Central Administrative Tribunal - Jammu
Jai Singh vs Home Department on 16 December, 2025
:: 1 :: T.A. No. 61/8563/2021
CENTRAL ADMINISTRATIVE TRIBUNAL (RESERVED)
JAMMU BENCH, JAMMU
Hearing through video conferencing
Transfer Application No.61/8563/2021
Order reserved on: 16th day of July, 2025
Pronounced on: -16.07.2025
HON'BLE MR. RAJINDER SINGH DOGRA, MEMBER (J)
HON'BLE MR. RAM MOHAN JOHRI, MEMBER (A)
Jai Singh, Age 41 years,
S/O Sh. Jagat Ram,
R/o Village Chandan,
Tehsil Bani District Kathua
....Applicant
(Through Advocate: Mr. S.K. Anand)
VERSUS
1. State of Jammu & Kashmir,
Through Financial Commissioner,
Home Department,
Srinagar.
2. Director General of Police,
Jammu & Kashmir, Jammu/Srinagar.
3. Senior Superintendent of Police, Samba.
....Respondents
(Through Advocate: Mr. Rajesh Thapa, ld. A.A.G.)
HARSHIT HARSHIT
YADAV YADAV
:: 2 :: T.A. No. 61/8563/2021
ORDER
Per: - Rajinder Singh Dogra, Judicial Member
1. The SWP/WP(C) No. 1568/2016 was transferred from the Hon'ble High Court of Jammu and Kashmir at Jammu and was registered as T.A. No. 61/8563/2021 by the Registry of this Tribunal.
2. The present matter was filed before the Hon'ble High Court with following prayer:
"(i) Allow the writ petition;
ii) Issue a writ of certiorari for quashing the Order No.309 of 2008 dated 26-06-2008 passed by therespondent No.3 whereby, the petitioner has been removed from service with effect from 29-12- 2007.
(iii) Issue a Writ of Mandamus commanding the respondents to treat and allow the petitioner to perform the duties and to release the salary of the petitioner from December, 2007 with all consequential benefits including the promotion and also to treat the period from 29-12-2007 till date as on duty; AND
iv) Pass any other appropriate writ, order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
v) To allow the cost of the petition."
3. The facts of the case as averred by the applicants in their pleadings are as follows:
a) That the petitioner is a permanent resident of the state of Jammu and Kashmir and citizen of India and as such is entitled to all fundamental, legal and statutory rights as are available to the HARSHIT HARSHIT YADAV YADAV :: 3 :: T.A. No. 61/8563/2021 citizen of India in terms of part III of the Constitution of India as made applicable to the State of Jammu and Kashmir.
b) That the petitioner belongs to a poor family and came to be appointed as Constable in the Police Department on 22-06-1998.
c) That the petitioner had to look-after the large family besides old ailing parents.
d) That the petitioner was performing the duties quite efficiently.
The petitioner applied for leave and the leave was sanctioned in his favour from 25-12-2007 to 29-12-2007. The petitioner availed the leave but could not resume the duty on 29-12-2007 as he fell ill and got himself treated by a local doctor as the petitioner hails from a far flung remote area of Tehsil Bani. After recovery from illness the petitioner resumed the duty on 06-04-2008 after obtaining permission from the competent official. The petitioner was allowed to resume the duty but the respondent No.3 ordered an enquiry against the petitioner on account of his over stayed of leave for a period of ninety eight days.
e) That no enquiry contemplated under law was initiated, as no charge sheet was framed by the Disciplinary authority/appointing authority. The petitioner was called by the Enquiry Officer, the petitioner told the enquiry officer that he was taken ill and so he could not resume the duty. Thereafter it appears from the order impugned that the enquiry officer framed the charge sheet and recommended to the respondent No.3 that the period of absence be treated as Dies-Non but the respondent HARSHIT HARSHIT YADAV YADAV :: 4 :: T.A. No. 61/8563/2021 No.3 ignoring the recommendation of the enquiry officer issued a show cause notice to the petitioner on 16-06-2008 which was replied by the petitioner.
f) That thereafter, the respondent No.3 passed the order on 26-06- 2008 thereby removing the petitioner from service. Hence, writ petition.
