Saifuddin vs State of J & K

G.L. Raina, J.—This petition seeks the quashment of Order No. 1286/90 dated 19th of June, 1990 issued by Commandant, JKAP 9th

Batallian whereby the petitioner, SaifudDin, was discharged from the service of the police force.

The grounds on which the quashment of the order of discharge is assailed are that the order is arbitrary as the issuing authority was obliged by

the law and the principles of fair play and natural justice to have afforded a chance of hearing to the petitioner before passing the order, which has

come into existence without any enquiry having been conducted into the circumstances in which the petitioner had overstayed the leave for which

he had applied in the month of April, 1990. The jurisdiction of the Commandant, respondent No. 4, to have issued the order is called in question

on the ground that he being not the appointing authority was thus not competent to have terminated, by the order, the petitioner's appointment as

such Constable in the J&K Armed Police, to which he was appointed in the year 1984.

To put in short the impugned order of discharge is assailed on the plank that no enquiry was conducted nor any opportunity of hearing afforded

to the petitioner before passing of the impugned order so it being violative of the constitutional and statutory safeguards whereon it merits

quashment with the command to the respondents to take back the petitioner into the service with all the service and monetary benefits as

permissible under the rules applicable.

Writ petition was admitted to hearing on 25th of July, 1995.

Replyaffidavit has been filed in June, 1996 wherein it is projected that having absented himself with effect from 141990 and having not resumed

his duties as such Constable despite service of various notices to that effect the petitioner came to be discharged vide the impugned order as there

was no other mode available to the competent authority to enforce discipline in the police force which sustains itself on the discipline in its ranks. It

is pleaded further that having failed to resume duties after unauthorised absence from duty despite numerous notices having been served, so it was

under Rule 33 of J&KCSR (Classification, Control & Appeal) Rules. The action was taken by the respondentCommandant. The need to hold the

statutory enquiry is sought to be dispensed with on the assumption that the petitioner has absconded so it was not possible to hold the enquiry. The

application of the doctrine of laches is allegedly attracted in that the order of discharge having been passed in June, 1990, the filing of the writ

petition in 1995 is belated, justifying its rejection on that count alone.

It transpires from the pleadings that the petitioner had made representations and appealed to the concerned authorities seeking withdrawal of the

order of discharge but admittedly turned down by the IGP on the ground of being meritless.

In order to attract the application of doctrine of laches, which is the rule of practice and not a rule of law, it was for the respondents to show in

the first place as to whether the petitioner had at any point of time been informed about the impugned order. It is in this context to be kept in view

that the order of discharge was recorded without any enquiry having been held into the alleged misconduct of unauthorised absence from duty. The

order having been passed in 1990 it was for the respondents not only to plead but also to put forth the supportive material to show that the

petitioner had been informed of the order much prior to the date he claims to have got the knowledge thereabout. He has pleaded that he was

informed of the order in December, 1994 and thereafter he applied for a copy which was denied to him consequent upon which he filed an appeal

against the order with the Deputy General of Police which admittedly was turned down by the IGP as meritless. There is thus no reason not to

accept the petitioner's contention that he got the knowledge of the order of discharge in December, 1994 and till that period he was put off on one

excuse or another by the Commandantrespondent. Having thus gathered the knowledge of the impugned order the petitioner filed this petition in

June, 1995. It is in these circumstances not to be lost sight of that the plea taken in the counteraffidavit is not supported by any material that the

petitioner had prior to the passing of the impugned order been served with any notice, much less numerous notices as pleaded to resume his duty.

The plea that the petitioner lost the right of hearing against the proposed order of discharge because of his no response to the notices, got served

through the concerned SHOs is not supported by any material notwithstanding that the opportunity to produce the record for perusal has been

allowed to go in waste. In the totality of the circumstances, indicated above, I have no hesitation to say that the petitioner's case cannot be thrown

out on the ground of delay in invoking the remedial jurisdiction. Objection to that effect is overruled.

True it is that it is not open in this jurisdiction to adjudicate upon the grounds on which the petitioner remained on unauthorised absence from

duty but the impugned order having had the effect of imposing the penalty of loss of civil service warrants reference to the relevant service rules and

the Constitutional protection against arbitrary, whimsical and unreasoned orders, imposing penalties in the nature of dismissal/termination or

discharge from service.

The matter of fact appears to be that the petitioner allegedly persisted in his conduct to remain on unauthorised absence from duty from April,

1990 but his previous conduct could not dispense with the statutory enquiry even about the prior spells of unauthorised absence as referred to in

the impugned order. Petitioner being a habitual absentee could not clothe the Commandant with the powers to dispense with the enquiry against

the alleged misconduct of unauthorised absence.

