State of Jammu and Kashmir and others vs Kamal Kumar

This L.P. appeal is preferred by the State of Jammu and Kashmir and its Officers against the order made in SWP No. 64/2003 dated

13.10.2011, allowing the writ petition of the writ petitioner-respondent, seeking quashing of order of removal from service dated 09.10.2001.

The case of the respondent before the Writ Court was that by order dated 09.10.2001, he was appointed as Constable and allotted No.3488/J

in the J.& K. Police and was deputed for undergoing basic recruit training course at Police Training School, Kathua on 19.04.2000. As per the

respondent, he fell ill on 06.06.2000 and after informing his seniors he proceeded on leave. He was removed from service by order dated

09.10.2001 w.e.f. 21.06.2001 which order was challenged by the respondent by filing a statutory appeal, the appeal having not been decided,

writ petition was filed before this Court.

The appellants filed their objections to the writ petition, stating that the respondent deserted the training centre on 06.06.2000 and after

unauthorised absence of 53 days, he resumed his duty on 29.07.2000, though the Principal PTS Kathua had already discharged him from PTS

Kathua by order dated 09.10.2001 w.e.f. 21.06.2001. Thereafter enquiry was ordered. Respondent having failed to submit the reply to the

charge memo, the enquiry officer recommended his removaand thereafter order dated 19.03.2002 was issued removing the respondent from

service.

The learned single Judge, taking note of the fact that discharge of the respondent was not a discharge simpliciter but based on the allegations of

unauthorized absence, held that without application of mind as well as following the due procedure as contained in Regulation 359 of the J.& K.

Police Manual the order has been passed. The learned single Judge quashed both the orders of discharge and removal by giving liberty to the

appellants to conduct enquiry within a period of three months. It was also clarified that period from passing of the first discharge order till the date

of judgment shall remain dependent upon the outcome of the enquiry to be conducted and in case enquiry is not held the respondent would not be

entitled to salary from the date of his absence till the date of judgment however that period shall qualify for all other service benefits.

The said order is challenged by the appellants in this appeal by contending that respondent being a probationer, holding of enquiry was not

required for passing the order of discharge/removal.

The learned counsel appearing for the respondent on the other hand submitted that no charge memo was served on the respondent and the

enquiry was conducted at the back of the respondent and he having suffered major illness, the fact of his illness and reason for absence was not

wilful and beyond his control which has not been taken into consideration.

We have considered the rival submissions of the learned counsels for the parties.

The issue as to whether a probationer can be terminated or his services can be dispensed with without conducting enquiry due to allegation was

considered by Hon''ble the Supreme Court in the decision reported in AIR 1974 SC 2192 (7 Judges Bench) (Shamsher Singh v. State of Punjab

and Anr.) wherein it is held that the decisive factor in the context of discharge of a probationer from service is the substance of the order and not

the form in determining whether the order of discharge is stigmatic or not or whether the same formed the motive for or foundation of the order.

The same view was reiterated by Hon''ble the Supreme Court in the decision, reported in 1999(1) S.C.T. 366 : (1999) 2 SCC 21 : (AIR 1999

SC 609) (Radhey Shyam Gupta v. U. P. State Agro Industries Corporation Ltd. and Anr.), 2008(1) S.C.T. 668 : (2008) 2 SCC 479 : (2008

Lab IC 2022 (SC)) (Nehru Yuva Kendra Sangathan v. Mehbub Alam Laskar) and 2010(3) S.C.T. 578 : (2010) 8 SCC 220 Union of India and

Ors. v. Mahaveer C. Singhvi). In the decision reported in 2010(3) S.C.T. 578 : (2010) 8 SCC 220 : (2010 Lab I C 3913 (SC) (Union of India

and Ors. v. Mahaveer C. Singhvi), a plea was taken that the respondent had been discharged from service by a simple order of discharge without

a stigma, therefore, being a probationer he was not entitled to protection of Article 311(2) of the Constitution of India. The said argument was

repelled noticing the fact that due to allegations only he was discharged and the Special Leave Petition challenging the order of the High Court was

dismissed with costs of Rs. 25,000/-.

