Samsoon Masih vs Ut Of J&K And Ors

Thakur, J

The present Letters Patent Appeal has been filed against the judgment and order dated 14.02.2020 SWP passed by the learned Single Judge in No.

1585/2011.

Briefly stated the material facts are as under:-

The appellant was appointed as a Sweeper on regular temporary basis vide order dated 14.04.1977, issued by the respondent No. 3, i.e., Principal

Government Medical College, Jammu against a clear vacancy. After completing more than approximately 23 years of service, the petitioner/appellant

herein was terminated from service vide order dated 02.07.2002 on account of his unauthorized absence. The writ petition, challenging the order of

termination was filed by the petitioner/appellant herein before the writ court on the ground that the order of termination was passed without serving

any notice or conducting any inquiry in the matter. The writ court, however, dismissed the writ petition vide judgment and order dated 14.02.2020,

holding that the appellant had abandoned his service without any cause, leaving no option to the respondents, but to terminate his contract of service.

It was held that notices were duly served on the petitioner/appellant herein and that the appellant had neither responded to the notices nor had

produced any certificate of a Medical Officer, which could have brought his case within the purview of Article 128 of the J&K Civil Service

Regulations. For facility of reference, the said Article is reproduced hereunder:-

“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€​

Certain material facts, as can be seen from the record, are necessary to be noticed at this stage. The appellant is stated to have absented himself

w.e.f. 03.04.2000.

The first notice that appears to have been issued by the Medical Superintendent of Government Medical College, Jammu is dated 13.06.2001. The

appellant’s address reflected in the said notice is shown as resident of Miran Sahib, Tehsil R.S. Pura, Jammu.

The second notice is dated 25.06.2001, which contains a similar address. In both the notices, the appellant was called upon to resume his duties

within twenty one days, failing which he was informed that his service would be liable to be terminated in terms of Article 128 of the Act.

The third notice was published in the State Times, which was also to a similar effect. Finally, by virtue of the order impugned dated 02.07.2002, the

services of the appellant were terminated.

In the writ petition, the explanation of the petitioner apart from questioning the action of the respondents in not serving the notices in question and

not holding an inquiry in the matter and claiming violation of principles of natural justice, was that his absence from service was neither intentional nor

deliberate, but on account of the mental distress, which he had suffered because of the demise of his mother, which had caused loss of logic and

pragmatism in the appellant, resulting into non-coherent activities.

It was stated that the appellant was illiterate and had intimated orally to the department for his leave and also requested for extending the same

from time to time and that the appellant was assured by the officers regarding extension of his leave.

It was also stated that the appellant did resume his services and served for two months after remaining absent from service without knowing that

his termination order had been issued and that too without any inquiry.

It was further stated that he had no source of income and had been left with only a few years of his service and that he had also served the

respondents for as many as approximately 23 years.

Few things, therefore, become quite clear from the record and the pleadings. First of all, we cannot fail to notice the fact that the appellant had

rendered approximately 23 years of service in the department and in the normal course, would make him eligible for grant of pensionery benefits upon

having rendered such a service. The appellant had been engaged in the year 1977 on regular temporary basis against a clear vacancy and a service

book was maintained in regard to his service, which shows that he was placed in the pay scale of 170-230 at the relevant time with normal revisions in

the pay scale effected from time to time. Besides, annual increments also seem to have been released in favour of the appellant, as borne out from the

service book, which was produced by Mr. H.A. Siddiqui, learned Sr. AAG.

In the ordinary course of an employee’s conduct, it would defy any reason or logic as to why a person, who has been in the employment of the

official respondents and served them for as many as 23 long years would suddenly absent himself from duty, especially when such an employee

belongs to a marginalized section of the society and has been working as a Safai Karmchari in the Government Medical College, Jammu. The

explanation rendered by the appellant that he was undergoing mental distress, therefore, cannot be disbelieved inasmuch as, it has never been a case

of the respondents that the appellant had better avenues in life, which he had adopted, giving up his humble employment, which he had been sticking to

for the last approximately 23 years.

