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2016 DIGILAW 525 (JK)

Rajni Devi v. State of J&K

2016-10-13

ALOK ARADHE

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JUDGMENT : Alok Aradhe, J. 1. With consent of the learned counsel for the parties, the matter is taken up on board. In this writ petition, the petitioner inter alia seeks quashment of order dated 14.01.2003 read with order dated 15.01.2003 by which the services of the petitioner have been terminated. Facts giving rise to filing of this writ petition briefly stated are that the petitioner was appointed as Safaiwala on 20.03.1995. It is the case of the respondents that the certificate produced by the petitioner in support of her date of birth was found to be tempered. The petitioner was given a threat of termination of her services. Thereupon the petitioner approached this Court by filing SWP No. 140/1997, which was disposed of by a Bench of this Court vide order dated 01.06.2000 with the direction to the competent authority to treat the writ petition as representation and to decide the same by a speaking order. 2. Thereafter in purported exercise of powers under Rule 32 and 34 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956 a show-cause notice was issued to the petitioner by which the petitioner was asked to show cause as to why her services were not terminated. The petitioner challenged the aforesaid notice in writ petition namely SWP No. 2351/2002, which was disposed of by a Bench of this Court vide order dated 09.09.2002 on the ground that the same is premature and that the petitioner was given liberty to file reply to the same. In response to the liberty granted by this Court, the petitioner submitted a reply. Thereafter by order dated 14.01.2003, services of the petitioner was terminated. In the aforesaid factual background, the petitioner has approached this Court. 3. Learned counsel for the petitioner submits that the petitioner being a permanent employee is entitled to benefit of Section 126 of the State Constitution and her services cannot be terminated de hors the procedure prescribed in Rule 33 and 34 of the Rules. It is further submitted that the impugned order is stigmatic in nature has been passed without affording any opportunity of hearing to the petitioner. It is further submitted that the conclusion that the certificate produced by the petitioner showing her date of birth is forged has been found behind her back. It is further submitted that the impugned order is stigmatic in nature has been passed without affording any opportunity of hearing to the petitioner. It is further submitted that the conclusion that the certificate produced by the petitioner showing her date of birth is forged has been found behind her back. In support of aforesaid submissions, learned counsel for the petitioner has referred to decision rendered in the case of Director General of Police v. Mrityunjoy Sarkar, (1996) 4 SCC 241. 4. On the other hand, learned counsel for the respondents has submitted that the petitioner was given an opportunity to produce the original certificate, however, she failed to do so. It is further submitted that the appointment of the petitioner is void ab initio, therefore, the petitioner is not entitled to benefit of Article 311 of the Constitution of India. In support of aforesaid submissions, learned counsel for the respondents has placed reliance on decision of the Supreme Court in the case of R. Vishwanatha Pillai v. State of Kerala & Ors. : (2004) 2 SCC 105 and Division Bench of this Court in the case of Sham Lal & Anr. v. State of J&K & Ors., 2005 (1) JKJ 1 [HC]. I have considered the submissions made by learned counsel for the parties and perused the record. Admittedly, the services of the petitioner are governed by the J&K Civil Services (Classification, Control and Appeal) Rules, 1956. Rule 33 of the Rules deals with issue of order of dismissal, removal or reduction in rank whereas Rule 34 provides for supply of copy of the proceedings prepared under Rule 33, Similarly Rule 35 provides that adequate opportunity has to be given to the delinquent employee before issuing an order imposing the penalty. From perusal of Rule 33 of the rules, it is evident that regular departmental enquiry is required to be constituted before imposing the major penalty on the employee. In the instant case, the enquiry with regard to the genuineness of the certificate produced by the petitioner was held behind her back and by show cause notice dated 29.08.2002, the petitioner was informed that the certificate produced by her with regard to date of birth is forged and simultaneously she was asked to show cause as to why her services be not terminated. The impugned order thus has been in flagrant violation of the procedure prescribed in Rule 33 and 34 of the Rules. Thus, it is evident that the impugned action which has been taken against the petitioner suffers from the procedural irregularities and cannot be sustained in the eyes of law. Accordingly, the impugned order of termination dated 14.01.2003 is hereby quashed. The petitioner shall be re-instated in service. Needless to state that the respondents be at liberty to take an action against the petitioner if so advised in accordance with the law and shall conclude the enquiry against the petitioner within a period of four months from today after affording an opportunity of hearing in accordance with the rules. Accordingly the writ petition is disposed of. Certified copy as per rule.