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Judgment
Petitioner, a Junior Assistant, in the Public Works Department (PWD) was posted in Igo Phey Division, Leh (ladakh) at the relevant time.
According to him, as he was suffering from tuberculosis he left for Bombay on 12.9.1990 to undergo some treatment and informed his officers that
he would be despatching proper leave applications afterwards But, meanwhile respondents started conducting some physical verificatioin of the
divisional stores including the one that was under his charge which led to the constitution of a committee and some report submitted by it He was
eventually arrested by the Police at Bombay and was brought to Leh and was later bailed out by the judicial Magistrate. After his release, he
reported for duty to respondent No. 3 on 28.7.1995 but was not allowed to join and was informed vide communication dated 29.7.1995 that his
joining report could not be accpeted as he was absconding for more than three years and that inspite of service of repeated notices, had failed to
resume the duty. Subsequently, a notice was publised in the Govt. Gazetted on 22.11.1990 whereby he was informed to resume duty within 15
days from the publication and the failure would lead to termination of his service under Article 128 of the Jammu and Kashmir CSR. 2. Petitioner's
case is that he had at no stage received any communication from the respondents requiring him to resume duty till 1994. He had received letter
dated 12.8.1995 to which he replied and explained his position. But, all the same, he was prevented from joining against the post in reference to
Article 128 CSR. It is submitted by him that this provision did not empower respondents to disallow him from resuming the duty but authorised
them to proceed against him in accordance with the procedure established by law which could lead to loss of his appointment. In short, it is urged
that respondents were required to hold an inquiry into his alleged absconding in accordance with rules and to pass a formal order of his removal
from service. Having failed to do so, they could not arbitrarily stop him from attending to his duties. Reliance in this regard is placed on a Division
Bench judgment of this Court in Qamar Ali's case (1994 KLJ 373).
3 Respondents have not filed any reply to this petition. But, their counsel, Mr Qadiri, justified the action on the basis of the writ record. He pointed
out that the physical verification conducted by the respondents of the stores under the petitioner's charge, had disclosed huge bungling and
misappropriation of government money to the tune of Rs. 23,92,234.78 and that sensing action, he had left his post on his own and had absconded
for five years till he was arrested by the police at Bombay and brought to Leh to face action. It is also submitted that the notice dated 29.7.1995
alongwith notice publihsed in the Govt. Gazette dated 22.11.1990, contained a clear message to the petitioner that his services would be
terminated if he failed to resume duty within the stipulated time and in the circumstances no formal order was required to be passed.
There is no gain saying thatthe constitutitonal protection is available to a Govt. employee under Article 311 of the Federal Constitution read with
Sec. 126 of the State Constitution whereby he cannot be removed from service without an inquiry and without being informed of the charge and
without being afforded an opportunity of being heard. But, all this cannot be construed to give a licence to such employee to act according to his
will in disregard of the service regulations and have a field day and then to return after years and claim constitutional safeguards on technicalities.
It does not appeal to any logic that a Govt. employee, who abondoned his post o his own without any permission or authrisation as provided
under rules and who stayed away from duty for as good as 5 years or more would then claim an inquiry into his whereabouts on the specious plea
that he had not received notices from the employer. Even the service rules also do not admit of such luxury and provide that no inquiry was
reauired to be held against the delinquent employee where it was impracticable to reach him and where he was absconding. Rule 33(2) of the J&K
Civil Services (Classification, Control & Appeal) Rules, 1956 (CCA Rules) leaves no room for doubt in this regard. Therefore, it is not in all
events and circumstances that a delinquent employee was required to be put on a notice and afforded an opportunity of being heard in deference
to the principles of natural justice as the cliche would go. No inquiry was required to be held against him where it was impracticable to be hold it
because of his own making. In that case he should be regarded to have surrendered his employment because his intentions and his open defiance
of the service discipline make him straightaway unsuitable for continuation in the employment. In that event he looses all his claim to available
constitutional safeguards or legal procedural safeguards.
I accordingly hold that where a Government servant abondons his post without any permission or authorisation by the Competent Authority and
stays away from duty for years on and fails to remain in contact with the 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 surendered his employement 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.
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 QamarAli's case (supra) to demand a formal order of termination from the authority because the gazette notification dated
22.11.1990 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.