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2015 DIGILAW 409 (JK)

Nazir Ahmad Dar v. State

2015-08-13

MOHAMMAD YAQOOB MIR

body2015
JUDGMENT : 1. Petitioner seeks quashment of the order bearing No. PDC/CJ/34 of 2010 dated 16.01.2010, in terms whereof, his services have been terminated with immediate effect. 2. The case set up by the petitioner is that the order of termination has been passed de horse the rules, neither enquiry has been conducted nor he has been given a chance to participated in the enquiry and even the disciplinary authority has not afforded him any chance of being heard. 3. Admitted position is that the petitioner was appointed as Works Supervisor vide order dated 08.07.1992 and has served in the department in various capacities at various places. In the year 2005, he claims to have represented for being considered for promotion to the next higher post. When same was not granted, he had filed writ petition (SWP) No. 1352/2006. An interim direction was issued in the said petition on 16.10.2006 that in case respondents therein contemplate to make any promotion, the petitioner in such eventuality shall also be considered along with other eligible persons with further direction that if any representation is already filed, that may be addressed to in accordance with rules. Finally, the said writ petition was disposed of with the consent of counsel for the respondents therein, as a result whereof, respondents therein were directed to consider petitioner’s case for promotion to the cadre of Junior Engineer in accordance with rules in vogue and in the process to take into consideration cases of persons with whom petitioner is at par in all respects. 4. After according consideration, case of the petitioner was rejected by Chief Engineer vide his order No. CE/M&RE/123/2008 dated 22-7-2008. Then the petitioner had launched contempt proceedings. 5. Respondents noticing that the petitioner had produced a fake qualification certificate at the time of appointment, issued charge sheet on 26.10.2009. Petitioner had replied the same but the respondent No. 2 without conducting enquiry and without informing the petitioner to participate in the enquiry process, has issued order dated 16.01.2010 terminating petitioner from the services of the Corporation, which is under challenge. 6. Petitioner had replied the same but the respondent No. 2 without conducting enquiry and without informing the petitioner to participate in the enquiry process, has issued order dated 16.01.2010 terminating petitioner from the services of the Corporation, which is under challenge. 6. From the perusal of records what emerges is that the disciplinary authority had appointed Shri Atfab Ahmad, Executive Director, JKSPDC as an enquiry officer who vide communication dated 23.12.2009 conveyed to the petitioner the charges and asked him to appear in person, in case failure, exparte proceedings will be conducted and disciplinary action, as warranted under rules, will be recommended. Finally, a detailed enquiry report has been submitted to the Managing Director-respondent No. 2 on 14.12.2009 recommending termination of the petitioner from service. Acting on the said recommendation, order impugned terminating petitioner from service has been issued. 7. The precise charge against the petitioner is that initially his date of birth in the service book was recorded as 12.04.1960 which was mutilated as 12.04.1968 on the basis of secondary school examination certificate but the said certificate would show his date of birth as 12.4.1970. On verification, Board had reported that the certificate is fake and fabricated in respect of date of birth and the material thereof and it has been made clear that the petitioner actually had appeared for examination in the year/Session 1985/November and the date of birth of the petitioner is 12.04.1965, therefore, neither 12.04.1968 nor 12.04.1970 is the date of birth of the petitioner as reflected in the service book. 8. Petitioner seems to have submitted his reply to the enquiry officer. No enquiry seems to have been conducted as is a requirement. Furthermore, the disciplinary authority on receipt of the enquiry report has not issued notice to the petitioner nor copy of the enquiry officer’s report has been supplied to him. Non-furnishing of the enquiry report and then denial of reasonable opportunity to the petitioner to prove his innocence is clearly in violation to the principles of natural justice. The two judgments relied upon by learned counsel for the petitioner covers case of the petitioner. Non-furnishing of the enquiry report and then denial of reasonable opportunity to the petitioner to prove his innocence is clearly in violation to the principles of natural justice. The two judgments relied upon by learned counsel for the petitioner covers case of the petitioner. Five Judge Constitutional Bench of the Hon’ble Supreme Court has settled the issue in the judgment rendered in “Managing Director, Ecil, Hyderabad v. B. Karunkar” reported in 1993(4) SCC 727 , wherein it has been held as under: “When the Inquiry Officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the inquiry Officer’s report before the disciplinary authority arrived at its conclusion with regard to guilt or innocence of the employee with regard to the charges leveled against him. A denial of Inquiry Officers report before the Disciplinary authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of principle of natural justice.” It has also been observed as under: “The obligation to furnish the report, is the right of the employee and since it is the right of the employee to have the report to defend himself effectively, and he would not know in advance whether the report is in his favour or not or against him, it will not be proper to construe his failure to ask for the report, as waiver his right and he would be entitled to such copy of the report whether he asked for the same or not…” 9. In another judgment rendered by this Court in the case of “Bahadur Singh v. State” reported in 2005 (I) S.L.J. 51, it has been held that to provide copy of the inquiry report to the delinquent employee is mandatory in terms of Rule 33 and 34 of the Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules. 10. The rights of the employees are protected by Article 311 of the Constitution of India read with Section 103 of the Constitution of J&K. Protections are available in terms of Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 (hereinafter for short referred to as the CCA Rules). 10. The rights of the employees are protected by Article 311 of the Constitution of India read with Section 103 of the Constitution of J&K. Protections are available in terms of Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 (hereinafter for short referred to as the CCA Rules). In terms of Article 311 of the Constitution of India, a permanent employee can be dismissed from service, removed or reduced in rank but only after adhering to the procedure established by law. Similar is the position guaranteed under Rule 33 of CCA Rules. The mandate as contained in the Rule has to be followed strictly. 11. Applying the law as has been laid down by the Hon’ble Apex Court and by this Court, it can be safely concluded that the petitioner has been condemned unheard and in the process constitutional protections as well as statutory protections have been observed in breach rendering the order of termination bad in the eye of law. 12. In the instant case, no doubt, enquiry officer has served the copy of charge sheet to the petitioner but there is nothing on record to show that any effort has been made so as to enable the petitioner to participate in the enquiry process. That apart, it is also not shown that even in absence of the petitioner, any enquiry has been conducted. The position becomes worst when the enquiry officer submitted the enquiry report with the recommendation to the disciplinary authority and the disciplinary authority has not done what it was under legal obligation to do i.e. on receipt of enquiry report, at least a notice was required to be served to the petitioner to show cause as against the enquiry report and then on dissatisfaction, notice was to be served with regard to proposed punishment so as to determine proportionality of the punishment. Neither notice has been issued to the petitioner for proving his innocence as against the report of enquiry officer nor any such notice stand served upon him, instead disciplinary authority has straight way passed the order of termination which by no stretch of imagination can be termed to be a valid order of termination. What to speak of compliance even directly or indirectly, substantial compliance is missing. What to speak of compliance even directly or indirectly, substantial compliance is missing. Order of termination has been passed in violation to the provisions of Article 311 of the Constitution read with Section 103 of the Constitution of J&K State and in violation to the statutory protections guaranteed under CCA Rules, more particularly Rule 33. 13. Viewed thus, order of termination impugned is quashed leaving it open to the respondent-authority, if they so chose, to hold fresh enquiry against the petitioner and after following procedure established under law, to pass appropriate orders as shall be warranted under law otherwise petitioner be granted all consequential benefits as shall be admissible under rules after taking him back into service. 14. Petition succeeds, shall stand disposed of along with connected CMP. 15. Record, as produced, be returned to the learned counsel for the respondents.