Jammu & Kashmir High Court - Srinagar Bench
Skaust And Ors vs Jagir Singh on 4 March, 2013
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR LPA No. 133 of 2011 SKAUST and ors. Petitioners Syed Zaffar Iqbal Respodents !Mr. G.A.Lone, Advocate ^Mr. Altaf Haqani, Advocate * Honble Mr. Justice Mohammad Yaqoob Mir, Judge Honble Mr. Justice Hasnain Massodi, Judge %Date: 04/03/2013 : J U D G M E N T :
1. Shri Zaffar Iqbal respondent herein was vide University order No.723(Est.) of 1986 dated 8.12.1986 temporarily appointed as Medical Assistant in the pay scale of Rs.475-850 and posted against available vacancy of Medical Assistant in KVK/ETC Malangpora. The University - appellant before this court vide University order No.306/Est of 1989 dated 7.6.1989 declared the respondent to have completed his probation satisfactorily in terms of clause 18 chapter III of SKUAST Statutes of 1983. However, he in terms of the aforesaid order was to hold temporary status.
2. The respondent in September 1993 submitted an application for grant of one months leave in his favour w.e.f 14.9.1993. Leave sought, was duly granted in his favour vide order No.KVK/CS/93/1- 3/301-2 dated 9.9.1993. However, the respondent after availing one months leave did not resume his duty. He through a telegram requested for extension of leave for a further period of 30 days in his favour. The appellant at the request of respondent vide KVK/CS/94/583-85 dated 27.1.1994 sanctioned further one months leave in his favour. The respondent again failed to resume his duty. He dispatched two more telegrams to the appellant requesting for extension of earned leave. However, the extension sought, was not granted in his favour.
3. The appellant vide communication No. AU/ KVK/ 94/ 284-85 dated 26.9.1994 asked the respondent to resume his duty and informed him that only after his joining duty, his request for extension of leave would be considered. The respondent was further informed that in the event he failed to resume his duty action would be taken in terms of Article 128 J&K CSR against him. Petitioner responded to the communication dated 26.9.1994 by his letter dated nil addressed to Dy. Registrar of the appellant-University. The letter was received on 26.10.1994. Respondent in the aforesaid communication informed the appellant that he had taken up a job in Kingdom of Saudi Arabia. It was emphasised that as there was little work for him at his place of posting, his absence was not to affect the official work. He reiterated his request for grant of leave whatever due to him including leave without pay. The appellant did not sanction any leave in his favour nor did respondent resume his duty.
4. The appellant vide notice No.AU/KVK/95/103-38-41 dated 10.4.1995 again advised the respondent to attend his normal duty within a period of 10 days. The notice reminded him that in the event of his failure to resume duty action in terms of Article 128 Jammu & Kashmir CSR would be initiated against him. The notice was sent to the respondent and also published in a local daily (Alsafa) on 22.4.1995. Notice dated 10.4.1995 went un-heeded. The respondent did not resume his duty. The appellant in the said background issued a public notice bearing No.AU/ADM/1-5-6 dated 4.9.1998 published in a local daily (Greater Kashmir) on 7.9.1998. It read as under:
Whereas Shri Zaffar Iqbal S/o Syed Naqi R/o Munwar Abad, Khayam Road, Srinagar working as Medical Assistant, KVK, Malangpora proceed on earned leave w.e.f 14.9.1993 for a period of 30 days and then extended the same for further period of 30 days w.e.f 14.10.1993 to 12.11.1993.
Whereas, he was supposed to resume his duty on 13.11.1993 which he failed to do.
Whereas, he requested for grant of further extension in the leave which was not agreed to by his controlling officer, viz, chief training organizer, KVK/ETC Malangpora.
Whereas, show cause notice was served upon him by chief Training Organizer KVK/ETC Malangpora under No. AU/KVK/94/284-85 dated 26.9.1994, sent through registered post by the failed to respond to the same.
