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2013 DIGILAW 655 (JK)

HC Mohabat Khan v. State Of J&K

2013-11-12

ALI MOHAMMAD MAGREY

body2013
1. This petition raises a short, but significant question - where in a disciplinary proceeding the delinquent government servant has been fully exonerated, whether on reinstatement he would be entitled to full pay and allowances with effect from the date of his dismissal / removal etc. to the date of his reinstatement?. It may at the outset be observed that the issue is not res integra. 2. Facts of the case are briefly noted. Petitioner, a Head Constable in the Jammu and Kashmir Police, was dismissed from service in terms of order no. 194 of 2001 dated 22.09.2001 in exercise of powers under Section 126(2)(b) of the Jammu and Kashmir Constitution read with Rule 334 of the Jammu and Kashmir Police Rules. The said dismissal order was quashed by a Coordinate Bench of this Court in terms of judgment dated 11.10.2007 in SWP no. 1769/2001 filed by the petitioner. The judgment of the Court was implemented almost five years thereafter and the petitioner was reinstated in service vide order no. 198 of 2012 dated 02.07.2012. While so doing, the respondents directed conduct of departmental enquiry against the petitioner which is stated to have been entrusted to respondent no. 5. On completion of the enquiry proceedings, respondent no. 5 recommended exoneration of the petitioner from the charges leveled against him. While so doing, he recommended that the period of absence with effect from 22.09.2001 to 04.07.2012 from duty may be treated as on leave whatever due to him. It was further recommended that in case leave is not due, the period may be treated as on leave without pay. The recommendations so made by respondent no. 5 have been accepted by respondent no. 4 in terms of order no. 759 of 2012 dated 19.12.2012 in the following terms: 1. That Head Constable Mohabat Khan No. 334/BD now 167/BDEXK796243 is exonerated from the charges leveled against him; 2. His period of removal w.e.f. 22.09.2001 to 18.07.2002 is treated as on leave which stands due to him; 3. The remaining period of removal w.e.f. 19.07.2002 to 04.07.2012 is treated as on leave without pay. In this petition the petitioner has challenged the aforesaid order dated 19.12.2012 to the extent his period of dismissal / absence with effect from 22.09.2001 to 04.07.2012 has been treated either on leave due or leave without pay. 3. The remaining period of removal w.e.f. 19.07.2002 to 04.07.2012 is treated as on leave without pay. In this petition the petitioner has challenged the aforesaid order dated 19.12.2012 to the extent his period of dismissal / absence with effect from 22.09.2001 to 04.07.2012 has been treated either on leave due or leave without pay. 3. The grounds of challenge taken in the petition are simple and plain. It is urged, inter alia, that this Court in its judgment and order dated 11.10.2007 had not given any liberty to the respondents to hold a departmental enquiry against the petitioner, therefore, the respondents had no jurisdiction to direct conduct of departmental enquiry against him; that the petitioner having been exonerated, there was no scope either for the enquiry officer or for the disciplinary authority to recommend or order that the period in question w.e.f. 22.09.2001 to 18.07.2002 be treated as on leave which was due to him and the remaining period w.e.f. 19.07.2002 to 04.07.2012 be treated as leave without pay; that in terms of Article 108-B(ii) of the Jammu and Kashmir Civil Service Regulations, the petitioner, having been fully exonerated of the charges leveled against him, is entitled to full pay and allowances during the period in question; that order of dismissal having been quashed by this Court on 11.10.2007, the respondents were obliged to reinstate him immediately thereafter, but the respondents slept over the matter till 02.07.2012, therefore, the failure of the respondents to act upon the Court judgment cannot be attributed to the petitioner. 4. Respondents have filed their reply. It is stated therein that, as per records, the judgment passed by the Court in SWP no. 1769/2001 dated 11.10.2007 was served upon respondent nos. 4 and 5 on 22.12.2011 and that it was received by respondent no. 3 on 30.12.2011. It is further stated therein that the petitioner was reinstated in service in terms of order no. 198 of 2012 dated 02.07.2012 issued by DIG, Central, Kashmir Range, Srinagar consequent upon which SSP Budgam in terms of order no. 497 of 2012 dated 04.07.2012 permitted the petitioner to join in DPL, Budgam. In these circumstances, the alleged delay of implementing the order dated 11.10.2007 passed by the Hon'ble Court cannot be attributed to the respondents. The case of the respondents is that while disposing of the petitioner's writ petition, SWP no. 497 of 2012 dated 04.07.2012 permitted the petitioner to join in DPL, Budgam. In these circumstances, the alleged delay of implementing the order dated 11.10.2007 passed by the Hon'ble Court cannot be attributed to the respondents. The case of the respondents is that while disposing of the petitioner's writ petition, SWP no. 1769/2001, the Court observed that "the order passed by the Hon'ble Court in LPA No. 70/2006 dated 31.07.2007 titled State v. Mushtaq Ahmad Akhoon squarely applies to the facts of the case of the petitioner and accordingly in view of the observations of the Hon'ble Division Bench, the petition of the petitioner was allowed. In fact the aforesaid LPA was filed by the State against an order passed in SWP No. 1793/2001 dated 14.9.2005 titled Mushtaq Ahmad Akhoon and others v. State of J&K and another, however, the Hon'ble Division Bench upheld the order passed by the Hon'ble Single Bench". It is further the case of the respondents that in the aforesaid case, which was squarely applied to the case of the petitioner, the learned Single Judge, while allowing the petition and quashing the order impugned therein, had specifically held that the judgment shall not entitle the petitioners to claim any back wages, but the decision of the authority will govern the said claim also. On that count, it is stated that the provision of Article 108-B(II) of J&K CSR cannot be made applicable to the case of the petitioner. 