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2013 DIGILAW 614 (JK)

Mohd. Shafi Ganai v. State

2013-10-10

BANSI LAL BHAT

body2013
1. Through the medium of instant writ petition, petitioner assails order No. 1155 of 2010 dated 21.12.2010 passed by respondent-3 in terms whereof annual increment of petitioner was stopped for a period of two years, wages were denied for the period of absence from duty till his reinstatement and decision in regard to wages for the period beginning 28.5.2005 till reinstatement of petitioner was deferred. 2. Heard the rival sides and perused the record. 3. Petitioner's case is that he was appointed as Constable in 1986. Despite discharging his duties with dedication, he was subjected to harassment by respondent-5. He was not allowed to mark attendance. Later he was removed from services without enquiry vide order No. 766 of 1994 dated 21.12.1994. Order of removal from services came to be assailed through the medium of SWP No.1494/1995, which was decided on 28.5.2005. The petition was allowed and the order of removal of petitioner from services was quashed. It was specifically held that petitioner shall not be entitled to any back wages, pay or salary for the period he remained out of service, as a consequence of quashment order. It was left to the disciplinary authority to decide about the period for which back wages, pay or salary shall not be admissible. The judgment passed in SWP No. 1494/1995 was unsuccessfully assailed by respondents through LPA No.15/2006. LPA was dismissed on 2.9.2009. Consequently petitioner was reinstated vide order No. 922 of 2009 dated 14.10.2009. He joined the duties and after enquiry the punishments in the nature of stoppage of annual increment for two years and treating the period from 25.2.1994 to 28.5.2005 as dies non, were inflicted . Petitioner assails impugned order No. 1155 dated 21.12.2010 passed by respondent-3 on the ground that the impugned order has been passed in blatant violation of rules and procedure established by law for conducting departmental enquiry, that the petitioner has not been provided fair opportunity of defending himself during enquiry, that the impugned order inflicting major punishments has been passed without affording petitioner an opportunity of showing cause against proposed punishments and that the impugned order is violative of constitutional guarantees. 4. In their reply affidavit, the respondents have seriously objected to the maintainability of writ petition. 4. In their reply affidavit, the respondents have seriously objected to the maintainability of writ petition. It is pleaded that the petitioner had absented from duties on 25.2.1994 and it was for his continuous absence that he was removed from services by Commandant JKAP 6th Battalion w.e.f. 25.2.1994 in terms of order No. 766 dated 21.12.1994. Petitioner assailed order of removal from services by filing SWP No.1494/1995, which was allowed in terms of judgment dated 28.5.2005. The order of removal from services was quashed but back wages were denied to petitioner for the period he remained out of service, the period to be decided by the disciplinary authority in accordance with finding in the enquiry. It is pleaded that the respondents preferred LPA No. 15/2006 against the judgment of this court dated 28.5.2005. LPA was dismissed vide order dated 2.9.2009 holding that there was no scope to interfere with the judgment. Consequently petitioner was reinstated into service vide order No.922 of 2009 dated14.10.2009 with immediate effect. 5. Departmental enquiry was conducted in which final order No. 862 dated 15.9.2010 was passed treating the period of absence of petitioner from 25.2.1994 till his reinstatement on 14.10.2009as dies non on the analogy of "no work no wages". Upon examination of the order in APHQ, it was modified vide order dated 419 of 2011 dated 28.5.2011 to the extent that annual increment of petitioner was stopped for a period of two years. 6. Considered the grievances of petitioner in the context of facts emerging from the pleadings of the parties and documents filed in support thereof. The fact that the petitioner was serving as Police Constable and that he was removed from service for continuous absence from duty, is not in controversy. Likewise the factum of petitioner having assailed order of removal from service and this court having set aside order of removal is also not in controversy. While disposing of writ petition filed by petitioner, this court has set aside order of removal of petitioner from service and denied back wages, pay and salary to petitioner for the period he remained out of service. Such period was directed to be decided by disciplinary authority in accordance with finding in the enquiry, if held. The judgment rendered in SWP No.1494/1995 filed by petitioner was assailed by respondents by filing LPA No. 15/2006 which came to be dismissed. Such period was directed to be decided by disciplinary authority in accordance with finding in the enquiry, if held. The judgment rendered in SWP No.1494/1995 filed by petitioner was assailed by respondents by filing LPA No. 15/2006 which came to be dismissed. While disposing of writ petition, this court arrived at conclusion that the petitioner had been removed from service without formal enquiry having been conducted by authorities before taking action. However, while quashing order of termination of petitioner, respondents were granted opportunity to proceed in the matter in accordance with the rules in holding a regular enquiry against the petitioner. It was held that the petitioner shall not be entitled to back wages, pay or salary for the period he remained out of service as a consequence of quashment of impugned order. Such period was left to be decided by the disciplinary authority in accordance with the findings in the enquiry. LPA preferred against the judgment of writ court was dismissed. It is also not in dispute that petitioner was thereafter reinstated on 14.10.2009. 7. From perusal of record, it emanates that charge sheet was served upon petitioner in November, 2009 for remaining out of service w.e.f. 25.2.1994 to 14.10.2009. Departmental enquiry was limited only to determining the period of absence of petitioner from service. No punishment was imposed on petitioner. This factual position emerges from letter dated 9.10.2010 addressed by ADGP Armed to Commandant JKAP 6th Battalion wherein he observed that order No. 862 of 2010 dated 15.9.2010 had not been passed in accordance with law. ADGP observed in his letter that in determining dies non for the period petitioner remained out of service, the period from the date of passing of order in writ petition should have been treated differently for the reasons that from then it was not the fault of petitioner that he remained out of service. This appears to have influenced the authorities in passing order No.1155 of 2010 dated 21.12.2010 in terms whereof it was proposed to stop annual increment of petitioner for two years, treating period of absence w.e.f. 25.2.1994, the date from which the petitioner absented from duties to 28.5.2005, the date writ petition was decided, as dies non and for the period from 28.5.2005 to 14.10.2009, the date of reinstatement of petitioner in service, direction to be sought from APHQ separately. The modification made holds good in so far as treating of period of absence as dies non on the principle of no work no pay to period from 25.2.1994 to 28.5.2005 is concerned. This covers the period beginning the date of termination of services of petitioner to date of decision of writ petition filed by the petitioner. This is in consonance with the spirit of judgment rendered in writ petition which specifically denied back wages to petitioner for the period of absence from duty attributable to petitioner. In so far as period between 28.5.2005 to 14.10.2009 is concerned, this covers the period utilized by respondents in filing LPA against the writ court judgment which came to be dismissed on 2.9.2009 resulting in reinstatement of petitioner on 14.10.2009. Absence from duty cannot be attributed to petitioner for this period and he is not only entitled to wages for such period but also computing of such period as qualifying service for various service benefits. The writ petition has to be allowed accordingly. 8. In regard to stoppage of two annual increments, it appears that order No.419 of 2011 dated 28.5.2011 has not been assailed by petitioner. In absence of any challenge thrown to the same, legality or otherwise of the punishment proposed on this score cannot be considered. 9. Petition alongwith connected CMP is accordingly disposed of.