Whereas, another notice was served upon him vide Chief Training Organizer KVK/ETC Mapangporas No. AU/KVK/95/1-3/38-41 Dated 10.4.1995 through one of local dailies enjoining upon him to resume his duty within 10 days but even then he did not report to his legitimate duty.
Whereas, he is absconding from 13.11.1993 till date. Whereas, in view of his continuous absence it seems that he has no interest to serve in SKAUST.
Now, therefore, Shri Zaffar Iqbal S/o Syed Naqi R/o Munwar Abad, Khayam Road, Srinagar is informed through public notice that he should report for duty within a period of 21 days from the date of publication of this notice pending decision regarding his absence, failing which his services shall be terminated w.e.f 13.11.1993 without any further notice in terms of relevant service rules.
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Deputy Registrar (Est) NO. AU/Adm/1/1-5-6 Dated 4.9.1998
5. The respondent again failed to act upon the public notice and did not report to duty within 20 days from the date of publication of the notice. The appellant accordingly vide order No. 390(Estt) of 1998 dated 14.11.1998 terminated respondents service w.e.f 13.11.1993 i.e the date where from the respondent was un-authorisedly absent from duty. The order No. 390(Estt) of 1998 dated 14.11.1998 needs to be noticed:
UNIVERSITY ORDER NO: 390 (EST) OF 1998 DATED: 14.11.98 Whereas, Shri Zaffar Iqbal S/o Syed Naqi R/o Munwar Abad Khayam Road, Srinagar Ex- Medical Assistant KVK, Malangpora was absconding from duty w.e.f. 13.11.93.
Whereas, show cause notice was served upon him by Chief Training Organizer, KVK, Malangpora under No.AU/KVK/94/284-85 dated 26.9.94 followed by another notice No.AU/KVK/95/1-3/38-41 dated 1.4.95 through one of local dailies.
Whereas, he did not respond to the notice but continuously remained on unauthorized absence.
Whereas, eventually a public notice under No.AU/DDM/1/1-5/6 dated 4.9.98 was served through local dailies wherein he was directed to report for duty within a period of 21 days failing which he shall be terminated from service.
Whereas, after laps of stipulated period he failed to resume his duty, so it is evident, that he is not interesting to serve in SKUAST.
Now, therefore, the services of Sh Zaffar Iqbal S/o Syed Naqi R/o Munawar Abad Khayam Road, Srinagar are hereby terminated w.e.f. 13.11.93 and the post of Medical Assistant is hereby declared vacant.
By order of Vice Chancellor.
6. The respondent questioned University order No. 390(Estt) of 1998 dated 14.11.1998 in a writ petition being SWP No. 125 of 1999 on the grounds that the order was passed without following procedure prescribed under rules. The respondent pointed out that in terms of Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, the appellant was under statutory duty to hold an enquiry, allow him to participate in such enquiry and furnish him copy of the inquiry report and also offer him an opportunity to show cause against proposed punishment. It was insisted that the appellant observed statutory requirement in breach and straight away passed the termination order impugned in the petition without affording the petitioner an opportunity to contest the charge and show cause against the proposed punishment. It was pleaded that the respondent applied for extension of leave from time to time and was informed that his leave had not been extended nor was any show cause notice addressed on his residential address. The respondent also complained of hostile discrimination as a number of his colleagues were on foreign assignments and paid their salary by the appellant. The next ground urged in the petition was that only Vice Chancellor in his capacity as appointing authority, was competent to issue notice informing the respondent that his service would be terminated. The respondent is aggrieved that the termination order impugned in the petition has been given retrospective effect unmindful of the settled legal position that the termination order is to operate from the date it is served on the employee.
