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2015 DIGILAW 680 (JK)

Irshad Ahmad Bhat v. State of J&K

2015-12-18

N.PAUL VASANTHA KUMAR

body2015
ORDER : N. Paul Vasantha Kumar, J. 1. Both the writ petitions are filed by one and the same person, namely, Irshad Ahmad Bhat. In SWP No. 854/2005, the petitioner has challenged Government Order No. 57 PW(Hyd.) of 2005 dated 25.02.2005 treating the joining report of the petitioner as invalid with further directions to the respondents to treat the petitioner in service and pay him the salary for the entire period with all benefits. 2. In SWP No. 1935/2009, the petitioner has challenged Government order No. 369 GAD of 2007 dated 02.04.2007 dismissing the writ petitioner from service. 3. The case of the petitioner is that the Government of Jammu and Kashmir promised to rehabilitate the surrendered militants, and based on the said promise of rehabilitation the petitioner also surrendered before the Superintendent of Police, District Pulwama on 01.09.2004. He was initially employed as Junior Engineer and while posted at Sub Division, Kishtwar, he absented from duty w.e.f. May, 1999 and joined the militants' camp and in September, 2004 he surrendered before the Superintendent of Police, Pulwama along with arms and ammunitions. In October, 2004 he submitted the joining report before the Executive Engineer, PHE, Division Kishtwar and in violation of the service rules, the Executive Engineer allowed the petitioner to join his duty. The Chief Engineer concerned, issued a show cause notice calling upon the petitioner to show cause as to why the joining report be not treated as invalid. The petitioner submitted his explanation and admitted that he absented from duty without permission from the competent authority for over 14 years. After considering the said reply, the Government issued order No. 57 PW (Hyd.) of 2005 dated 25.02.2005 and declared the joining report as invalid. The said order is challenged by contending that without conducing enquiry, the joining report was cancelled by the Government. During pendency of the writ petition, the Government issued another order bearing Govt. Order No. 158 PW(Hyd.) of 2006 dated 29.03.2006 and ordered to conduct enquiry under Rule 33 of the Classification, Control and Appeal Rules by commissioner of enquiries against the petitioner of the charges including the charge of unauthorized absence for more than 14 years. During pendency of the writ petition, the Government issued another order bearing Govt. Order No. 158 PW(Hyd.) of 2006 dated 29.03.2006 and ordered to conduct enquiry under Rule 33 of the Classification, Control and Appeal Rules by commissioner of enquiries against the petitioner of the charges including the charge of unauthorized absence for more than 14 years. Thereafter, the Government thought it fit to exercise of powers under Proviso (c) to sub-section (2) of Section 126 of the Constitution of Jammu and Kashmir and ordered that it is not expedient to hold enquiry into the matter and the petitioner was dismissed from service with immediate effect by Government Order No. 369 GAD of 2007 dated 02.04.2007. The said order is challenged in SWP No. 1935/2009 by contending that the Government having ordered to conduct enquiry in the year 2006 by order dated 29.03.2006, it was improper on the part of the Government to dispense the enquiry and dismiss the petitioner by invoking the proviso(c) to sub-section (2) of Section 126 of the Constitution of Jammu and Kashmir and before dismissing the petitioner, no enquiry was conducted and the petitioner was denied reasonable opportunity to defend his case. 4. The prayer in both the writ petitions is opposed by the respondents by stating that the Government has exercised the power vested under sub-Section (2) of Section 126 of the Constitution of Jammu and Kashmir and Article 311(2) of the Constitution of India and the Governor having recorded his satisfaction that in the interest of security of the State, it is not expedient to hold enquiry and having regard to the fact that petitioner has himself admitted that he joined the militant rank for over 14 years and he having surrendered as a militant, there is no purpose to conduct enquiry and only thing to be seen is whether such a person can be allowed to re-join the Government service after 14 years and whether he can be retained in service. It is also stated in the reply that as per the Classification, Control and Appeal Rules, if a person has not reported for duty for more than five years, he is deemed to have abandoned the service and no enquiry is required to be conducted. 