K.Bahadur Singh vs State of J&K and others

Shri K. Bahadur Singh, the petitioner herein was posted as Divisional Fire Officer in Fire Station Headquarter, Srinagar in October, 1989 as he

wanted to visit his sister who is settled. United States of Ameraca 50 days earned leave was sanctioned in his favour with effect from 30101989

with a stipulation that no extension will be granted. The petitioner instead of resuming duty after expiry of leave applied for extension of leave which

was refused and he was asked to resume duty. On his failure to resume duty, a show cause notice was issued to him on 13091991 and finally his

services were terminated with effect from 21121989 vide order dated 541992.

The petitioner it appears returned from abroad somewhere in 1995 and submitted an application for permission to resume duty, which was

rejected by the Director, Fire Services, Srinagar on 22091995. He filed a review petition which also did not find favour.

The petitioner has moved this petition for quashing the termination order on the ground that the respondents failed to communicate the refusal to

extend leave and the show cause notice was not served upon him, in the absence of which the order impugned is illegal being in contravention of

the provisions of the J and K Civil Services (Classification, Control and Appeal) Rules, 1956 (hereinafter the CCA Rules).

The stand of the respondents is that leave was sanctioned with a specific condition that it will not be extended further. Since he failed to resume

duty even after service of showcause notice, his services were terminated.

The contention of Mr. Hali is that no showcause notice was served upon the petitioner, in the absence of which order of termination is illegal. Mr.

Kapoor learned Add! Advocate General on the other hand argued that show cause notice has been duly served and therefore the order impugned

is vailed.

The respondents have produced copies of the notices including show cause notice which according to them were sent to the petitioner. The first

letter asking him to resume duty is dated 1841991 despatched on 2541991 followed by letter dated 2071991, both addressed to the petitioner. In

the last para of letter dated 2071991, it is clearly mentioned that vide letter dated 1841991 the petitioner was asked to resume duty which he

failed. In this letter, the petitioner was again asked to resume duty within 15 days, failing which action under rule 128 of the J and K CSR would

follow. Finally, show cause notice dated 1391991 was issued. However, the petitioner as denied receipt of any of these communications as

according to him these were not dispatched to him on his address in U. S. A which he had furnished while proceeding on leave. But respondents

have pleaded that before issuing show cause notice why he should not be dismissed from service, he was asked to resume duty. All these

communications copies of which have been annexed are adressed to him on the address on which he was admittedly staying with his sister. So it is

not enough to deny the receipt of these communications, especially when these have been published in the newspapers and Government Gazette

also which is a sufficient notice. So it cannot be said that show cause notice was not despatched on the address where he was staying. The fact

that these notices bear the correct address where he was staying in U. S. A. is not denied. So it wrong to say that the showcause notice was not

served upon the petitioner.

In Dr. I. P. Kohli Vs. State of Jammu and Kashmir (1990 KLJ 374) the fact of which were identical, this court observed as follows:

The petitioner has, in specific and categoric terms, stated in the writ petition that the notice bearing No. NE GMNOC/83J dated 1391983 was

not received by him. This factual assertion has remained unanswered. It has to be treated as accepted to be true by the respondent. However, in

the interest of justice, I have perused the record. Indeed a copy of the notice is available on the file but there is no order or nothing to show that it

had. actually been sent to the petitioner or that the same had been received by him. From these meagre facts it cannot be held that respondent had

issued a notice to the petitioner and the same had been received by him. From the facts established on the file there is no escape from the

conclusion' that no notice was ever sent to the petitioner before passing the impugned orxier.

After reproducing Article 128 of the CSR, the learned Chief Justice while relying upon the decision in Jai Shanker V/s State of Rajasthan (AIR

1966 SC 492) held as under:

It has not been denied and indeed could could not be denied that Rules 33 to 35 of the 1956 Rules are applicable to the present case. These rules

provide for not only the issuance of a show cause notice but framing and service of a chargesheet, holding of an enquiry and opportunity to the

delinquent to state and prove his case. If for the sake of argument it may be' accepted that a notice, as mentioned in the impugned order was

issued to the petitioner, that will not satisfy the requirements of the aforesaid rules as no chargesheet was served on the petitioners and no enquiry

was contemplated or held.