5. I have heard learned counsel for the parties and considered the matter. 6. At the outset it needs a mention that operative portion of the judgment dated 14.09.2005 passed by the Coordinate Bench of this Court in SWP No. 1793/2001, titled Mushtaq Ahmad Akhoon v. State of J&K, as quoted in the reply filed by the respondents, does not say that the petitioners therein would not be entitled to back wages. It says that the judgment shall not entitle them to claim any back wages. The latter part of the sentence "but the decision of the authority will govern the said claim also" clinches the issue. The decision of the authority would not mean an arbitrary or whimsical decision at the discretion of the authority unmindful of the rules governing the subject; it would connote a decision based on the established principles law. The latter part of the sentence "but the decision of the authority will govern the said claim also" clinches the issue. The decision of the authority would not mean an arbitrary or whimsical decision at the discretion of the authority unmindful of the rules governing the subject; it would connote a decision based on the established principles law. Such a decision would have to be in harmony with the rules governing the petitioner. It is not disputed that the petitioner is governed by the provisions of the Jammu and Kashmir Civil Service Regulations. Rule 108-B of the said Regulations specifically deals with such situations. It would be useful to quote the said provision of the Regulations hereunder. It reads thus: "108-B. (i) When a Government servant who has been dismissed, removed compulsorily retired before attaining the age of superannuation, or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specific order: (a) Regarding the pay and allowance to be paid to such Government servant for the period of his absence from duty; and (b) Whether or not the said period shall be treated as a period spent on duty. (ii) Where the authority mentioned in sub-rule (i) is of opinion that the Government servant has been fully exonerated or in the case of suspension, that it was wholly unjustified, the Government servant shall be given the full pay and allowances to which he would have been entitled to had he not been dismissed, removed, compulsorily retired before attaining the age of superannuation or suspended, as the case may be. The period of absence from duty shall be treated as period spent on duty." 7. A plain reading of the aforesaid provision of the Regulations makes it clear that when the Government servant has been fully exonerated, he shall be given the full pay and allowances to which he would have been entitled had he not been dismissed / removed, and that the period of absence from duty shall be treated as period spent on duty. The word used is "shall", meaning thereby that in such a situation the delinquent has to be paid full pay and allowances to which he would have been entitled to had he not been dismissed / removed and the period of absence of the employee concerned has necessarily to be treated as period spent on duty. The word used is "shall", meaning thereby that in such a situation the delinquent has to be paid full pay and allowances to which he would have been entitled to had he not been dismissed / removed and the period of absence of the employee concerned has necessarily to be treated as period spent on duty. This is the mandate of the Article 108-B(ii) of the aforesaid Regulations to be followed by all governmental functionaries. Any order that is passed dehors or in violation of the aforesaid provision of the Regulations would be rendered wholly illegal. As mentioned earlier, in fact, this issue has been settled by the Courts. Mr. M. A. Qayoom, learned counsel for the petitioner has, in this connection, cited and relied upon a Division Bench judgment of this Court in Gh. Ahmad Paul v. State of J&K, [1999 SLJ 418 : JKJ Soft JKJ/24119] 8. In the instant case, the Enquiry Officer had recommended that the delinquent official, i.e., the petitioner, may be exonerated from the charges leveled against him. The said finding was accepted by the disciplinary authority without any demur. Therefore, a duty was cast on the respondents to proceed in the matter in accordance with the mandate of Article 108-B(ii) of the J&K CSRs as said above. That having not been done, the impugned order to the extent it is challenged deserves to be quashed. 9. In light of the above, this petition is allowed. The impugned order no. 759 of 2012 dated 19.12.2012 to the extent (i) petitioner's period of removal with effect from 22.09.2001 to 18.07.2002 has been treated as on leave which stands due to him; and (ii) the remaining period of removal with effect from 19.07.2002 to 04.07.2012 has been treated as leave without pay, is quashed. The respondents are directed to treat the petitioner as on duty during the period in question and to give to him full pay and allowances for the said period with all other consequential benefits in terms of the mandate of Article 108-B of the Jammu and Kashmir Civil Service Regulations. 10. No order as to costs.