Learned counsel for the appellant stated that he could bring such a certificate, which would show that he had been undergoing treatment, if there

was an inquiry held in that regard and could further lead cogent evidence of his mental distress and instability during the period of his absence.

On the part of the respondents, we see that the process for terminating the services of the petitioner appear to have been taken, however, the

same were not strictly in conformity with the principles of natural justice. The notices issued to the appellant dated 13.06.2001 & 25.06.2001 clearly

appear to be containing incomplete address of the appellant. The appellant has been shown to be a resident of Miran Sahib, Tehsil R.S. Pura, District

Jammu. Miran Sahib is a township, which has a considerably large population and, therefore, according to ordinary prudence, the service could never

have been effected on the appellant on the aforementioned incomplete and vague address. Moreover, we cannot see any proof with regard to the

service of the notices actually on the appellant, based upon the address in the notices.

It would be apt to place reliance on the Apex Court judgment rendered in case titled, “Union of India and others Vs. Dinanath Shataram

Karekar & ors., reported in 1998 Supreme (SC) 732â€, wherein in para-10, the Apex Court has held that in the disciplinary proceedings, intended to

be initiated by issuing a charge-sheet, its actual service was essential as the person to whom the charge-sheet was issued was required to submit his

reply and, thereafter, to participate in the disciplinary proceedings. The Apex Court in para-10 has further held as under:-

“So also, when the show-cause notice is issued, the employee is called upon to submit his reply to the action proposed to be taken against him.

Since in both the situations, the employee is given an opportunity to submit his reply, the theory of “Communication†cannot be invoked and

“Actual Service†must be proved and established. It has already been found that neither the charge-sheet nor the show-cause notice were ever

served upon the original respondent, Dinanath Shanta-ram Karekar. Consequently, the entire proceedings were vitiated.â€​

Even the notice published in the ‘State Times’ is a notice, which was in English. Needless to say that ‘State Times’ is also published in

the English language and if we were to take the statement of the appellant that he is illiterate as correct, we can safely come to a conclusion that even

the notice published in ‘State Times’ would never come to his knowledge, more so at a time when the appellant alleges that he was under some

mental distress and suffering from a mental incapacity. The order of termination dated 02.07.2002 issued in those circumstances cannot, therefore,

strictly be said to be complying with the principles of natural justice and therefore, cannot be upheld by this Court. Thus, the view expressed by the

writ court on the aspect of services of notice on the appellant, therefore, cannot be upheld.

In the ordinary course, we would have to set aside the order of termination of the appellant and directed the respondents to conduct an inquiry,

giving full opportunity to the appellant to lead evidence with regard to his indisposition during the period of his absence. However, we are told that the

appellant had since attained the age of superannuation in the year 2011.

Learned counsel for the respondents has not been in a position to highlight any provision of J&K Civil Services (Classification Control and Appeal)

Rules of 1956 or Civil Service Regulations, which would enable the respondents to conduct an inquiry in such an eventuality after the retirement of an

employee. In the absence of any rule, permitting such an inquiry at a belated stage, more particularly, after the employee has reached the age of

superannuation, would be nothing but a direction not countenanced by rules.

Therefore, in the facts and circumstances of the case and considering the fact that the appellant belongs to a marginalized section of the society, who

has rendered approximately 23 years of service in the department and would be deprived of his right to consideration of grant of pensionery benefits

and having held that the order of termination, was strictly not in accord with the principles of natural justice, we hold and direct as under:-

(i) The order of termination dated 02.07.2002 is bad and illegal and is, accordingly, set aside.

(ii) The judgment and order impugned passed in the writ petition bearing OWP No. 1585/2011 is set aside.

(iii) We direct the respondents to consider granting all pensionery benefits to the appellant from the date he completed his qualifying service for grant

of such pension along with arrears.

Let the needful be done within a period of two months from the date of receipt of a certified copy of this order.

Appeal is, accordingly, disposed of along with connected CM(s).