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2019 DIGILAW 53 (JK)

Showkat Ahmad Khan v. State of J&K

2019-02-04

ALI MOHAMMAD MAGREY

body2019
Judgment 01. By medium of this petition, filed under Article 226 of the Constitution of India read with Section 103 of the State Constitution, the petitioner has assailed the validity of order No. 367 of 2013 dated 19th of August, 2013, insofar as it treats the period of his absence w.e.f. 9th of January, 2004 to 14th of January, 2004 (05 days) as well as period of his discharge w.e.f. 22nd of January, 2004 to 19th of September, 2011 as on ‘DIESNON’, on the principle of ‘No Work No Pay’. 02. In order to appreciate the controversy involved in the matter, it shall be appropriate to give a brief account of the background facts leading to the filing of this petition. 03. The petitioner claims that he was appointed in the respondent Department as a Follower in District Kupwara vide DPO Kupwara’s order No. 854/97 dated 10th of September, 1997. After joining on the said post, he was transferred to District Baramulla on 18th of June, 2003, where he was allotted Belt No. 43/F(b/a) and was posted in Police Station, Pattan. Thereafter, the petitioner joined on 26th of August, 2003 and discharged his duties with zeal, zest and utmost honesty. It is stated that the petitioner worked round the clock and his work and conduct was all along appreciated by his superiors. The petitioner further states that, unfortunately, he met with a serious accident, as a result whereof he got fractures in his left foot and that his leg was plastered. The petitioner contends that he could not inform his office regarding the said accident due to the fact that there is no elder male member in his family, but, still, he somehow or the other managed to apply for extension of leave, which he believed to have been extended. On 4th of January, 2004, the petitioner rejoined his duties with his plastered foot. It is pleaded that an explanation was sought from the petitioner on account of his absence of five days which was, accordingly, tendered by him alongwith relevant medical prescriptions. Thereafter, the petitioner was discharging his duties normally and up to the entire satisfaction of his superiors. On 4th of January, 2004, the petitioner rejoined his duties with his plastered foot. It is pleaded that an explanation was sought from the petitioner on account of his absence of five days which was, accordingly, tendered by him alongwith relevant medical prescriptions. Thereafter, the petitioner was discharging his duties normally and up to the entire satisfaction of his superiors. However, on 22nd of January, 2004, the petitioner was served with order No. 86 of 2004 dated 22nd of January, 2004, purportedly issued by the respondent No. 4, whereby his services were disengaged w.e.f. 18th of January, 2004, without any enquiry or information to the petitioner. The petitioner, on receipt of the said order, as stated, got shocked and received a massive psychological stroke and remained unconscious in comma for many days. During this tarmac, it is stated that despite the petitioner receiving serious injuries in lower portion of abdomen and left hand, yet, the petitioner made several representations before the respondents, explaining his position and requesting for withdrawal of the said order, but of no use. Thereafter, the petitioner filed a revision petition and appeal before the respondent No. 3 against the order of his discharge strictly in accordance with the Police Rules, but both were rejected by the respondent No. 3. Aggrieved thereby, the petitioner filed a civil suit for declaration and mandatory injunction before the Court of competent jurisdiction. By judgment dated 10th of October, 2009, this suit of the petitioner came to be decided and decreed by the Court of learned Sub Judge, Judge Small Causes, Srinagar, operative portion whereof reads as under:— “Keeping in view the detailed discussions made herein above the suit of the plaintiff is decreed in favour of the plaintiff and against the defendants. The order impugned i.e. order No. 86 MF 2004 dated 22-1-2004 passed by defendant No.4 is stated to be illegal, unjustified against the rules, regulations and norms governing the service conditions of the plaintiff, as such the same is said to be void and honest in eyes of law. As the order has been said to be void and honest in eyes of law, the defendants are directed to hold an enquiry in view of regulation 359 of J&K Police regulation, and pass an appropriate order after holding the enquiry. The plaintiff be also associated with the enquiry and be given an opportunity of being heard. As the order has been said to be void and honest in eyes of law, the defendants are directed to hold an enquiry in view of regulation 359 of J&K Police regulation, and pass an appropriate order after holding the enquiry. The plaintiff be also associated with the enquiry and be given an opportunity of being heard. The period from the date of absence from duty till today is kept, subject to the outcome of the enquiry. The enquiry should be completed with a period of 4 months from the date of receipt of this order by the defendants. The suit is accordingly decreed, there is no order as to cost. Let a decree sheet be prepared accordingly. File shall be consigned to record after its due completion.” 