7. The writ petition was opposed by the present appellant on the grounds that the respondent was more than once requested to resume his duty and informed that his request for any further leave would be considered only after he rejoins his duty. The respondent, according to the appellant, left the job of his own and abandoned the service to serve in Kingdom of Saudi Arabia and get better emoluments. The appellant pleaded that the respondent having abandoned service, full-dress enquiry was not required to be made prior to the impugned order. It is insisted that notices were duly served on the respondent and he, for the reasons known to him, did not choose to respond to the notices and therefore cannot turn around and claim that had the notice been served on him he would have resumed his duty. The appellant also controverted the plea that notices were not issued by the authority, insisting that notices were issued by the competent authority under signatures of an officer in the Administrative Department. The writ court, vide judgment dated 3.3.2011 allowed the writ petition and set-side the university order No.390 (Estt) of 1998 dated 14.11.1998. The appellant, however, was given liberty to initiate disciplinary proceedings against the respondent. The view taken was that the appellant in terms of Rule 33 J&K Civil Service (Classification, Control and Appeal) Rules 1956 was required to conduct an inquiry i.e to frame charge, record evidence and even in case respondent did not participate in the inquiry, conduct inquiry in ex- parte and thereafter pass appropriate orders in accordance with the rules.
8. The respondent, according to writ court, in view of his reply dated 26.10.1994 explained his decision to take up a job in Kingdom of Saudi Arabia, was not to be taken to have absconded or surrendered his job. Emphasising that intention to surrender the job is to be gathered from surrounding circumstances, the writ court held that such circumstances in the respondents case would reveal that he had no intention to surrender his job. The court found the order impugned to suffer from non application of mind as much as it did not refer to respondents reply to show cause notice dated 26.9.1994.
9. The writ court judgement is questioned in the Letters Patent Appeal on hand on the grounds that respondent, while availing 30 days Casual Leave in September 1993, did not inform the appellant that he was proceeding on a foreign assignment and the appellant came to know about the respondent, having left the State only after he in response to the communication dated 26th September 1994, informed the appellant that he had taken employment in the Kingdom of Saudi Arabia; that the appellant in the said background was under no obligation to hold an inquiry into unauthorized absence of respondent, stretching over a period of more than five years. It is pleaded that respondent by unauthorizedly absenting himself from duty for a period of more than five years is, in terms of Article 113, J&K Civil Services Regulations, to be considered to be out of State employ. The Writ Court is said to have not taken notice of mandate of Article 113, J&K Civil Services Regulations and not appreciated the controversy involved in its right perspective. It is next urged that the respondent in his Reply having admitted misconduct and thereafter relinquished/abandoned service, he has no right to turn around and insist that his termination was violative of principles of natural justice.
10. We have gone through the Appeal, writ court judgment and the record. We have heard learned counsel for the parties.
11. It is required to be pointed out at the out set that absence on leave for a period of more than five years and absence without leave or on leave for less than five years followed by absence without leave, are two different situations and are dealt with by two different Articles of Civil Services Regulations 1956. The difference in ambit and scope of Article 113 and Article 128 CSR has been brought out in Musthaq Ahmad Anwari v. State of J&K and ors. (JKJ (HC) 4, 2012, 867). It has been held that Article 113, J&K Civil Service Regulations, will be attracted in a case where a government employee is continuously absent on leave for a period of more than five years. In such case the government servant in terms of Article 113, is to be considered to be out of State employ i.e. government service. It has been further held that Article 113 would not be attracted in case of unauthorized absence i.e. absence without leave or absence on leave for a period of less than five years or absence after availing leave of less than five years.
12. In view of settled legal position the appellants case, that respondent having remained absent from duty for more than five years after initially availing leave for a period of two months, is to be considered to be out of government service under Article 113, J&K Civil Services Regulations, is bereft of any merit. A case of unauthorized absence from duty without leave, or absence after the leave is over, would be covered by Article 128, J&K Civil Services Regulations. In terms of Article 128, absence without leave or after end of the leave duly granted, involves loss of appointment unless the government employee was prevented from resuming duty because of ill health or any other such justifiable reason. Since Article 128 visualises a situation where government servant may be prevented because of a valid reason from resuming his duty after availing leave sanctioned in his favour or is unable to attend his duty, it is but necessary, that before the Article 128 becomes operational and a government servant is held to have lost employment or his absence without leave or after the end of leave resulted in loss of appointment, an inquiry is to be held as regards his unauthorised absence or the government servant afforded an opportunity to explain his absence.
