Subash Chander vs State of Jammu & Kashmir and Others

Nirmal Singh, J.—The relevant facts for the disposal of this petition are as under:-Petitioner was appointed as Constable in J&K Armed

Police in the year 1984. After completion of the probation period, his services were confirmed. In the year 1989, the petitioner was working as

Personal Security Officer (PSO) to Sh SS Bijral, and was attached in Head Quarter Company. The said Company was deputed to Maisuma,

Srinagar to control the militancy, There was an encounter with the militants. When this encounter was going on, the militants hurled a grenade on

the Jawans of the said Company in which the petitioner along with PSO Parshotam Sharma was injured. Petitioner who was seriously injured was

shifted to SMGS Hospital, Srinagar, and thereafter he was shifted to Bones and Joints Hospital, Barzulla, where the petitioner was operated upon

thrice. The petitioner was then shifted to Police Hospital, Srinagar. Petitioner was thereafter allowed home rest for two months, which period was

treated as on duty.

Petitioner after his recovery joined back his Battalion at Srinagar. In the month of October' 89, petitioner came to Jammu on 10+2 days casual

leave to get himself medically examined. The condition of the petitioner deteriorated and he sent an telegram to respondent No. 4 for extension of

leave. When the petitioner availing his leave, his father became seriously ill. Petitioner again requested respondent No. 4 for extension of leave on

the ground that being the eldest member, in the family he has to take care of his ailing father. The father of the petitioner was diagnosed as a case of

brain tumour and was referred to PGI Chandigarh. Petitioner accompanied his father for his treatment at Chandigarh. Ultimately, the father of the

petitioner expired in the year 1993. The further case of the petitioner is that after the death of his father, the petitioner made a request to the

Commandant of the Battalion to allow him to join his duties but the said request was not acceded to on the ground that the name of the petitioner

has been struck of from the rolls of the Battalion. Petitioner requested the concerned authority for a copy of the discharge but the same was not

supplied to him. It is further stated that the petitioner in the year 1995 suffered a snake bite and remained hospitalized for number of days. It is

stated that in the year 1997, the elder son of the petitioner suffered from snake bite and thereafter his younger son aged 7 years fell into a well in

the village and expired. It is stated that the petitioner obtained a copy of dismissal order in the year 1997 but due to the aforementioned

circumstances was not able to approach this Hon'ble court. It is this dismissal order which has been challenged in the present writ petition on the

ground that the same is illegal, arbitrary because before passing of order impugned, no show cause notice was served upon the petitioner nor any

enquiry was held by respondents. It is stated that the absence from duty was not intentional and the petitioner had -also requested the concerned

authority for extension of his leave.

On notice, respondents have admitted that during ailment, of the petitioner, he had applied for leave which was granted in his favour vide order

No. 1320 of 1988 dt. 12.12.1988, Order No. 583/Hqr/9th dt. 18.3.1989 and Order No. OB/PKS/5675-80 dt. 3.6.1989. The case of

respondents is that the petitioner remained on unauthorized absence and number of notices were served upon him for resuming his duties but he did

not turn up. It is stated that the continuous absence on the part of the petitioner was indicative of the fact that he was not willing to serve the

department. As the retention of the petitioner was likely to create disciplinary problem, therefore, the petitioner's name was struck of from the roll

of Battalion w.e.f. the date he absented himself from duties i.e. 13.10.89 and this was done under Article 128 of the J&K Civil Service Regulations

and Police Manual. It is stated that the petitioner has challenged the order after a period of 12 years on false and frivolous grounds which are after

thought.

I have learned Counsel for the parties and perused the record. It is the admitted case that the petitioner sustained injuries in an encounter with

the militant. After that he was given medical treatment. It is also admitted that petitioner proceeded on 10+2 days casual leave in the month of Oct'

89 and thereafter did not report for duties. The case of respondents is that petitioner was served with a notice vide Office Order No. 569-A-IX

dt. 21.12.89 and No. Estt/II/88/809-IXdt. 29.1.1990. A copy of notice dt. 21.12.89 has been placed on the record file produced by respondent.

