C.N.Malla, Dr. vs State of J & K

Arun Kumar Goel, Judge

1.Petitioner had filed this writ petition seeking relief in the following terms:

It is, therefore, humbly prayed that the Hon'ble Court may every kindly be pleased to quash the order of termination of the petitioner being No:

ME/GM/171/ 74 dated 16.6.87 published in J and K Government Gazette 30 July 87 and for issuance of writ of mandamus commanding the

respondents to reinstate the petitioner to the post originally held by him, retrospectively with all monitoring and constitutional(sic) service benefits

and may issue any other appropriate writ order or direction deemed fit in the circumstance of the case.

2.Case of the petitioner was that he joined Government Medical College, Srinagar on 19th October, 1974 as a Lecturer and after having earned

promotion in course of time he was promoted as Assistant professor on 13th March, 1981. Petitioner claims that he did his M.S. (Post

Graduation) in the Principal Plastic Surgery before appointment as a Lecturer in the Medical College. Petitioner further claims to have been sent on

deputation at Stanley Medical College, Madras vide order dated 20.9.1995(sic) for undergoing specialised training in Micro vascular and Hand

Survery. This course was to begin from January, 1986. Copy of the order passed by the respondents has been placed as Annexure PI. Duration

of this course as per this annexure was three months. Fact remains that petitioner did not join back after completing his training but asked for

another three months extension so that he could have meaningful training that he was undergoing at Madras. Finally 30 days earned leave was

Sanctioned in favour of petitioner.

Wife of the petitioner, Dr. Nancy Malla was working in PGI, Chandigarh where petitioner was taken suddenly ill and was under treatment for

three months. Petitioner claims that he submitted an application for sanction of leave without pay vide annexure PVIII dated 8th Novermber, 1986.

In the aforesaid background one thing is clear that after having been deputed to undergo speicalised training at Madras, petitioner did not join back

Medical College at Srinagar. It appears that notices were issued to petitioner directing him to join his duty and lastly final notice was issued to him

on 16.7.1987 vide annexure PX. This was followed by a communication dated 23rd November, 1987 submitted by the petitioner to Hon'ble

Chief Minister on the subject ""Permission for resumption of duties in Medical College, Srinagar. ""Meanwhile government order No: 400HME of

1987 dated 1891987 (Annexure RI with the objections of respondents) came to be issued whereby services of the petitioner as Assistant

professor Survery, Medical College Srinagar stood terminated in terms of Article 128 of J and K CSR from the date of his unauthorised absence.

This annexure further indicates that the petitioner was on unauthorised absence with effect from 23.4.1986.

3 .Though termination order has not been specifically challenged in the writ petition by the petitioner but when this case was taken up it was agreed

between the counsel for the parties that since the petitioner stands terminated so the impugned Annexure PX dated 16.7.1987 has finally

culminated in passing of final order dated 18.9.1987 i.e. Annexure RI with the objections (supra) and the petition can be disposed of by taking the

same as having been impugned in the writ petition, because in the objections filed before the court on 25.11.1998 respondents has justified the

passing of termination order, as will be seen from the circumstances being noticed hereinafter.

4.When this matter finally came up for consideration, learned Government Advocate was directed to produce the record relating to the case as

also of enquiry, if any conducted by the respondents, before passing termination order vide Annexure RI. Shri Dubey, learned Government

Advocate fairly stated that because no enquiry was possible in the peculiar circumstances of the petitioner having absconded, as such after being

satisfied that he cannot be contacted his services were legally terminated and according to him there is nothing wrong with the passing of Annexure

RI by the authorities concerned. While advancing this line of argument, reliance was placed by Shri Dubey on Rule 33 (2) of J and K Civil

Services (Classification, control and Appeal) Rules, 1956. Because the petitioner having absconded and it was impracticable to communicate with

him for the authorities concerned, therefore per force of circumstances respondents were compelled to pass termination order on 18th September,

1987 (Annexure RI with the objections) which was preceded by showcause notice dated 16th July, 1987 (Annexure PX).