5. Mr. It is also stated in the reply that as per the Classification, Control and Appeal Rules, if a person has not reported for duty for more than five years, he is deemed to have abandoned the service and no enquiry is required to be conducted. 5. Mr. P.N. Raina, learned Senior Counsel appearing for the petitioner vehemently argued that the petitioner was forced to join the militancy and he was in the militant ranks/camp for over 14 years and on the promise made by the Government that if a militant surrenders, he will be rehabilitated, the petitioner surrendered and the petitioner having been permitted to re-join duty the action of the Government in cancelling the joining report as invalid and thereafter dismissing the petitioner from service without conducting enquiry, is not proper and the said orders are to be set aside and writ petitions to be allowed. The learned senior counsel also placed on record the rehabilitation policy announced by the Government through Government Order No. Home-55/H of 2004 dated 31.01.2004. The learned senior counsel also relied on the judgments of this Court reported in 1994 (II) SLJ 372, 1998 SLJ 47, 2003 (Supp) JKJ 12 and 2007(I) SLJ 58. 6. Mr. R.S. Durswal, learned Deputy Advocate General, on the other hand, submitted that the rehabilitation policy dated 31.01.2004 announced by the Government, no where mentions about the Government servant joining the militant ranks and on surrender they can be allowed to re-join in government service. He also submitted that petitioner having admitted the fact that he joined the militant camp and was involved in a war against the State, he has no right to ask for re-joining in government service after a period of 14 years and the erroneous permission granted for re-joining was also cancelled and thereafter the petitioner was dismissed from service by dispensing with the enquiry in the light of the admitted facts by exercising power under sub-section (2) of Section 126 of the Constitution of Jammu and Kashmir and there is no illegality in the said orders. 7. I have considered the rival submissions. 8. It is not in dispute that petitioner while serving as a Junior Engineer joined the militant rank in May, 1990 and he was actively involved in the militancy i.e. waging war against the State till September, 2004 i.e. for more than 14 years four months and 14 days. 7. I have considered the rival submissions. 8. It is not in dispute that petitioner while serving as a Junior Engineer joined the militant rank in May, 1990 and he was actively involved in the militancy i.e. waging war against the State till September, 2004 i.e. for more than 14 years four months and 14 days. The whereabouts of the petitioner were also not informed to the Department for the said period. It is also an admitted fact that petitioner surrendered from militancy on 01.09.2004 before the Superintendent of Police, Pulwama with arms and ammunition. The Superintendent of Police Pulwama certified the same and receipt voucher was issued which reads as follows:- "Received one AK Rifle bearing No. M-1103, one AK Magazine and 30 Rds of AK from S.H.O P/S Pul. Today on 2/9/04 as per the orders of S P Pulwama. The said Arms/Ammn were handed-over by one Irshad Ahmed Bhat S/O Ab Gani Bhat R/O Kishtawar who surrendered before S.P. Pul. along with above mentioned Arms/Ammn." 9. In the surrender certificate issued by Superintendent of Police District Pulwama it is clearly stated that the petitioner is a terrorist of Hizbul Mujahideen outfit and surrendered before the Superintendent of Police, District Pulwama on 01.09./2004 along with one AK rifle, one magazine and 30 rounds. On 01.10.2004 the petitioner was allowed to re-join duty by the Chief Engineer, Public Health Engineering Department Jammu and the Superintending Engineer, Hydraulic Circle Doda on 01.12.2004. The period of absence i.e. 14 years, 4 months and 14 days was also requested to be treated as on duty by the Superintending Engineer, Hydraulic Circle Doda. The Department on 07.01.2005 issued a show cause notice to the petitioner stating that he unauthorizedly absented from duty with effect from May, 1990 to mid September, 2004 without bothering to inform the department about his whereabouts and he remained associated with militant related activities, during the absence period and such type of the behavior of the government employee warrants stringent disciplinary action