Sanjay Kumar vs State of J&K

Alok Aradhe, J.—With the consent of learned counsel for the parties, the matter is heard finally.

In this writ petition, the petitioner inter alia seeks a direction for quashment of order dated 01.07.2006, by which the services of the petitioner

were terminated with immediate effect.

The facts giving rise to the filing of this writ petition briefly stated are that petitioner was selected as a Teacher in the Education Department vide

order dated 17.04.1982. The petitioner on 01.11.1994 was deputed to undergo B. Ed. training in Government College of Education, Jammu,

where he remained under training up to 28.11.1994. It is the case of the petitioner that on account of sudden development of mental illness, he

could not continue with his B.Ed. Course. It is further case of the petitioner that the Principal Government College of Education, Jammu vide

communication dated 07.02.1995 informed the Principal of Higher Secondary School Majalta (Udampur) that petitioner''s whereabouts were not

known after 28.11.1994. Thereafter, vide communication dated 01.07.2006, the services of the petitioner were terminated in purported exercise

of powers under Regulation 113 of the Jammu and Kashmir Civil Service Regulations as the petitioner has absented himself for a period of five

years. The aforesaid order admittedly was passed without holding any inquiry.

Learned for the petitioner submitted that the impugned order is per se bad in law as the same has been passed without holding any inquiry

against the petitioner. It is further submitted that it was incumbent on the part of the respondents to hold an inquiry before termination of the

services of the petitioner. Learned counsel for the petitioner invited attention of this Court to the Regulations 113 and 128 of the J&K Civil Service

Regulations. In support of his submissions, learned counsel for the petitioner placed reliance on the decision of the Division Bench of this Court in

the case of Khan Mushtaq Ahmed v. State of J&K and ors., 2004 (3) JKJ HC 10.

On the other hand, learned counsel for the respondents submitted that if a person remains absent beyond the prescribed period of leave on any

account, he should be treated to have resigned and ceases to be in service. In support of his submissions reliance has been placed on the decisions

of the Supreme Court in the case of Aligarh Muslim University v. Mansoor Ali Khan, (2000) 7 SCC 529 and Vijay S. Sathaye v. Indian

Airlines Ltd. and ors., (2013) 10 SCC 253.

Before proceeding further in the matter, it is apposite to take note of Regulations 113 and 128 of J&K Civil Service Regulations, which read as

under respectively:

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

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.

Exception 1. Grace not exceeding 7 days may be allowed in cases when the Head of a Department is satisfied that the default of an officer is due

to circumstances beyond his control. But no allowance can be granted for the period by which the leave is over-stayed unless an extension of leave

is admissible under these rules.

Exception 2.- Whenever a Government servant is detained on the road owing to its being blocked by land-slip, snow etc. he should be treated as

on duty during the period of unavoidable detention, but he will be entitled, until he re-joins his appointment, to draw leave allowances only.

2 [x x x]

The above concession will not apply in cases of overstay of casual leave or quarantine leave such leave being not recognised leave.

Exception- Whenever a Government servant, on his return from leave other than casual leave or quarantine leave is detained owing to cancellation

of air flight due to bad weather or otherwise, he may be treated as on duty for the period of unavoidable detention, subject to a maximum of two

days or the period of enforce halt, he will be entitled, until he rejoins his appointment to draw leave allowances only.

The Supreme Court in Devkinandan Prasad v. State of Bihar, (1971) 2 SCC 330 after considering the pari materia provision which

provided that a government servant shall cease to be in Government employment if he remains absent for continuous period of five years, held that

in case of question of automatic termination of service for being continuously absent for five years, Article 311 applies to such case and therefore

without enquiry, the person cannot be treated as out of employment on account of his absence from duty. Similar view was taken by the Supreme

Court in State of Mysore v. K. Manche Gowda, AIR 1964 SC 506 and Board of High School and Intermediate Education v. Kumari

Chitra Srinvastava 1970 (1) SCC 121. In its broadest sense, principles of natural justice may mean simply ''the natural sense of what is right and

wrong and even in its technical sense it is now equated with fairness'' In A-G v. Ryan, (1980) AC 718, the privy counsel has held that a decision

which offends against the principles of natural justice is outside the jurisdiction of the decision making authority. The rules of natural justice operate

as implied mandatory requirements, the non observance of which may invalidate the exercise of power in a given case. (See Administrative Law,

8th Edition by H.W.R. Wade & C. F. Forsyth). The principles of natural justice cannot be put in a straight jacket formula and its application

depends on case to case. There may be cases where an employee may remain absent for good reasons such as law and order situation, illness or

incarceration and therefore, until and unless, an opportunity is given to him, he cannot explain his unauthorized absence. In such a case, if an action

is taken unilaterally the same would tantamount to violation of principles of audi altram paltram. An opportunity of hearing has to be afforded to a

delinquent employee and his mere absence for five years or more cannot result in automatic cessation of employment. I am fortified in the aforesaid

view by Division Bench decision of this Court in the case of Mustaq Ahmed Khan and others (supra).

Insofar as reliance placed by the learned counsel for the respondents in the case of Aligarh Muslim University v. Mansoor Ali Khan supra

is concerned, the same is of no assistance to the respondents in fact situation of the case as the same was a case of over-stayal of leave and Rule 5

(8) (i) of the Rules provides that an employee shall be deemed to have vacated his post on expiry of sanctioned leave. Similarly, in the case of

Vijay S. Sathaye v. Indian Airlines Ltd. and ors., (supra) an employee had abandoned the services of an employer, who had joined it

somewhere else and had filed writ petition seeking writ of mandamus directing the respondents to accept the application of the petitioner for

voluntary retirement. The Supreme Court has made observation on the reliance placed by the respondents in the aforesaid decision, therefore, the

aforesaid decision is of no assistance to the respondents.

In view of the preceding analysis, impugned order dated 01.07.2006 is hereby quashed. However, respondents are directed to reinstate the

petitioner in service. Needless to state that the respondents shall be at liberty to hold an inquiry in the matter in accordance with law.

With the aforesaid directions, writ petition is disposed of.