Labadh Ram vs State and Others

Tashi Rabstan, J.—The case of the petitioner is that he joined the police force in 1995 and served the force with utmost dedication, honesty

and zeal. The petitioner on 8th of July, 2000 proceeded from Udhampur to Jammu on sanctioned casual leave of three days. Petitioner,

accordingly, had to join his duties on 11th of July, 2000. But due to serious illness the petitioner was unable to join his duties. It is contended that

the petitioner suffered serious neurotic depression and as such he was put under medical treatment of Dr. S.K. Gupta, Sr. Medical Officer,

Government Psych. Diseases Hospital, GMC, Jammu and the petitioner remained under treatment from 11.07.2000 to 8.12.2000. When he was

declared fit by the said doctor to resume his duties, the petitioner on 9.12.2000 appear before the Senior Superintendent of Police, Udhampur i.e.,

respondent No. 5 and sought permission to join his duties but the respondent No. 5 has refused to allow the petitioner to join, despite the fact that

respondent No. 5 know about the illness of the petitioner. Petitioner made his best endeavor to explain about his illness but at that time petitioner

was not having the medical certificate issued by the doctor under whom he was under treatment. The petitioner was granted only 48 hours to

show-cause and produce the documentary proof about his bona fide absence from duty. Therefore petitioner immediately went to his home to

collect the medical certificate.

Accordingly, petitioner submitted the medical certificate issued by doctor S.K. Gupta, Sr. Medical Officer, Government Psych. Diseases

Hospital, GMC, Jammu but the respondents have not accorded consideration to the certificate. A copy of the certificate is enclosed as Annexure

A to the writ petition.

Learned counsel for the petitioner further submitted that since petitioner come daily in the office but the awarding of punishment was not made

known to the petitioner for long time. Petitioner come to know the fact of punishment of removal from service dated 20.12.2000 on 22.5.2001

only.

It is contended that the said order was issued against the name of one constable Labadh Sharma whereas the name of the petitioner is Labadh

Ram, the same is quite clear from the order impugned. Thus, immediately the petitioner has filed an appeal before the Director General of Police,

Jammu and Kashmir i.e., respondent No. 2. The worthy Director General of Police Jammu and Kashmir vide order dated 6.5.2003 issued from

Srinagar headquarters instructed respondent No. 3 to consider the case of the petitioner. Respondents neither rejected the appeal nor set aside the

punishment thus he left with no other such remedy except to file writ petition in hand and challenged the order impugned dated 20-12-2000.

It is argued by the learned counsel for the petitioner that he came to be removed from the service without holding any enquiry and without

affording any opportunity of being heard. Respondents have removed the petitioner from service by violating the procedure as required under

rules.

On notice, respondents have filed the reply stating therein that the petitioner had remained absent unauthorizedly on several occasions for which

major/minor punishments was imposed upon him to mend his ways which he did not. He being habitual of being absent from duty, so the order

impugned has been issued against him.

I have heard learned counsel for the parties, perused the writ record and gone though the reply filed by the respondents.

Learned counsel for the petitioner urged that removal from service has been ordered without holding an enquiry. It is also alleged that no formal

charge was framed, no sufficient opportunity of hearing was afforded to the petitioner to explain his absence, no evidence was recorded and the

show cause notice issued against the petitioner. While imposing the penalty of removal from service only 48 hours time was granted to the

petitioner to show his bona fide absence.

Learned counsel for the petitioner further submitted that any removal/dismissal from service without adopting such a course is hit by the

provisions of Constitution of India and cannot therefore, stand. It is insisted that order impugned is bad being contrary to the provisions of rule

359, 334 and 339 of Police Manual.

It is argued that punishment awarded is illegal and ultra vires against the spirit of article 16 of Constitution of India and the order impugned

issued without considering the medical certificate issued by the competent doctor.

The facts are not in dispute, admittedly, the petitioner absented himself from duty, while serving in the police department as constable. It is

averred that he went on leave thereafter, fell ill and could not resume his duties. Respondents in their reply affidavit stated that petitioner's service

record singularly suggests that he is a habitual absentee from services. The petitioner knowing well that he is a member of disciplined force

absented himself in an unauthorized and unwarranted way on more than occasions. However, his officers took it in the lighter vein hoping that he

would improve his conduct in the near future. But the petitioner failed to budge from the recalcitrant track and ultimately unauthorisedly absented

himself from 11.7.2000 to 9.12.2000. He was so callous that he did not even bother to reply the show cause notice as such the respondents were

left with no option but to relieve off the petitioner from the membership of a disciplined duty bound force. Therefore, the order under scrutiny has

been passed to up hold the dignity and decorum of the disciplined force as such needs to be upheld with full grace and respect.

