Vinod Koul vs State of J & K

Tejinder Singh Doabia, J.—The petitioner joined the State service in January, 1973. He was working as Assistant Professor Radiology in

Government Medical College, Srinagar. He applied for leave. This was on the plea that the he was suffering from some illness. This leave was

sanctioned. After the expiry of leave, he did not join. He submits that he met with an accident. In this accident, it is stated that his arm and leg were

injured. He again applied for leave. There is no order sanctioning the leave. The petitioner was, however, served with a notice, on 10.1.1990

calling upon him to report for duty. The petitioner submits that he had all the intentions to join, but the situation which was prevalent in the valley in

1990 forced him to stay away from the valley. The petitioner submits that he was registered as a migrant in March, 1990. The registration

certificate is said to be bearing No. 1496. Copy thereof has been placed on the record as Annexure ""B"". It is the case of the petitioner that he

came to join Government Medical College, Jammu Migrant Cell. He further submits that he did join but had to shift to Delhi. From the month of

February, 1990 to April, 1990, petitioner's salary was drawn by the Medical College, Jammu, treating the petitioner as a migrant employee. In

para ""6"" of the petition, as per the petitioner, he made an effort to withdraw his salary, however, vide communication dated 17.1.1991, he was

informed that he should claim his migrant salary from the Resident Commissioner, New Delhi. Reliance is placed on Annexure ""D"". The contents of

this letter do not support the plea put across in para ""6"" of the petition. For facility of reference, annexure ""D"" is reproduced below :

Certified that an amount of Rs. 13,398/ (Rupees thirteen thousand three hundred and ninetyeight only) was drawn as leave salary for 2, 3 and

4/90 in favour of Dr. Vinod Koul, Asst. Prof. but the same was not disbursed to him as he did not turn up to take the same. The said amount has

been deposited into treasury Try. Vr. No. 106 dated 6.11.1990.

The petitioner submits that he applied to the Resident Commissioner, at New Delhi for his salary. This was not paid to him. It appears, that in

the meantime, the Government of J&K formed an opinion that the petitioner was on unauthorised absence. Notice was taken of the fact that he

applied for 5 days casual leave on 16.4.1988. After the expiry of leave, he was called upon to report for duty. Letter No. GSMC/AP 34345

dated 23.5.1988 was issued to him. The petitioner did not respond but applied for extension of leave. Another communication was sent to him on

19.9.1988. The petitioner was called upon to join within a period of 21 days failing which, action as warranted under law was to be taken against

him. Still another communication was addressed to him on 1.3.1989. As there was no response, the services of the petitioner were brought to an

end by issuing a communication dated 24.7.1996. The facts enumerated above stands rectified in the order referred to above. The petitioner

submits that this order dated 24.7.1996 has been passed without holding an enquiry. He submits that this order deserves to be set aside.

The respondents have filed objections. In preliminary objection No. 2, the stand taken is the same as had been recited in the order of

termination. It is also submitted that the petitioner got himself registered as a migrant with the Principal, Government Medical College, Jammu and

later on with the Resident Commissioner, New Delhi and had continued to draw his salary upto August, 1999. It is submitted that the petitioner

was not entitled to any migrant salary payable to him at Delhi. He is a migrant State Government servant therefore, he was supposed to be at

Jammu and not in Delhi.

The further fact is that on 10.10.1999 an interim order was passed by this Court, whereby the petitioner was held entitled to the drawal of

salary which he was getting.

Three questions arise for determination in this case. The first question is as to whether order of termination pased by the respondents on

24.7.1996 is sustainable or not; 2) whether the petitioner is entitled to any monetary benefits, notwithstanding the fact that his services were

brought to an end on 24.7.1996; 3) as to whether the petitioner was entitled to draw migrant salary when he was not staying within the local limits

of the jurisdiction of Jammu and Kashmir State.

The issue at S. No. 1 (supra) be considered at the first stage. There can be no dispute with the proposition that before bringing an end to the

service tenure in case an employee is absent, some enquiry is required to be held.

So far as this question of absence is concerned, this aspect of the matter was considered in detail in LPA No. 348 of 1997, SherinKashmir

Institution of Medical Sciences, Soura, and another v. Sarla Jalali and another, decided by this Court on 22nd of February, 1999. The question, of

law which were formulated are as under :

(i) ""whether mere absence from duty is per se misconduct;

(ii) whether an enquiry is required to be held with a view to determine as to whether act of absence is wilful and voluntary;

(iii) if a employee who has proceeded on leave overstays, can his or her services be brought to an end without holding enquiry;

(iv) whether the concept of automatic termination of service as visualised by the Services Regulations would come to the rescue to the Employer is

sustaining the claim that the enquiry is not required to be held.

The Division Bench finally concluded as under :

(i) Mere because from duty is not per se 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 presence of some service regulations visualising concept of automatic termination in case of absence an enquiry is required to be

held.

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

(v) When order of reinstatement is pased 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 this or wants to hold further enquiry where

of determination is set aside.

With regard to the quantum of punishment the Allahabad High Court in Rajesh Kumar Tripathi v. State of U.P., 1993(3) SCT 274 , observed that

the punishment of dismissal was not commensurate with the alleged acts of the delinquent. The view expressed in V.R. Katarki v. State of

Karnataka, AIR 1991 SC 1241 was noticed. What was observed by the Supreme Court be noticed again :

Ordinarily justification of the quantum of punishment with a disciplinary action is not for the committee, decide and there have been occasions this

Court has taken to interference by the High Court on quantum of punishment as an act in access of jurisdiction while we are prominent of that fact.