5.Petitioner claims that neither any showcause notice was served upon him nor enquiry having been held before ordering his termination, as such

action of the respondents is violative of Articles 14 and 16 read with Article 311 of the Constitution of India and Section 126 of Constitution of

Jammu and Kashmir. It has further pointed out that the action being unconstitutional, therefore is liable to be set aside and petitioner reinstated in

service. Claim of the petitioner has been controverted by the respondents, who have specifically pleaded that the order of termination dated

18.9.1987 (Annexure RI) is legally valid. It is further the case of respondents that no legal or fundamental right of the petitioner has been violated.

Delay and laches is another ground pressed into service to defeat the claim of petitioner. On this basis dismissal of writ petitioner is asked for.

6.So for power of the State Government to dispense with the services of an employee without enquiry is concerned, it cannot be disputed.

However this will depend upon a case being made out in that behalf by specifically demonstrating that it was either not at all possible despite best

efforts or alternatively the petitioner was not possible to be contacted before ordering his termination as in the present case. This matter has been

set at rest by the constitution Bench of Supreme Court of India while examining the provisions of Article 311 (2) of the constitution of India in

Union of India Vs. TulsiRamPatel"" AIR 1985 SC1416. Reliance was also placed by Shri Dubey on AIR, 1986 SC 335, ""A.K. Sen. etc. etc. Vs.

Union of

India and another. The decision in the case or Union of India vs. Tulsi Ram Patel"" (supra) still holds the field as on date. Shri Dubey further

submitted that the claim made in the writ petition regarding petitioner having represented to the authorities concerned for extending his leave is an

after thought on his part. With special reference to Annexure PVII dated 8th November 86 addressed by the petitioner to Secretary Health and

Medical Education Department J and K Government, New Secretariat, Jammu (Tawi), it was pointed out that this letter was never received in the

office on the date mentioned therein. In fact this is a letter created by the petitioner with a view to create evidence in his favour. Contents of this

annexure PVII are being reproduced herein below:

Dr. C.N. Malla, M.S..FICS Asst. Professor, Surgery Medical College SRINAGAR.

To The Secretary, Health and Medical Education Department, J and K Government, New Secretariat, Jammu Tawi, INDIA.

THROUGHPROPER CHANNEL

Sub: Sanction of leave without pay in favour of Dr. C.N. Malla, Assistant Professor, Surgery, Medical College, Srinagar, Kashmir.

Reference :NO MEGM171/74 dated 4.9.86 and Principal Government Medical College, Srinagar No: CSMC/AP 168/867886 dated 19""h

September, 1986. Dear Sir,

This is in reference to the above mentioned subject that I want to draw your kind attention towards following few points.

I was deputed to the department of Microvascular and Hand Surgery, Stanley Medical College, Madras to receive training in specialized field of

microvascular surgery and I received initial training at the referred centre.

I submitted an application to your goodself in Dec. 1985, for allowing me to undergo higher training in the same field in abroad an my

application was duly forwarded and recommended by the Hand Surgery, Stanley Medical College, Madras.

J. Further in the above application, I have requested for grant of permission in may favour to work abroad, in order to enable me to meet the

expenses incurred for undergoing further training and so sanction of leave without pay for one year.

Micro vascular and Hand Surgery is the most recent development and will be highly beneficial' to our State. Since this is an experimental research

fellowship, no admission letter had been issued and the candidate has to meet his own expenses.

It is for your further information that I have been working on the same post since March, 1981 without taking any kind of leave. I shall be highly

obliged to you if leave without pay is sanctioned in my favour for one year to enable me to meet the expenses for experimental research fellowship.

Yours faithfully Sd/(Dr. C.N. Malla).

