Joginder Kumar vs State of Jammu and Kashmir

T.S. Doabia, J.—Parental obligations were given more importance to duty towards his office. There was absence from duty. The services of

the petitioner were brought to an end in terms of Section 126(2) of the Constitution of Jammu and Kashmir State and Articles 311(2) of the

Constitution of India. This order passed on 4th June 1996, is being challenged in this petition.

The petitioner came to be appointed as a constable with J&K Armed Police. This happened in the year 1989. As per the respondents the

service profile of the petitioner left much to be desired. The flash point was absence from duty in late 1995. The petitioner submits that his wife was

in advanced stage of pregnancy. He, therefore, proceeded on leave in January 1996. A female child was born on 26th of January 1996. This birth

led to some other complications. As per the petitioner he had to look after his ailing wife and newly born child. This extra pressure as per the

petitioner affected his health. His liver caught infection. While he was undergoing treatment, an order of dismissal came to be passed. It is this order

which is being challenged.

The respondents have filed objections. It is stated that in a short span of service which is less than ten years the petitioner has suffered eight

major punishments and two minor punishments. 265 days of his service has already been treated as ""dies non"". The petitioner again absented on

17th of December 1995. He was asked to explain his position. A notice came to published in ""Kashmir Times"". A rotice was served on him on

2nd of April 1996. There was no response. A final notice came to be published on 15th of May 1996 in ""Kashmir Times"" again. There was no

response. An enquiry officer was also appointed. He also issued a notice. He was served on 28th of May 1996 and 31st of May 1996. As the

petitioner did not join the proceedings the order of removal came to be passed. This is annexure `A'. This is being challenged in this petition.

A perusal of order of removal shows that the factors which weighed with the respondents in passing the order in question are as under:

(i) That even though notices were served on the petitioner he neither joined his duties nor reported before the enquiry officer.

(ii) That during a service tenure of seven years the petitioner suffered ten punishments. (Eight major and two minor)

(iii) Power has been exercised under Section 126(2). His service has been terminated with retrospective effect i.e. 17th of December 1995 i.e. the

date from which the petitioner had absented.

I am of the opinion that the order passed by the respondent authorities is bad for three reasons. These reasons are:

(i) Past record of the petitioner has been taken into consideration. This could be done only had this fact been brought to his notice.

(ii) Even in the case of absence from duty some enquiry was required to be held.

(iii) The order of removal is retrospective in nature.

So far as first point is concerned the Supreme Court of India in case State of Mysore v. K. Manche Gowda, AIR 1964 Supreme Court 506

observed that if past record is to be taken into consideration then this should be brought to the notice of the delinquent. If this is not done then the

order would be bad. The relevant observations are as under:

If the proposed punishment was mainly based upon the previous record of a Government servant and that was not disclosed in the notice, it

would mean that the main reason for the proposed punishment was withheld from the knowledge of the Government servant. It would be no

answer to suggest that every Government servant must have had knowledge of the fact that his past record would necessarily be taken into

consideration by the Government in inflicting punishment on him; nor would it be an adequate answer to say that he knew as a matter of fact that

the earlier punishments were imposed on him or that he knew of his past record. This contention misses the real point, namely, that, what the

Government servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the

Government in inflicting punishment on him. It is not possible for him to know what period of his past record or what acts or omissions of his in a

particular period would be considered. If that fact was brought to his notice, he might explain that he had no knowledge of the remarks of his

superior officers, that he had adequate explanation to offer for the alleged remarks or that his conduct subsequent to the remarks had been

exemplary or at any rate approved by the officers. Even if the authority concerned took into consideration only the facts for which he was

punished, it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those

punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities concerned till the time of

the present enquiry. He may have many other explanations. The point is not whether his explanation would be acceptable but whether he has been

given an opportunity to give his explanation. We cannot accept the doctrine of ""presumptive knowledge"" or that of ""purposeless enquiry"" as their

acceptance will be subversive of the principle of reasonable opportunity. We therefore hold that it is incumbent upon the authority to give the

Government servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is

also based on his previous punishments or his previous bad record this should be included in the second notice so that he may be able to give an

explanation.

