Karpal Singh vs Vice-Chancellor, Jammu University

Arun Kumar Goel, J.—Two questions which are involved in this case need to be determined. These are whether in the circumstances of this

case, it can be said that petitioner had wilfully or otherwise shown his disinclination to continue/remain in service, if this question is answered in

negative, whether his services could be dispensed without holding enquiry, as has been done by the University by presuming that he expressed his

disinclination to resume the duty.

Sh. Singh, learned counsel for the University has produced to original file of this case which has been examined as was ordered on 20.1.2001.

Brief facts giving rise to this case are that admittedly petitioner was a regular employee of the University. His services have been dispensed with

vide order dated 11.3.97 copy AnnexureA with the writ petition. This order is in the following terms :

Whereas, Shri Karpal Singh, Senior Assistant in the Accounts Branch has been absenting himself from duty since 09.02.1994 without any

information of his whereabouts to the office.

And whereas, despite repeated notices to him to his available addresses and through Newspapers, Sh. Karpal Singh did not report for duty.

And whereas, a last and final notice was served upon him asking him to report for duty by 10.02.1997 positively, failing which his services will be

terminated but this notice also could not move him to resume his duty.

In view of the above, the services of Shri Karpal Singh, Senior Assistant in the Accounts Branch, are hereby terminated with effect from 11.02.97

under the provisions of Article 128 of J&K CSRs Voli which is mutatismutandis available to the employees of the University.

This has been challenged in the writ petition. Though petitioner raised number of pleas accepting his being under stress and strain having been

caused due to marital discard with his wife who not only had left him but had also taken with her all the belongings together with the house at Rani

Talab, Jammu and the same having been disposed of by her lateron.

Miseries of the petitioner did not come to an end because thereafter she along with her other family members started extending threats to the

petitioner to eliminate him.

In the aforesaid background petitioner proceeded on leave on 9.2.94 and remained at Bias Ashram till April 1997. According to him he

approached the University Authorities for extension of leave. Though he claims to be under bonafide belief that his leave has been sanctioned

which position is denied by the University Authorities.

When he reported to resume the duty on 12.2.98, to his utter shock and dismay, he was informed that his services have been dispensed with vide

order dated 11.12.97 (supra). It is this order that has been challenged. According to him impugned order suffers from the vice of arbitrariness,

reasons being that no notice was ever issued to him by the respondents nor any enquiry has been conducted, as such, in no case such an order can

be sustained, according to the petitioner, per petitioner without enquiry major penalty of removal from service has been inflicted upon him, which

cannot be sustained.

This writ petition was admitted on 18.8.2000, whereafter counter has been filed. Stand of the respondents is that petitioner has shown his

disinclination to resume his duty in terms of annexure R2 with their counter. According to them, respondent was required to resume his duty on

10th of February, 1997 and in case he failed to resume duty, services would be terminated. This communication was acknowledged and vide

annexure R2 he had shown his disinclination to rejoin his services. Thus, University has prayed for the dismissal of the writ petition.

For ready reference contents of annexureR2 need to be extracted. This is also necessary to be done to test the stand of the respondents :

I read a notice No. Estab/97. I am purely unknown. Due to my personal circumstances my life is passing through in very critical conditions. No

one is want to kick out his job, but my mind is very frustrated and still I am not in a position to join my duty. I am not doing this specially neither I

would like to rejoin the service.

This is all god happening and on my life luck or bad luck.

In the last I pray to your goodself and accept my mercy appeal to not terminate my service and extension of unauthorised leave upto month of

Sept. 15, 1997 be given to me being on huminatarian grounds. I will assure you that upto that time I could able to set my kind. I am not blamer. It

is my bad luck but almighty is homely present and by his grace a special opportunity may kindly be granted to me upto Sept. 15, 1997. Hope your

goodself will judge my personal circumstances and will also give me this love and grace.

When a reference is made to annexureR2 with special reference to its following portion: ""No one is want to kick out his job, but my mind is very

frustrated and still I am not in a position to join my duty. I am not doing this specially neither I would like to rejoin the service."" (on which great

emphasis was laid at the time of hearing as well as which is sheet anchor of the defence of the University in its counter), it cannot be said that

petitioner was disinclined to resume his duty reason being that it cannot be read out of context or in isolation. In addition to this, when a reference

is made to all the contents of this annexureR2, in the next breath, he has made a prayer to the University authorities to consider his mercy appeal

and not to terminate his services and allow extension of unauthorised leave up to 15th of September, 1997.

