Ghulam Mohammad vs State of Jammu and Kashmir

Petitioner was posted as Junior Assistant in Igo phey Division, Leh (Ladakh) Public Works Department. He left for Bombay on 1291990 for

undergoing treatment, since he was sufficers that he would be dispatching leave application afterwards. Meanwhile, respondents conducted

physical verifcation of Divisional Stores which included those which were under the charge of petitioner. Committee appointed by the Department

to look into the store shortages submitted report pointing out shortages in the stores. Petitioner was arrested the police at Bombay and brought to

Leh. later released on bail by the Judicial Magistrate. On release, he reported for duty on 2871995, but was not allowed to join and was informed

by communication dated 2971995 that he could not be permitted to join, since he was absconding for the past three years and had failed to

resume duty despite repeated notices. Ultimately, a notice was published in Government Gazette on 22111990 informing him to resume duty within

15 days from the publication thereof, otherwise his services would stand terminated in terms of Article 128 of Jammu and Kashmir Civil Service

Regulation.

Petitioner submits that at no stage, he received any communication from the respondents till 1994 to resume duty, of course, he received letter

dated 1281995 which he replied and explained the position. But he was prevented from joining duty under Article 128 of Jammu and Kashmir

CSR which ,as a matter of fact, did not empower them to prevent him from doing so. At the most, they could proceed against the petitioner in

accordance^ with the procedure established by law and they failed to do so. Apart from facts stated hereinabove, respondents submit that physical

verification of the stores under the charge of petitioner disclosed huge bungling and misappropriation of Government money to the tune of

Rs.23,92,234,78 and sensing action, he left the post of his own and remained absconded for five years till he was arrested by the police at

Bombay and brought to Leh to face action. Notice published in Government Gazette dated 22111990 gave him clear message to resume duty

within the stipulated time, otherwise his services would be terminated without requirement of passing any other formal order.

Petition has been dismissed by the single Judge, petitioner was not entitled to claim inquiry into the abandoned this post of his own without

permission or authorisation under the Rules and stayed away from duty for five years or more, therefore, there was no logic in the claim for inquiry

under J and K Civil Service (Classification, Control and Appeal) Rules, 1956. No inquiry is required to be held where it is impracticable to do so

in circumstances brought about by the employee, who has surrendered his employment intentionally throwing at winds all cannons of service.

Learned Judge also said that; ""I accordingly hold that where a Government servant abandons his post without any permission or authorisation by

the Competent Authority and to take steps to seek proper sanction for his remaining away and displays a conduct to defy the service discipline, he

shall be treated to have surrendered his employment of his own volition and that he would have no right to claim benefit of any constitutional

safeguards or any procedure established by law envisaging an inquiry into his absence.

Finally, it was concluded that; ""Applying this to the present case, it defies all logic that the petitioner should be allowed to return to the post in the

facts and circumstances of the case. It is evident from the record that he abandoned his post fearing action because of his alleged involvement in

some misappropriation of government money and had stayed away of his own and failed to establish any contact with the Competent Authority

and in all probability may not have returned but for his arrest by the Police. It does not lie in his mouth now to claim the benefit of inquiry into his

alleged absence. Nor can he invoke the ratio of Qamar Ali's case (supra) to demand a formal order of termination from the authority because the

gazette notification dated 22111990 by itself partakes the character of such order when it informs him that his failure to resume duty would lead to

his termination from service. Nothing more was required to be done by the disciplinary authority in the matter. In the circumstances, I find no merit

in this petition which is dismissed.