Kindly correspond at:

Dr. C.N. Malla, C/o Dr. Nancy Malla, Associate Professor, Deptt. of Parasitology, Postgraduate Institute of Medical Edu cation and Research,

Chandigarh.160012. Copy to:

The Principal Medical College, Srinagar, Kashmir.

Advance Copy to Secretary, Health and Medical Education, New Secretarial, Jammu Tawi, India.

7.As per this communication petitioner had specifically given his address for communication at the bottom which is of Chandigarh. This was

followed by Annexure PVIII dated 8.11.1987, again addressed to the Secretary, Health and Medical Education Department. Annexure PVIII

was acknowledged by the respondents at Chandigarh address vide communication dated 30.11.1987 where petitioner was informed that his

service has been terminated. It is not understood as to why the petitioner did not specifically question his termination in the writ petition and instead

impugned the show cause notice dated 16.7.1987 which is on the back side of Annexure PX. It appears that before receipt of intimation about

termination of his services, vide Annexure PXI petitioner submitted an application on the subject ""Permission for resumption of duties in Medical

College, Srinagar"". This communication (Annexure PXI) was addressed to the Chief Minister.

8.From the record, which was produced by Shri Dubey for perusal by the court, copy of communication dated 8th November 1986 i.e. Annexure

PVII is at page 111 thereof and its original is at pages 9798. That being so the argument urged regarding its nonreceipt is not only fallacious but is

contrary to the record of respondents.

9.1n view of the aforesaid circumstances argument based on Rule 33 (2) of the J and K Civil Services (classification, control and Appeal) Rules,

1956 also falls to the ground. Strangely enough when the petitioner had informed the respondents about the address for corresponding with him,

(which fact is supported from File No: ME/171/74 produced by Shri Dubey), instead of issuing show cause notice vide Annexure PX at the same

address, respondents chose to address both these material communications at his Srinagar address. Show cause notice was sent by registered post

at Srinagar address as also the termination order despatched at the same address. From the record it appears that when show cause notice was

received back undelivered with the postal endothersement ""addressee left hence returned to sender"", respondents claim to have published this

notice in Government Gazette as well as in some local paper of Srinagar. In the aforesaid circumstances it is clear that termination of petitioners

services was contrary to law and cannot be sustained either in law or from the circumstances on the file of this case.

10.Termination of services without holding enquiry has been ordered to be set aside and is by now well settled by judicial decisions to which a

reference is being made hereinafter:In AIR 197^,SC 1409 ""Deokinandan Prasad Vs. State of Bihar"" automatic termination in terms of Rule 76 of

Bihar Service Code, 1952 due to continuous absence for five years without enquiry was held to be violative of Article 311 of the Constitution of

India.

11 .Similarly in AIR 1976 SC 37 ""State of

Assam Vs. Akshaya Kumar Deb"" it was held by the Apex Court in almost similar circumstances that a government servant should have been

afforded an opportunity to show cause against the termination from service. While holding so it was also observed by the court that fundamental

Rule 18 was supplicable and it being a requirement of natural justice, in the absence whereof termination was declared to be illegal.

12.To similar effect are the decision of Bombay High Court in ""Devi Kewal Jain Vs. Premier High School,"" 1952 (2) SCT 514 as well as of

Punjab and Haryana High Court in 1951 (1) Lab IC. 88, ""Pepsu Road Transport Corporation Vs. Presiding Officer Labour Court, and 1995 (4)

SCT 321 ""Sita Ram Vs. Presiding Officer Labour Court.

13.A Divisional Bench of this court in 1995 (1) SCT 566, ""Khair Din Vs. State of J and K"" declared the order of termination to be had for want of

enquiry. In this case without taking into account the telegraphic prayer for extension of leave order had been passed. Court ordered the

reinstatement of employee in this case.

