Mehraj-ud-din Allai vs Chief Engineer

The petitioner, through the medium of this writ petition filed under Article 226 of the Constitution of India read with Section 103 of Constitution

of Jammu and Kashmir, has come up with certain grievances which are adumbrated as follows:

Petitioner was, admittedly, appointed by Executive Engineer, Held Mechanical Division, Peemai, Lower Jehlum Project as Junior Assistant Cum

Typist vide order No. 33637 dated 24th April, 1974 in pursuance of the selection made by District Recruitment Board, Baramulla. He was

declared as quasipermanent against this post by Director, Mechanical Design Circle, Srinagar vide order No. Estt/9/MDC of 1979 dated 28th

May, 1979. In November, 1982, the petitioner was working under respondent No. 4, Assistant Electric Engineer, SubDivision, MR Gunj,

Srinagar when the petitioner's wife fell ill and he had to go outside the State for getting her medically treated. Petitioner, accordingly, moved an

application to respondent No.4 on 3.11.1982 for sanction of eight day's casual leave, with permission to leave the station, with effect from 4th

November, 1982. The leave was, admittedly, duly sanctioned by respondent No.4 and permission to leave the station was also granted in favour

of the petitioner. The petitioner alleges that he went outside the State for treatment of his wife and could not join his duties for availing of the said

period of leave, because he had to remain with his wife outside the State. He sought and extention of leave upto 20th April, 1983 by submitting

various leave applications, from time to time, to respondent No.4 on 08.11.1982, 07.12.1982, 08.02.1983 and 20.03.1983. It was on 26th July,

1983 that respondent No. 3 issued a letter to the petitioner directing him that before his leave case is processed further, medical

certificate/documents in proof of illness of his wife be produced in the Divisional office enabling him to take action accordingly. A copy of the letter

No. 348990/ffl dated 26th July, 1983 is append as annexure 'D' to the petition. Petitioner replied the letter on 28th July, 1983 stating therein that

on his return from Delhi, in transit, his brief case, containing the prescriptions, was lost. He was again asked to furnish the information as to whether

any FIR was filed by him before the Railway Police for the loss of the brief case. This letter too was replied by the petitioner that on his return from

Delhi, when he found his brief case missing, he was eager to go to Srinagar with his ailing wife, so he did not report the matter to the Police. He has

from time to time prayed to the authorities that his leave be sanctioned and his dues be paid to him. It is alleged that no correspondence was made

with him by the respondents thereafter, though the petitioner kept on making applications, especially on 22.08.1983, to respondent No.3

requesting him that, after return from leave and assuming his duties, he was not been paid his salary and requested to release the same. When no

heed was paid to his requests to release the salary, he made a representation to respondent No.2 also narrating all the facts. Even then his leave

matter was not settled and no payment was made to him, though he had resumed the duty. The petitioner felt upset and made an application on

2nd November, 1983 to respondent No.4 for further leave of whatever kind due to him from 02.11.1983. Copy of the leave application is

appended as annexure T to the petition. Instead of settling the leave period and paying him the dues, an order NO. 72/ffl dated 13.03.1984 came

to be passed by respondent No.3 by virtue of which the services of the petitioner was terminated with effect from 03.11.1983. The contention of

the petitioner is that he left the State alongwith his wife with the permission of respondents, and, after the leave was sanctioned for eight days.

Thereafter, he extended his leave and he joined his duties on 21.04.1983. He continued to work with respondent No.4 till 02.11.1983 when he

again proceeded on leave. He extended his leave by sending application dated 22.04.1984, but his services were terminated without any enquiry

and without any notice of show cause having been issued to the petitioner. Contention of the petitioner is that he was not absconding. He had

continued rapport with the respondents. Now the petitioner prays that Order No. 12/01 dated 13.03.1984, issued by respondent No.3, by virtue

of which the services of the petitioner was terminated, be quashed and has prayed for issuance of a writ in the nature of Mandamus commanding

the respondents to pay the salary to the petitioner and settle his leave case also allow him to join his duties.

Counter has been filed by respondents on 16.10.1985. No specific point has been taken up in the counter excepting three things: that question

of facts is involved in it on which basis no writ can lie; secondly the main thrust of the respondents has been on the point that for the extension of

leave petitioner has neither given the medical certificate, row has shown any justification for such extension of leave; thirdly, that without getting the

leave period settled, he again, without permission, went on leave till his services were terminated.

Rejoinder also has been filed in this behalf in which the facts in the counter and in the order of termination have been controverted.

Heard learned counsel for the parties at length and have gone through the record. Before referring to the arguments of the learned counsel for

the parties. I think it feasible to refer to the termination order which reads as under:

ELECTRIC DIVISION III SRINAGAR.