Section 126 of the Constitution of J&K mandates that no person who is a member of a civil service of the State or holds a civil post of the

State shall be dismissed, removed or reduced in rank except after enquiry in which he has been informed of the charges and given the reasonable

opportunity of being heard in respect of those charges. Subsection (2) of this section commands that where it is proposed, after such enquiry, of

imposing on such public servant any such penalty of dismissal, removal or reduction in rank the punishment shall not be imposed until he has been

given an opportunity to make the representation about the penalty proposed. This constitutional safeguard available to a member of a civil service

or a person holding the civil post under the State is not available where such person is dismissed or removed or reduced in rank on the ground of

conduct which has led to his conviction on a criminal charge. There is yet another situation wherein the holding of the constitutional enquiry before

imposition of the penalties aforesaid can be dispensed with and that is where the authority empowered to dismiss or remove or reduce in rank of a

civil servant is satisfied that for the reasons recorded in writing the holding of the enquiry is not reasonably practicable or where the Governor is

satisfied that in the interests of the security of the State it is not expedient to hold such enquiry.

This constitutional mandate finds reflection in Rule 33 of the J&K Civil Service (Classification, Control & Appeal) Rules, 1956 which enjoins

that no order of dismissal, removal or reduction in rank 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 the adequate

opportunity of defending himself. This rule directs that the grounds on which it is proposed to take action shall be formulated in the shape of definite

charge/charges which shall be communicated to the person charged together with the statement of allegations on which each charge is based. The

delinquent shall be required after the service of the charges and the statement of the allegations to put in writing his defence. Inquiry thereafter is to

be held under the Rule whereat evidence has to be recorded by the enquiring officer. The person charged has a right of crossexamination of the

witness(es) and to give evidence. The enquiry proceeding are to contain sufficient record of the evidence and statement of findings and the grounds

thereof. Rule 34 directs that after the inquiry against the delinquent has been completed and after the disciplinary authority arrives at a provisional

conclusion in regard to the penalty to be imposed the delinquent civil servant charged shall be supplied with the copy of the proceedings prepared

under Rule 33 and asked to show cause as to why the proposed penalty should not be imposed. Rule 35 requires that no order imposing the

penalty of dismissal, removal or reduction in rank shall be passed unless the delinquent civil servant has been given an adequate opportunity of

making any representation that he may desire to make against that proposed penalty.

In addition to the protection of the constitutional provisions and the Civil Service Rules, referred to above the petitioner was governed by the

provisions of the Police Act and the Rules thereunder. Even under Rule 359 of the Police Rules there cannot be an automatic termination, which

includes discharge, on account of unauthorised absence from duty. Assuming that under the Police Rules unauthorised absence of a member of

Police force from duty amounts to a grave misconduct yet the Rules do not dispense expressly or otherwise with the requirement to hold an inquiry

into the ground(s) on which the allegation of misconduct is based. It also is now settled that long unauthorised absence from duty terminated the

employment of the civil servant but for the termination to take effect there has to be an order in writing.

The removal of a Government servant from service on account of overstay on leave is illegal if effected without inquiry. The law is that before a

civil servant is removed from service by order of termination or discharge he is entitled to an opportunity to show cause against the proposed

removal on account of his overstaying the leave or remaining on unauthorised absence. Any order of discharge or removal from service on account

of a misconduct is illegal if the opportunity to show cause against the proposed removal/discharge is not afforded to the civil servant. The Supreme

Court has held in case Jai Shankar v. State of Rajasthan, AIR 1966 SC 492 :

The removal of a Government servant from service for overstaying his leave is illegal even though it is provided by the Service Regulation that any

individual who absents himself without permission, after the end of his leave, would be considered to have sacrificed his appointment and may be

reinstated only with the sanction of the competent authority.

There cannot be an automatic removal from service of a civil servant on the ground of unauthorised absence from duty. No removal can be

ordered in violation of the protection of Section 126 of the Constitution of J&K. A discharge from service of an incumbent by way of punishment

amounts to removal from service and the constitutional protection cannot be taken away by contending that under the Service Regulations the

incumbent himself gives up the employment. It is true that there is no obligation on the part of the Government to retain a person in service if he is

unfit and deserves dismissal or removal. One circumstance deserving removal by way of discharge may be the unauthorised absence or overstay of

leave. The civil servant is entitled to continue in service as long as he wants until of course his service is terminated in accordance with law and the

law is Section 126 of the Constitution and Rules 33, 34 and 35 of the Civil Service (Classification, Control & Appeal) Rules. Rule 128 of the Civil

Service Regulations does provide that absence without leave or after the end of leave involves loss of appointment but there is no rule in any of the

Service Regulations wherein the loss of appointment can be automatic to the absence without leave or after the end of the leave. There has to be

an enquiry, there has to be a chargesheet, there has to be a statement of allegations and the person who is charged has a right to be served with the

statement of allegations and has a further right of crossexamination of the witness(es) who are examined in support of the charges. The person

charged has thereafter a further right to adduce evidence in support of his defence. After the conclusion of the inquiry the disciplinary authority has

to, before proceeding to impose the proposed penalty of dismissal, removal or reduction in rank afford yet another opportunity of hearing and

representation to the delinquent against the proposed punishment. The law does not provide for any exception whereunder the disciplinary

authority can shortcircuit the constitutional and statutory requirements to terminate the employment of a civil servant. There are of course certain

situations where the disciplinary inquiry can be dispensed with and those situations are laid down under proviso (a), (b) and (c) and sub section (2)

of Section 126 of the Constitution of J&K. Admittedly the present case does not come under any of those exceptions so the impugned order of

removal, labelled as the order of discharge has to be termed as illegal as it had admittedly come into existence without any inquiry having been got

conducted into the alleged misconduct of unauthorised absence from duty.

