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2015 DIGILAW 286 (JK)

Gh. Mohi-ud-din Ganai v. J&K SRTC

2015-06-01

HASNAIN MASSODI

body2015
JUDGMENT : Hasnain Massodi, J. 1. Petitioner is aggrieved with order No. JKSRTC/CE- IV/2724, dated 05.02.2009, whereby he has been terminated from service w.e.f. 24.06.2004, and struck of the establishment Roles of the Corporation. He on the strength of averments made in the petition seeks following relief: - "(a) A writ of Certiorari, quashing the order No. JKSRTC/CE-IV/2724, dated 05.02.2009, issued by respondent No. 2. (b) A Writ of mandamus commanding the respondents to take back the petitioner into services and pay him all the pay/salary of the period for which has not been paid to him till he is taken back." Briefly stated, petitioner's case is that he was initially engaged as Bus-watcher in the respondent Corporation; that he was promoted as Cleaner and finally as Driver w.e.f. 19th November 1994. It is pleaded that petitioner while discharging his duty with due dedication and devotion and to the best satisfaction of his superiors, was unjustifiably placed under suspension vide order dated 24.06.2004. The respondents are said to have failed to initiate any enquiry against the petitioner, and afford him an opportunity to show cause against the proposed action. He claims to have approached the Court of 2nd Additional Munsiff, Srinagar with a civil suit for release of subsistence allowance and the civil court directed respondent Corporation to release subsistence allowance in his favour, prompting General Manager (Admn) JKSRT-respondent No. 2, herein to accord sanction to the release of suspension allowance vide order No. JKSRTC/GMA/RHQJ/2084 dated 21.02.2006. 2. Petitioner aggrieved with suspension order which was not being reviewed without any justifiable cause, filed writ petition being SWP No. 184/2009. Petitioners' case is that respondents instead of reinstating the petitioner have vide order impugned in the petition terminated his services. It is pleaded that order impugned has been made, without any enquiry against the petitioner and therefore, is in violation of Rules governing service conditions of petitioner and settled principles of service jurisprudence. 3. Petition is opposed by respondents on the ground that petitioner unauthorizedly absented himself from the duty w.e.f. 24.06.2004 and therefore, is to hold himself and none else responsible for termination of his service. The grounds urged in the petition are said to be technical and devoid of any force. Petitioner is said to have of his own decided to abandon the services and not make himself available for enquiry into his unauthorized absence. The grounds urged in the petition are said to be technical and devoid of any force. Petitioner is said to have of his own decided to abandon the services and not make himself available for enquiry into his unauthorized absence. It is pleaded that petitioner after avoiding to participate in enquiry cannot turn around to complain that respondents have failed to initiate enquiry against the petitioner and denied him an opportunity to put forth his stand. 4. Heard and considered. 5. Petitioner's initial appointment and the promotions earned are not disputed by the respondents. The respondents admit that petitioner while serving respondent Corporation as driver proceeded on 10 days earned leave w.e.f. 14.06.2004 to 24.06.2004 and did not report to duty thereafter. In other words, petitioner after availing duly sanctioned earned leave in his favour remained on unauthorized absence. If respondents are to be believed petitioner did not turn-up w.e.f. 24.06.2004 till his service was terminated on 05.02.2009. 6. It is a fundamental principle of service jurisprudence that mere unauthorized absence is not to result in termination of service unless and until it is found that unauthorized absence was without a cause justifiable under law. A person after availing duly sanctioned leave in his favour may not be in a position to report back to duty because of reasons beyond his control. To illustrate a Government employee granted medical or earned leave on the grounds set out in the leave application, prescribed under Rules may continue to suffer disability that constrained him to seek earned leave or medical leave and therefore not in a position to resume his duties. It is to be found out whether unauthorized absence from the date was justified. The Competent Authority is to conduct an enquiry into the matter, spelt out the misconduct alleged against the erring official and afford him an opportunity to explain his unauthorized absence. Even when on enquiry unauthorized absence, is found to be without justification, tenable under law and it is proposed to remove, dismiss or terminate the employee, he is to be given an opportunity to show cause against the proposed punishment. The erring employee in such case would be free to make an effort to convince disciplinary authority that there are mitigating or extenuating circumstances in his way that call for a lenient view or a punishment lesser than one proposed to be imposed. 7. The erring employee in such case would be free to make an effort to convince disciplinary authority that there are mitigating or extenuating circumstances in his way that call for a lenient view or a punishment lesser than one proposed to be imposed. 