No.72/III

Dated 13031984

ORDER

Sub: Absconding from duty and termination of service of Sh. Mehraj udDing (Jr. Assistant).

In view of the recommendations of Assistant Electric Engineer. M.R. Gunj, SubDivision and on the basis of proof/dates available in this Division

the absconding case of above named Jr. Assistant is decided as under on the following grounds:

The incumbent was habitual of taking extraordinary leave as observed from the service book of the official. The last leave availed off by him as

per the service book recording is 28 days leave without pay from 24.03.1982 to 20.04.1982.

The pending absence case of the official right from 4/1982 to 20.04.1983, could not be decided by this Division for want of documentary proof

regarding the cause of his absence and registered undertaking on stamped paper as demanded by this Division for not taking any further leave

without prior permission sanction of the competent authority.

The official continued to adopt his previous practice by absconding himself right from 03.11.1983 and his unauthorised absence continues till to

date.

During the period of his absence, a number of notice have been served to him by the AEE, M.R.Gunj, as well as by the Divisional Office, but

these have been returned back pretending the addressee is residing somewhere inlaw's house. Finally, the Assistant Elect: Engineer, M.R.Gunj was

asked to locate his address and a further more notice has been served to him on is inlaws address by the AEE vide his No. 82829/MSD dated

02.01.1984, but no respond was given to it. Inspite of that the Jr. Assistant continued to extend his leaves by peace meals without mentioning any

home address on his applications.

It has already been communicated to the Superintending Engineer, ElectMaintt: and REC Central, Srinagar, vide this office NO. 442627/111

Dt. 22.08.1993, that the some official probably dealing with some private business and do not seem to be interesting with the Govt. duties and as

such his services needs to be terminated. The Superintending Engineer, in response of the same has authorised this office to dealt with this case

under the powers delegated to the Divisions as per CSR.

The Asstt: Sect: engineer, concerned in his various letters has categorically recommended for his termination on the basis of illegal unauthorised

absence of the Jr. Assistant.

Under these circumstances, this office has no alternative other than to terminate his services as otherwise it would effect on the working system of

the Department and Govt. exchequer. As such the services of the absentee are hereby ordered terminated with effect from 03.11.1983 (date of

absconding).

No.l0467/III Dated: 13031984

Sd/

Executive Engineer

Electric Division III, Srinagar.

Copy to the:

Superintending Engineer, Elect; Maintt; and REC Central, Srinagar for information and confirmation of the action taken by the undersigned. This

is in continuation to this office No. 686768/DI dated 17.11.1983.

AEE, MR Gunj, SubDivision for information. This is with reference to his latest letter No.l002/MSD dated 08.03.1984 on the subject noted

above.

Sh. MehrajudDin Allai (Jr. Assistant) R/o Zadi Masjid Safakadal, Sgr. for information.

Learned counsel for the respondents has defended the case mainly on the grounds that, under Regulation 128 of the J&K Civil Service

Regulations, actions regarding the removal of services can be taken in case the government servant absents himself from duty or does not report to

duty after availing the sanctioned leave.

Secondly, he has taken the refuge under proviso to subsection 2 of Section 126 of the Constitution of J&K which corresponds to Article 311 of

the Constitution of India.

Thirdly, learned counsel for the respondents has canvassed before me that the action against the petitioner has been taken under subrule 2 of Rule

33 of the J&K Civil Service (Classification, Control and Appeal) Rules, 1956. (herein after for short referred to as Classification, Control and

Appeal Rules, 1956).

Learned counsel for the petitioner has rightly interpreted Regulation 128 of J&K Civil Service Regulations that, while taking action under this

Regulation, the authorities are not absolved from conducting an enquiry under the Classification, Control and Appeal Rules, 1956. Regulation 128

of the Civil Service Regulations only contemplates that in case the government servant remains absent from duty without proper leave or, after the

end of leave, he does not resume his duties and remains absent without permission or further extension of leave, it will involve loss of service. To

this extent, I also agree that absence from duty involves loss of service according to this Regulation. But this Regulation does not expressly or

impliedly deny the safeguards which have been enshrined in Section 126 of the Constitution of Jammu and Kashmir corresponding to Article 311

of Constitution of India to Government servants, and more so, it does not absolve the authorities from the implementation of Rule 33 of

Classification Control and Appeal Rules, 1956. Regulation 128 of Civil Service Regulations only envisages the consequences of absence from

duty, so far as the absence from duty, without leave, or absence from the date the sanctioned leave is exhausted is concerned, it is a question of

fact. This is to be got established through the procedure which his been evolved in Rule 33 of the Classification, Control and Appeal Rules, 1956

and Regulation 128 does not ipsofacto mean that the authorities will certify a person's absence from duty without giving him an opportunity of being

heard, without furnishing him the statement of allegation and without making a proper enquiry into the fact. I am in full agreement with the learned

counsel for the petitioner that Regulation \2o oi me J&K CSRs does not exclude the safeguards given to the government servants under Section

126 of the Constitution of Jammu and Kashmir or under the procedure provided in Rule 33 of the Classification, Control and Appeal Rules, 1956.