13. There can be no quarrel with the legal proposition that absence from duty or failure to resume duty after availing leave duly sanctioned, does not ipso facto result in loss of employment and that such a conclusion is to be drawn only after the government servant is given an opportunity to set up his defence. However, giving such opportunity and extent of the opportunity to be given, is to depend on facts and circumstances of each case. Where facts are admitted and beyond dispute, giving an opportunity to a government employee who has remained unauthorizedly absent from duty or failed to resume his duty after availing leave sanctioned in his favour, would be nothing except an idle formality.
14. We need not be reminded that Statutory requirement of a show cause notice to the government employee and an opportunity to project his stand or inquiry has its edifice in the principle of natural justice audi alteram partem i.e. nobody is to be condemned unheard. However, the principle is not be adhered to where the government employee has already made his stand clear and left no room for doubt as regards reason for his unauthorized absence or overstayal on leave.
15. In Mushtaq Ahmad Khan v. State of J&K and others SLJ 2004(II) 445, a Division Bench of this Court while commenting upon the nature and scope of rules of natural justice, observed:
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 depend on 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 be 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 the 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.
16. Supreme Court in Viveka Nand Sethi v. Chairman J&K Bank (2005 (5) SCC 337), relying on its earlier decisions in Gurjeewan Gariwal (Dr.) v. Dr. Sumitra, State of Punjab vs. Jagir Singh, Karnatka SRTC v. S.G.Kotuarapa, has observed:
22. The principles of natural justice, it is trite, is no unruly horse. When facts are admitted, an inquiry would be an empty formality. Even the principle of estoppel will apply. The principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case.
17. In the present case, the respondent proceeded on one months Earned Leave on 14.9.1993. He was to resume his duty on 14.10.1993. However, he did not report back and instead telegraphically requested for extension of 30 days leave in his favour. The appellant acceding to the request sanctioned 30 days leave w.e.f 14.10.1993 on 27.1.1994. The respondent was therefore to join on 13.11.1993. He however, did not rejoin his duty on 13.11.1993 or during next few years. He however, despatched two telegrams to the appellant making a request for extension in his leave.
18. The Appellant vide No. AU/KVK/94/284-85 dated 26.9.1994 asked the respondent who had failed to resume his duty till the date of communication, to report back to duty. The respondent was informed that his request for any further leave would be considered only after he rejoins the duty and that in the event he does not report to duty action in terms of Article 128 J&K CSR would be initiated against him. The communication reads:
No.AU/KVK/94/284-85 Dated 19.9.1994 Whereas you submitted E/ leave petition w.e.f 14.9.1993 for a period of one month. The same stands sanctioned in your favour as per this office No.KVK/Cs/93/1-
3/301-2 of 9.9.1993.
Whereas you submitted another telegram requesting for extension of 30 days more and that too stands sanctioned in your favour as per this office No. KVK/CS/94/583-85 of 27.1.1994.
Whereas you submitted two more telegrams requesting therein for extension of Earned leave.
Whereas your leave case will not be settled/decided unless and until your will rejoin your duties.
In view of the circumstances you are directed to attend your duties forthwith otherwise disciplinary action in terms of Art. 128 of JK CSR will be initiated against you.
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Chief Training Organiser Camp- Malangpora It is very important to note that this communication was admittedly received by the respondent. The respondent, in the circumstances, was aware that his leave has not been extended, that he is on unauthorised absence and that the appellant contemplates action under Article 128 J&K CSR 1956.