It appears that it needs to be reemphasised that procedural requirements to remove a civil servant from the civil post by order of termination,

dismissal or reduction in rank are meant for affording a reasonable and adequate opportunity of hearing to the delinquent employee as to the

grounds of alleged misconduct. Violation of procedural provisions vitiates the enquiry or the order passed. Noncompliance to the procedural

provisions vitiates the order passed. The Apex Court has in its judgment in the case Managing Director, ECIL, Hyderabad v. B. Karunakar, AIR

1994 SC 1074 : 1994(1) SCT 319 (SC) , laid down the guidelines to test and judge the correctness of the procedural requirements adopted to

terminate, by removal or dismissal, the services of a civil servant. I am constrained to say that respondent No. 4 who passed the impugned order in

this case, betrayed his ignorance of the legal and procedural requirements which were to be complied with by him before passing the order.

Neither Rule 128 of the CSR nor Rule 335 of the Police Rules could clothe him with the power to dispense with the statutory inquiry into the

alleged misconduct of the petitioner; misconduct in the nature of unauthorised absence from duty, which according to the respondents had taken

place with effect from 141990. The impugned order was passed on 19th of June, 1990. The speed and the despatch in which the impugned order

came into existence speaks aloud that the Commandant discharged the petitioner not only on the ground of his unauthorised absence from 14 1990

but also on account of his previous spells of unauthorised absence. The order is not supportable on any ground nor can the impugned action of the

Commandant be defended on any plank.

The petitioner has assailed the impugned order on yet another ground. He pleads that the Commandant of the rank of SP in the police force, was

not competent to appoint him so he could not have passed the impugned order which has the effect of removing him from service. The

Commandant of the rank of SP was invested, on the relevant date, with the powers to appoint a Constable in the police force, so it is off the mark

to say that he could not have passed the impugned order.

It is to say at the cost of repetition that it is for the State to make out a case for dispensation of constitutional and statutory inquiry or else the

order of dismissal or removal is liable to be struck down. The State has not made out any case whereon the statutory enquiry could be said to have

been validly and legally dispensed with. True the order of discharge came to be passed in June, 1990 and the petition challenging its legality and

validity came to be filed in June, 1995, yet on delay alone the petitioner cannot be sent away without the remedy as the impugned order is on the

face of it violative of the constitutional and statutory requirements, namely the enquiry which envisages and required the chance of hearing and

occasion to put across his version to the delinquent. Rule 364 of the Police Rules and Rule 36 of the CSR provides for an appeal against the order

of dismissal, removal or reduction in rank. The petitioner pleads in this case that having come to know about the order of discharge he preferred an

appeal thereabout before the Director General of the Police. It is in this context pleaded for the respondents that the petitioner had only filed a

representation. In order to find out as to whether the appeal was filed or the representation was made the respondents were required to produce

the records for perusal to find out whether the petitioner had preferred the appeal or had only filed a representation. If he had filed the appeal

which is itself a statutory remedy against the impugned order, then the doctrine of laches cannot get attracted. If he had filed a representation which

could not be statutory remedy against the order of discharge, then the doctrine of laches can play its part in disentitling the petitioner to the relief

sought. The records have not been produced despite directions and opportunity, so the inference is raised that the petitioner had resorted to

statutory remedy of appeal against the impugned order as soon as he came to know about the order of discharge. That remedy having not

redressed his grievance laid him to file the petition which for the reasons abovesaid is well based. On no count can it be said that the petitioner is

not entitled to the relief sought.

It is for the reasons aforesaid that the writ of certiorari is hereby issued and the Order No. 1286/90 dated 19th of June, 1990 issued by

respondentCommandant is hereby quashed. The respondents are commanded by the writ of mandamus to take back the petitioner into service but

this will not preclude them from holding the inquiry into his alleged misconduct of unauthorised absence from duty. The enquiry proposed to be

initiated shall be initiated within a period of two months from the date the order is communicated to respondent No. 2. The enquiry shall be

completed within a further period of two months. The continuation of the petitioner in service as such Constable will depend on the outcome of the

enquiry. The claim to wages either from the period 141990 to that date or for the period of enquiry shall depend on the results of the enquiry. The

petitioner shall be entitled to subsistence allowance from the date of this order till the date the enquiry having been initiated is concluded. The

respondents shall be at liberty to pass appropriate orders, dependent on the result of enquiry as to the petitioner's entitlement to past

service/monetary benefits and promotion chances etc., if any.

Should the respondents be not in a position to conclude the enquiry within the time as directed they will be at liberty to seek extension in the

time for the conclusion of the enquiry.

There will be no order as to costs.