Attar Singh vs State and others

Tejinder Singh Doabia, J.—In the exercise of power conferred under Article 128 of the Jammu and Kashmir Civil Service Regulations and

several enabling provisions, the services of the petitioner have been brought to an end. This was on the plea that he was on unauthorised absence.

This order was passed on 20th Jan '99. The petitioner has challenged this order through the medium of present writ petition.

A perusal of order impugned makes it apparent that the petitioner was sent notices through the concerned police station to resume his duties. As

the petitioner failed to do so, the respondents got published a Show cause notice on 30th Oct '98. The petitioner, however, made no reply. Para 7

of the order impugned further makes it apparent that some previous lapses on the part of the petitioner have also been taken note of. If this be the

position then, this single lacuna on the part of respondent authorities is good enough to set aside the order impugned. Dealing with a matter of

similar nature in AIR 1964 SC 506, The State of Mysore v. K. Manche Gowda, the Supreme Court of India expressed an opinion that if previous

record of a government servant is to be taken note of for imposing punishment, then specific charge regarding this should be made at the first stage

of enquiry. What was said in this regard in para 8 of the judgment is being reproduced below :

Before we close, it would be necessary to make one point clear. It is suggested that the past record of a Government servant, if it is intended to

be relied upon for imposing a punishment, should be made specific charge in the first stage of the enquiry itself and it is not so done, it cannot be

relied upon after the enquiry is closed and the report is submitted to the authority entitled to impose the punishment..

As indicated above, this requirement has not been fulfilled by the respondent authorities.

In para 5 of the petition, the petitioner submits that on 20th Nov '98, he approached respondent No. 2 for allowing him to resume his duties but

the said officer did not allow him. It is submitted that the said officer told the petitioner that he will be allowed to join only after the enquiry is

completed. For facility of reference this para is being reproduced below :

That the petitioner alongwith his father and alongwith the letter of Mr. Mujtaba on 20th November, 1998 went to respondent No. 2 and

requested him to accept the petitioner and allow him to resume his duties. The respondent No. 2 declined to do so, saving that he will allow the

petitioner to join only when the inquiry shall be completed.

There is no denial to the above assertion of the petitioner. The reply given to this para is as under :

That the contents of para No. 5 of the petition are not within the knowledge of the answering respondents.

So far as the question of absence is concerned, this aspect of the matter was considered in detail by a Division Bench of this Court in LPA No.

348/97, ShereKashmir Institute of Medical Sciences, Soura & Anr. v. Sarla Jalali and another, decided by this Court on 22nd Feb '99. The

following questions of law were formulated :

i/ Whether mere absence from duty is per se misconduct;

ii/ Whether an enquiry is required to be held with a view to determine as to whether act of absence is wilful and voluntary;

iii/ If an employee who has proceeded on leave overstays, can his or her services be brought to an end without holding enquiry;

iv/ Whether the concept of automatic termination of services as visualised by the Service Regulations would come to the rescue of the employer in

sustaining the claim that the enquiry is not required to be held.

The Division Bench finally concluded as under :

i/ Mere absence from duty is not per se misconduct;

ii/ Where an employee proceeds on leave and does not resume duties even then some enquiry is required to be held. Service tenure cannot be

brought to an end without compliance of principles of natural justice;

iii/ Even in the presence of some service regulations visualising concept of automatic termination in case of absence, an enquiry is required to be

held;

iv/ The order of termination has to be preceded by hearing and the order so passed has to be a reasoned one;

v/ When order of reinstatement is passed, then preponderance of view is that back wages are not to be allowed;

vi/ The competent authority should be left free to decide as to whether it wishes to leave the matter as it is or wants to hold further enquiry where

termination is set aside.

The question as to whether this Court in the exercise of jurisdiction under Article 226 of the Constitution of India or under Section 103 of the

Constitution of Jammu and Kashmir can change the quantum of punishment be also examined.

In Ved Parkash Gupta v. M/s Delton Cable Co. (P) Ltd., 1994(2) SLR 5, the Supreme Court of India observed that the punishment should not

be disproportionate to the offence proved. Similar view was expressed in State of U.P. v. Sadanand Mishra, (1984) 2 LCD 294.

With regard to the quantum of punishment, the Allahabad High Court in Rajesh Kumar Tripathi v. State of U.P., 1993(3) SCT 274 (Allahabad)

, observed that the punishment of dismissal was not commensurate with the alleged acts of the delinquent. The view expressed by the Supreme

Court in the case of V.R. Katarki v. State of Karnataka, AIR 1991 SC 1241, was noticed. What was observed by the Supreme Court be noticed

again :

Ordinarily justification of the quantum of punishment with a disciplinary action is not for the court to decide and there have been occasions this

Court has taken interference by the High Court on quantum of punishment as an act in excess of jurisdiction while we are prominent of that fact.

Keeping in view the residue of the charges in view we are inclined to hold that the dismissal of the appellant from service was out of proportion.

An employee was absent for two days. He was ordered to be reinstated but was held not entitled to back wages Mandeep Kumar v. State of

Haryana, 1996(2) SCT 306 (SC) . This view was expressed by the Supreme Court of India.

In Punjab State v. Surjit Singh, 1997(2) SCT 87 (SC) , where there was absence of 23 hours and 5 minutes, reinstatement was ordered

without back wages. See also Malkiat Singh v. State of Punjab, 1996(2) SCT 758 (SC) .

A Police Constable was absent for 48 days. He suffered punishment in 12 years. He was dismissed. Direction was given to reconsider the

quantum of punishment. See Krishan Lal v. State of Punjab, 1996(4) SCT 592 (SC) .

Therefore, in view of the facts and circumstances of this case and in view of the legal position noticed above, this petition is allowed. The

petitioner shall stand reinstated with effect from the date a copy of this order is made available to the respondent authorities by the petitioner. The

respondent authorities are, however, left free to hold an enquiry into the matter and pass a fresh order in accordance with the law. In case, after

enquiry, a view is taken that the petitioner is required to be punished, then the legal position as noticed above that the punishment should

commensurate with the lapse shall be taken note of by the respondents and as indicated above, an order in accordance with the law would be

passed. As to how the intervening period is to be treated would depend upon the order to be passed by the respondents after enquiry.

Disposed of accordingly.