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2015 DIGILAW 348 (JK)

National Institute of Technology v. Fatima

2015-07-22

ALI MOHAMMAD MAGREY, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : N. Paul Vasantha Kumar, C.J.:- 1. This appeal is filed against the order dated 07.04.2011 made in SWP No. 665/2002 wherein the writ petitioner, namely, Ghulam Rasool Dar (since dead), prayed for issuance of writ of mandamus directing the appellant to take him back into the service as Khidmatgar and to pay him all arrears of salary from the date his services were terminated i.e. with effect from 04.08.1987 and to grant all promotional benefits including increments to the grade the writ petitioner was holding and to quash the order of the enquiry Committee. It may be noted here that during the pendency of the writ petition the writ petitioner died on 05.07.2006 and respondent Nos. 1 to 3, wife and daughters, were brought on record as they being the legal heirs. 2. The case of the writ petitioner (deceased) was that while working as Khidmatgar in Regional Engineering College, Srinagar he proceeded on leave for 15 days on medical grounds from 05.07.1986. He extended his leave for one month by submitting an application, however, no order accepting or rejecting the extension of leave was issued. A show cause notice was issued on 19.03.1987 which was replied explaining the reason for his absence. The appellant without holding any enquiry dismissed the writ petitioner from service on 04.08.1987. The said order was challenged by the writ petitioner in SWP No. 1190/1994 which was allowed by this Court by order dated 22.07.1997 by quashing the order dated 04.08.1987. This Court granted liberty to the appellant to place the writ petitioner under suspension and to take steps to hold an enquiry into his unauthorized absence in accordance with rules and law and to pass appropriate orders within six months from the date of receipt of the order. It was further ordered that if the writ petitioner is able to explain his absence and succeeds in enquiry, he shall be reinstated in service and the suspension of giving retrospective effect to such reinstatement shall be dealt with by the competent authority in accordance with rules. But if he fails and does not justify his absence from duty, the order impugned shall remain intact leaving him free to re-agitate the matter, if so advised. 3. According to the writ petitioner the appellant did not conduct any enquiry within the period of six months. But if he fails and does not justify his absence from duty, the order impugned shall remain intact leaving him free to re-agitate the matter, if so advised. 3. According to the writ petitioner the appellant did not conduct any enquiry within the period of six months. The order of the Court was served by the writ petitioner to the appellant on 08.08.1997. As no enquiry was conducted inspite of the opportunity granted the writ petitioner issued a counsel notice on 02.12.1997 and called upon the appellant to implement the order within ten days. No reply was issued to the said notice and no enquiry was also conducted. The writ petitioner filed Contempt petition on 31.03.1998 bearing No. 92 of 1998 seeking implementation of the order. The contempt petition was disposed of on 09.03.2001 with liberty to the writ petitioner to approach the appellant so that appropriate orders are passed by the appellant. Again notice was issued by the counsel to the Commissioner-Secretary to Government Higher Education Department and principal, Regional Engineering College on 01.05.2001, stating that no enquiry having been conducted within six months, as per the liberty granted by this Court, the writ petitioner shall be given all benefits. On 25.06.2001 reply was issued by the Registrar of the appellant-Institute, stating that enquiry committee was constituted and the writ petitioner having failed to appear, the enquiry was concluded. According to the writ petitioner no enquiry was conducted and no Committee was constituted and no charge memo was served enabling the writ petitioner to give his reply and after expiry of six months i.e. 08.02.1998 any decision taken by the alleged Committee is non-est as the time granted by this Court had already expired. On these grounds the writ petition was filed with the above said prayer. 4. The learned Single Judge on 07.04.2011, noticing the earlier order passed by this Court in SWP No. 1190/1994 and the fact that no notice of the enquiry having been served on the deceased writ petitioner and the fact that in the contempt petition the constitution of the Committee and non-appearance of the writ petitioner having not been taken as stand by the appellant, allowed the writ petition with a direction to treat the deceased writ petitioner to have been in service of the appellant- Institution as Khidmagar with further direction to appellant to pay all service benefits to the respondent Nos. 1 to 3 who are legal heirs of the deceased employee, which would accrue to the deceased employee under rules within two months. 5. The said order is challenged by the appellant by contending that full opportunity of hearing was granted to the deceased writ petitioner and the deceased writ petitioner failed to co-operate with the enquiry the report was submitted by the Committee on 24.05.1999 stating that the writ petitioner was not interested in solving the problem. 