It is also stated by the respondents in the reply that in the year 1998, petitioner remained absent from duties for a period of 107 days and he

was awarded a major punishment vide D.P.O. Udhampur order No. 419 of 1998 dated 21.5.1998 in terms of which his annual increment was

stopped for a period of one year. In the year 2000, he remained unauthorisedly absent from duty for a period of 37 days, for which a punishment

of ""censure"" was awarded to him vide D.P.O. order Book No. 1035 of 2000 dated 29.5.2000. In the year 2000, again he remained

unauthorisedly absent from duties for a period of 18 days and a major punishment was awarded to him vide D.P.O. Order Book No. 1243 of

2000 dated 20.7.2000 where under his increment for a period of 6 months was ordered to be stopped.

The question which arises for determination in the present case as to whether the authorities can terminate/remove the services of delinquent

employee without resorting to initiate an enquiry on the ground that the said official is unauthorisedly absent.

It be seen that no member of a State service or a person holding the post under the State can be removed from service save otherwise in

accordance with the requirements of Section 126(2) of the State Constitution read with Article 311 of the Indian Constitution which contemplates

conveying the specific charges to the delinquent and providing him a reasonable and adequate opportunity of being heard and then his removal

from service after an enquiry. Section 126(2) of the State Constitution provides for an additional safeguard of a second show cause notice

regarding the proposed punishment to be imposed.

It be also seen that in terms of the J & K Police Rules governing the field, no employee shall be departmentally punished otherwise than as

prescribed in the police rules. Under the rules before imposing a major punishment which includes removal from service, the authorities have to

hold a regular enquiry into the conduct of the official. Rule 359 of Jammu and Kashmir Rules, which in clear sense, provides that the delinquent

police official shall be given an opportunity to meet the charge(s) levelled against him, but sub-rule (2) of the rule specifically provides such official

has to be given a reasonable opportunity of showing cause orally and also in writing against the proposed penalty. In terms of the aforesaid Rules,

the petitioner was to be given an opportunity of showing cause against the proposed action against him.

There can be no doubt that absence from duty without a proper permission or overstaying a leave without any valid and justified reason is the

gravest type of mis-conduct, particularly for a member of the disciplined force from whom strict adherence to the rules is expected. Thus,

unauthorised absence amounts to mis-conduct necessitating holding of an enquiry against a delinquent official. Where there is overstaying of leave

and absence from duty without justification, it would be misconduct justifying penalty even upto the extent of dismissal, but, the concerned

employee must be given a sufficient opportunity of being heard before any prejudicial action is taken.

Even otherwise, action of the respondents is violative of principles of natural justice which demand that nobody should be condemned unheard.

The delinquent official is required to be afforded an sufficient opportunity of being heard before any administrative action is taken against him.

In the present case of course the respondents have issued show cause notice to the petitioner to reply within 48 hours which is very short

period as the petitioner could not reply properly within the short period of time.

In Kali Dass v. State of Jammu and Kashmir and others (S.W.P. No. 1116/2006) (reported in 2013 Lab IC (NOC) 454) it is held as under:

Had the delinquent official was provided an opportunity of being heard, perhaps he would have demonstrated before the Inquiry Officer that

absence from the duties was not willful, but, was for the reasons beyond his control. In the present case, petitioner is claiming that he was

incapacitated to attend the duties because of ailment of the disease known as ""Psychosis"". Therefore, observance of principle of natural justice, at

least, in the instant case could not have been dispensed with as the same has caused serious prejudice to the petitioner inasmuch as he has not been

afforded adequate opportunity to explain his absence.

In view of the law laid down by the Apex Court in the aforementioned cases and for the reasons given hereinabove, it can be said that removal of

the petitioner from service has been ordered without holding any regular enquiry, and an opportunity of being heard has to be provided to the

delinquent official before taking punitive action against him, even though, this would depend upon the facts and circumstances of each case. But, in

the present case, facts clearly show that the petitioner has been condemned unheard and penalty of removal from service has been imposed upon

him without affording him an opportunity of being heard. Therefore, inquiry is necessitated against him to the facts and circumstances of the case.

In the given circumstances, this petition is allowed. Order impugned No. 536 of 1999 dated 14.07.1999 is quashed. Respondents are at liberty to

conduct regular enquiry against the petitioner, of course, in accordance with rules occupying the field and complete the same within a period of two

months from the date a copy of the order is served upon them. They shall afford due opportunity of hearing to the petitioner in the process of

enquiry. Petitioner shall be at liberty to place before the Enquiry Officer his pleas as also material in support of his case. His retention or otherwise

in service shall depend on the outcome of such enquiry.

Disposed of along with connected CMA(s), if any.

In Canara Bank Vs. V.K. Awasthy, , the Apex Court has held as under--

The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body

embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well

settled. The first and foremost principle is what is commonly known as audi alter am par tern rule. It says that no one should be condemned

unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has

to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and

such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case

before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair

play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory

recognition of this principle found its way into the ""Magna Carta"". The classic exposition of Sir Edward Coke of natural justice requires to ""vacate

interrogate and adjudicate"". In the celebrated case of Cooper v. Wandsworth Board of Works, (1963) 143 ER 414, the principle, was thus

stated:

Even God did not pass a sentence upon Adam, before he was called upon to make his defence. ""Adam"" says God, ""where art thou has than not

eaten of the tree whereof I commanded thee that though should not eat"".

