, the petitioner's case is one of unauthorised absence after availing leave and not a case of abandonment of service as pleaded by the respondents. The petitioner's case would be covered by Article 128 J&K Civil Service Regulations, 1956. It reads: "128. Absence without leave or after the end of leave involves loss of appointment except as provided in Article 203 (b) or when due to ill-health in which case the absentee must produce the certificate of Medical Officer. Exceptions- Grace not exceeding 7 days may be allowed in cases when the Head of a Department is satisfied that the default of an officer is due to circumstances beyond his control. But no allowance can be granted for the period by which the leave is over-stayed unless an extension of leave is admissible under these rules. Exception 2.- Whenever a Government servant is detained on the road owing to its being blocked by land-slip, snow etc, he should be treated as on duty during the period of unavoidable detention, but he will be entitled, until he re-joins his appointment, to draw leave allowances only. The above concession will not apply in cases of overstay of casual leave or Quarantine leave such leave being not recognised leave. The above concession will not apply in cases of overstay of casual leave or Quarantine leave such leave being not recognised leave. Exception 3- Whenever a government servant, on his return from leave (other than casual leave or quarantine leave) is detained owing to cancellation of air flight due to bad weather or otherwise, he may be treated as on duty for the period of unavoidable detention, subject to a maximum of two days for the period of enforced halt, he will be entitled, until he rejoins his appointment to draw leave allowances only. 17. There is a provision for enquiry implicit in Article 128 CSR In the event a Government servant remains absent without leave or after the leave duly granted to him come to an end, such absence in terms of Article 128 would involve loss of appointment except when its is due to ill health or other circumstances mentioned in exceptions or incorporated therein. The very fact that the exception is carved out in case of ill health of the employee and the employee is given an opportunity to produce the certificate of the medical officer implies that the Government employee who is un authorisedly absent or over stays leave, is to be heard before any disciplinary action is taken against him. The petitioner therefore is required to be heard before her services are dispensed with. In other words the competent authority is required to hold an enquiry into unauthorised absence of the petitioner in accordance with Rule 33 of J&K Civil Service (Classification, Control and Appeal) Rules 1956 and only thereafter proceed in the matter having regard to the outcome of such enquiry. 18. Petitioner's case that she on her reinstatement submitted her joining report to Principal Higher Secondary School Nunar but same was not entertained and was not allowed to resume her duty and is not being allowed to discharge her duties, does not sound convincing. It is pertinent to point out that the petitioner some time after she was reinstated, filed a civil suit in the court of Principal District Judge Srinagar. She in her plaint did not claim to have submitted her joining report pursuant to her reinstatement vide order No. 763/DSEK dated 12.4.2005. It is pertinent to point out that the petitioner some time after she was reinstated, filed a civil suit in the court of Principal District Judge Srinagar. She in her plaint did not claim to have submitted her joining report pursuant to her reinstatement vide order No. 763/DSEK dated 12.4.2005. She on the other hand stated that she was still suffering from "acute back ache" and had been advised bed rest by the Doctor, and asked to avoid travelling till she fully recovered. The petitioner made an assurance that she would "rejoin" her duties after she fully recovers and prayed that her period of illness be treated as leave and salary be released "till she joins back" her service. The averments made in the plaint make it amply clear that the petitioner did not resume her duty after her reinstatement and continued to stay away from the School where she was required to report because she, as projected in the plaint, was prevented by her ill health from resuming her duty. Petitioner, therefore, has been absent from duty, without leave w.e.f 12.4.2005. The period of her unauthorised absence from duty w.e.f 15.4.2004 to 12.4.2005, stands already settled in terms of order No. 763-DSEK of 2005 dated 12.4.2005. 19. For the reasons discussed above, the writ petition is allowed and the respondents directed to allow the petitioner to resume her duty, with liberty to enquire into her unauthorised absence in accordance with the rules, affording petitioner a reasonable and adequate opportunity to project her case and to deal with the period of unauthorised absence w.e.f 12.4.2005 i.e date of her reinstatement till she is allowed to resume her duty, having regard to the outcome of such enquiry and in light of rules occupying the mater. Disposed of.