Samsoon Masih vs State Of J&K And Others

The petitioner is aggrieved and seeks quashment of Order No.421-AHJ of 2002 dated 02.07.2002 passed by the respondent No.3 whereby services

of the petitioner have been terminated for unauthorised absence by invoking Article 128 of the J&K Civil Service Regulations Volume-1.

Briefly stated the facts leading to the filing of this petition are that the petitioner was appointed as Sweeper against the available vacancy in Govt.

Medical College, Jammu and its attached Hospitals vide Office Order No.724/77 dated 14.10.1977 issued by the respondent No.3. The petitioner

claims that he performed his duties as Sweeper for more than 24 years before his services were terminated vide order impugned. He claims that

before terminating his services, he was not provided any opportunity of being heard nor any inquiry against him was conducted. He submits that his

absence from duty w.e.f. 03.04.2001 to 07.01.2002 was neither intentional nor deliberate, but, because of the reason that after the demise of his

mother, the petitioner suffered deep shock and underwent mental distress for long time. He claims that he had approached the respondents for grant

of leave, but, such request was made orally for he being illiterate did not know how to apply for the leave. He further submits that though his services

were terminated by the respondent No.3 at his back, yet, he was never served with the order of termination. Immediately on coming to know of his

termination, he moved a representation before the respondent No.3 on 10.03.2007, but, the same could not yield any fruitful result. Another

representation is claimed to have been filed by the petitioner on 26.09.2009. In the backdrop of the aforesaid submissions, it is contended that order

impugned cannot sustain in law as the same has been issued in violation of principles of natural justice and against the mandate of Article 311 of the

Constitution of India.

The respondents have filed their objections. In the objections, the respondents contend that pursuant to the „absent report‟ submitted by the

Sanitary Inspector, the Medical Superintendent issued the first notice to the petitioner vide letter No.MCH/Est-/2/Notice/1245-47 dated 13.06.2001.

The petitioner was again informed to report for duty by yet another letter issued on 25.06.2001. The petitioner did not respond to the notices nor did he

report for duty. Finally, the Medical Superintendent vide his Notice No.MCH/est-2202/5484-87 dated 07.01.2002 directed the petitioner to resume his

duty within 21 days from the date of issue of the notice failing which his services would be terminated in terms of Article 128 of the J&K Civil Service

Regulations Volume-1 without any further notice. This notice as also earlier notices were duly published in the daily newspaper, i.e., „State Times‟.

This time also the petitioner did not respond. Accordingly, by the impugned order, the services of the petitioner were terminated on 02.07.2002.

Having heard learned counsel for the parties and perused the record, I find that in the instant case, the facts are not much in dispute. The petitioner

was serving as Sweeper with the respondents when he unauthorisedly absented from duties w.e.f. 03.04.2001 and did not resume his duties despite

having been called upon to do so by a couple of notices. The petitioner, however, disputes the service of the notices upon him. Be that as it may, the

fact remains that the final notice issued by the respondents before issuing the termination letter was duly published in the daily newspaper, i.e.,

„State Times‟ whereby a final opportunity was afforded to the petitioner to resume his duties. He, however, chose not to join back. In these

circumstances, when despite notices, the petitioner did not respond, the respondents were left with no option but to terminate his services. True it is

that order of termination of permanent employee cannot be passed without providing an opportunity of being heard. The termination of services is a

major penalty and the same cannot be imposed unless the procedure laid down in Article 311 of the Constitution of India is followed in letter and spirit.

Article 128 of the J&K CSR Vol.1 does provide for termination of services if an employee absents himself without leave or does not join after the end

of leave. This is, however, subject to the exception that if he is prevented by ill-health in which case the absentee is required to produce the certificate

of the Medical Officer. For facility of reference the relevant extract of Article 128 of the J&K CSR Vol.1 is reproduced here under:-

“128. Absence without leave or after the end of leave involves loss of appointment, except as provided in Article 203(b) or when due to ill-health in

which case the absentee must produce the certificate of Medical Officer.â€​

From plain reading of Article 128 (supra), it becomes abundantly clear that the absence without leave may also involve loss of appointment, but, if

the absentee pleads ill health as a reason for absence, he is required to produce the certificate of the Medical Officer. The absentee would be in

position to take such plea and produce the requisite certificate only if he is provided an opportunity to do so. In that view of the matter, it is clearly

borne out from the reading of Article 128 of the J&K CSR, Vol.1 that the services of an absentee employee can only be terminated after providing an

opportunity of being heard to the said absentee employee. In the instant case, this opportunity is claimed to have been provided by the respondents.

They are relying on three notices issued in this regard to the petitioner inviting him to join back his service. There is no proof of two notices issued by

the Medical Superintendent having been served upon the petitioner. However, third notice, which was a final notice calling upon the petitioner to join

back his duty has been published in the daily newspaper “State Times‟. There is no rebuttal by the petitioner on record to the aforesaid assertion of

the respondents. Otherwise also, the notices have been sent to the petitioner on the address given by him at the time of his appointment. Another

factor that needs to be borne in mind is that the order of termination impugned was passed by the respondent No.3 on 02.07.2002 and the petitioner

chose to challenge the same only in the year 2011, i.e., after 09 years of termination. On being pointedly asked about his silence for all these 09 years,

the petitioner had no answer.

In the given facts and circumstances, it is clear case of voluntary abandonment of the services. The petitioner has admittedly remained

unauthorisedly absent, and which absence, if not explained, would involve loss of appointment. After thought plea of the petitioner that on account of

death of her mother, he had gone in depression, is not supported by any material on record. Ordinarily, before passing the order of termination there

should have been proper inquiry and adequate opportunity should have been provided to the petitioner, but, in the instant case when despite notices the

petitioner could not be persuaded to join and instead he decided to abandon the service without any cause, the respondents were left with no option but

to terminate his contract of service. This exactly has been done by the respondent No.3 in terms of the order impugned.

As noted above, the impugned order passed in the year 2002 was assailed by the petitioner for the first time in the year 2011 and there is no

explanation coming forth from the petitioner, which would justify filing of such belated petition. It is clear case of voluntary abandonment of service by

the petitioner and his reluctance to join his duties despite notices. He accepted his termination and made no effort to challenge the order of termination

for almost 09 years. This petition is, thus, hit by gross delay and laches and therefore, cannot be entertained. Accordingly, this petition is dismissed

along with connected CM(s).