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Jammu & Kashmir High Court - Srinagar Bench

Manzoor Ahmad Shah vs Union Of India And Others on 22 December, 2022

Author: Javed Iqbal Wani

Bench: Javed Iqbal Wani

         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT SRINAGAR


                                              Reserved on: 24.11.2022
                                              Pronounced on: 22.12.2022

                                               SWP No. 316/2013

Manzoor Ahmad Shah                                     .....Appellant(s)/Petitioner(s)

                        Through: Mr. Hakim Suhail Ishtiaq, Advocate.

                 Vs

Union of India and others                                          ..... Respondent(s)

                        Through: Mr. Nazir Ahmad Bhat, CGSC.

Coram:    HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
                                   JUDGMENT

1. The petitioner has filed the instant petition under Article 226 of the Constitution of India, seeking the following reliefs:

(i) By issuing Writ of Certiorari, quash the Order No. Estt/Re-

Inst/10855-63 dated 07.07.2012 in so far it relates to the grant of following kind of leave in favour of the petitioner;

89 days HPL-From 10.09.2006 to 07.12.2006 1915 days EOL-From 08.12.2006 to 06.03.2012 Total 2004 days

(ii) By issuing a Writ of Mandamus direct the Respondents to treat the Petitioner on duty for the period he was out of service due to the illegal dismissal of the Petitioner by the Respondents which Order stands quashed by this Hon'ble Court vide Judgment dated 26.11.2008 in SWP No. 411 of 2007 and pay the Petitioner full salary of the post to which he would have been entitled has he not been dismissed from the service".

2. The facts leading to the filing of the instant petition are that the petitioner is working as a follower with the respondent-Border Security Force (for short, the BSF) and owing to his unauthorized absence from 23.02.2006 onwards, came to be dismissed from service by the respondent No. 3 vide order dated 09.09.2006 in exercise of the powers under Rule 22 (2) of the Border Security Force Rules, 1969 (for short, Rules of 1969) while describing retention of the petitioner in the force as undesirable.

3. The order of dismissal dated 09.09.2006 (supra) came to be challenged by the petitioner before this Court in SWP No. 411/2007, which came to be allowed vide judgment dated 26.11.2008, quashing the order of dismissal (supra). While quashing the order of dismissal (supra), it was provided by the Court that the quashment of the said order would not put a bar on the powers of the competent authority for taking appropriate action against the petitioner in terms of law, if same is required to be taken.

4. The judgment dated 26.11.2008 (supra) came to be challenged by the respondents in an appeal being LPA No. 159/2009 which, however, came to be dismissed on 24.08.2011.

5. In furtherance of the liberty granted to the respondents in the judgment passed by the writ court as well as the appellate court for taking an action against the petitioner in terms of law, if the same is required to be taken, the respondent No. 3 herein issued order dated 07.07.2012, which is impugned in the instant petition, by virtue of which the petitioner came to be re-instated with effect from 07.03.2012 (FN) i.e. from the date of his joining in the Unit, while 3 SWP No. 316/2013 further providing that the intervening period between the date of dismissal and reinstatement is regularized by granting following kind of leave due to him under FR 54(S):-

(i) 89 days HPL-From 10.09.2006 to 07.12.2006

(ii) 1915 EOL-From 08.12.2006 to 06.03.2012

6. Consequent to the reinstatement of the petitioner, the pay of the petitioner was fixed at Rs. 6460+G. Pay 2000/- in the pay band-I Rs.

5200-20200/- w.e.f. 07.03.2012, subject to the condition that the petitioner will undergo refresher training of eight weeks for drawing pay in the Grade pay Rs. 2000/- with DNI on 01.07.2013.

7. The petitioner has impugned order dated 07.07.2012 inter alia on the grounds that upon quashing of the order of dismissal in the earlier petition by the Court, the petitioner is deemed to be in service throughout and entitled to salary, as such, and that the impugned order has been issued without application of mind besides being illegal and unconstitutional.

8. Per contra, the respondents have filed objections, wherein it is being admitted that the petitioner while being in service of the respondents came to be dismissed from service w.e.f. 09.02.2006 owing to his over stay of leave for 199 days. It is also being admitted that the said order of dismissal came to be quashed in the earlier petition, however, a liberty thereof was granted to the respondents to take an appropriate action against the petitioner in terms of law, if the same is required to be taken and thereafter, order under challenged came to be issued validity and legally.

