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2015 DIGILAW 491 (JK)

Mohammad Sidiq Kathu v. State of J&K

2015-09-14

B.L.BHAT, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : N. Paul Vasanthakumar, CJ:- 1. This appeal is filed against the order made in SWP No. 628/2001 dated 02.12.2010. 2. The case of the appellant before the learned Single judge was that while working as Constable in the respondent department, his service was terminated by order No. 319 of 1991 dated 16.06.1991 with retrospective effect from 24.02.1991. The said order was passed on the ground that the appellant absented from duty from 24.02.1991 and he was allegedly involved in militancy related activities. The said order was challenged by the medium of SWP No. 2614/1992 and the writ court while taking note of the fact that without conducting enquiry the dismissal order was passed, set-aside the order of dismissal and gave liberty to the concerned respondent to conduct inquiry within six months and it was also ordered that if no inquiry is conducted against the appellant or if he succeeds in such inquiry, the appellant would be entitled to reinstatement in service prospectively without any back wages. 3. Thereafter, respondents conducted the enquiry and the appellant was exonerated from the charge of being involved in the militancy related activities and the enquiry officer gave a finding that appellant was negligent in not informing his seniors before proceeding to Srinagar. 4. In terms of the judgment of the writ court and recommendations of the Enquiry Officer, the Superintendent of Police, Kupwara, vide order No. 184 of 1998 dated 09.05.1998, directed reinstatement of the appellant in service prospectively without back wages with effect from the date he joins for duty in DPL Kupwara. 5. The said order dated 09.05.1998 was put to challenge by the appellant by the medium of SWP No. 628/2001 by contending that serious charge against the appellant (being involved in militancy related activities) having not been proved and his absence from duty was not willful even if there is negligence on the part of the appellant, the censure order having been imposed denying continuity of service on reinstatement from 24.02.1991 to May, 1998 is illegal. The said order having been passed due to the observation made by the writ court in order dated 08.08.1997 while disposing of SWP No. 2614/1992, the learned Single Judge also while taking note of the earlier order dated 08.08.1997 upheld the said order. 6. Mr. The said order having been passed due to the observation made by the writ court in order dated 08.08.1997 while disposing of SWP No. 2614/1992, the learned Single Judge also while taking note of the earlier order dated 08.08.1997 upheld the said order. 6. Mr. Azhar-ul-Amin, learned counsel appearing for the appellant submits that serious charge of involvement in militancy related activities is not proved against the appellant and his absence from duty being not willful and the same having been accepted by the Enquiry Officer, the punishment of censure having been imposed, denial of back wages as well as service benefits for more than seven years and three months is causing hardship to the appellant. Learned counsel for the appellant also submits that the appellant will not claim any back wages and the entire period from 24.02.1991 to 09.05.1998 may be ordered to be treated as duty period without any salary. The said submission of learned counsel for the appellant is recorded. 7. Mr. Dar submits that in view of the earlier orders, the back wages and earlier service was denied. 8. The dismissal order passed against the appellant on 16.06.1991 with retrospective effect from 24.02.1991 is wrong. It is sell settled principle of law that there cannot be any retrospective dismissal. It is also well settled that once the order of dismissal is set-aside, the reinstatement must follow or else the person shall be treated to be under suspension for the purposes of continuing the departmental proceedings. 9. In such circumstances, the submission made by learned counsel for the appellant is fair enough and for the ends of justice, we set-aside the order dated 09.05.1998 in so far as denial of continuity in service from 24.02.1991 till reinstatement alone is concerned. The appellant shall not be entitled to salary for the said period and except for salary, for all other purpose the same shall be counted. No costs. 10. In view of the order passed, no order is required to be passed in COD No. 285/2013 which is accordingly dismissed.