Ghulam Muhammad Baqal vs State of J&K and Others

The petitioner challenges an order of respondent No. 3 dated 26th September, 1983, whereby his services have been terminated on account of

absence from duty as contemplated under Art. 128 of the J and K Civil Services Regulations. The petitioner in this petition has pleaded his adhoc

appointment was regularised as quasi permanent by an order dated 20th December, 1975; that he fell ill and applied for leave. Ultimately he was

registered for Psychiatry diseases on 1.9.1982 under Registration No. X6021 where he remained admitted also for some time, but due to sickness

could not apply of further leave, nor could inform the respondents about his illness. He suffered mental illness for eight years after which he

recovered and reported to the respondent, but was informed that his services had been terminated under the impugned order; that the order

passed by the respondent is without jurisdiction, short of competence as the powers are vested with Director, Health Services, his appointing

authority; that the respondent has passed the order without any show cause notice or conducting any enquiry as notice issued by the respondent

was only for attending the duties. Therefore, no punishment could be passed on the basis of the notice indicated in the order impugned.

The respondents, on appearance, were given opportunity to file the counter which they failed. Ultimately, right to file the counter has ""been

closed vide order dated 18.2.1992.

On coming up this petition for hearing, Mr. A.Kotwal learned GA argued that the petition suffers from laches, having been filed after about ten

years from the date of order impugned and on this point alone the petition should be dismissed despite the fact the counter has not been filed. The

fact raised by the learned Government Advocate is established that after the order impugned hearing No. ES 11/116/327881 the petitioner has for

the first time filed this petition on 23.4.1991, pleading having reported for duty on March, 1991 and was informed that he has been terminated

from service under the order impugned in this petition. Though the petitioner has not shown any record in the shape of prescriptions/treatment slips

except his registration in Mental Hospital, Srinagar on 1.9.1982 He suddenly appears to have reported for duty in the year 1991, simply stating

that mental condition was not good, without any proof, for the period of absence which he has to explain day today, what has not been done,

except general excuse that he was mentally ailingthat too short of any continued certificates for the period of absence.

The petition could be decided on this preliminary point, as argued by learned GA had the order been passed by a competent authority after

compliance with the Rule under which the petitioner has been terminated from service. The petitioner, in normal course, had a right to continue in

service unless terminated in accordance with the Rules by a competent authority, what is not the situation here. Apparently, the services of the

petitioner have been terminated under Art. 128 of the J and K CSR which is reproduce hereunder for ready reference:

Absence without leave or after the end of leave involves loss of appointment except as provided in Article 203 (b) or when due to ill health

in which case the absence must produce the certificate of Medical Officer.

The Article quoted provides for loss of services subject to application of Art. 203 (1) of the CSR and due to ill health where the incumbent has to

produce the certificate of Medical Officer. In this case the allegation is that the order itself is passed by a person, Chief Medical Officer, who is not

the competent authoritythe authority being vested in the Director, Health and Family Planning, Srinagar who is the appointing authority of the

petitioner. Further, compliance of the Article is required by the respondent regarding competence and compliance of the Article under which the

petitioner's services have been terminated, has not been established by the respondent for want of filing the counter, therefore, the pleadings of the

petitioner regarding incompetence of the respondent remains intact. On the above score the order of termination is without jurisdiction and for

compliance of the Article, where even show cause notice has not been given to the petitioner to explain his absence what is required under the

Article quoted. It has been repeatedly held that once an order is without jurisdiction and suffers for compliance of principles of natural justice, the

petition under Art. 226 cannot be thrown simply on the basis of laches because the authority passing the order once has no jurisdiction, the order

without jurisdiction cannot be justified even by the court, (SIC) if it may have been challenged after a long time, because once there is no

jurisdiction to pass the order, the order itself is voidabinitio and cannot be supported by any norm of law or Rule. On this point I am supported by

a catena of judgments to be referred herein.

In All India Services Law Journal, Vo.I 1973 at page 138, His lordship Justice Jaswant Singh (as he then was) has observed as under:

It is now well settled that delay cannot operate as an absolute bar to the grant of relief under Article 226 of the Constitution and it depends upon

the facts and circumstances of each case whether a citizen should be denied his legal and constitutional right on the ground of laches alone when an

authority admittedly made apparently erroneous and without jurisdiction order and is not prepared to listen to the protests, of the affected party, no

mater the cause of the latter was just. It is also well settled that a time lag which can be explained does not spell laches.

Then in All India Services Law Journal, Vol.20 1986.2 page 88, it has been held:

Constitution of India Article 226J and K Constitution, Section 103Delay in filing writ against an unjust and without jurisdiction order condonation

of delay in filing the writ as such deserves to be allowed.

Then in another case reported in All India Services Law Journal Vol. 15 1984(1) page 628, it has been held:

Constitution of India, Article 226Delay in filing writ Ground of latches not taken in counter affidavit by GovernmentIt being essentially a question

of fact cannot be argued without taking this plea in counter affidavit.

To the same effect is the all India Services Law Journal, Vol.10 1981 2 page 38.

