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2023 DIGILAW 628 (JK)

Ghulam Ahmad Malik v. State Of J&K

2023-10-13

RAJNESH OSWAL

body2023
JUDGMENT : 1. The petitioner was holding the post of Junior Assistant with the respondent No.5 and claims to have unblemished service record. It is stated that in the year 2006, false and frivolous allegations were levelled against the petitioner that he had misappropriated the funds of the respondent-Corporation by resorting to illegal practice and subsequently FIRs bearing No.50/2016, 51/2016, 52/2016, 53/2016 and 54/2016 were registered with Police Station, Crime Branch, Srinagar, against the petitioner and other accused persons. The petitioner was placed under suspension with immediate effect vide order dated 01.12.2006 and vide order dated 04.12.2006, he was relieved from his place of posting with a direction to report to the office of respondent No.5, for the purpose of facing enquiry in respect of the allegations levelled against him. It is stated that only a charge sheet came to be framed and served upon the petitioner which was duly replied by him thereby denying all the charges levelled in the said charge sheet and thereafter no departmental enquiry into the matter was ever undertaken and culminated thereby providing any opportunity of hearing to the petitioner. Feeling aggrieved of his continuous suspension, the petitioner filed a writ petition bearing SWP No.1768/2011 for grant of subsistence allowance with a further prayer for quashing of the order of suspension and this Court vide order dated 18.08.2011 directed the respondents to consider the case of the petitioner and take a decision within a period of four weeks. 2. As the order mentioned above was not complied with by the respondents, the petitioner filed a petition for initiating contempt proceedings wherein the statement of facts was filed by the respondents therein and for the first time the petitioner was informed that his services had been terminated in the year 2009. 3. The petitioner has filed the present petition thereby challenging the order dated 09.02.2009, whereby his services were terminated by the respondent No.3with effect from 01.12.2006, inter alia, on the ground that the petitioner was never informed about the initiation, conduct or culmination of the departmental enquiry proceedings in respect of the allegations levelled against him and it was incumbent upon on the part of the respondents to afford him an opportunity of hearing during the course of departmental proceedings, in order to defend himself against the false and frivolous allegations levelled against him. In nutshell, the petitioner has impugned the order on the ground of violation of principles of natural justice that no one should be condemned unheard. 4. The reply stands filed by the respondents wherein it has been stated that the petition is hit by the principle of delay and laches and also that the petitioner has not availed an alternative remedy of appeal as provided by the Regulations of the Corporation. It is stated that while the petitioner was discharging functions of Cashier in the office of Depot Manager, Kupwara, certain allegations of misappropriation of funds of the Corporation were reported necessitating reconciliation of accounts for the period w.e.f. 2002 to 2006. The reconciliation revealed misappropriation of huge amount of Rs.25,58,786/ by the petitioner during the above mentioned period. The modus operandi adopted was to deposit less amount of revenue in the bank account and the counter-folio of the bank receipt would be tampered by him thereby converting the amount of the credit slips to correspond with the revenue reflected in the books of accounts of the Corporation. The petitioner was placed under suspension pending enquiry vide order dated 01.12.2006. Initially, a preliminary enquiry was conducted and in view of prima facie case of embezzlement, the petitioner was charge-sheeted on 21.04.2008. The petitioner was asked to submit his response and thereafter a full-fledged departmental enquiry was ordered vide order dated 09.07.2008 but despite notices sent to the petitioner, personally, by registered post and publication in local newspaper to participate in the enquiry proceedings and establish his innocence, the petitioner did not choose to participate in the enquiry and the departmental enquiry culminated into a detailed report, thereby establishing the guilt of the petitioner in respect of embezzlement of Rs.25,58,786/. In view of above report, the services of the petitioner were terminated. It is further stated that the order has been passed by the Corporation strictly by observing rules governing the services of the petitioner in the Corporation with due observance of rules of natural justice. The gist of the response filed by the respondents is that the departmental enquiry was held against the petitioner in accordance with the Service Rules of the Corporation and due opportunity of hearing was afforded to the petitioner but the petitioner did not choose to participate in the enquiry proceedings and ultimately the impugned order was passed. 5. Mr. The gist of the response filed by the respondents is that the departmental enquiry was held against the petitioner in accordance with the Service Rules of the Corporation and due opportunity of hearing was afforded to the petitioner but the petitioner did not choose to participate in the enquiry proceedings and ultimately the impugned order was passed. 