Since men me principle has been chiseled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept,

like polishing of a diamond.

In para 12 of the aforesaid judgment, the Apex Court has further held as under:--

What is meant by the term 'principles of natural justice' is not easy to determine. Lord Summer (then Hamilton, L.J.) in Ray v. Local Government

Board, (1914) 1 KB 160 at p. 199 : 83 LKB 86) described the phrase as sadly lacking in precision. In General Council of Medical Education &

Registration of U.K. v. Sanckman, (1943) AC 621 : [1948] 2 All ER 337, Lord Wright observed that it was not desirable to attempt to force it

into any procrustean bed and mentioned that one essential requirement was that the Tribunal should be impartial and have no personal interest in

the controversy, and further that it should give 'a full and fair opportunity', to every party of being heard.

In Justice P.D. Dinakaran Vs. Hon'ble Judges Inquiry Committee and Others, it is held in paras 31 and 32 as under:--

The consideration of the aforesaid question needs to be prefaced by a brief reference to the nature and scope of the rule against bias and how

the same has been applied by the Courts of common law jurisdiction in India for invalidating judicial and administrative actions/orders. Natural

justice is a branch of public law. It is a formidable weapon which can be wielded to secure justice to citizens. Rules of natural justice are ""basis

values"" which a man has cherished throughout the ages. Principles of natural justice control all actions of public authorities by applying rules relating

to reasonableness, good faith and justice, equity and good conscience. Natural justice is a part of law which relates to administration of justice.

Rules of natural justice are indeed great assurances of justice and fairness. The underlying object of the rules of natural justice is to ensure

fundamental liberties and rights of subjects. They thus serve public interest. The golden rule which stands firmly established is mat the doctrine of

natural justice is not only to secure justice but to prevent miscarriage of justice.

The traditional English Law recognized the following two principles of natural justice:--

(a) Nemo debert esse judex in propria causa : No man shall be a judge in his own cause, or no man can act as both at the one and the same time=

a party or a suitor and also as a Judge, or the deciding authority must be impartial and without bias; and

(b) Audi altera partem: Hear the other side, or both the sides must be heard, or no man should be condemned unheard, or that there must be

fairness on the part of the deciding authority.

However, over the years, the Courts throughout the world have discovered new facets of the rules of natural justice and applied them to judicial,

quashi-judicial and even administrative actions/decision. At the same time, the Courts have repeatedly emphasized that the rules of natural justice

are flexible and their application depends upon the facts of a given case and the statutory provisions applicable, if any, nature of the right which

may be affected and the consequences which may follow due to violation of the rules of natural justice.

I am also fortified by the view taken by the Apex Court in a judgment titled Mohd. Yunus Khan Vs. State of U.P. and Others, , wherein it is

held as under:--

We have to proceed keeping in mind the trite law that holding disciplinary proceedings against a government employee and imposing a

punishment on his being found guilty of mis-conduct under the statutory rules is in the nature of quasi-judicial proceedings. Though, the technical

rules of procedure contained in the Code of Civil Procedure, 1908 and the provisions of the Evidence Act, 1872 do not apply in a domestic

enquiry, however, the principles of natural justice require to be observed strictly. Therefore, the enquiry is to be conducted fairly and reasonably

and the enquiry report must contain reasons for reaching the conclusion that the charge framed against the delinquent stood proved against him. It

cannot be an ipse dixit of the enquiry officer. Punishment for misconduct can be imposed in consonance with the statutory rules and principles of

natural justice....

Had the delinquent official was provided an sufficient opportunity of being heard, perhaps he would have demonstrated and produced before

the respondents that absence from the duties was not willful, but, was for the reasons beyond his control. In the present case, petitioner is claiming

that he was incapacitated to attend the duties because of ailment of the disease known as ""Neurotic Depression"". Therefore, observance of

principle of natural justice, at least, in the instant case could not have been dispensed with as the same has caused serious prejudice to the

petitioner inasmuch as he has not been afforded adequate opportunity to explain his absence.

In view of the law laid down by the Apex Court in the aforementioned cases and for the reasons given hereinabove, it can be said that removal

of the petitioner from service has been ordered without holding any regular enquiry, and an opportunity of being heard has to be provided to the

delinquent official before taking punitive action against him, even though, this would depend upon the facts and circumstances of each case. But, in

the present case, facts clearly show that the petitioner has been condemned unheard and penalty of removal from service has been imposed upon

him without affording him an opportunity of being heard. Therefore, enquiry is necessitated against him to the facts and circumstances of the case.

In the given circumstances, this petition is allowed. Order impugned No. 1946 of 2000 dated 20.12.2000 is quashed. Respondents are at

liberty to conduct regular enquiry against the petitioner, of course, in accordance with rules occupying the field and complete the same within a

period of two months from the date a copy of the order is served upon them. They shall afford due opportunity of hearing to the petitioner in the

process of enquiry. Petitioner shall be at liberty to place before the Enquiry Officer his pleas as also material in support of his case. His retention or

otherwise in service shall depend on the outcome of such enquiry. Disposed of along with connected C.M.A.(s), if any.