This has been discussed in various judgments of our High Court also, including, the authorities. ""State versus S. Kamar Ali"", SU, 1994 page 73

and ""KherudDin Versus State of J&K"" SLJ, 1994 page 462. Both these authorities are Division Bench authorities of this court in which it has been

held that even for taking action under Regulation 128 of the CSRs, the enquiry prescribed under Rule 33 of the Classification, Control and Appeal

Rules, 1956 is necessary and inevitable. Learned counsel for the respondents has invited my attention to Section 126 of the Constitution of Jammu

and Kashmir which 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 subordinate to that by which he was appointed.

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

charges and where it is proposed, after such inquiry, to impose on him any such penalty until he has been given a 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 inquiry; or

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

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonable to hold such inquiry 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."" Learned counsel for the

respondents has focused his argument on provision (b) and (c) of Section 126 of the Constitution of J&K. According to proviso (b) a person can

be removed from service without enquiry under subsection 2 on the basis if the authority is satisfied for some reasons, to be recorded in writing,

that it is not practicable to hold an enquiry and according to proviso (c) when the Governor is satisfied that, in the interest of security of the State, it

is not expedient to hold such enquiry. Learned counsel for the respondents has utterly failed to make out a case under these two provisos. It is an

admitted fact that enquiry has not been held in the present case before termination of the service of the petitioner and no reasons have been

recorded as to why the enquiry has not been conducted. The only point which in subpara (iii) of para 17 of the counter has been raised is that the

petitioner has remained absent unauthorisedly with out proper sanction of leave and that Article 311 (2) is not at all attracted as, according to

learned counsel for the respondents, termination In public interest requires no prior opportunity of being heard. Learned counsel for the

respondents wants to connect this plea with proviso (c) of subsection (2) of Section 126 of Constitution of Jammu and Kashmir which says that,

where the Governor is satisfied that in the interest of the security of the State, ft Is not expedient to hold such enquiry"", there the order of

termination can be passed without such inquiry. Here, in there present case, neither the termination order has been Issued by the Governor, nor he

has recorded any finding that it is due to security reasons that the conduct of enquiry is not expedient. Merely saying in the counter that for public

interest there was no need to give an opportunity to the petitioner of being heard Is illegal, ultra vires of the constitution and it Is equivalent to

committing violence on the provision of Rule 33 of Classification, Control and Appeal Rules which envisages a proper enquiry to be conducted

and proper opportunity of being heard to be given to the delinquent official before termination of his service. The word ""in public interest"" as has

been used in para 17 (iii) of the counter affidavit has been coined by the respondents for the first time and ft is not In accordance with law and the

Constitution. So on this ground also the learned counsel for the respondents utterly fails.

The last point on which the learned counsel for respondents has harped is that the respondents have taken action under subrule (2) of Rule 33 of

Classification, Control and Appeal Rules, 1956. Before entering into discussion regarding this argument, subrules (1) and (2) of Rule 33 of the

Classification, Control and Appeal Rules are quoted as under :

33(1) Without prejudice to provisions of the Public Servants Inquiries Act, 1977, no order (other than an order based on facts which had led to

his conviction in a criminal court or by a courtmartial) of dismissal, removal or reduction in rank (which includes reduction to a lower post and/or

lower timescale) but excludes the reversion to a lower post of a person, who is holding a higher post temporarily shall be passed on a person who

is a member of a Civil Service, or holds a Civil Post under the State unless he has been informed in writing of the grounds on which it is proposed

to take action and has been afforded an adequate opportunity of defending himself. The grounds on which ft is proposed to take action shall be

reduced in the form of a definite charge or charges which shall be communicated to the person charged, together with a statement of the allegations

on which each charge Is base of and of any other circumstances which ft Is proposed to take into consideration in passing orders on the case. He

shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he

so desires, or if the authority concerned so directs, an oral inquiry shall be held in respect of such of the allegations as are not admitted. At that

inquiry such oral evidence will be heard as the inquiring officer considers necessary. The person charged shall be entitled to crossexamine the

witnesses, to give evidence in person and to have such witnesses called as he may wish; provided that the officer conducting the inquiry may, for

sufficient reason to be recorded in writing, refuse to call a witness.. The proceedings shall contain a sufficient record of the evidence and statement

of the findings and the grounds thereof. (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, ft is considered not expedient to give to that person an

opportunity of showing cause against the action proposed to be taken against him. All or any of the provisions of the rule may for sufficient reasons

to be recorded in writing be awaited, where there is difficulty in observing exactly the requirements of the rule and those requirements can in the

opinion of the inquiring officer be waived without injustice to the person charged.