Keeping in view the residue of the charge in view we are inclined to hold that the dismissal of the appellant from service was out of proportion.

In Ved Parkash Gupta v. M/s. Delton Cable Co. (P) Ltd., 1984(2) SLR 5, the Supreme Court of India observed that the punishment should not

be disproportionate to the offence proved. Similar view was expressed in State of U.P. v. Sadanand Mishra, 1984(2) LCD 294.

Taking note of the above decision the order of dismissal in the case of Rajesh Kumar Tripathi (supra) was set aside by the Allahabad High

Court.

Where the employee was absent for two days he was ordered to be reinstated but he was held not entitled to back wages. Mandeep Kumar v.

State of Haryana, 1996(2) SCT 306 . This view was expressed by the Supreme Court of India.

In Punjab State v. Surjit Singh, 1997(2) SCT 87 where there was absence of 23 hours and 5 minutes reinstatement was ordered without back

wages. See also Malkiat Singh v. State of Punjab, 1996(2) SCT 758 SC . See also Joginder Lal v. The Presiding Officer, Labour Court, 1996(1)

SCT 436 . A police constable was absent for 48 days. He suffered 17 punishments in 12 years. He was dismissed. Direction was considered to

consider the quantum of punishment. Krishan Lal v. State, 1996(5) SCT 592 . Reliance was placed on the observations made by the Supreme

Court of India in G.S. Sodhi v. Union of India, 1994(3) SCT 335 .

Where an employee is reinstated on account of the fact that there was some procedural lapse in respect of the snapping the relationship of master

and servant and the employee was absent then such an employee is not entitled to back wages. State of Punjab v. Om Parkash, 1997(3) SCT 186

(P&H) ,M. Arnunachaiam v. T.N. Elec. Board, 1997(3) SCT 565 (Mad) , Government of Tamil Nadu v. K. Rajanram Appaswami, 1997(3)

SCT 67 SC . Relief of backwages is to be granted when an employee is reinstated on the technical ground that enquiry was not held into the

alleged misconduct of unauthorised absence. Rajinder Kumar v. State of Haryana, 1996(4) SCT 772 . Punjab State Electricity Board v. Naresh

Chand, 1996(1) SCT 832 . See Smt. Veena Sikha v. State of Haryana, 1996(4) SCT 741 .

It would be worthwhile to indicate here that even under the Industrial Law, back wages can be granted only if a finding is recorded that the

concerned workman was not gainfully employed. In case reported as Hindustan Tin Works v. Employees of Hindustan Tin Works Pvt. Ltd., AIR

1979 SC 75, the Supreme Court of India expressed an opinion that whenever a Labour Court passes an order of reinstatement then back wages

are to be allowed. It may, however, be seen that when a dispute is before the authorities constituted under the Labour Law Legislation an

opportunity is available to the parties to lead evidence. A finding of fact is recorded i.e. after evidence is led, as to whether a workman was

gainfully employed or not. Such a finding cannot be recorded in writ jurisdiction and it would not be apt to grant back wages when the question as

to whether the petitioner was gainfully employed, where or not cannot gone into the present litigation.

So far as the order dated 24.7.1996 is concerned, that cannot be sustained. The question arises as to whether the petitioner is entitled to claim

wages. He was granted five days casual leave on 16.4.1988. Thereafter, he remained on unauthorised absence. The militancy in Kashmir Valley

started in the beginning of year 1990. For atleast two yeas prior to that, he had no justification to stay away from duty. Again, the law is well

settled that if on account of setting aside of an order of termination on the ground that no enquiry was held, an employee does not become entitled

to claim wages. These decisions are noticed above. The petitioner was prima facie, absent without leave. Therefore, for the period during which

the petitioner did not perform any duty with the State, he would not be entitled to any salary. This is a provisional view. Final decision in this regard

would be taken by the respondents who would hold an enquiry with regard to determination of the question as to whether the petitioner was on

unauthorised absence and whether on account of this act and or omission his services can be brought to an end.

The last question i.e. as to whether a migrant employee who does not live within the local limits of jurisdiction of the State can claim salary, be

also examined. The petitioners counsel did not point out any Rule or Regulation which permits an employee to stay anywhere he may like. No such

rule was cited. As a matter of fact, the petitioner was aware of the fact that he would get his migrant salary if he remains in Jammu. It was precisely

for this reason that he got himself registered with the Government Medical College, Jammu, Migrant Cell. Therefore, the contention of the

petitioner that he is entitled to salary notwithstanding the fact that he has not stayed in the city of Jammu, is an argument which cannot be accepted.

The net result is that the respondents would hold an enquiry with which the petitioner would be associated. This would be with regard to

determination of the question as to whether the petitioner had a valid cause for his absence. As to whether he is entitled to any emoluments would

naturally depend upon the view which the respondents may take. In doing so, they would take notice of the decisions noticed above.

The petitioner shall be reinstated into service w.e.f. the date he produces a copy of this order before the respondent No. 1. This direction has

been with given a view to revive the relationship of master and servant so that an orderly enquiry is held. In case the respondents want to hold an

enquiry, then they would frame a chargesheet and appoint an Enquiry Officer. The question as to whether the petitioner is to be paid any salary

hereafter, is a matter which would be decided by the respondents in terms of the Rules which permit payment of migrant salary to the employees

who choose to stay within the territorial jurisdiction of J&K State. Petitioner would give an undertaking for refund of amount received or to be

received by him. If undertaking is not given, State would be under no obligation to make any payment.

Disposed of as such.