However, the observations, that ""if for the sake of argument it may be accepted that a notice, as mentioned in the impugned order was issued to

the petitioner, that will not satisfy the requirements of the aforesaid rules as no chargesheet was served on the petitioners and no enquiry was

contemplated or held"" or only an obitor dicta because the case was decided mainly on the ground that show cause notice had not been served

upon the petitioner. If that be so as it really is, then these observations were wholly unnecessary and cannot be treated as laid down of such a

proposition of law. I say so because these observations ignored the mandate of subrule (2), which is an exception of Rule(1) of Rule 33 of the

CCA Rules, the relevant portion of which is extracted below:

(2) This rule shall not apply where the person concerned has 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.

Nodoubt it is not a case of the respondents that it was impracticable to communicate with the petitioner, yet if the show cause notice had been

despatched on the address where he was staying in USA, the respondents would have discharged the obligation and the principles laid down in Jai

Shanker's case (Supra) would have been attracted. So framing of chargesheet and holding of enquiry is not a rule of thumb to be followed as a

ritual, even when the Government servant does not respond to the show cause notice. The question of framing of charge arises only when the

allegations made in the show cause notice is controverted. Not otherwise because under law the delinquent is only to be provided a reasonable

adequate opportunity of defending himself, where he refuses to reply the show cause the penultimate must follow.

The ratio decidendi of Jai Shankar's case (supra) supports this conclusion as their Lordships held:

The Regulation involves a punishment for overstaying one's leave and the burden is thrown on the incumbent to secure reinstatement by showing

cause. It is true that the Government may visit the punishment of discharge or removal from service on a person who has absented himself by

overstaying his leave, but we do not think that Government can order a person to be discharged from service without at least telling him that they

propose to remove him and giving him an opportunity of showing cause why he should not be removed. If this is done the incumbent will be

entitled to move against the punishment for, if his plea succeeds, he will not be removed and no question of reinstatement will arise. It may be

convenient to describe him as seeking reinstatement but this is not tantamount to saying that because the person will only be reinstated by an

appropriate authority, that the removal is automatic and outside the protection of Article 311. A removal is removal and if it is punishment for

overstaying one's leave an opportunity must be given to the person against whom such an order is proposed, no matter how the regulation

describes it. To give no opportunity is to go against Art 311 and this is what has happened here.

In our judgement, Jai Shanker was entitled to an opportunity to show cause against the proposed removal from service on his overstaying his leave

and as no such opportunity was given to him his removal from service was illegal. He is entitled to this declaration.

Similarly in Shahoodul Haque V/s The Registration Cooperative Societies, Bihar (AIR 1974 S. C. 1896) it has been held :

After having been taken through the assertions made by both sides, we have no hesitation in coming to the conclusion that even if the appellant

was being punished, so that Article 311 could apply, he had been, in the circumstances of the case, given sufficient opportunity to explain his

conduct. He had failed to avail of that opportunity. It could no therefore, be said that the requirements of natural justice or of Article 311 of the

constitution had been contravened. In any case on the facts before us, we think that it will be useless to afford any further opportunity so the

appellant to show cause why he should not be removed from service. The undenied fact that the appellant had actually abandoned his post of duty

for an exceedingly long period, without sufficient grounds for his absence is so flaring that giving him further opportunity to disprove what he

practically admits could serve no useful purpose. It could not benefit him or make any difference to the order which could be and has been passed

against him. It would only prolong his agony.