According to learned counsel for the respondents, the petitioner absconded after availing of the sanctioned leave of eight days from 04.11.1982

and onwards did not get this leave sanctioned. It has been admitted that he sent the leave applications and had correspondence with the

respondents, but he did not mention his address on which he could be communicated. According to learned counsel for the respondents, no

enquiry could be conducted because the petitioner did not communicate his address. It is why the respondents terminated his services, treating him

absconding. Learned counsel for the petitioner admitted that where a delinquent is absconding and is not traceable and he cannot be

communicated, Subrule 2 of Rule 33 gives an exception for terminating his services without conducting the enquiry but, according to him, this

subrule 2 will not apply in the present case. I have perused the record. I have failed to see any such ground taken in the counter filed by the

respondents. Nowhere the respondents have taken the plea that they did not conduct the enquiry because the petitioner had absconded, nor this

fact is borne out by the record. Petitioner, as per the record, has gone for eight day's leave with proper permission to leave the station from 4th

November, 1982. According to him, he went outside the State accompanying his ailing wife for her treatment. Thereafter, he extended his leave by

various applications, but those leaves were not sanctioned by the authorities. The authorities communicated to him that he should file the medical

prescriptions. It was on 26.07.1983 that respondent No. 3 issued a letter to him directing him that before his leave case is processed, medical

certificate should be produced to enable him to take action accordingly. The said letter has very much been received by the petitioner and he has

replied this letter on 28.07.1983. Not only this, the office has written another letter to furnish the information as to whether the petitioner has

lodged FIR with Railway authorities for the alleged theft of petitioner's brief case. This letter also has been communicated to and replied by the

petitioner. Thereafter, the petitioner has, from time to time, filed representations for the release of salary and sanction of leave. No reply was given

to him. He then approached respondent Nos. 3 and respondent No. 2, but no heed was paid to him. Petitioner has categorically in writ petition

alleged that he resumed his duties on 21.04.1983 upto 02.11.1983. This has not been controverted in the counter affidavit by the respondents, nor

the counsel for respondents has spelled out anything against this assertion. So this fact also remains unassailed and unchallenged that the petitioner

has resumed his duties from 21.04.1983 to 02.11.1983, but he was not paid his dues. Nor during this period his extension of leave case was

processed or settled. It is strange enough to say that the authorities have terminated his services from 03.11.1983, but upto this period they have

not uttered a single word as what happened to his previous period for which he had extended his leave. They have remained silent about this

period. They have remained silent about his resumption of duties and they have remained silent as to why they have not paid him pay dues when he

resumed his duties from 21.04.1983 to 02.11.1983. Even after the termination of his services, petitioner has filed review petition, but no action

was taken regarding his review petition also. What I mean to say is that the petitioner was available for communication, but the authorities have not

been sincere enough to give him opportunity of being heard or to conduct a proper enquiry as envisaged under subrule (1) of Rule 33 of the J&K

Classification, Control and Appeal Rules, 1956. Even if it is assumed that he was not available, home address was available to the office. They

could have taken into hand the method of substituted service. They could have sent him the communication through registered post to show cause

as to why his services be not terminated. They could have sent him the statement of allegations through post ; that has not been done. They could

have posted a summon or notice at a conspicuous place of his house. Residential address was already available with the office. Moreover, they

could have published a notice in his name in any of the local daily newspaper having a wide circulation all this has not been done, which shows the

callousness of the respondents not to conduct any enquiry into the matter before terminating his services. Rule 33 of the Classification, Control and

Appeal Rules, 1956 contains the full procedure to be adopted before any action is taken and before a major or minor punishment, envisaged

therein, is imposed to a delinquent official. This rule is supported by the Constitution of Jammu and Kashmir viz. Section 126 Subsection (1). The

authorities before terminating services of a government servant or imposing major punishments, such as termination, removal or dismissal from

service, must be very cautious and careful in proceeding in accordance with the Constitution and the law established. It is reiterated here that

Regulation 128 of the J&K Civil Service Regulations cannot be misconstrued to the extent that no enquiry is needed when one remains absent

from duties.

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 with doing so. Therefore, the impugned order No. 72/ffl dated 13.03.1984 is quashed

. Respondents are directed to allow the petitioner to join his services forth with and settle his leave period under Rules. It is, however, left open to

the Department to hold an enquiry into the matter against the petitioner in accordance with law, if they so choose to do even after a decade and a

half having elapsed.

If such course is adopted by the respondents, the enquiry shall be completed within a period of two months in presence of the petitioner.

The writ petition is, accordingly, allowed. The parties are however, left to bear their own costs.