In the present case the order of removal dated 09.10.2001 specifically states that respondent is still continuing on unauthorized absence,

although he is a probationer, therefore, he is removed from service with effect from 21.06.2001 i.e. from the date of his absence. The reason

stated in the removal order being un-authorised absence, the removal order is not a discharge simpliciter. Hence the respondent is entitled to have

the protection under Article 126(2) of the Constitution of J.& K.

One more aspect to be considered in this case is that whether the absence of the respondent was wilful to impose a major punishment of

removal from service. This issue was already considered by Hon''ble the Supreme Court in the decision reported in 2012(2) S.C.T. 572 : (2012)

3 SCC 178 : (2012 Lab IC 1222 (SC)) (Krushnakant B. Parmar v. Union of India), and it was held that for punishing a person for unauthorized

absence, wilful absence must be proved and if the person has absented due to compelling circumstances, his absence cannot be held to be wilful.

In the decision reported in 2014(3) S.C.T. 420 : AIR 2015 SC 598 (Chhel Singh v. M.G.B. Gramin Bank Pali and Ors.), a similar issue was

considered by Hon''ble the Supreme Court. In the said case for not reporting for duty from 11.12.1989 to 24.10.1990, charge was framed and

the defence of the employee was that he was seriously ill during the said period which was beyond his control and he could not report for duty.

The stand of the department was that the employee on leave on health reasons should submit medical certificate while joining duty and he has

submitted the same with delay. Not accepting the plea, the employee was removed from service. The Writ Court set aside the order of removal

and directed the respondents to re-instate the employee in service with all consequential benefits. The Bank challenged the said order before the

Division Bench and the appeal was allowed, against which the employee preferred civil appeal and Hon''ble the Supreme Court reversed the order

of the Division Bench and upheld the order of the Writ Court. In paras 15 and 16 it is held thus :-

15...........we find that the main allegation is absence from duty from 11.12.89 to 24.10.90 (approximately 10 and 1/2 months), for which no prior

permission was obtained from the competent authority. In his reply, the appellant has taken the plea that he was seriously ill between 11.12.89 and

24.10.90, which was beyond his control; he never intended to contravene any of the provisions of the service regulations. He submitted the copies

of medical certificates issued by Doctors in support of his claim after rejoining the post. The medical reports were submitted after about 24 days.

There was no allegation that the appellant''s unauthorized absence from duty was wilful and deliberate. The Inquiry Officer has also not held that

appellants absence from duty was wilful and deliberate. It is neither case of the Disciplinary Authority nor the Inquiry Officer that the medical

reports submitted by the appellant were forged or fabricated or obtained for any consideration though he was not ill during the said period. In

absence of such evidence and finding, it was not open to the Inquiry Officer or the Disciplinary Authority to disbelieve the medical certificates

issued by the Doctors without any valid reason and on the ground of 24 days delay.

In view of the observation made above, the order passed by the Division Bench of the High Court cannot be upheld. We, accordingly, set

aside the impugned judgment and order dated 10th May, 2012 passed by the Division Bench of the High Court in D.B. Civil Special Appeal

(Writ) No. 850 of 2009 : (Reported in 2012 Lab IC 2744 (Raj)) and upheld the order passed by the learned single Judge dated 31st March,

2009 in S.B. Civil Appeal Writ Petition No. 1702 of 1995 (Reported in 2009 Lab IC 2461 (Raj)). The respondents are directed to implement the

direction and order dated 31st March, 2009 issued by the learned single Judge within four weeks from the date of receipt of copy of this

judgment.

In the light of the said decisions of Hon''ble the Supreme Court and having regard to the fact that admittedly no enquiry was conducted to

prove the alleged misconduct of un-authorised absence by the appellants, there is no error in the order passed by the learned single Judge. The

learned single Judge also has not granted the back wages to the respondent for the period during which he remained out of employment as per the

consent given by the counsel for the respondent. The denial of back wages from the date of discharge till the date of re-instatement will meet the

ends of justice. Hence we are not inclined to set aside the order of the learned single Judge. The appeal is dismissed with direction to the appellants

to conclude the enquiry within a period of four months. The respondent shall also participate in the enquiry. The reinstatement and grant of other

benefits will depend upon the enquiry to be conducted and finding to be recorded. No costs.