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2020 DIGILAW 552 (JK)

Mohammad Ayoub Dar v. State of J&K

2020-10-23

ALI MOHAMMAD MAGREY

body2020
Judgment Ali Mohammad Magrey, J.—By this writ petition, the petitioner challenges and seeks quashment of the order bearing No. SFC/HO/ADM/19-285 dated 24.06.2019, for short impugned order in terms whereof he has been reverted to a lower post of Supervisor, on the grounds taken in the writ petition. 2. Briefly put the case of the petitioner is that he is working with the respondent-State Financial Corporation after having been appointed as Legal Assistant in the year 2000 and was later on promoted as Supervisor in the year 2012. Subsequent thereto the petitioner was further promoted as Assistant Manager in terms of Order No. SFC/HO/PS/26/18-792-96 dated 25.05.2018 and posted as District In-charge District office Leh. 3. Thereafter, the petitioner developed some health issues while being posted at Leh, therefore, addressed a representation to the respondents for his transfer to Srinagar and while such representation was pending consideration the case of the petitioner was referred to the Medical Board on 18th March, 2019 and without waiting for the Medical Report, the respondents placed the petitioner under suspension in terms of order dated 19th March, 2019. Subsequently, a charge sheet dated 26th April, 2019 came to be issued against the petitioner asking him to explain his position within a week’s time. A detailed reply was filed by the petitioner to the charge sheet. 4. Subsequent thereto the impugned order bearing No. SFC/HO/ADM/19-285 dated 24.06.2019, was issued by the respondents in terms whereof the Petitioner was reinstated in the services of the Corporation but reverted to his previous cadre i.e. to the post of Supervisor in terms of Regulation 31 (1) of the Jammu & Kashmir State Financial Corporation (Staff) Regulations, for short Regulations. 5. Feeling aggrieved of the impugned order the petitioner challenges the same inter alia on the grounds that the petitioner has been inflicted with a major punishment on the basis of a charge sheet without conducting any enquiry, thereby the petitioner was deprived of an opportunity of being heard; the impugned order is issued in disregard of Regulation 41 (4) of the Regulations, therefore, is bad in law and deserves to be quashed. 6. Upon notice the respondents appeared and filed their objections admitting therein that the petitioner is an employee of the Corporation and upon his promotion as Assistant Manager had been posted at Leh. 6. Upon notice the respondents appeared and filed their objections admitting therein that the petitioner is an employee of the Corporation and upon his promotion as Assistant Manager had been posted at Leh. It is stated in the reply that the petitioner was unauthorizedly absent from duties, therefore, was placed under suspension and thereafter in terms of Regulation 41 (1) of the Regulations, the impugned order has been issued. 7. Heard learned counsel for the parties. 8. Mr. M. A. Wani, learned counsel for the petitioner, has while reiterating his stand with reference to the relief prayed for in the writ petition qua seeking quashment of the impugned order reverting the petitioner from the post of Assistant Manager to the post of Supervisor, made twofold submissions, one; that the impugned order is in violation of not only the regulation 41 of the Regulations but is also against the mandate of Article 311 of the Constitution of India. 9. Mr Wani, learned counsel for the petitioner, further submits that the petitioner being a Class A Category officer of the Corporation cannot by any stretch of imagination reverted to Class C category of post while invoking Regulation 41 (1) of the Regulations. He submits that in terms of Regulation 42, the Managing Director is the only authority who can issue the charge sheet against a class A officer and he is responsible for holding enquiry before awarding any punishment. Learned counsel submits that in the instant case even the charge sheet is not issued by the competent authority, therefore, he submits that the non-adherence to the provisions of the service as contained in the Regulations substantiates the impugned order being bad in law, therefore, deserves to be quashed; the second submissions of Mr Wani, learned counsel for the petitioner is that for awarding any punishment against the employee of the Corporation the least that the corporation could do is to adhere to the principles of natural justice and admittedly no opportunity of being heard had been given to the petitioner before awarding the punishment. 10. Mr Tassaduq H. Khawja, learned counsel for the respondent-Corporation, while resisting the claim of the petitioner submits that the petitioner, upon his promotion as Assistant Manager, joined the new place of posting at Leh but subsequently remained unauthorizedly absent for which act he was placed under suspension. 10. Mr Tassaduq H. Khawja, learned counsel for the respondent-Corporation, while resisting the claim of the petitioner submits that the petitioner, upon his promotion as Assistant Manager, joined the new place of posting at Leh but subsequently remained unauthorizedly absent for which act he was placed under suspension. He submits further that the petitioner was asked to explain his position vis-à-vis the unauthorized absence, but his explanation was found to be worthless. He submits that the respondent corporation, therefore, issued the impugned order, reinstated the petitioner in service and placed him in his previous grade in terms of Regulation 41 (1) of the Regulations. 11. Mr Tassaduq H. Khawja, learned counsel for the respondent-corporation, therefore, seeks dismissal of the writ petition being without merit. 12. Considered the submissions made. 13. Admittedly the post of Assistant Manager is a Class A post as defined in the Regulations, therefore, in the event any punishment is to be awarded on a class A officer of the Corporation it is admittedly the Managing Director of the Corporation who is competent to issue the charge sheet and it is also incumbent upon the Managing Director of the Corporation to conduct enquiry before awarding punishment to the delinquent, in case he does not feel satisfied of the reply of the delinquent, in terms of Regulation 41 (1) of the Regulations. 