Thus on this short ground the order of removal cannot be sustained. So far 1996. This birth led to some other complications. As per the petitioner

he had to look after his ailing wife and newly born child. This extra pressure as per the petitioner affected his health. His liver caught infection.

While he was undergoing treatment, an order of dismissal came to be passed. It is this order which is being challenged.

The respondents have filed objections. It is stated that in a short span of service which is less than ten years the petitioner has suffered eight

major punishments and two minor punishments. 265 days of his service has already been treated as ""dies non"". The petitioner again absented on

17th of December 1995. He was asked to explain his position. A notice came to published in ""Kashmir Times"". A rotice was served on him on

2nd of April 1996. There was no response. A fina Regulations referred to cannot be sustained. The various judicial precedents dealing with this

aspect of the matter were co appointed. He also issued a notice. He was served on 28th of May 1996 and 31st of May 1996. As the petitioner

did not join the proceedings the order of removal came to be passed. This is annexure `A'. This is being challenged in this petition.

A perusal of order of removal shows that the factors which weighed with the respondents in passing the order in question are as under:

(i) That even though notices were served on the petitioner he neither joined his duties nor reported before the enquiry officer.

(ii) That during a service tenure of seven years the petitioner suffered ten punishments. (Eight major and two minor)

(iii) Power has been exercised under Section 126(2). His service has been terminated with retrospective effect i.e. 17th of December 1995 i.e. the

date from which the petitioner had absented.

I am of the opinion that the order passed by the respondent authorities is bad for three reasons. These reasons are:

(i) Past record of the petitioner has been taken into consideration. This could be done only had this fact been brought to his notice.

(ii) Even in the case of absence from duty some enquiry was required to be held.

(iii) The order of removal is retrospective in nature.

So far as first point is concerned the Supreme Court of India in case State of Mysore v. K. Manche Gowda, AIR 1964 Supreme Court 506

observed that if past record is to be taken into consideration then this should be brought to the notice of the delinquent. If this is not done then the

order would be bad. The relevant observations are as under:

If the proposed punishment was mainly based upon the previoasonable opportunity of show cause as to why he be not discharged from service is

not justifiable. 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 v. State), AIR 1966 SC 1364 (Mafatlal Narandas Barot, Appellant v. J.B. Rathod, Divisional

Controller, State Transport, Mehsana and another, Respondents) and AIR 1966 SC 492 (Jai Shankar, Appellant v. State of Rajasthan,

Respondent). In 1988 KLJ 640, the Court was dealing with an identical case of a constable of the respondent Department, whose services were

terminated without prior notice and no opportunity was afford 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 to show cause, contravenes the principle of natural justice. The Apex Court observed as

under:

It is true that the respondent may visit the punishment of 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 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.

Similar view has been expressed in by M.Y. Kawoosa, J. in case reported as MehrajudDin Allai v. Chief Engineer, Electric Maintenance & RE

Department Srinagar and others, KLJ Feb 1998 page 99. In para 9 it was observed :

In the totality of circumstances it is held that it was mandatory for the respondents to hold an enquiry into the absence case of the petitioner. The

petitioner could not have been terminated from service without doing so.

With regard to the relief to be granted all that is being of said is that petitioner would be entitled to reinstatement but no back wages. This is

because when an employee is reinstated on account of the fact that there was some procedural lapse in respect of the snapping the relationship of

master and servant and the employee was absent then such an employee is not entitled to backwages. See State of Punjab v. Om Parkash,

1997(3) SCT 186 (P&H) ; M. Anunachalam v. T.N. Elec. Board, 1997(3) SCT 565 (Mad) ; Govt. of Tamil Nadu v. K. Rajaram Appaswami,

1997(3) (sic) SC : 1997(3) SCT 67 (SC). Relief of back wages is not to be granted when an employee is reinstated on the technical ground that

enquiry was held into the alleged misconduct of unauthorised absence. Rajinder Kumar v. State of Haryana, 1996(4) SCT 772.