Thus, it is repeatedly held that once an order of termination has been passed by any authority without jurisdiction, laches will not come in the

way of the petitioner, because the order itself, for want of competence, loses its force once it is challenged under Article 226 of the Constitution of

India, which has a wide implications and does not tolerate injustice and that too under an order which is passed by an incompetent authority for

want of jurisdiction.

Keeping in view the observations, the petition is held to be maintainable and argument of the learned Government Advocate stands over ruled.

Then is the second point raised by the petitioner in his petition that the respondent No.3, the Chief Medical Officer, who passed the order

impugned, had no competenance, as the petitioner's appointing authority is respondent No.2, Director, Health Services and Family Planning. The

plea raised by the petitioner can be divided into two (SIC) firstly: to sift the order on the point of jurisdiction and secondly; after applying the

proper law for passing the order.

As regards the jurisdictional point, the respondents, have failed to file the counter. Therefore, the pleadings on the point of jurisdiction stand

established by the petitioner. Learned Government Advocate could not support the order even orally during his arguments regarding the

jurisdiction, (SIC) has no force under law and it cannot be justified on any count.

As observed, the order has been passed under Art., 128 of the J and K CSR. The petitioner's plea is that he could not extend his sanctioned

leave on account of mental ailment consequent to which the order impugned has followed. The Article, from a plane reading involves loss of

service of an employee without proper excuse and it provides if any body explains his absence on account of ill health, then he is required to

produce the certificate of a Medical Officer. In this case, the petitioner reported to duty after a long period when he was informed regarding his

termination under the article quoted above. The respondents no doubt under the order impugned have sent a notice to the petitioner, for reporting

to duty, but no show cause notice to explain his absence which creates a gap which the respondents cannot fill for justifying the order. Had the

respondent issued a show cause notice to the petitioner, may be he would have explained his ill health, but the respondent has failed to adhere to

the provision of the Rule. Therefore, the order suffers from serious irregularity and cannot be supported under any law, Rule even under the

principles of natural justice, where the minimum course provided under the Rule is show cause notice to the delinquent employee who has absented

from duty. The Rule pre supposes notice to the delinquent employee to explain his absence, what is wanting in this case. Therefore, the order

impugned basically being without jurisdiction, as observed above, suffers from a material legal irregularity which cannot be bridged and the order

on this count also need to be quashed for compliance of the provisions of the Article 128 of the Civil Services Regulations under which the order

impugned has been passed. On this point I am supported by an authority reported in SLJ 1990 page 208 Ab. Gaffar Sheikh Versus State and

another wherein this court has observed as under:

Constitution of India 311(2) Constitution of J and K Civil Service Regulation Control and Appeal RulesRule 33: J and K Civil Service Regulations

Act. 128 Holding of an enquiry held mandatory even when the employee remains absent from duty and the employer intends to terminate his

service show cause notice sent to the petitioner and thereafter his services terminated without enquirytermination order quashed.

Then again in Dr. D.P.Bhat Versus State of J and K and Others reported in KLJ 1989 Page 290, it has been observed by this court:

Thus, for want of service of the notice to join or face termination is not compliance of service and this notice too is at the instance of Principal,

Medical College, Srinagar, who is not the appointing authority of the petitioner^ therefore, the notice referred issued to the petitioner for want of

competence of the authority is not valid under rules particularly when such notice is not admittedly served on the petitioner.

Thus the order of discharge from service due to his unauthorized absence from duty within the meaning of Art. 128 CSR, due to noninquiry into the

cause of absence and show cause notice is not legally sustainable and violative of Art. 311 of the Constitution of India read with Section 126 of J

and K State Constitution amounting to removal of the petitioner from service.

Keeping in view the observations made and the case law cited, I am of the opinion that the order impugned on legal side is short of compliance

of the provisions of Art. 128 of the J and K Civil Service Regulations having been passed without show cause notice rendering the order illegal.

I, therefore, on the basis of the observations made, allow this petition, holding the petition maintainable and order impugned without jurisdiction

by an incompetent authority and short of compliance of provisions of Art. 128 of the CSR and by a writ of Certiorari quash the order of

termination No. ES11/116/37281 dated 26.9.1983, entitling the petitioner to the post which he was holding before proceeding on leave, as if the

impugned order was never passed.

Before parting with the case, I need to observe and make certain directions. The petitioner, as observed, has produced only a certificate of

registration issued by Dr. M.Aslam, MD, Registrar under endorsement No. PSY/Record/05 dated 02491 regarding his mental ailment and orally

in his petition pleaded that due to illness he could not report for duty, short of any proof for the intervening period from the date of termination till

he reported to the duty. The pleadings alone in my opinion are not sufficient to exonerate the petitioner from his absence on whatever count which

otherwise requires compliance of the provisions of Art. 128 of the CSR. For that purpose, respondent No. 2 will hold an enquiry as provided

under Art. 128 of the CSR and the petitioner is under an obligation to explain his long absence day today on account of his alleged illness and

result of that enquiry will govern the status of the petitioner whether to be treated on leave or leave without emoluments and consequential reliefs.

This is because the petitioner has not explained, except his pleadings, regarding his absence which, as observed, have been allowed that the order

has been passed by an incompetent authority for want of jurisdiction.

The petitioner will be entitled to costs assessed at Rs. 300/

The result is that the petition is allowed.