Shamsher Alam vs State and Others

Sunil Hali, J.—Petitioner is stated to have remained absent unauthorizedly from duty w.e.f. 20th of Feb'98 upto 17th of April'99. As a

consequence of this alleged unauthorized absence, a notice was issued to him to resume his duty within 15 days. The said notice is said to have

published in a daily newspaper namely ""Sach"". A notice in this regard is also said to have been served upon the Petitioner through SHO,

Thannamandi, Rajouri. On the failure of the Petitioner to respond to these notices and joining his duty, a departmental enquiry came to be initiated

against the Petitioner. The Enquiry Officer after holding the said enquiry recommended that the Petitioner may be removed from service for

remaining absent from duty unauthorizedly. On receipt of the said enquiry report, the Respondent No. 4 passed the order impugned dt. 25th of

June'99, discharging, the Petitioner from service. It is this order which is being challenged in the present petition.

Learned Counsel for the Petitioner submits that no notice was served upon the Petitioner by the Respondent authorities and the enquiry has

been conducted exparte. It is stated that after the report of the Enquiry Officer was received by the Disciplinary authority, a show cause notice was

required to be served upon the Petitioner under Article 311(2) of the Constitution which is still applicable to the State of J&K. It is thus stated that

the order having been passed at the back of the Petitioner without affording him proper opportunity of hearing is an order not in accordance with

the law and is violative of principles of natural justice.

On the other hand, the case of Respondents is that Petitioner is a habitual absentee and has remained absent from duty on earlier occasions also.

It is stated that the Petitioner has earned displeasure of the authorities concerned from time to time. The Respondents have also produced the

record to show that the Petitioner has not proved himself to be a disciplined member of the force.

Heard learned Counsel for the parties.

Absence from duty does not amount to automatic dismissal. Before taking such an action and passing an order in this regard, an enquiry is

required to be conducted to find out the cause of absence on the part of a delinquent official and in the said enquiry, the official concerned is

required to be heard. In the present case it is the admitted position that Petitioner was not associated with the enquiry for which Respondents have

given an explanation that the Petitioner did not choose to appear before the enquiry officer even though, he was served notices in this regard. The

said explanation on the part of Respondents cannot be accepted. As noticed above, the Respondents published the notice in a daily newspaper

namely 'Sach' which is a paper said to be published from Jammu having no wide circulation in Rajouri more particular Tehsil Thana Mandi from

where the Petitioner hails. The Respondents in a fair exercise, should have published the said notice, if any, in a paper having wide circulation in

Jammu province, which has not been done by them. Under these circumstances, it cannot be said that the Petitioner was aware of the fact that he

has been directed to appear before the authorities for the purposes of enquiry.

The other contention of Respondents that the Petitioner was also served a notice through concerned SHO can also not be accepted as the

notice on which reliance has been placed by the Respondents does not bear any endorsement that the same has been received by the Petitioner.

From the record it is revealed that there has only been a signal from SHO that Petitioner has been served which as indicated above, is without any

acknowledgment of the Petitioner that he received the said notice.

Even if it be assumed that the Petitioner was served the notice, even then, after the enquiry was concluded, the disciplinary authority was

required to serve a show cause notice to the Petitioner regarding the proposed penalty along with a copy of enquiry report so that the Petitioner

could make an effective representation, which admittedly has not been done by the said authority. The said act of the Respondents is, thus, held

violative of Article 311(2) of the Constitution of India.

The action of Respondents in affording not proper opportunity of hearing to the Petitioner is also liable to be quashed being violative of

principles of natural justice. In this regard, it would be apt to refer to the judgment passed by the Apex Court in the case reported as Canara Bank

Vs. V.K. Awasthy, . In para 10 of the judgment, the Apex Court observed as under:

The adherence to principles of natural justice as recognised by all civilized States is of supreme importance when a quasi-judicial body embarks on

determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The

first and foremost principles is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is

the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case has to meet. Time given for

the purpose should be adequate so as to enale him to make his representation. In the absence of a notice of the kind and such reasonable

opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse

order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept

has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this

principle found its way into the 'Magna Carta'. The Class exposition of Sir Edward Coke of natural justice requires to vocate interrogate and

adjudicate'. In the celebrates case of Cooper v. Wandsworth Board of Works (1963 (143) ER 414), principle was thus stated:

Even God did not pass a sentence upon Adam, before he was called upon to make his defence, ""Adam"" says God, ""where are thou has thou not

eaten of the tree whereof I commanded tree though should not eat.

Since, then the principle has been chiseled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the

concept, like polishing of a diamond.

In the present case, as noticed above, the Respondents have not afforded the Petitioner proper opportunity of hearing. From the record, it is

evident that he has been condemned unheard. The action of Respondents resulting in passing the order impugned is, thus, held to be violative of

principles of natural justice.

The other stand of Respondents that order impugned has been passed taking into consideration that the Petitioner is a habitual absentee, can

also not be sustained. No doubt, the authority concerned is well within its rights to take note of the past conduct of a delinquent official but while

taking an action and passing an order of punishment as has been done in the present case, the past conduct of the official concerned cannot be

made the basis for such an action when there is a specific allegation against the said official. In the present case the allegation against the Petitioner

is that he remained unauthorizedly absent for a particular period which was made the basis for departmental enquiry against the Petitioner. There is

no mention of any other alleged unauthorized absence on the part of Petitioner in the order impugned. Mere mentioning of the fact that he is a

habitual absentee cannot be made the basis for passing the order impugned as has been done in the present case.

For the reasons mentioned above, this petition is allowed. Order impugned dated 25th of June'99, is quashed. Petitioner is directed to be

reinstated in service with all consequential benefits minus monetary benefits, within a period of three months from the date, a copy of this order is

received by the Respondents. The Respondents, however, shall be at liberty to hold a fresh enquiry into the matter and pass appropriate orders, if

they so choose.

Disposed of accordingly.