State of J&K and Others vs Mohammad Khalil Hajam

T.S. Doabia,J.

The respondentauthorities resorted to Article 128 of the Jammu and Kashmir Civil Service Regulations and came to the conclusion that the

respondent (writpetitioner) was on unauthorised absence and, therefore, his services are liable to be brought to an end. An order dated: 12th

March, 1993 came to be passed. For facility of reference this order is being reproduced below:

Headquarters J and K Armed Police XI Battalion, Manigam. Order No. 309 of 1993 Dated: 12031993 F56/XI Mohammad Khalil JKAP XI

Battalion was enrolled as follower on 05101987. In about 5 1/2 years of service the follower has earned six punishments upto January', 1993

which involves five major punishments. During the year 1992 four major punishments have been awarded to the follower as per following orders:

1) Order No. 146 of 1992 dated: 3101 1992.

2) Order No. 724 of 1992 dated: 30061992.

3) Order No. 880 of 1992 dated: 27081992. 4)Order No. 984 of 1992 dated: 30091992.

The follower has spend 137 days on earned leave. In most of the cases the period of absence has been treated as earned leave after it was

decided by the enquiry officer. Besides, he was availed the following period as leave after the cases of unauthorised absence were decided by the

competent authorities from time to time mostly on sympathetic grounds:

I/. From 26021988 to 21 021989 = 360 days as leave not due.

From 25071989 to 12081989= 18 days as extra ordinary leave.

The following periods of unauthorized absence are still undecided:

I/. From 23081992 to 10101992 = 48 days.

2/. From 16111992 to 05121992= 19 days.

3/. From 09011993 to 1 1031993 = 61 days.

From the above it is clear that out of five years and five months of service, the follower has spend 643 days at home on leave and while on

unauthorised absence. This is in addition to the amount of casual leave, gazetted holidays and Sundays, which he has availed during this period.

Several notices were issued to the follower and final notice was served upon him vide this office No. Esll7187677/XI dated: 12021993. This

notice was received by the said follower under his own signature but still he foiled to report for duty. A reasonable time of 30 clays was given to

him from the date of final notice to resume duties, but he has chosen not to do so and continue to remain unauthorisedly absent from duly.

From the facts and circumstances given above, it is clear that the follower. F56/ XI. Mohammad Khalil is not interested in service and is a regular

and habitual absentee. Inspite of giving him ample chances to mend his behaviour, the follower F56/XI. Mohammad Khalil seems to be not only

arrogant indiscipline. but is likely to infest others in the Battalion if he allowed to continue in since. An open enquiry is also not possible in view of

the conduct of the follower by remaining unauthoriscdly absent. As a result the latest three cases of his unauthorised absence arc yet to be decided.

Now taking recourse to Article 311 of J and K Constitution, Article 128 of J and K CSR Volume I and 208 (G) Volume II and 598 Subrule II

(B) of J and K Police Manual, the follower F56/XI Mohammad Khalil is discharged from service with immediate effect. The period of absence

mentioned in para (3) is treated as diesnon.

A perusal of the above order makes it apparent that the appellant was absent on earlier occasions also. In addition to this, it was observed that

an open enquiry was not possible in view of the conduct of the appellant, being on unauthorised absence. As a result, taking recourse to Article

311 of the Constitution, Article 128 of J and K CSR Volume I and 208 (G) Volume II and 359 Subrule 11 (B) of Jammu and Kashmir Police

Manual, the appellant was discharged from service. The period of absence mentioned in para 3 of the order was treated as diesnon.

It be seen that if services of an employee is to be brought to an end. an enquiry is to be held with a view to determine as to whether act of

absence is wilful or not. The respondent (writpetitioner) was supposed to be put on notice before passing the order of punishment. This has not

happened in this case. As such the view expressed by the learned Single Judge is a view to which no exception can be taken.

Independently of the reasoning given by the learned Single Judge, it be seen that the Supreme Court in case Slate of Mysore Vs. Manclie

Gowda, AIR 1964 SC 506. observed that if previous misconduct is to be taken into consideration, then the concerned employee should be put on

notice. What is said by the Supreme Court in para 7 of the judgment (supra) is reproduced below:

Under Article 311 (2) of the Constitution, as interpreted by this Court, a Government servant must have a reasonable opportunity not only to

prove that he is not guilty of the charges levelled against him, but also to establish that the punishment proposed to be imposed is either not called

for or is excessive. The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the Government servant must be told

of the grounds on which it is proposed to lake such action. If the grounds arc not given in the notice, it would be well high impossible for him to

predicate what is operating on the mind of the authority concerned in proposing a particular punishment: he would not be in a position to explain

why he does not deserve any punishment at all or that the punishment proposed is excessive. If the proposed punishment was mainly based upon

the previous record of a Government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed

punishment was withheld from the knowledge of the Government servant. It would be no answer to suggest that every Government servant must

have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on

him: nor would it be an adequate answer to say that he knew as a mailer of fad that the earlier punishments were imposed on him or that he knew

of his past record. This contention misses the real point, namely, that, what the Government servant is entitled to is not the knowledge of certain

facts but the fact that those facts will be taken into consideration by the Government in hilling punishment on him. It is not possible for him to know

that what period of his past record or what acts or omissions of his in a particular period would be considered. If that fact was brought to his

notice, he might explain that he had no knowledge of the remarks of his superior officers, that he had adequate explain to offer for the alleged

marks or that his conduct subsequently to the remarks had been exemplary or any rate approved by the superior officers. Even if the authority

concerned took into consideration only the facts for which he was punished it would be open to him to put forward before the said authority many

mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served

to the satisfaction of the authorities concerned till the time the present enquiry. He may have many other explanations. The point is not whether his

explanation would be acceptable, but whether he has been given an opportunity to give his explanation. We cannot accept the doctrine of

'presumptive knowledge"" or that of 'purposeless enquiry', as their acceptance will be subversive of the principle of reasonable opportunity....

Thus, in view of the reasoning given by the learned Single Judge and in view of what is said by the Supreme Court is State of Mysore Vs. Manche

Gowda (supra), the order dated: 12ih March, 1993 passed by the respondent concerned cannot be sustained.

The appeal as such is found to be without merit and dismissed.