Reyyan Fazil vs State and Others

Permod Kohli, J.—Petitioner was serving as Assistant Accountant in the State Government. He was transferred to the office of Director,

Libraries in the year 1992 vide order dated 10-4-1992. Petitioner's case is that while serving with the office of Chief Librarian, he proceeded on

leave due to threat perception, in view of the turmoil in the valley. It is stated in the petition that his father namely Fazil Kashmiri and his brother are

famous personalities of the Valley and keeping in view the threat to their lives, the family shifted to Delhi where petitioner also joined them. The

petitioner left for Delhi in May 1992 and returned to Valley only in January 1998, when he approached respondent No.3 to allow him to join his

service back as according to him, his services had not been terminated in the meanwhile. He has further submitted that he was not permitted to join

in the office and on the contrary, a communication bearing No.DDAT/R-55/1175-76 dated 16-02-1998 was issued by the Deputy Director,

Accounts and Treasuries, Srinagar, whereby petitioner was informed that he has lost the appointment under the provisions of Article 113 of the

Jammu and Kashmir Civil Service Regulations Vol. I, as he has absented from duties for more than 5 years continuously, that too unauthorisedly. It

is this order which has been assailed in the present petition.

Objections stand filed to the writ petition, wherein respondents took a stand that the petitioner voluntarily abandoned his services with effect

from 20-7-1992. He did not report for duty and remained absent. The Chief Librarian, in whose office, petitioner was serving, informed the

absence of the petitioner to Deputy Director, Accounts and Treasuries. It is further stated that the petitioner never applied for leave and the

application dated 5-5-1992 forming annexure 2-X with the writ petition was never made in the office. The petitioner is continuously absent for

period of more than 5 years, which has resulted in automatic loss of his service under law. It is also mentioned that the petitioner has not tendered

any valid justification for his absence from duty.

3.I have heard learned counsel for the parties. It is urged by Mr. Aijaz, learned counsel for the petitioner that though the petitioner remained

absent, but no order for termination of his service was ever passed and thus he has a right to rejoining the duty in absence of termination of his

services by the competent authority. He has also argued that petitioner has not been provided any opportunity of being heard which resulted

violation of principles of natural justice. He cannot be denied rejoining of his services even after a gap of 6 years or so. His contention is that before

terminating the services of the petitioner, an enquiry is required to be held in accordance with the mandate of Rule 33 of the Jammu and Kashmir

Civil Services (Classification, Control and Appeals) Rules, 1956. He has submitted that even where an employee remains absent for a period of

more than 5 years and Article 113 of the Civil Service Regulations is to be invoked enquiry is required to be conducted or at least, the person

effected be issued show cause notice and provided an opportunity of being heard.

Learned Counsel for the respondents on the contrary argued that the petitioner voluntarily abandoned his services and attempted to join after a

gap of more than six years. He state that no enquiry is required to be held nor principles of natural justice are attracted in such a case where an

employee of his own abandons his service without any cause.

It is not disputed that the petitioner left the service in 1992 and attempted to rejoin only in 1998. Petitioner has not shown any valid reason or

narrated any circumstances which prevented him from approaching the authorities either for grant of leave or informing them of his absence from

service on account of any valid reasons. Even if the contention of the petitioner that he migrated because of threat perception is to be accepted, it

was necessary for him to have placed on record the necessary material that he migrated to Delhi and was registered as such with any authority. No

material has been placed on record to justify his absence from duty.

The only question that remains to be considered is whether Article 113 of the Civil Services Regulations operates automatically or the absentee

is required to be afforded some opportunity of being heard or any enquiry is warranted under Article 33 of the CCA Rules. Article 113 of the

Jammu and Kashmir Civil Service Regulations reads as under:-

After five years continuous absence on leave, an officer is considered to be out of State employment.

This question came up for consideration before a division bench of this court in case Ghulam Mohammad v. State and others, reported in 1998

SLJ 351. In the said case, an employee of the State Government left for Bombay for undergoing some treatment in the year 1990 and did not

communicate till 1995 when he was brought back to the State by the police in connection with the case registered against him'. His claim of

continuing in service was rejected by the writ court. On appeal preferred by the employee, the division bench of this court also rejected the claim

of the employee and concurred with the judgment of the writ court by holding:

Shri Z.A. Qureshi contended that no order of termination has been passed in this case and in case Gazette Notification dated 22-11-1990 has the

effect of terminating the service of petitioner, that was passed under Article 128 of Jammu and Kashmir Civil Service Regulations, the same is

illegal since no inquiry has been held against the petitioner affording him opportunity of being heard in terms of Rule 33 of Jammu and Kashmir Civil

Service (Classification Control and Appeal) Rules, 1956. It may be true that holding of inquiry as envisaged in Article 311 of Constitution of India,

Section 126 of J&K Constitution and Rule 33 (1) of J&K Civil Services (Classification, Control and Appeal) Rules, 1956 is necessary before

service of any employee is terminated for absence without leave or absence after expiry of leave, as held in Dr. LP. Kohli v. State of Jammu and

Kashmir (1990 KLJ 374,) Syed Zaffar Mehdi v. State (1992 SLJ 143) and State v. S. Qamar Ali (1994 SC 372). But this principle of law has no

universal application. In case facts disclose that employee had ab- sconded 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 the person an opportunity of showing cause against the

action proposed to be taken against him, Sub-Rule (2) of Rule 33, J&K CS (CCA) Rules, 1956 is attracted.

Similar view was taken by a coordinate bench of this Court in Dr. S. Bashir Ahmad v. State of J&K reported in 2001 SLJ 328.

The Apex Court in case of Aligarh Muslim University and Others Vs. Mansoor Ali Khan, , while interpreting similar rule of deemed resignation

held that no enquiry or notice is required where absence of an employee is for a period of more than 5 years as envisaged by the Rule.

In view of the law laid down by this court and the Apex Court (supra), this petition is found without any merit and is accordingly dismissed.