and such a long span of unauthorized absence leads to loss of appointment and his joining report after such a long time without any reason be treated as in-valid and services be terminated. The petitioner was asked to explain with respect to the show cause notice. The petitioner was asked to explain with respect to the show cause notice. The petitioner submitted his reply on 13.01.2005, stating that he proceeded on 64 days leave with effect from 26.02.1990 to 30.04.1990 which was sanctioned by the Executive Engineer on 08.03.1990. Though he has denied that he joined the militant camp, he has admitted that he took the benefit of healing touch policy of the Government and surrendered. He further stated that as his own life was at stake, he remained aloof from the targets of the militants. He remained absent due to the circumstances mentioned above and his absence may be condoned. The Government considered the said explanation and passed the order on 25.02.2005, stating that in his reply to the show cause notice he has confirmed his absence from duty without any permission or leave from the competent authority and absence without permission/leave leads to loss of appointment under Article 128 of the Jammu and Kashmir Civil Service Regulations which deals with overstaying leave. Article 113 of the J&K CSR states that after five years of continuous absence on leave an officer is considered to be out of State employment. The recent order of the Government in terminating the services on similar grounds is placed before this Court void Government Order No. 60-ASH of 2013 dated 27.02.2013. 10. It is to be noted at this juncture that Government initially thought it fit to conduct an enquiry against the said misconduct and also issued a charge memo against the person permitting the petitioner to re-join his duties. Having regard to the admitted fact that petitioner joined the militancy camp, remained there for more than 14 years and admittedly surrendered before the Superintendent of Police District Pulwama on 01.09.2004, the Government thought that conducting of enquiry is not expedient and in exercise of powers vested in terms of proviso(c) to sub-section (2) of Section 126 of the Constitution of Jammu and Kashmir, the petitioner was dismissed from service with immediate effect. The satisfaction is clearly recorded by the Governor in terms of Section 126 of the Constitution of Jammu and Kashmir. 11. The satisfaction is clearly recorded by the Governor in terms of Section 126 of the Constitution of Jammu and Kashmir. 11. Having regard to the admitted fact that petitioner joined the militant ranks, remained there for over 14 years and surrendered as a militant with arms and ammunition, which is certified by the Superintendent of Police Pulwama as extracted above, conducting of enquiry is not necessary by applying the theory of useless formality as only one view is possible, namely, as to whether a government servant who joins the militancy groups and waged war against the Government, on surrender will get back his appointment and can be permitted to continue in service. 12. The Hon'ble Supreme Court in the decision reported in (2004) 4 SCC 281 (Escorts Farms Ltd. v. Commissioner) held that even if notice is given and reply is received and after perusing the reply there is no possibility of changing the view, issuance of notice or extending hearing would be a mere ritual. The Hon'ble Supreme Court in the decision reported in (2005) 7 SCC 725 (R.C. Tobacco (P) Ltd. v. Union of India), held that issuance of notice would be an empty formality by applying the useless formality theory. The same position is reiterated in the decision reported in (2015) 8 SCC 519 (Dharampal Satyapal Limited v. Deputy Commissioner of Central Excise, Gauhati and ors) by following the above two decisions in paragraph Nos. 46 to 48. In the decision reported in AIR 2014 SC 1963 (Securities and Exchange Board of India v. M/S Akshya Infrastructure Pvt. Ltd.), Hon'ble the Supreme Court held that a person complaining breach of principles of natural justice should prove the prejudice faced by him and mere technical infringement may be ignored by the Courts. In the decision reported in (2014) 5 SCC 409 (Ex-Armymen's Protection Services Pvt. Ltd. v. Union of India and ors), the Hon'ble Supreme Court held that in a situation of national security, a party cannot insist for strict observance of the principles of natural justice. In such cases, it is the duty of the Court to read into and provide for statutory