14.1n 1996 (1) SCT 115, ""State Vs. S. Qamar Ali"", again a Division Bench of this court while considering the matter relating to the service of

charge sheet being not possible as his abode was unknown held as under while setting aside the termination in such circumstances:

In the case on hand it is apparent that the grounds on which the appellants proposed to take action against the respondent, was not reduced in

the form of a definite charge or charges, which were to be communicated to the person charged, together with the statement of allegations on

which each charge was based or any other circumstances which it was proposed to take into consideration for passing the termination order. If it

was found by the appellants that the respondent was absent from .duty, they could have formulated a charge or charges against him alongwith the

statement of allegations and if those could not be served upon him, for his abode was not known to them, the appellants could publish it through a

publication to be made m some paper and thereafter, if found that he was not available they could have collected evidence in exparte and passed

the order of termination, after satisfying the requirement of conduction of an inquiry, as laid down under Section 33 of the Jammu and Kashmir

Civil Services (C.C.A) Rules, 1956.

18..................

Hence this appeal fails and is dismissed. However, as exorbitant costs have been imposed on the appellant by the learned Single Judge, the

same are reduced from Rs. 5,0007 to Rs. 500/(Rs. Five hundred only), which are to be paid by the appellants 2 and 3 to the respondent.

In 1996 (30) SCT 53and ""Mohammad Aslam Vs. State of J and K"", a single judge of this court while holding that termination without affording

reasonable opportunity is not correct, it was further held as under:

The next contention of the petitioner is that he has been discharged from service without affording an opportunity of being heard. The petitioner

has not even been issued show cause notice for explaining the reasons of his absence. The order has been passed without holding any enquiry

contemplated in terms of Rule 359 of the Police Rules, 1960. No Government servant can be removed or discharged from service except in the

manner provided by law. The respondents were under legal obligation to afford an opportunity of being heard to the petitioner and after having

considered the explanation of the petitioner, resort should have been taken after holding an enquiry. The order of the respondents on the face of it

appears to be arbitrary and not sustainable in law, as the action of the respondents has resulted in depriving the petitioner of his services without

adhering and observing the mandate of Rule 359 of the Police Rules and the principles of natural justice. The petitioner was holding a civil post and

termination of service without affording him reasonable opportunity of show cause as to why he be not discharge from service is not justificable. An

employee is entitled to reasonable opportunity to show cause, which include an opportunity to deny his guilt and establish his innocence, which he

can do only when he knows the charge levelled against him. The learned counsel for the petitioner in support of his contention has cited at the Bar,

1988 KLJ 640 (Kulbir Singh Vs. State) AIR 1966 SC1364 (Mafatlal Narandas Barot, Appellant V.J.B.Rathod, Divisional Controller, State

Transport Mehsana and another, Respondents) and AIR 1966 SC 492 (Jai Shankar, Appellant Vs. State of Rajasthan, Respondent) in 1988 KLJ

640, the court was dealing with an identical case of constable of the respondent Department, whose services were terminated without prior notice

and no opportunity was afforded to meet the allegations. The order of termination was held to be illegal and quashed. In AIR 1966 SC 1364, the

Apex Court has held that while the Government employee is absent without leave, without reasonable cause, termination of service without giving

him an opportunity of show cause, contravenes the principles of natural justice. The Apex Court observed as under:

It is true that the respondent may visit the punishment or discharge or removal from service on a person who has absented himself without leave

and without reasonable cause, but this cannot entail automatic removal from service without giving such person reasonable opportunity to show

cause why he be not removed. The appellant is entitled to a reasonable opportunity to show cause which includes an opportunity to deny his guilt

and establish his innocence which he can do only when he knows what the charges levelled against him are and the allegations on which such

charges are based. In our judgment, the appellant was entitled to an opportunity to show cause against the action proposed to be taken against

him.