04. Thereafter, a review petition came to be filed against this judgment and decree passed by the Court in favour of the petitioner which, however, came to be rejected by the court vide its judgment dated 22nd of December, 2010. Subsequently, in pursuance of the aforesaid judgment and decree, the respondents passed an order No. 769 of 2011 dated 17th of September, 2001, whereby and whereunder the petitioner was reinstated in service with immediate effect with a further stipulation that a departmental enquiry will be conducted as regards the period of absence of the petitioner. After completion of the inquiry proceedings, the respondents have passed the order No. 367 of 2013 dated 19th of August, 2013, whereby they have ordered as under:— “I. Warning is awarded to Foll. Showkat Ahmad No.05/F then 43/f EXK-971809 to remain careful in future. II. Period of his absence w.e.from 09.01.2004 to 14.01.2004 i.e. 05 days as well as period of his discharge w.e.from 22.01.2004 to 19.08.2011 is treated as on “DIESNON’ on the principle of No Work No Pay.” It is this order that has been impugned herein this petition by the petitioner. 05. The respondents have filed their objections, resisting and controverting the averments made by the petitioner in his petition. It is stated that the order impugned has been issued on the basis of the findings rendered by the Enquiry Officer strictly in accordance with the regulations laid down in Section 359 of the J&K Police Manual. It is contended that the period of unauthorized absence in respect of the petitioner has been rightly decided on the analogy of ‘No Work No Period’. 06. It is contended that the period of unauthorized absence in respect of the petitioner has been rightly decided on the analogy of ‘No Work No Period’. 06. Heard the learned counsel for the parties, perused the record and considered the matter. 07. The main plank of the argument of the learned counsel for the petitioner is that the respondents, while conducting the departmental enquiry with regard to the case of the petitioner, did not afford proper opportunity of hearing to the petitioner as mandated in terms of Rule 359 of the J&K Police Manual. 08. Admittedly, the respondents have, in execution of the judgment and decree of the Court of learned Sub Judge, Judge Small Causes, Srinagar, reinstated the petitioner and, thereafter, conducted the enquiry as regards the period of his absence and period of his discharge, therefore, there is no ground available to the petitioner to claim that the respondents have violated the rules while dealing with the case of the petitioner, particularly Rule 359 of the Police Rules as is he has not been dismissed/ removed/ reverted to a lower post. A perusal of the record, produced by the respondents, reveals that the respondents have duly complied with the requirements of the rules in dealing with the case of the petitioner. 09. It needs must be said that the petitioner has challenged the action of the respondents with reference to treating the period of his absence and the period of his discharge as ‘DIES NON’ on the basis of ‘No Work No Pay’ and in order to buttress his claim, the petitioner has referred to and relied upon the judgments rendered by this Court in case reported in ‘ 2014 (1) JKJ 297 (HC)’; ‘2015 (2) JKJ(HC) 364’; and ‘2018(I) SLJ 418’. Perusal of the said judgments reveals that the principle on the basis of which the aforesaid judgments have been passed is not applicable to the case in hand. In the said judgments, the petitioners therein were exonerated and, therefore, the application of Article 108-B (2) had become available to them. 10. Perusal of the said judgments reveals that the principle on the basis of which the aforesaid judgments have been passed is not applicable to the case in hand. In the said judgments, the petitioners therein were exonerated and, therefore, the application of Article 108-B (2) had become available to them. 10. The other contention raised by the learned counsel for the petitioner, herein this case, is that on reinstatement, the period of absence as well as period of discharge of the petitioner could not have been declared as ‘DIESNON’ on the ground that the petitioner has been, in a way, exonerated in the inquiry conducted by the respondents and, therefore, the petitioner is entitled to full wages for the period in question. This submission of the learned counsel for the petitioner is not only misconceived and misdirected, but also dehors the rules and the record. The petitioner has been reinstated in service as a consequence of the judgment and decree passed by the Court of competent jurisdiction and not because of him having been exonerated. It is only on account of the implementation of the aforesaid judgment and decree, in terms whereof the Court had left it open to the authorities to decide the period of his absence as also the period of his discharge, that the petitioner has been reinstated in service. 11. Perusal of the record also brings it to the fore that before taking the decision with reference to deciding the period of his absence as also the period of his discharge, the petitioner has been given adequate opportunity of being heard by the respondents. The decision in question taken by the respondents is in tune with the mandate of the rule and the nature of requirement of taking such decision. 12. In view of the foregoing analysis, I do not find any merit in this petition, as a sequel thereto, same shall stand dismissed, alongwith all connected IA(s). Interim directions, if any, subsisting as on date, shall stand vacated. 13. Record, as produced by Mr Dar, the learned Senior Additional Advocate General, be returned to him.