Research › Search › Judgment

J&K High Court · body

2015 DIGILAW 412 (JK)

State of J&K v. Ramesh Lal S/O Chajju Ram

2015-08-13

DHIRAJ SINGH THAKUR, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : N. Paul Vasantha kumar. CJ 1. This Letters Patent Appeal is filed by the appellants challenging the order of the learned Single Judge made in SWP No. 2250/2000 dated 03.08.2004 wherein the learned Single Judge set aside the order of discharge of the respondent. 2. The case of the respondent before the learned Single Judge was that he initially appointed as a daily wager by appellant No. 3 and he was appointed on permanent basis as Warder in the pay scale of Rs. 950-1500 plus usual allowances with effect from 01.07.1996 by Order of the Government in Order No. 538 of 1996 dated 22.06.1996. The respondent joined as a Warder and served till 09.11.1997. The service book of the respondent was also prepared by appellant No. 3 and being a permanent employee of the Government, the GPF account was also allotted to the respondent and subscription was debited to his account from the salary bills. The respondent while discharging his duties in the office of respondent No. 3 developed viral hepatitis due to which he was advised to take complete bed rest by the Doctors. Because of the said serious life threatening disease the respondent was confined to bed and after recovery from the ailment he approached the respondent No. 3 seeking permission to re-join his duty and at that time the appellant No. 3 informed him that he was discharged from service, therefore, he was unable to allow the respondent to re-join his duty. The respondent prayed for issuing a copy of the said order which was issued subsequently and the said order was challenged by contending that respondent even though was on probation, he was discharged from service on the ground of not reporting for duty and even a probationer is entitled to get protection under Article 311(2) of the Constitution of India if discharge order is passed based on certain imputations. 3. Objections were by the appellants to the writ petition stating that the respondent remained unauthorizedly absent from duty, therefore, he was discharged from service from the date of his absence i.e. 11.09.1997 by order dated 01.04.1998. 4. 3. Objections were by the appellants to the writ petition stating that the respondent remained unauthorizedly absent from duty, therefore, he was discharged from service from the date of his absence i.e. 11.09.1997 by order dated 01.04.1998. 4. The learned Single Judge taking note of the fact that discharge of the respondent was not a discharge simplicitor but based on the allegations of un-authorized absence, held that only after following the principles of natural justice, namely, issuing charge memo, conducting enquiry and if the charge of un-authorized absence is proved, alone the respondent could have been discharged from service. The learned Single Judge quashed the order of discharge and ordered reinstatement of the respondent within a period of three months. However, the respondent has not pressed for the back wages and the same is recorded in the order of the learned Single Judge. 5. The issue as to whether a probationer can be terminated or his services can be dispensed with without conducting enquiry was considered by Hon'ble the Supreme Court in the decision reported in AIR 1974 SC 2192 (7 Judges Bench) (Shamsher Singh v. State of Punjab and anr) wherein it is held that the decisive factor in the context of discharge of a probationer from service is the substance of the order and not the form in determining whether the order of discharge is stigmatic or not or whether the same formed the motive for or foundation of the order. The same view was reiterated by Hon'ble the Supreme Court in the decision reported in (1992) 2 SCC 21 (Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. and anr), (2008) 2 SCC 479 (Nehru Yuva Kendra Sangathan v. Mehbub Alam Laskar) and (2010) 8 SCC 220 ( Union of India and ors v. Mahaveer C. Singhvi). In the decision reported in (2010) 8 SCC 220 (Union of India and ors v. Mahaveer C. Singhvi), a plea was taken that the respondent had been discharged from service by a simple order of discharge without a stigma, therefore, being a probationer he was not entitled to protection of Article 311(2) of the Constitution of India. The said argument was repelled noting the fact that due to allegations only he was discharged and the Special Leave Petition challenging the order of the High Court was dismissed with costs of Rs. 25.000. 6. The said argument was repelled noting the fact that due to allegations only he was discharged and the Special Leave Petition challenging the order of the High Court was dismissed with costs of Rs. 25.000. 6. In the present case the order of discharge dated 01.04.1998 specifically states that respondent is still continuing on unauthorized absence although he is a probationer, therefore, he is discharged from service with effect from 11.09.1997 i.e. from the date of his absence. The reason stated in the discharge order being un-authorized absence, the discharge is not a discharge simplicitor. Hence the respondent is entitled to have the protection stated under Article 311(2) of the Constitution of India. 7. In the light of the said decision of Hon'ble the Supreme Court and having regard to the fact that admittedly no notice, no charge memo or enquiry was conducted to prove the alleged misconduct of un-authorized absence by the appellants, there is no error in the order passed by the learned Single Judge. The learned Single Judge also has not granted the back wages to the respondent for the period during which he remained out of employment as per the consent given by the counsel for the respondent. The denial of back wages from the date of discharge till the date of re-instatement will meet the ends of justice. 7. Hence we are not inclined to set aside the order of the learned Single Judge. The appeal is dismissed with direction to the appellants to implement the order of the learned Single Judge within a period of two months from the date of receipt of copy of this order. 8. No costs.