The retrospective nature of the order in question be considered. Such a situation cropped up in a case before Punjab and Haryana High Court.

An employee was absent from duty without permission. An ex parte enquiry was held. The employee was dismissed with retrospective effect. This

order of dismissal was challenged. It was contended that the order of dismissal should not have been passed with retrospective effect and the

order passed by the court below directing further enquiry to be held after quashing the order of dismissal was bad. The opinion expressed by the

Court was that the order giving retrospective effect could be separated and by so separating the order of dismissal on the ground that the

employee had absented was held to be valid. The fact that an enquiry was held visavis the alleged misconduct of absence was taken into

consideration. The fact that the employee had refused to acknowledge the Registered Acknowledge Due notices sent and also ignored the

publication made in the newspaper was taken as sufficient to come to a conclusion that there was due compliance of the principles of natural

justice. See Zila Parishad Hoshiarpur v. Surinder Singh, 1997(4) SCT 732. Thus even though retrospective nature of the order could be ignored

but the fact that there are other lacunas also in existence; the order in question would remain bad.

The exercise of power under section 126(2) be also examined. Is the order which has been challenged in this case within the four corners of the

provisions under which it is passed. This provision i.e. Section 126 of J&K Constitution be noticed. This reads as under:

Dismissal, reduction or removal of persons employed in civil capacities under the State. (1) No person who is a member of a civil service of

the State or holds a civil post under the State shall be dismissed or removed by an authority.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the

charges against him and given reasonable opportunity of being heard in respect of those charges and where it is proposed after such enquiry to

impose on him any such penalty, until he has been given reasonable opportunity of making representation on the penalty proposed but only on the

basis of the evidence adduced during such inquiry.

Provided that this subsection shall not apply

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by

that authority in writing it is not reasonably practicable to hold such enquiry; or

(c) where the Governor is satisfied that in the interest of the security of the State it is not expedient to hold such enquiry.

(3) If, in respect of any such person as aforesaid a question arises whether it is reasonable to hold such enquiry as is referred to in subsection (2),

the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.

These provisions are similar to the provision Article 311 of Constitution of India. The scope of Article 311(2) of the Constitution was

considered by the Supreme Court of India in Union of India v. Tulsi Ram Patel, AIR 1985 SC 1416. It was observed that a disciplinary authority

is not excepted to dispense with the disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an

inquiry because the Department's case again the Government servant is weak and must fail. It was further said that the finality given to the decision

of the disciplinary authority by Article 311(3) is not binding upon the Court so far as its power of judicial review is concerned and in such a case

the court will strike down the order dispensing with the enquiry as also the order imposing penalty.

This aspect of the matter was again considered in two other cases i.e. Satyavir Singh v. Union of India, AIR 1986 SC 555 and Jaswant Singh v.

State of Punjab, AIR 1991(1) SC 362 : 1991(2) SCT 355 (SC).

In Jaswant Singh's case (supra) it was said that the decision to dispense with the departmental enquiry cannot be rested solely on the ipsi dixit

of the concerned authority. The observations made are as under:

Our attention was not drawn to any material existing on the date of the impugned order in support of the allegation contained in paragraph 3

thereof that the appellant had thrown threats that he and his companions will not allow holding of any departmental enquiry against him and that

they would not hesitate to cause physical injury to the witnesses as well as the enquiry officer if any such attempt was made. It was incumbent on

the respondents to disclose to the court the material in existence at the date of passing of the impugned order in support of the subjective

satisfaction recorded by respondent 3 in the impugned order. Clause (b) of the second proviso to Article 311(2) can be invoked only when the

authority is satisfied from the material placed before him that it is not reasonably practicable to hold a departmental enquiry. This is clear from the

following observation at page 270 of Tulsi Ram case :

A disciplinary authority is not excepted to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to

avoid the holding of an enquiry or because the department's case against the government servant is weak and must fail.