5. Mr. Faisal Qadiri, learned senior counsel, appearing for the petitioner submitted that the departmental enquiry conducted by the respondents is, in fact, an ex-parte enquiry wherein no opportunity of hearing was afforded to the petitioner and on that solitary ground alone, the order impugned deserves to be quashed. He further submitted that the petitioner was not heard by the respondents before inflicting punishment of termination of services. 6. Per contra, Mr. Mr. A. H. Haqani, learned senior counsel appearing for the respondents, submitted that the notice was sent to the petitioner through the Officer of the Corporation but the petitioner did not choose to accept the notice. Thereafter registered notice was also sent to the petitioner at his residential address but still the petitioner did not choose to participate in the enquiry proceedings. As a last resort, the notice was published in a local newspaper calling upon the petitioner to participate in the enquiry but for the reasons best known to the petitioner, still he did not participate in the enquiry proceedings and the respondent Corporation was left with no other option but to conduct the enquiry in absentia of the petitioner. He also raised preliminary objection in respect of maintainability of the writ petition that the petitioner has not availed the remedy of appeal provided under the regulations before filing the present writ petition. 7. Heard and perused the record. 8. A preliminary objection has been raised by Mr. Haqani, learned counsel for the respondents, that the petitioner did not avail the remedy of appeal as provided under Regulation 154 of the Jammu & Kashmir State Road Transport Corporation Employees Service Regulations, 1979 (hereinafter referred to as “the Regulations of 1979). It needs to be noted that this petition has been pending before this Court since 2013. No doubt, the remedy of appeal was available to the petitioner when the order of termination of his service was passed by the respondents but equally true is that the present petition has been pending before this Court for the last one decade. It needs to be noted that this petition has been pending before this Court since 2013. No doubt, the remedy of appeal was available to the petitioner when the order of termination of his service was passed by the respondents but equally true is that the present petition has been pending before this Court for the last one decade. Disposing of this petition at this stage by directing the petitioner to avail the remedy of appeal as provided under the Regulations of 1979 would be a travesty of justice. Accordingly, the contention of Mr. Haqani is rejected. Reliance is placed upon the decision of Apex Court in Krishan Lal v. Food Corporation of India, (2012) 4 SCC 786 , where in it has been held as under: 17. On behalf of the respondent Corporation it was argued that the appellant ought to have resorted to the arbitration clause under the agreement instead of filing a writ petition in the High Court. Alternatively, it was argued that the security deposit having been made under the orders of the High Court, the entire amount of Rs 10 lakhs was liable to be forfeited on the failure of the appellant to work once the same was allotted to him. 18. It is true that there was an arbitration clause in the agreement executed between the parties. It is equally true that, keeping in view the nature of the controversy, any claim for refund of the amount deposited by the appellant could be and ought to have been raised before the arbitrator under the said arbitration. The fact, however, remains that the High Court had entertained the writ petition as early as in the year 2002 and the present appeals have been pending in this Court for the past ten years or so. Relegating the parties to arbitration will not be feasible at this stage especially when the proceedings before the arbitrator may also drag on for another decade. Availability of an alternative remedy for adjudication of the disputes is, therefore, not a ground that can be pressed into service at this belated stage and is accordingly rejected. (emphasis added) 9. Relegating the parties to arbitration will not be feasible at this stage especially when the proceedings before the arbitrator may also drag on for another decade. Availability of an alternative remedy for adjudication of the disputes is, therefore, not a ground that can be pressed into service at this belated stage and is accordingly rejected. (emphasis added) 9. In order to appreciate the contention raised by learned counsel for the petitioner that the enquiry has been conducted ex-parte without affording any opportunity of hearing to the petitioner, this Court deems it proper to extract the relevant Regulation of the Regulations of 1979 governing the imposition of major penalty: 48. ROCEDURE FOR IMPOSING MAJOR PENALITIES: (i) When an employee is charged with misconduct which may lead to the imposition of a major penalty, the disciplinary authority shall frame definite charges on the basis of the allegations against him. The charges, together with a statement allegation on which they are based, shall be communicated in writing to the employee who shall be required to submit within such time as may be specified by the Disciplinary Authority (not exceeding 15 days), a written statement or his defence. (ii) On receipt of the written statement of the employee or if no such statement is received within the time specified an enquiry may be held by the Disciplinary Authority itself, or by an officer or committee appointed for the purpose (hereinafter called the Inquiring Authority by the disciplinary authority.) (iii) At the enquiry, a reasonable opportunity shall be afforded to the employee for explaining and defending his case but he will not be allowed to engage a legal practitioner for this purpose. Note: The inquiring Authority shall be the sole judge to decide what is a reasonable opportunity. (iv) At the conclusion of the enquiry, the Inquiring Authority shall prepare a report of the enquiry recording its findings on each of the charges, together with the reasons thereof. 