14. Perusal of the record reveals that the charge sheet has been issued not by the Managing Director but by the Chief Manager, therefore, the argument of the learned counsel for the petitioner that the charge sheet has been issued against the petitioner by an incompetent officer gains significance and is accepted. 15. It is also admitted that no enquiry has been conducted in the matter as mandated by the Regulation 41 and 42 of the Regulations which provide for enquiry in case the competent authority intends to award punishment of reversion from the higher post to a lower post against the delinquent. The argument advanced by Mr Wani, learned counsel for the petitioner that there is total non-adherence to the procedure on the part of the respondents while issuing the impugned order has substance and is accepted. 16. Mr Khawja, learned counsel for the respondent-corporation, though referred to the regulation but could not justify the reversion of the petitioner without conducting enquiry as mandated by the Regulations. 17. 16. Mr Khawja, learned counsel for the respondent-corporation, though referred to the regulation but could not justify the reversion of the petitioner without conducting enquiry as mandated by the Regulations. 17. Perusal of the record further reveals that no opportunity of being heard was given to the petitioner before awarding him the punishment, therefore, the course adopted by the respondent-corporation has definitely violated the right of the petitioner which forms ground for claiming the relief as prayed for in the writ petition. 18. Law on the point is no more res integra. The Hon’ble Supreme Court in a case reported as AIR 1964 SC 423 titled P. C. Wadhwa v. Union of India and others observed as under: “We are inclined to agree with this contention of the appellant. It should be made clear however that when a person is reverted to his substantive rank, the question of penal consequences in the matter of forfeiture of pay or loss of seniority must be considered in the context of his substantive rank and not with reference to his officiating rank from which he is reverted, for every reversion must necessarily mean that the pay will be reduced to the pay of substantive rank. In the case before us the appellant has not merely suffered a loss of pay which was inevitable on reduction in rank, but he has also suffered a loss of seniority as also postponement of future chances of promotion to the senior scale. A matter of this kind has to be looked at from the point of view of substance rather than of form. It is indeed true, as was pointed out in Parshotam Lal Dhingra’s case MANU/SC/0126/1957, that the motive operating on the mind of the Government may be irrelevant; but it must also be remembered that in a case where Government has by contract or under the rules the right to reduce an officer in rank, Government may nevertheless choose to punish the officer by such reduction. Therefore, what is to be considered in a case of this nature is the effect of all the relevant factors present therein. Therefore, what is to be considered in a case of this nature is the effect of all the relevant factors present therein. If on a consideration of those factors the conclusion is that the reduction is by way of punishment involving penal consequences to the officer, even though Government has a right to pass the order of reduction, the provisions of Art. 311 of the Constitution are attracted and the officer must be given a reasonable opportunity of showing cause against the action proposed to be taken against him. Our conclusion is that in the present case the appellant was reverted by way of punishment but he was given no opportunity of showing cause against the action proposed to be taken against him. Therefore the order of reversion dated November 3, 1958 was in violation of the provisions of Article 311 of the Constitution.” (emphasis supplied) 19. In another case reported as AIR 1965 SC 491 titled R. S. Dhaba v. Union of India and another has held as under:- “Lastly I will like to mention here that the petitioner was reverted to the post of Inspector, Income Tax, more obey way of directions from the Central Board of Direct Taxes than by the independent decision of Shri S. R. Mehta, Commissioner of Income Tax. As already pointed out, Sohri M. Kasivisvanatha Pillai, his predecessor, in his demi-official letter to the Secretary, Central Board of Direct Taxes, sought the approval of the Central Board of Direct Taxes for his proposed action against the petitioner. He specifically stated therein that before reverting the petitioner he would like to serve him with a show-cause notice. But the Central Board of Direct Taxes in letter No. 24/3/64-Ad. VI, dated 16th May, 1964, to the Income Tax Commissioner, Punjab, Patiala, while agreeing with the proposal made by the Commissioner of Income Tax directed that the petitioner should be reverted on the ground that he was considered after trial to be unsuitable for such higher service. The Board also observed that there was no need of giving him any notice. The Board also observed that there was no need of giving him any notice. This letter is also on the same Departmental file as the demi-official letter of Shri M. Kasivisvanatha Pillai, Shri S. R. Mehta, as the record shows, on receipt of this communication from the Central Board of Direct Taxes, passed the impugned order which shows that it was done in pursuance of the directions received from the Central Board of Direct Taxes and he had not much to do in the matter. This also makes the impugned order improper. Not only that the procedure adopted in the case prejudiced the mind of the Authority which was to deal with the petitioner’s appeal against the impugned order, it also leaves one to think that the controlling authority, namely, the Commissioner of Income Tax, failed to apply his mind finally to the matter.” 20. In the above background the writ petition is allowed and the impugned order No. SFC/HO/ADM/19-285 dated 24.06.2019, to the extent of the reversion of the petitioner to the post of Supervisor from the post of Assistant Manager is quashed. He shall be given all the service benefits in a way as if nothing adverse was ever found against him. However, the respondents are at liberty to proceed against the petitioner in terms of applicable rules if they so choose and the period of unauthorized absence shall remain subject to outcome of such proceedings. 21. Disposed of along with connected CMs.