19. The respondent submitted his reply to the communication dated 26.9.1994. In his reply the respondent informed the appellant that he had accepted a job in Kingdom of Saudi Arabia. He spelt out the reasons that according to him prompted him to take up a job in the Kingdom of Saudi Arabia. According to the respondent, his job requirement at Shalimar i.e place of posting was minimum and his absence was not to effect the working at his place of posting.
20. The appellant vide communication No.AU/ KVK/ 95/1-3/38-41 Dated 10.4.1995 once again requested the respondent to attend his duty within ten days. He was reminded that in the event of his failure to report to duty, action in terms of Article 128 J&K CSR would be initiated. The notice was duly published in local daily Alsafa in its issue dated 22.4.1995. However, there was no response from the respondent. It would be apt to reproduce letter dated 10.4.1995 hereunder:
AU/KVK/95/1-3/38-41 Dated 10.4.1995 You were directed to resume your normal duties forthwith vide registered letter No.AU/ KVK/ 94/ 284-85 of 26.9.1994, but as a matter of fact you have failed to resume your duties till date. As such you are once again advised through this notice to attend your normal duties within a period of ten days failing which action in terms of Art-128 of JKCSR will be initiated against you.
(Dr. K.M.Dar) Chief Training Organiser
21. The appellant desisted from taking any action and decided to give one more opportunity to the respondent to resume his duty. The appellant accordingly vide notice No.AU/Adm/1-5-6 dated 4.9.1998 issued a Public notice again requesting the respondent to resume duty within a period of 21 days, reminded him that his service shall be terminated w.e.f 13.11.1993 without any further notice. The Public Notice may to be reproduced hereunder:
Sher-e-Kashmir University of Agricultural Sciences and Technology.
Shalimar Campus Public Notice Whereas, Shri Zaffar Iqbal s/o Syed Naqi r/o Munwar Abad, Khayam Road, Srinagar working as Medical Assistant, KVK, Malangpora proceed on earned leave w.e.f 14.9.1993 for a period of 30 days and then extended the same for further period of 30 days w.e.f 14.10.1993 to 12.11.1993.
Whereas, he was supposed to resume his duty on 13.11.1993 which he failed to do.
Whereas, he requested for grant of further extension in the leave which was not agreed to by his controlling officer, viz, Chief Training Organiser, KVK/ETC, Malangpora.
Whereas, show cause notice was served upon him by Chief Training Organiser KVK/ETC Malangpora under No.AU/KVK/94/284-85 dated 26.9.1994, sent through registered post but he failed to respond to the same.
Wherea , an0ther notice was served upon him vide Chief Training Organiser, KVK/ETC/Malnagporas No. Au/KVK/95/1-3/38-41 dated 10.4.1995 through one of local dailies enjoining upon him to resume his duty within ten days but even then he did not report to his legitimate duty. Whereas, he is absconding from 13.11.1993 till date.
Whereas, in view of his continued absence it seems that he has no interest to serve in SKAUST.
Now, therefore, Shri Zaffar Iqbal s/o Syed Naqi r/o Munwar Abad, Khayam Road, Srinagar is informed through Public notice that he should for duty within a period of 21 days from the date of publication of this notice, pending decision regarding his absence, failing which his services shall be terminated w.e.f 13.11.1993 without any further notice in terms of relevant service notice.
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Dy. Registrar (Est) No.AU/Adm/1-5-6 Dated04.09.1998
22. The public notice was published in Daily Greater Kashmir on 7.9.1998. The notice went unheeded. The respondent did not report to his duty. This paved way for University order No.390(Est) of 1993 dated 13.11.1993 whereby respondents service was terminated w.e.f 13.11.1993 (reproduced above).