Respondents were wholly unjustified in picking up few words from the letter copy annexure R2 and then come to the conclusion that petitioner

being disinclined, therefore, they could terminate the services vide annexureA with the writ petition extracted hereinabove. Though not conceded in

so may words on behalf of the respondents, learned counsel for the University stated that this is a fit case where discretion should not be exercised

in favour of the petitioner. According to him, writ petition merits dismissal. It could not be disputed on behalf of the respondents that plea of

disinclination of the petitioner to resume his duty is not accepted, then without following process to dispense with the services in accordance with

the rules governing the same, impugned order could not have been passed. So long writ of Constitution goes and Rule of Law prevails, in no case

action of respondents while passing the impugned order can be sustained. In this context, it may be appropriate to mention that even in cases

wherein Service Regulations as well as under Industrial Law on account of absence, services were to be deemed to have automatically come to an

end, Hon'ble Supreme Court of India after striking down such provisions have held that such dispensation is bad in law and cannot be sustained

being arbitrary and thus, violative of Articles 14 and 16 of the Constitution of India. In case Mafatlal Barot v. Civl. Controller State Transport,

Mehsana, AIR 1966 S.C. 1364 while dealing with the case of Govt. Employee who was absent without leave as well as without reasonable cause,

it was held that such dispensation without giving him an opportunity of show cause notice contravenes principles of natural justice. Also see

Bhagwati Devi v. State of Haryana, 1998(3) SCT 110 , Roshan Lal Bhat v. State of J&K, 1998(3) SCT 123 (J&K) : 1998 (SCT).

It may also be appropriate to mention here that mere absence by itself does not constitute misconduct perse. In a case of the present nature

where an employee absents from duty unless afforded an opportunity of being heard to explain why action should not be taken against him cannot

be determined without following the principles of natural justice, equity and fairplay. Similarly determination of services without hearing as well as

by passing reasoned order to show application of mind also cannot be sustained.

In the context of the present case, it may be observed that even in cases where rules contemplate automatic dispensation of services, it has been

consistently held that an enquiry needs to be done before passing such an order. See Jai Shankar v. State of Rajasthan, AIR 1966 SC 492, Atul

Krishna Kundu v. Union of India, 1994(3) SCT 753 (Calcutta) : 1994(3) SCT 753 , Devkinandan Prasad v. The State of Bihar, reported in AIR

1971 SC 1490 and The State of Assam v. Akshaya Kumar Deb, reported in AIR 1976 SC 37.

Next question that needs to be determined is whether petitioner is entitled to back wages or not for the view that has been taken. With a view

to hold the scales evenly as well as noticing the circumstances explained by the petitioner, it is felt that interest of justice will be well served by not

allowing back wages to the petitioner. Another reason to take this view is that because of procedural snag on the part of the respondents the

termination order annexureA is being held to be bad in law. For taking this view reference can be made to State of Punjab v. Om Parkash,

1997(3) SCT 186 (P&H) , M. Anunachalam v. T.N. Electricity Board, 1997(3) SCT 565 (Mad.) and Govt of Tamil Naidu v. K. Rajaram

Appaswami, 1997(3) SCT 67 SC.

In view of the aforesaid circumstances, this writ petition is allowed and as a consequence of it, order annexureA extracted hereinabove is

hereby quashed and set aside and consequently the petitioner is ordered to be reinstated forthwith without back wages. It is however, clarified that

it will be for the University Authorities to decide whether to hold any enquiry on account of petitioner's absence from 1994 till he resumed duty.

While taking a decision in this behalf, University will dispassionately examine the case in the light of what has been pleaded in the writ petition and

in his communications which are there on the file of University. If it has decided to proceed further, in such a situation Inquiry Officer will be

appointed on or before 30th of April, 2001 who shall complete and conclude the enquiry in all circumstances on or before 31.7.2001 failing which

proceedings in such an enquiry shall stand closed without any further orders.

No costs.

Record produced by Mr. Singh has been returned back to him in the Court.

CMP No. 794/98

No orders in view of the disposal of the main matter. Stands finally disposed of.