In AIR 1966 SC 492, while dealing with the situation where regulations provided an automatic termination of service on overstay the Apex Court

held mat still the removal from service without giving opportunity of show cause is illegal. The Apex Court observed as under:"" The Regulation

involves a punishment for everstaying one's leave and the burden is thrown on the incumbent to secure reinstatement by showing cause. It is true

that the Government may visit the punishment or removal from service on a person who has 'absented himself by overstaying his leave, but we do

not think that Government can order a person to be discharged from service without at least telling him that they propose to remove him and giving

him an opportunity of showing cause why he should not be removed. If this is done the incumbent will be entitled to move against the punishment

for, if his plea succeeds, he will not be removed and no question of reinstatement will arise. It may be convenient to describe him as seeking

reinstatement but this is most tantamount to saying that because the person will only be reinstated by an appropriate authority, that the removal is

automatic and outside the protection of Article 311. A removal is removal and if it is punishment for overstaying one's leave an opportunity must be

given to the person against whom such an order is proposed, no matter how the Regulation describes it. To give to opportunity is to go against

Article 311 and this is what has happened here.

When the present case is further examined in the light of aforesaid decisions of Supreme Court, this Court as well as other Courts, it is clear

that termination of the petitioner vide Government Order No: 400HME of 1987 dated 18.9.1987 can neither be supported in law nor on facts

which are there on the file produced by the learned Government Advocate. Admittedly it is not the case falling within the ambit of Article 311(2) of

the Constitution of India or Section 126 (2) (chief the State Constitution. That being so no benefit can be derived from the two decisions of

Supreme Court in the case of ""Union of India Vs. Tulsi Ram Patel"" (supra) and ""A.K.Sen etc. etc. Vs. Union of India and another"" (supra). It

appears that without examining the record an attempt was being made by the authorities of Welfare State to justify its action which otherwise not

justificable from the record. Thus the stand taken up is totally contrary to the facts existing on the records of respondents.

16.Now remains to be dealt with the plea of delay and laches urged by the respondents to defeat the claim of petitioner. In the instant case record

shows that petitioner had been approaching the authorities of respondents till 26th March, 1991, copies of these communications are attached with

the writ petition. It was within the power of respondents to have not accepted such representations made by the petitioner. It was further within the

authority of respondents to have turned down those by informing the petitioner that the matter stands closed so far his claim is concerned with the

termination of his service. It appears that these communications were purposely not dealt with by the respondents in the face of facts existing on the

file. In this context it is not understood as to from where the respondents got the address of petitioner for sending communication (Annexure FIX)

to him which is dated 30th November, 1997, though show cause notice dated 16.7..1987 (Annexure PX) as well as termination order dated

18.91987 both were addressed to petitioner as his Srinagar address, when as far back as on 8111986 he had informed the respondents to

communicate with him at his Chandigarh address where Annexure FIX was addressed to him. Although even prior to Annexure FIX petitioner had

again informed Secretary, Health and Medical Education vide Annexure PVIH dated 8.11.1987 about his mailing address of Chandigarh.

17.The question of doing substantial justice between the parties demands in the peculiar background of this case that technical plea and laches

should not be permitted to be raised by none else but by the welfare State to deny the legitimate claim of its subject. In this context at the risk of

repetition it may also be worthwhile to mention that stand of the respondent State, as already noticed, is contrary to the facts existing on its file.

This shows the casual and callous manner with which the authorities have dealt with the whole matter. Had somebody applied his mind to the

record of the case in its true perspective, present situation would not have arisen. This appears to be the creation of casual, improper and cursory

approach on the part of those deal with and are required 400HME of 1987 dated 18.9.1987 terminating the services of the petitioner is hereby

quashed and set aside, and the petitioner shall be deemed to have been in service from the date of his termination. Now arises the question of back

wages. Petitioner is a Doctor by profession and in the background of this case it is ordered that he would only be entitled to back wages form the

date he filed the writ petition i.e. 16.5.1994 subject of course, to his fulfilling other conditions as required under law so as to claim such wages. No

costs. Record produced by Shri Dubey has been returned to him in court today.