23. The facts of the present case are markedly different and distinguishable from the reported cases relied upon by Ld. Counsel for the respondent to convince the court that un- authorised absence does not result in loss of employment and in such case, a show cause notice is required to be issued and the Government employee provided an opportunity to explain or justify his unauthorised absence. Cases may be visualised where a Government employee, because of circumstances beyond his control, is not in a position to report to his duty or to resume his duty after availing leave duly sanctioned in his favour. The Government employee, before any action is taken against him, obviously is to be given an opportunity to explain his un- authorised absence or over stayal on leave. The competent authority is to take a decision in the matter only after giving an objective and dispassionate consideration to the case projected by the Government employee. Here is a case, where respondent in reply to the appellants communication dated 26.9.1994, after he had unauthorisedly absented himself from duty for more than one year, replied that he had taken up a job in Kingdom of Saudi Arabia and indirectly expressed his inability to resume his duty because of new assignment, requesting for extension of his leave. In the said background the respondent had already given the reasons that prompted him to unauthorisedly absent himself from duty. In the circumstance nothing more was required to be done and the respondent after remaining unauthorisedly absent for a period of more than five years cannot turn around and insist that the appellant ought to have gone for an enquiry in terms of Rule 33 J&K Civil Service (Classification, Control and Appeal) Rules 1956, when he had already explained his stand and spelt out the reasons that made him to remain away from his duty unmindful of the fact that his absence was unauthorised. The appellant by issuing successive notices to the respondent requesting him to resume his duty and assuring him that his request for leave would be considered once he rejoins, sufficiently complied with the rules and cannot be held to have violated the rules or infringed any of the rights of the respondent including right to be heard before the order dated 14.11.1998 whereby his services was terminated, was issued. Needless to emphasise that one of the notices was actually received by the respondent, in as much as he responded to the notice and other notices were published in a local daily and constructive notice thereof is to be presumed. It is pertinent to point out that the respondent withheld important information from the writ court. He did not annex copy of the communication No. AU/KVK/94/184-85 dated 26.9.1994 and his reply admitting to have taken up a job in Kingdom of Saudi Arabia, with the petition. Ld. Single Judge in absence of the aforesaid relevant documents, assumed that the respondent was not issued a show cause notice.
24. Ld. Single Judge instead of going to the aforesaid aspect of the case, placed focus exclusively on the intention of the respondent to abandon Government employment. Ld. Single Judge giving a closer look to the reply sent by the respondent and received by the appellant on 26.10.1994, in response to communication dated 14.8.1993, found the respondent not to have signified his intention to abandon the service. Mere fact that the intention to abandon services/government employment was not gatherable from the aforesaid reply, would not change complexion of the case. It is admitted position of the parties that the respondent availed one month leave w.e.f 14.9.1993, got it extended by 30 days was to resume his duties on 13.11.1993 but remained on unauthorised absence for next five years till his services were terminated on 14.11.1998. The only question that would arise in the said background is whether the respondent was given an opportunity to explain and justify his absence before his services were terminated. The record available on the file would reveal that show cause notice was issued to the respondent and he spelt out his taking up employment in Kingdom of Saudi Arabia, as a reason for his unauthorised absence and to justify such absence. He further informed the appellant that he had gone outside the country, to Kingdom of Saudi Arabia making it sufficiently clear that he was not available for any enquiry.
25. In the said background, the appellant complied with the rules and fulfilled the procedural requirements before issuing the impugned order. Any further enquiry in the matter was not required and against the above factual backdrop, would have been nothing but an idle formality. Reference in this regard may be made to Aligarh Muslim University and ors. vs. Mansoor Ali Khan (2000) 7 SCC 529, Dr. Anil Bajaj vs. Post Graduate Institute of Medical Education and Research (2002) 2 SCC 240 and Gurjeewan Garewal (Dr) vs. Dr. Sumitra Dash (2004) 5 SCC 263.
26. For the reasons discussed, we find merit in the appeal. The appeal is accordingly allowed and writ court judgment set side. Disposed of.
(Hasnain Massodi) (Mohammad Yaqoob Mir)
Judge Judge
Srinagar
04/03/2013
Gh. Nabi