7. Let us scan pleadings and record made available by learned counsel for respondents to find out whether any enquiry was initiated against the petitioner and if so, whether it was conducted in accordance with the procedure mapped out in the Rules. 8. The respondents in their reply have more or less admitted that departmental enquiry as envisaged under rules was not directed much less conducted against the petitioner though a notice is claimed to have been issued to petitioner and published in local daily on 6th May 2005, and in terms of notice petitioner was required to report to his duty within 7 days from the date of publication of notice. The record would reveal that notice sent to the petitioner through registered post was returned un-served. Petitioner nonetheless responded to notice as is evident from communication bearing No JKSRTC/DGML/2311 dated 24th March 2006 addressed by Dy. General Manager (Load) to Incharge (Litigation), JKSRTC. He explained that he was ailing and had been advised to bed rest by the doctor attending on him. He enclosed a medical report with his reply. Petitioner reported to the Office of respondent Corporation on 25th January 2005 and applied for duplicate copy of notice sent to him but not delivered. 9. Perusal of record would however reveal that petitioner on 9th December 2005, filed a civil suit in the Court of 2nd Additional Munsiff, Srinagar. He complained that his suspension was unwarranted and that he was being unjustifiably denied suspension allowance due to him. The court on 09.12.2005, directed respondents to release suspension allowance as admissible under rules to petitioner. The suspension allowance was thereafter sanctioned in his favour. Petitioner also filed a writ petition being SWP No. 184/2009. He questioned the order by which he was placed under suspension. 10. Against the above backdrop, petitioner cannot be said to have abandoned the service or not made himself available to face enquiry, touching his alleged misconduct. Petitioner as the official record would reveal was all along available to the respondents. He questioned the order by which he was placed under suspension. 10. Against the above backdrop, petitioner cannot be said to have abandoned the service or not made himself available to face enquiry, touching his alleged misconduct. Petitioner as the official record would reveal was all along available to the respondents. He responded to the initial notice, made an effort to explain the reasons for his failure to report to duties after earned leave sanctioned in his favour ended, worked-out his legal remedy against the respondent Corporation twice-first when he filed a civil suit in the court of 2nd Additional Munsiff, Srinagar, thereafter when he filed writ petition being SWP No. 184/2009. The respondents however, lacked the will to proceed in the matter in accordance with the Rules. 11. The respondents after issuing initial notice and receiving response to notice ought to have directed a departmental enquiry, appoint an Enquiry Officer, frame charge(s) against the petitioner. The enquiry Officer so appointed was required to issue notice to petitioner, serve memorandum of charge, comprising Articles of charge, statement of imputations and the evidence by which charge was proposed to be proved against the petitioner. The enquiry Officer after conclusion of enquiry was to submit report to disciplinary authority. The disciplinary authority on receipt of enquiry was to take a tentative decision regarding the punishment to be imposed on the petitioner, serve a second notice on the petitioner, now informing him about the punishment proposed to be imposed and giving him an opportunity to show cause against such punishment. It is only after such procedure was followed, respondents would be competent to impose punishment on petitioner. 12. In the present case, all this has not been done. The Rules have been disobeyed and petitioner denied opportunity to convince the enquiry Officer that the misconduct alleged against him was devoid of any substance and therefore Disciplinary Authority that proposed punishment was unwarranted in the facts and circumstances of the case or disproportionate to the misconduct alleged against him. The impugned order therefore cannot stand legal scrutiny. Viewed thus writ petition is allowed, order bearing No. JKSRTC/CE-IV/2724 dated 05.02.2009, is set-aside. The respondents are directed to allow the petitioner to resume the duties. The respondents shall be free to initiate, a fresh enquiry on the charge of unauthorized absence against the petitioner. The impugned order therefore cannot stand legal scrutiny. Viewed thus writ petition is allowed, order bearing No. JKSRTC/CE-IV/2724 dated 05.02.2009, is set-aside. The respondents are directed to allow the petitioner to resume the duties. The respondents shall be free to initiate, a fresh enquiry on the charge of unauthorized absence against the petitioner. The period w.e.f. 24.06.2004 till petitioner resumes the duty shall be settled in accordance with the Rules and having regard to the outcome of enquiry, if any, initiated against the petitioner. Disposed of along with connected CMPs.