Heard learned counsel for the parties and perused the record.

9. It is an admitted fact as emerges from the record that the order of dismissal dated 09.09.2006 issued by the respondents against the petitioner came to be quashed by this Court in the earlier writ petition filed by the petitioner, keeping it open to the respondents for taking an appropriate action against the petitioner in terms of law, if the same was warranted. The said action indisputably have had to be taken with respect to the period of absence of the petitioner w.e.f. 23.02.2006 to 09.09.2006 i.e. the date of issuance of the dismissal order. Once the respondents did not take any action against the petitioner, it can safely be said that the same is condoned, even if, it amounted to a misconduct.

10. The respondents, therefore, in this view of the matter could not have issued the impugned order, which is per se unwarranted and unjustifiable, and violative of principles of natural justice, more so, in view of the law laid down by the Apex Court in case M. Gopala Krishna Naidu Vs. State of Madhya Pradesh reported in 1968 (1) S.C.R. 355, wherein the Apex court has held as under:

"The very nature of the function implies the duty to act judicially. In such a case if an opportunity to show cause against the action proposed is not afforded, as admittedly it was not done in the present case, the order is liable to be struck down as invalid on the ground that it is one in breach of the principles of natural justice".

Further, reference to the judgment of the Apex Court passed in B. D. Gupta Vs. State of Haryana reported in 1973(3)SCC 149, also becomes imperative wherein following has been held:- 5 SWP No. 316/2013

"We have no doubt in our minds that in this case also justice and fair play demand that the Government should have given the appellant a reasonable opportunity to show cause why an order affecting his pay and emoluments to his prejudice should not be made. The decision in M. Gopala Krishna Naidu's case had been cited before the High Court. The High Court, however, sought to distinguish that case from the instant case on facts. The High Court held that since in M. Gopala Krishna Naidu's case the proceedings had been dropped and the officer concerned reinstated, he never got an opportunity to show to the appointing authority that his suspension had been unjustified and that he was entitled to full pay and allowances, while-in the instant case the appellant has already, according to the High Court, received all reasonable opportunity to show cause against the punishment that has been meted out against him. With respect, we do not think that-there is any real difference in substance between the facts of the instant case and those in M. Gopala Krishna Naidu's case. The appellant in the instant case did not really get an opportunity to defend himself against Charge 1 (b). It will be remembered that in this case also the Government abandoned the proceedings against the appellant with regard to Charge 1 (b). Had the proceedings been completed, it is not altogether impossible that the appellant would have been exonerated also of that charge just as he had been exonerated of Charge 1 (a) earlier. To that extent the appellant did not get any opportunity to show that the suspension order against him had been unjustified and that he was, therefore, entitled to full pay and allowances. From this point of view there is really no difference between the instant case and the case of Gopala Krishna Naidu."

11. The case in hand is admittedly covered by the judgment passed by the Apex Court cases (supra), as once the respondents had decided not to proceed against the petitioner for his unauthorized absence, constituting a misconduct or to hold an enquiry thereto, it would be presumed that the respondents condoned the said misconduct of the petitioner leaving it impossible for the petitioner to show that the denial of the full pay and allowances was unjustified, once the respondents issued the impugned order.

12 The case of the petitioner seemingly, has not received appropriate consideration from the respondents and though, having regard to the facts and circumstances of the case, as also the judgments of the Apex Court (supra), it would have been appropriate to direct the respondents to pay the petitioner full pay and allowance for the period of absence, however, keeping in view of the fact that more than a decade has passed since order of dismissal was quashed, it would be in the interest of justice, as also for maintaining the scales of balance evenly to mould the reliefs prayed by the petitioner.

13. Thus, what has been observed, considered and analyzed above, this petition is allowed and by issuance of a writ of certiorari, the impugned order dated 09.09.2006 is quashed and by issuance of a writ of mandamus, the respondents are commanded to pay to the petitioner 50% salary for the period w.e.f. 23.02.2006 till 06.03.2012 along with all the consequential benefits and allowances, to which the petitioner would have become entitled to had he not been dismissed from service.

14. Disposed of, accordingly.

(JAVED IQBAL WANI) JUDGE SRINAGAR 22.12.2022 Shivalee Whether the order is speaking: Yes Whether the order is reportable: Yes