6. During the course of the arguments, the learned counsel appearing for the appellant was not in a position to establish the fact that enquiry as per the liberty granted was commenced and completed within a period of six months from the date of communication of the order which was admittedly communicated on 08.08.1997. No documents, particularly the service of charge memo, explanation, summons issued if any to the deceased was shown before this Court to establish the fact that within the time granted by this Court the enquiry proceedings were initiated afresh and the deceased writ petitioner failed to co-operate. In such circumstances the learned Single judge has allowed the writ petition as prayed for. 7. The issue as to whether if time limit is given by the Court to complete the enquiry, has to be strictly adhered to unless extended, came up for consideration before a Division Bench of Madras High Court in the decision reported a in 2010 (3) MLJ 625 (The State of Tamil Nadu and Anr. v. T. Ranganathan), wherein one of us (N. Paul Vasanthakumar-C.J.) was a member, and in the said case it was held as under:- “21. It is well settled in law that once a competent Court fixes an outer time limit to complete the enquiry and pass final orders, the parties to the proceedings are bound to strictly adhere to the time granted to comply with the said order. If on any reason the time fixed by the competent Court is unable to be adhered to and the proceedings are unable to be finalised, the party to the proceedings can approach the very same Court seeking extension of time stating sufficient reasons and once valid reasons are given, normally the Court/Tribunal would extend the time, depending upon the facts and circumstances of the case. Admittedly the said procedure has not been followed in this case and the department has chosen to ignore the direction given by the Tribunal, which is binding on them.” The Special Leave Petition filed against the said order of the Division Bench of Madras High Court bearing SLP Nos. 11346 and 11347 of 2010 was also dismissed by Hon’ble the Supreme Court on 23.04.2010. The said finding was given by following an earlier order of the Madras High Court rendered by one of us (N Paul Vasanthakumar while sitting singly) in the decision reported in (2006) 2 MLJ 143 (Dr. N. Shahida Begum v. State of Tamil Nadu) in W.P. No. 31317 of 2004 dated 12.12.2008. 8. Again by a Division Bench of Madras High Court in the decision reported in (2008) 4 MLJ 776 (B. Krishnan v. T.N. Water Supply & Drainage Board), similar issue was considered as to whether the department can proceed further if the enquiry was not completed within the stipulated time in spite of rejection of the petition seeking extension of time. It is held therein that the department cannot proceed further as the time limit granted originally and extended subsequently, got expired. 9. Before the Bombay High Court also similar issue was raised and the Division Bench in the decision reported in 2005 (2) LLJ 607 (Ramrao Ramachandra Datir v. State of Maharashtra) held that the department cannot proceed further with the charge memo. In paragraphs 6 to 8 it is held thus:- “6......... In the instant case, it is not in dispute that the first charge-sheet dated March 10, 1986 consisted of eight charges. The petitioner has challenged the validity of the same in Writ Petition No. 598 of 1986 and this Court on March 24, 1986 permitted the petitioner to withdraw the petition by specifically observing that the enquiry should be completed and the report to be submitted not later than June 15, 1986. The application for extension of time to complete the enquiry was dismissed vide order dated August 14, 1986. On the backdrop of these undisputed facts, it was incumbent on the respondent to complete the enquiry and submit the report of such enquiry on or before June 15, 1986. The application for extension of time to complete the enquiry was dismissed vide order dated August 14, 1986. On the backdrop of these undisputed facts, it was incumbent on the respondent to complete the enquiry and submit the report of such enquiry on or before June 15, 1986. Since the respondent failed to complete the enquiry within the stipulated period, the right to proceed with the enquiry after June 15, 1986 came to an end, consequently, the enquiry so initiated vide charge-sheet dated March 10, 1986 stands vitiated after June 15, 1986. 7. In the instant case, the respondents have evolved a novel method for conducting the departmental enquiry against the petitioner by issuing fresh charge-sheet dated August 9, 1988 wherein the alleged charges which are framed against the petitioner are totally identical with that of the charges framed in earlier charge-sheet dated March 10, 1986 and the misconduct which is alleged is also the same, which was part and parcel of the earlier charge-sheet dated March 10, 1986. The fact that the charges are identical in nature is not disputed by the respondent. Similarly, the list of documents and list of witnesses relied on by the respondent for proving the charges in the second charge-sheet are also identical in nature with that of relied on by the respondent for first charge-sheet dated March 10, 1986. On the backdrop of the above referred facts, it is evident that the respondent, by virtue of this exercise, wants to reopen the case of departmental enquiry against the petitioner on the same set of facts and for the same misconduct which, in our considered view, is not permissible in law. 8. As we have already observed hereinabove, after June 15, 1986, the respondent lost the legal right to proceed with the departmental enquiry against the petitioner by virtue of the specific order dated March 24, 1986 passed by this Court in Writ Petition No. 598 of 1986 and therefore, the question of starting new enquiry by fresh charge-sheet dated March 9, 1988 on the same set of charges and for the same misconduct, does not arise.” 10. Hon’ble the Supreme Court in the decision reported in 2007 (6) Supreme 97 (The Commissioner, Karnataka Housing Board v. C.Muddaiah) held that once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. Hon’ble the Supreme Court in the decision reported in 2007 (6) Supreme 97 (The Commissioner, Karnataka Housing Board v. C.Muddaiah) held that once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. In paragraph 31 it is held thus, “31. We are of the considered opinion that once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. If an order passed by a Court of Law is not complied with or is ignored, there will be an end of Rule of Law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected.” 11. The reasoning given by the learned Single Judge is in tune with the settled proposition of law. In such circumstances, we are unable to find any reason to interfere with the order of the learned Single Judge. The appeal is dismissed. The appellant is directed to settle the amount payable to the deceased writ petitioner to respondent Nos. 1 to 3 who are his legal heirs within a period of one month from the date of receipt of this order. 12. No costs.