10. The perusal of the Regulation (supra), would reveal that where an employee is charged with misconduct which may lead to the imposition of a major penalty, the disciplinary authority shall frame definite charges on the basis of the allegations against him and the same shall be communicated in writing to the employee who shall be required to submit written statement or his defence within a period not exceeding fifteen days. In the instant case, the charges were framed against the petitioner on 21.04.2008 and the articles of charges and the statement of imputations were served upon the petitioner and in response thereof, the petitioner submitted his reply on 05.05.2008. In the response there was denial of the allegations levelled against the petitioner. Therefore, the requirement of Regulation 148(i) (supra) stands complied with. 11. In terms of Regulation 148(ii), an enquiry may be held by the disciplinary authority itself or by an officer or committee appointed for the purpose, after taking note of the written statement filed by the employee and also in the event when no such statement is received within the period stipulated under Regulation 148(i). Further Regulation 148 (iii) provides that reasonable opportunity shall be afforded to the employee for explaining and defending his case. 12. The perusal of the enquiry record produced by Mr. Altaf Haqani reveals that vide order dated 09.07.2008, after examining the reply submitted by the petitioner to the charge sheet served upon him, Shri A. H. Chesti, FA&CAO was appointed as enquiry officer to examine the reply submitted by the suspendee official (petitioner herein) and he was further enjoined upon to give personal hearing to the erring official, if he desired so. The respondent No.5 vide communication dated 10.07.2008, directed the petitioner to appear before the enquiry officer for personal hearing, so that the departmental enquiry could be completed. The Traffic Manager, JKSRTC, Sopore, was directed to take necessary action and in compliance thereof, the petitioner was approached and asked to receive the sealed envelope but he did not accept the said sealed envelope and, as such, the same in original was returned. The said communication is on record in respect of refusal on the part of the petitioner to accept the notice. Again, vide communication dated 18.07.2008, the petitioner was asked to present himself before the enquiry officer on 22.07.2008 and thereafter vide notice dated 24.07.2008 sent through registered post, the petitioner was again informed to appear before the enquiry officer on 30.07.2008 at 11.00 AM at JKSRTC Headquarters M. A. Road, Srinagar, and it was simultaneously mentioned that in the event of failure of the petitioner to attend the enquiry, the same shall proceed ex-parte. From the record it transpires that the petitioner did not appear before the enquiry officer on 30.07.2008 till 4.00 PM, which prompted the enquiry officer to publish a notice in a local newspaper and the perusal of the newspaper cutting reveals that the petitioner was granted last and final opportunity to appear before the enquiry officer on 09.08.2008 at 11.30 AM for personal hearing, failing which the enquiry was ordered to be held ex-parte without any further notice. This notice is dated 01.08.2008. The record further depicts that the petitioner despite publication of the aforesaid notice did not appear before the enquiry officer. Faced with such situation, Enquiry Officer proceeded ahead with the enquiry and held the charges proved against the petitioner. The enquiry report was submitted before respondent No.3, who by virtue of order impugned terminated the services of the petitioner. The petitioner despite repeated notices did not participate in the enquiry proceedings. Due opportunity was afforded to the petitioner to defend himself in the enquiry proceedings but he did not opt to do so, therefore this court does not find any procedural infraction on the part of the respondents while terminating the services of the petitioner. 13. It was also urged by Mr. Qadri, learned Senior Counsel for the petitioner that no opportunity of hearing was afforded to the petitioner before imposing major penalty upon the petitioner. This submission deserves to be rejected as the Rules of the Corporation do not contemplate any such requirement before inflicting major punishment. In this context it would be proper to take note of the judgment of the Hon’ble Apex Court in National Fertilizers Ltd. v. P.K. Khanna, (2005) 7 SCC 597 , wherein it was held that as far as the second question is concerned, neither the decision in Karunakar nor Rule 33 quoted earlier postulate that the delinquent employee should be given an opportunity to show cause after the finding of guilt as to the quantum of the punishment. 14. In view of above, this court does not find any merit in this writ petition, accordingly, the same is dismissed. Record be returned to the respondents.