exclusion, if not expressly provided in the rules governing the field. Thus the decisions relied on by the learned senior counsel for the petitioner have no relevance to the facts of this case. 13. In such cases, it is the duty of the Court to read into and provide for statutory exclusion, if not expressly provided in the rules governing the field. Thus the decisions relied on by the learned senior counsel for the petitioner have no relevance to the facts of this case. 13. The rehabilitation policy dated 31.01.2004 nowhere deals with the government servants joining the militant ranks or camps and on surrender can get back their employment. The learned senior counsel appearing for the petitioner fairly agreed that there is no such rehabilitation policy announced by the Government. Learned senior counsel further submitted that government has permitted certain surrendered militants to rejoin in government service and the petitioner is discriminated. The said submission can be accepted. Before the Court of law, unless there is a policy or rule to seek a right to claim government post by a surrendered militant the same cannot be enforced. Any indulgence shown by the Government permitting the militants to report back for duty as claimed may be on peculiar circumstances of the case, namely, few days of absence or other special circumstances. In this case the petitioner has not reported for duty for 14 years 4 months and 14 days without giving any intimation. Article 113 of the J&K CSR clearly states that if a government servant does not report for duty for five years, he is to be treated to have abandoned the service. Hon'ble the Supreme Court considered a similar issue and held that if a person has chosen not to report for duty for a long period he should be treated to have abandoned the service. 14. In the decision reported in (2013) 10 SCC 253 (Vijay S. Sathaye v. Indian Airlines Ltd. and ors) Hon'ble the Supreme Court in paragraph Nos. 12 to 16 held thus:-- "12. It is a settled law that an employee cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntarily abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer. 13. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntarily abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer. 13. In M/s. Jeewanlal (1929) Ltd., Calcutta v. Its Workmen, AIR 1961 SC 1567 , this Court held as under: "...... there would be the class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee." (See also: Shahoodul Haque v. The Registrar, Co-operative Societies, Bihar & Anr., AIR 1974 SC 1896 ). 14. For the purpose of termination, there has to be positive action on the part of the employer while abandonment of service is a consequence of unilateral action on behalf of the employee and the employer has no role in it. Such an act cannot be termed as 'retrenchment' from service. (See: State of Haryana v. Om Prakash & Anr., (1998) 8 SCC 733 ). 15. In Buckingham and Carnatic Co. Ltd. v. Venkatiah & Anr., AIR 1964 SC 1272 while dealing with a similar case, this Court observed : "Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf." A similar view has been reiterated in G.T. Lad & Ors. v. Chemicals and Fibres India Ltd., AIR 1979 SC 582 . 16. In Syndicate Bank v. General Secretary, Syndicate Bank Staff Association & Anr., AIR 2000 SC 2198 ; and Aligarh Muslim University & Ors. v. Mansoor Ali Khan, AIR 2000 SC 2783 , this Court ruled that if a person is absent beyond the prescribed period for which leave of any kind can be granted, he should be treated to have resigned and ceases to be in service. In such a case, there is no need to hold an enquiry or to give any notice as it would amount to useless formalities. A similar view has been reiterated in V.C. Banaras Hindu University & Ors. v. Shrikant, AIR 2006 SC 2304 ; Chief Engineer (Construction) v. Keshava Rao (dead) by Lrs., (2005) 11 SCC 229 ; and Regional Manager, Bank of Baroda v. Anita Nandrajog, (2009) 9 SCC 462 ." 15. A similar view has been reiterated in V.C. Banaras Hindu University & Ors. v. Shrikant, AIR 2006 SC 2304 ; Chief Engineer (Construction) v. Keshava Rao (dead) by Lrs., (2005) 11 SCC 229 ; and Regional Manager, Bank of Baroda v. Anita Nandrajog, (2009) 9 SCC 462 ." 15. In such circumstances this Court is unable to find any reason to allow the writ petitions filed by the petitioner. There is no merit in these writ petition and the same are dismissed. No costs. 16. In view of dismissal of the writ petitions the contempt petition shall also stand dismissed.