Shri Z.A. Qureshi contended that no order of termination has been passed in this case and in case Gazette Notification dated 22111990 has the

effect of terminating the service of petitioner, that was passed under Article 128 of Jammu and Kashmir Civil Service Regulations, the same is

illegal since no inquiry has been held against the petitioner affording him opportunity of being heard in terms of Rule 3 of Jammu and Kashmir Civil

Services (Classification Control and Appeal) Rules, 1956. It may be true that holding of inquiry as envisaged in Article 311 of Constitution of

India, Section 126 of J and K Constitution and Rule 33 (1) of J and K Civil Services (Classification Control and Appeal) Rules, 1956 is necessary

before service of any employee is terminated for absence without leave or absence after expiry of leave, as held in Dr. I.P.Kohli Versus State of

Jammu and Kashmir (1990 KLJ 374), Syed Zaffar Mehdi Versus State (1992 SLJ 143) and State Versus S. Qamar Ali (1994 SLJ 372). But this

principle of law has no universal application. In case facts disclose that employee had absconded or where it is for other reasons impracticable to

communicate with him or where in the interest of the security of the State, it is considered not expedient to give to that person an opportunity of

showing cause against the action proposed to be taken against him, SubRule (2) of Rule 33, J and K CS (CCA) Rules, 1956 is attracted.

Single Judge has rightly found that petitioner abandoned the employment, therefore, he lost it. Facts demonstrate that petitioner was incharge of

Stores at Leh. While Stores shortages were being investigated, he left the job and was later arrested from Bombay by the Police after three years

and brought back to Leh for investigation into the criminal case registered against him for huge shortages in stores worth lacs of rupees. Otherwise,

he had no intention to return and resume duty, despite notices issued by the respondents. Contention that he left after informing the Superiors about

his leave is not borne out from record. As a matter of fact, petitioner had neither applied for leave, sought sanction thereof or informed any one

before fleeing to Bombay. Statement that he had gone to Bombay for treatment of Tuberculosis is patently false. This treatment does not require

such a long time. Petitioner has not supported it by any documentary evidence, therefore, this claim is without any basis and put up by way of after

thought. Found on facts, he abandoned the job without any intention of resuming it. Therefore, this case doesnot require holding inquiry in terms of

SubRule (1) of Rule 33 of J and KCS (CCA) Rules, 1956. It is squarely covered under SubRule (2) thereof. Therefore, holding of inquiry and

giving of opportunity to the petitioner was not necessary nor practicable. Similar view has been taken by the Apex Court in Dr. (Mrs.) Shashi

Chaudhury Versus State of Jammu and Kashmir, reported in Supreme Court Service Rulings (19501992 Volume I), page 145. In para 9, it has

been said that;

In answer, she only sent her resignation or rather referred to her earlier resignation and stated that may be accepted. Her statement that she

was willing to serve the. Jammu and Kashmir State Government meant nothing. This is an odd kind of service when the person remains absent

without taking leave for a year. It appears to us that being faced with domestic life and also the problem of having to return the money with penalty

she wished to steer a middle course, namely, to remain with the family and also to pretend to be in services. This is not one of those cases in which

the requirements of the Constitution compel the appointing authority to hold a full dressed enquiry with witnesses and opportunity to cross examine

the witnesses which have been the foundation of the rulings given by this court. This is an exceptional case of complete dereliction of duty and a

pretence of serving without even intending a day on duty. In these circumstances, the charge sent to her sufficiently communicate to her what was

to happen to her and she was also adequately given an opportunity of showing cause against the loss of appointment. She chose to make no

representation on this point and merely sent her resignation and asked it to be accepted. In our opinion, the Government of Jammu and Kashmir, in

these circumstances, was justified in terminating her services. It is true that they passed an order of dismissal which made a stigma and it is

probable that if this had remained so, she would have been entitled to plead that she should be given an opportunity of showing cause against the

action proposed as indeed S.126 of the Jammu and Kashmir Constitution also required. But this was corrected later by a corrigendum to which

we have referred. In other words, it was treated be as discharged from service when she had loss of appointment and that in our opinion is the end

of the matter.

Whatever was necessary, in the facts and circumstances of this case has been done by the respondents. The Gazette Notification dated

22.11.1990 has the effect of terminating the services and no separate order of termination is necessary. The decisions brought to our notice by the

learned counsel for the Appellant turn on their own facts and have no application not the facts of this case. Single Judge has decided the matter

quite appropriately and we find no justification to set aside the same.

No other point was urged.

What emerges out of the aforesaid discussion is that, there is no merit is this Appeal and the same is dismissed.

Parties are, however, left to bear their respective costs.