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2016 DIGILAW 419 (JK)

Imtiyaz Ahmad Wani v. State of J&K

2016-08-10

N.PAUL VASANTHAKUMAR

body2016
JUDGMENT : N. Paul Vasantha Kumar, J. 1. This writ petition is filed praying to quash the impugned order No. 389 of 2005 dated 20.10.2005 passed by 3rd respondent and impugned order No. 2339 of 2010 dated 15.07.2010 passed by 2nd respondent and direct the respondents to reinstate the petitioner on the job he was discharged from. Case of the petitioner is that he was enrolled as a Constable Driver in the J&K Police Department in the year 1997. While serving in the Security Wing of J&K Police, he proceeded for five days casual leave. The said leave was sanctioned, however, before expiry of the leave, he applied for extension of leave. Respondents without considering the application seeking extension of leave and without issuing show cause notice, charge memo and conducting enquiry, discharged the petitioner from service. 2. The said order was challenged by the petitioner in SWP No. 1063/2009, but the said writ petition was not entertained due to the availability of alternate remedy of filing appeal. Thereafter, the petitioner preferred appeal before the Director General of Police (DGP) and the said appeal was rejected by order No. 2339 of 2010 dated 15th July 2010. Hence the petitioner filed the instant writ petition challenging both the orders. 3. The main contention of petitioner is that he was discharged on the allegations of unauthorized absence/not reporting duty and before discharging him, no show cause notice and charge memo calling objections was issued and no enquiry was conducted. 4. Rule 359 of the Jammu and Kashmir Police Rules, 1960 contemplates the procedures to be followed in conducting enquiry and the proceedings to be followed while passing major punishment like discharge. 5. It is also contended that enquiry cannot be dispensed with as security of the State is not involved for not conducting enquiry as the allegation is not reporting duty after the expiry of leave. 6. 5. It is also contended that enquiry cannot be dispensed with as security of the State is not involved for not conducting enquiry as the allegation is not reporting duty after the expiry of leave. 6. A Constitution Bench of Hon'ble the Supreme Court in the decision reported in AIR 1966 SC 492 titled Jai Shankar v. State of Rajasthan held thus:- "It is true that the Government may visit the punishment of discharge or removal from service on a person who has absented himself by over-staying his leave, but we do not think that Government can order a person to be discharged from service without at least telling him that they propose to remove him and giving him an opportunity of showing causes why he should not be removed. If this is done the incumbent will be entitled to move against the punishment for, if his plea succeeds, he will not be removed and no question of reinstatement will arise. It may be convenient to describe him as seeking reinstatement but this is not tantamount to saying that because the person will only be reinstated by an appropriate authority, that the removal is automatic and outside the protection of Art. 311. A removal is removal and if it is punishment for over-staying one's Leave an opportunity must be given to the person against whom such an order is proposed, no matter how the Regulation describes it. To give no opportunity is to go against Art. 311 and this is what has happened here." 7. In the decision reported in AIR 2016 SC 467 : (2016 (1) JKJ 20 [SC] Ratnesh Kumar Choudhary v. Indira Gandhi Institute of Medical Sciences, Patna, Bihar & Ors.) Hon'ble the Supreme Court while considering the issue in paragraph 28 held thus: 28. In the case at hand, it is clear as crystal that on the basis of a complaint made by a member of the Legislative Assembly, an enquiry was directed to be held. It has been innocuously stated that the complaint was relating to illegal selection on the ground that the appellant did not possess the requisite qualification and was appointed to the post of Chest Therapist. The report that was submitted by the Cabinet (Vigilance) Department eloquently states about the conduct and character of the appellant. The stand taken in the counter affidavit indicates about the behaviour of the appellant. The report that was submitted by the Cabinet (Vigilance) Department eloquently states about the conduct and character of the appellant. The stand taken in the counter affidavit indicates about the behaviour of the appellant. It is also noticeable that the authorities after issuing the notice to show cause and obtaining a reply from the delinquent employee did not supply the documents. Be that as it may, no regular enquiry was held and he was visited with the punishment of dismissal. It is well settled in law, if an ex parte enquiry is held behind the back of the delinquent employee and there are stigmatic remarks that would constitute foundation and not the motive. Therefore, when the enquiry commenced and thereafter without framing of charges or without holding an enquiry the delinquent employee was dismissed, definitely, there is clear violation of principles of natural justice. It cannot be equated with a situation of dropping of the disciplinary proceedings and passing an order of termination simpliciter. In that event it would have been motive and could not have travelled to the realm of the foundation. We may hasten to add that had the appellant would have been visited with minor punishment, the matter possibly would have been totally different. That is not the case. It is also not the case that he was terminated solely on the ground of earlier punishment. In fact, he continued in service thereafter. As the report would reflect that there are many an allegation subsequent to the imposition of punishment relating to his conduct, misbehaviour and disobedience. The Vigilance Department, in fact, had conducted an enquiry behind the back of the appellant. The stigma has been cast in view of the report received by the Central. Vigilance Commission which was ex parte and when that was put to the delinquent employee, holding of a regular enquiry was imperative. It was not an enquiry only to find out that he did not possess the requisite qualification. Had that been so, the matter would have been altogether different. The allegations in the report of the Vigilance Department pertain to his misbehaviour, conduct and his dealing with the officers and the same also gets accentuated by the stand taken in the counter affidavit. Thus, by no stretch of imagination it can be accepted that it is termination simpliciter. Had that been so, the matter would have been altogether different. The allegations in the report of the Vigilance Department pertain to his misbehaviour, conduct and his dealing with the officers and the same also gets accentuated by the stand taken in the counter affidavit. Thus, by no stretch of imagination it can be accepted that it is termination simpliciter. The Division Bench has expressed the view that no departmental enquiry was required to be held as it was only an enquiry to find out the necessary qualification for the post of Chest Therapist. Had the factual score been so, the said analysis would have been treated as correct, but unfortunately the exposition of factual matrix is absolutely different. Under such circumstances, it is extremely difficult to concur with the view expressed by the Division Bench. 8. In the reply filed, it is stated that the petitioner did not bother to resume his duty inspite of sending a communication to his residential address which was received by his father. However, in the reply filed, nowhere it is stated that petitioner was proceeded with the departmental action for unauthorized absence. In the objections filed, it is admitted that petitioner was appointed in the year 1997 and served upto 2005. 9. Thus it is evident that petitioner was appointed substantively and he cannot be treated as a probationer. Even otherwise, the petitioner having been discharged on the alleged ground of unauthorized absence, the same will not stand unless the discharge order is preceded by show cause notice calling for explanation, and if the same is not satisfactory, enquiry has to be conducted and only after recording a finding of guilt of wilful absence discharge order could be passed. The said procedure having not been followed, i.e. no show cause notice, no charge memo was issued and also no enquiry was conducted, the impugned order is illegal. 10. Accordingly, both the impugned order No. 389 of 2005 dated 20.10.2005 passed by 3rd respondent and order No. 2339 of 2010 dated 15.07.2010 passed by 2nd respondent are set-aside and liberty is granted to the respondents to proceed afresh in accordance with law if so warranted. It is made clear that before initiating fresh proceedings as per law, petitioner shall be reinstated in service. 11. It is made clear that before initiating fresh proceedings as per law, petitioner shall be reinstated in service. 11. Fresh proceeding if initiated, the same shall be completed within a period of four months from the date of receipt of copy of this order. 12. With regard to the salary payable for the intervening period, same shall depend on the nature of fresh orders to be passed after conducting enquiry. Writ petition is allowed with liberty. No costs.