The copy of notice, however, does not bear the signatures of the petitioner in token of its receipt. Petitioner's name has been struck of from the roll

of the Battalion without serving a notice upon the petitioner and without holding any enquiry. Petitioner left the Battalion by applying the leave and

after completion of leave period, he did not join his duties, therefore, his case is overstaying of leave. Once an employee overstays, then issuance

of a show cause notice is must so that he may explain the circumstances under which he has overstayed. In case, after issuance of notice, the

concerned employee fails to join the duty, then an enquiry is to be conducted as per rules. In Jai Shanker Vs. State of Rajasthan, , the Apex Court

has held as under:

The removal of a Government servant from service for overstaying his leave is illegal even though it is provided by the service Regulation that any

individual who absents himself without, permission after the end of his leave would be considered to have sacrificed his appointment and may be

reinstated only with the. sanction of the competent authority....

A discharge from service of an incumbent by way of punishment amounts to removal from service, and the constitutional protection of Article 311

cannot be taken away from, him by contending that under the service Regulations the incumbent himself gives up the employment and all that the

Government does is not to allow the person to be reinstated....

It was further held as under

A removal is removal and if it is punishment for overstaying one's leave an opportunity must be given to the person against whom such an order is

proposed, no matter how the Regulation describes it....

A Division Bench of this court in the case reported in 2004 (11) SLJ 445 Muashtaq Ahmad Khan v. State of J&K and ors, has held as under:

As is often said, rules of natural justice are not strait-jacket formulae to be applied uniformly in all cases. Its application varies from case to case

depending upon the facts and circumstances of the particular case. In other words, what shall be the extent of requirement of rules of natural justice

would dependon the facts of a particular case. While in one case mere opportunity of hearing may satisfy the requirement of the rules, in another

case a. full fledged enquiry may have to he held depending on the rules, if any. It would also depend, among other things, on the response of the

delinquent-the nature of defence. If any, taken by him and nature of action proposed. No hard and fast rule can be laid down. What is of essence

is that he should be given a reasonable opportunity to offer defence. The requirements of rules of natural justice are: firstly, that the employee

should know the nature of the charge or accusation against him; secondly, that opportunity should be given to him to state his case; and thirdly, that

the employer should act in good faith, that is to say, the action of the employer should be fair and reasonable. Proceeding on the assumption that

on account of absence from duty beyond the prescribed, he would be deemed to have abandoned his job and, accordingly, treated as out of

employment would amount to acting on a presumption that he has no defence to offer. There may be genuine cases in which the person remained

away from duty for good reasons, such as, law and order situation; illness or incarceration. Unless an opportunity is given to him to state his case,

he cannot explain his absence....

In 2000 KLJ 274 Mohd Ishaq Bhat v. State of J&K and Ors. a Division Bench of this Court has held as under:

(i) Mere absence from duty is not perse misconduct,

(ii) Where an employee proceeds on leave and does not resume duties even then some enquiry is required to be held. Service tenure cannot be

brought to an end without compliance of principles of natural justice.

(iii) Even in the preence of some service regulation visualising concept of automatic termination in case of absence an enquiry is required to be held

(iv) The order of termination has to be preceded by hearing and the order so passed has to be reasoned one.

(v) When order of reinstatement is passed then preponderance of view is that back wages are not to be allowed.

(vi) The Competent Authority should be left free to decide as to ' whether it wishes to leave the matter as it is or wants to hold further enquiry

where order of termination is set aside.

In the instant case, the petitioner proceeded on leave but after completion of his leave period, he did not resume his duties, therefore, a show

cause notice as to why the petitioner remained absence from duty and also an enquiry was must but no such enquiry has been held in this case.

Therefore, the order impugned strucking of the name of the petitioner without holding an enquiry cannot be sustained.

For the reasons mentioned above, this petition is allowed. Order impugned dt. 19th April 90, passed by respondent No. 4 is set aside.

Respondents will take a fresh decision keeping in view the facts and circumstances of the case. The decision shall be taken within a period of three

months from the date, a copy of this order is made available to respondents by the petitioner.