The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipsi dixit of the concerned authority. When the

satisfaction of the concerned authority is questioned in a Court of law, it is incumbent on those who support the order to show that the satisfaction

is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer.

The scope of Section 126 of J&K Constitution was considered by Justice Syed Saghir Ahmed, former Chief Justice of this Court and now

Judge of Supreme Court of India in Ghulam MohiudDin v. State of J&K, 1995 S.L.J 212. Paras 6, 8, 9 and 10 deal with the same situation as are

there in this case. These paras read as under:

The proviso to Section 126(1) of the Jammu and Kashmir Constitution contemplates a departure from the normal rule of holding an enquiry into

the charges against the government servant.

The constitutional provisions referred to above require that an enquiry shall be held against a Government servant into charges of misconduct for

which he is sought to be removed from service and that in that enquiry he shall be afforded an opportunity of hearing which necessarily includes

inter alia the right to file a reply to the charges and to lead evidence in support of the reply and also the right to crossexamine the witnesses if any

produced against him in that enquiry.

The quantum of enquiry required in a given case or the procedure which has to be followed in the enquiry is not under my consideration as the

enquiry itself in this case was dispensed with and therefore, the question whether the enquiry was properly dispensed with is one of the questions

on which the fate of this petition hinges.

As pointed out earlier, a Government servant is entitled to the protection contemplated by Art 311(2) and therefore he cannot be dismissed from

service unless he has been given an opportunity of hearing. The rule of exception is contained in the proviso to Art 311(2) which is akin to proviso

to Sec 126(2) of the Jammu and Kashmir Constitution.

A scrunity of the relevant provisions and judicial precedents noted above lead to coming to the following conclusions:

(i) that enquiry can be dispensed with when a finding is recorded that in the facts and circumstances of the case, it is not possible to hold an

enquiry.

(ii) that in the interest of the security of the State it is not expedient to hold an enquiry.

(iii) the decision not to hold enquiry is not final; this decision is open to judicial review.

Thus it is only where a situation exist whether caused by the delinquent or otherwise that holding of an enquiry is not possible, the action of

disciplinary authority may be said to protect by above provision. In this case what was said in Gh. MohiudDin case would be attracted. What was

said in the above case is again quoted:

From the above discussion it is clear that the enquiry was dispensed with on grounds which were not sufficient to constitute the basis for the

satisfaction of the authority concerned that it was not reasonably practicable to hold the enquiry which in my opinion was dispensed with contrary

to the express term of the proviso to section 126(2) of the Jammu and Kashmir Constitution.

In the present case nothing has been said as to why provisions of Section 126 have been invoked. Merely because an employee is absent

would not furnish a ground to the respondents to invoke the aforementioned provisions.

This petition which was admitted and taken up for final disposal with the consent of the parties, is allowed. The petitioner shall stand reinstated.

He shall, however, be not entitled to any back wages. It is further directed that:

i) The petitioner shall appear before the respondents No. 2 on 20th April '98;

ii) If it is proposed to hold a fresh enquiry, the respondent No. 2 shall serve a chargesheet as also name the Enquiry Officer.

iii) The petitioner shall appear before the Enquiry Officer on the date which may be indicated by the respondent No. 2 in this behalf;

iv) If the respondentauthorities purpose to hold further enquiry, then the question as to how the intervening period i.e. from the date of passing of

this order to any order which may be passed by the respondentauthorities is to be treated, would depend upon the outcome of the final order

which may be passed by the respondentauthorities:

v) In case the respondentauthorities decide to hold no fresh enquiry, then the position would be entirely different. The petitioner shall stand

reinstated but without back wages.

This petition is accordingly allowed in the manner indicated above.