It follows that if a show cause notice is received by the delinquent and the facts thereof are not controverted, no formal charge is required to be

framed by the appointing authority shall be at liberty to pass appropriate orders at the admitted and uncontroverted facts of the case. This view

finds support in the decision in Ghulam Mohd Vs. State (LPA No. 241/1997 decided on 21 101998) in which the Letters Patent Bench of this

court held:

It may be true that holding of inquiry as envisaged in Article 311 of Constitution of India, section 126 of the J and K Constitution and Rule 33 (1)

of J and K Civil Services (Classification, Control and Appeal) Rules, 1950 is necessary before service of an 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 Kahmir (1990 KLJ 374), Syed Zaffar Mohd

x Versus State (1992 SLJ143), 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 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. Sub Rule (2) of Rule 33, J and K CS (CCA) Rules, 1956 is attracted.

Since Judge has rightly found that petitioner abandoned the employment, therefore, he lost it.

However, assuming that he did not receive show cause notice, which is unlikely and the order of termination is invalid, has the petitioner

explained the delay in challenging the same. The only explanation offered that he was immobilized because of injuries sustained in a Motor Vehicle

Accident. But the certificate furnished by him reveals that it was only in April, 1993 whereas his leave expired on 21 121989. The order of

dismissal was passed on 541992 when he was neither injured nor otherwise incapable of returning home. As per his own statement he was injured

in accident only in 1994. It was thus for him to communicate with the department and remained posted with the latest development especially when

in the order sanctioning leave it is mentioned that no extension of leave will be allowed. In such a case it amounts to voluntary abandonment of the

post because of the inordinate delay as observed in Bhoop Singh Vs. Union of India and others (AIR 1992 SC1414) holding :

It is expected of a Government servant who has a legitimate claim to approach the court for the relief he seeks within a reasonable period,

assuming no fixed period of limitation applies. This is necessary to avoid dislocation the administrative setup after it has been functioning on a

certain basis for years. During the interregnum those who have been working gain more experience and acquire rights which cannot be defeated

casually by collateral entry of a person at a higher point without the benefit of actual experience during the period of his absence when he chose to

remain silent for years before making the claim. Apart from the consequential benefits of reinstatement without actually working, the impact on the

administrative setup and on other employees is a strong reason to decline consideration of a stale claim unless the delay is satisfactorily explained

and is not attributable to the claimant.

The ratio decidendi of the decision is that even a void order become valid if not challenged within reasonable time. This principle has been

reiterated in State of Rajasthan V/s D. R. Laxmi and others (1996 (6) Supreme Court Cases 455) holding :

The question whether violation of the mandatory provisions renders the result of the action as void or void or voidable has been succinctly

considered in Administrative Law by H. W. R Wade (7th Edn) at pp 34243 thus:

The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and

circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff's lack of standing, because he

does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the Void' order

remains effective and is, in reality, valid. If follow? that an order may be void for one purpose and valid for another; and that it may be void against

one person but valid against another. A common case where an order, however, void, becomes valid is where a statutory timelimit expires after

which its validity cannot be questioned. The Statute does not say that the void order shall be valid, but by cutting off legal remedities it produces

that result.

The order or action, if ultra vires the power, becomes void and it does not confer any right. But the action need not necessarily be set at thought in

all events. Though the order may be void, if the party does not approach the court within reasonable time, which is always a question of fact and

have the order invalidated or acquiesced or waived, the discretion of the court has to be exercised in a reasonable manner. When the discretion

has been conferred on the court, the court may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result

is that extraordinary jurisdiction of the court may not be exercised in such circumstances.

Again in Jagdish Lal V/s State of Haryana (AIR 1997 SC 2366) it has been ruled that:

This court has repeatedly held the delay disentitles the party to the discretionary relief under Article 226 or 32 of the Constitution. It is not

necessary to reiterate all catena of precedents in this behalf.

Since the petitioner has filed to explain the delay this is yet another reason to deny him the discretionary relief under Article 226 of the

Constitution of India because by his unauthorised absence he is deemed to have abandoned the post he was holding. Viewed thus, there is no

merit in this petition, which is dismissed, without any order as to costs.