4. The respondents have filed their reply statement wherein they have averred as follows:
a) That none of the constitutional, legal or statutory rights of the applicant has been infringed or violated by the answering respondent, which is sine qua non for invoking the jurisdiction of this Hon'ble Tribunal. More so, no cause of action has accrued to the applicant to file the present petition and therefore, the same deserves to be dismissed.
b) That the present petition is not maintainable as the petitioner has approached the Hon'ble Tribunal straightway without availing the remedies statutory remedies available to him and challenging the impugned order dated 26.06.2008 before the higher forum/appellate authorities that too after of delay of eight years.
Hence, in the absence of such challenge, the present petition is not maintainable and as such deserves outright dismissal.
c) That petitioner herein proceeded for casual leave for 3+1 days w.e.f. 25.12.2007 and was due to report back on 29.12.2007 but he failed to resume his duties on due date. After 98 days, the HARSHIT HARSHIT YADAV YADAV :: 5 :: T.A. No. 61/8563/2021 petitioner resumed his duties on 06.04.2008 and therefore, a departmental enquiry was initiated against him for his unauthorized absence and charge-sheet was handed over to him on 07.05.2008. After the lapse of one week he was reminded by Dy. SP DAR Ramgarh to submit his reply vide signal No. 573 dated 13.05.2008 but the petitioner again failed to submit his reply. Again Dy. SP DAR DPL Ramgarh served him three notices with the directions to submit his reply to the charge sheet vide No. 599 dated 17.05.2008, 614 dated 23.05.2008 and 649 dated 03.06.2008 all these notices stands got noted by the petitioner but still did not bothered to submit his reply to his charge sheet. Compelling the E.O to submit finding ex-parte recommending that the period of absence of the petitioner be treated as "Dies Non". After that the petitioner was served with show cause notice. The Petitioner was given an opportunity of personal hearing by the undersigned and sufficient time was given to petitioner but he again failed to produce any documentary proof in support of his claim of illness and it appeared that the delinquent had no repentance for what he has been doing for all these years. Thereafter the order dated 26.06.2008 impugned herein was passed and the petitioner was removed from services.
d) Not only this, petitioner even failed to produce any documentary proof in support of his claim for illness before this Hon'ble Court also, even after eight years of passing of the order impugned dated 26.06.2008.
HARSHIT HARSHIT
YADAV YADAV
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e) Further, during his entire service career of 10 years, the petitioner was awarded 11 punishments for absenteeism and had not earned any good entry which clearly shows that the petitioner was habitual of absenting himself from services on pretext or other. Therefore, the order impugned dated 26.06.2008 was rightly passed against the petitioner.
f) That it is a general principle of law that law is made to protect only diligent and vigilant people. Law will not protect people who are careless about their rights (Vigilantibus non dormientibus jur A subveniunt). In the present case, the impugned order was passed on 26.06.2008 but the applicant neither challenged the same before the higher forum /appellate authority nor challenged the same before the Hon'ble Court. And now after eight years, the present petition has been filed. The present petition filed by the petitioners suffers from delay and latches as the petitioner did not even question/challenged the order impugned dated 26.06.2008 at any time during the last more than eight years despite being fully aware of the passing of the same. Therefore, the present petition apart from being misconceived also suffers from delay and latches and deserves outright dismissal.
g) That it is respectfully submitted that the petitioner was appointed in the year 1998 and was removed from services in the year 2008 and during the short span of his service; petitioner was punished 11 times for absentism from services. Besides, he failed to HARSHIT HARSHIT YADAV YADAV :: 7 :: T.A. No. 61/8563/2021 produce any documentary proof in support of his claim of illness for 98 days which compelled the answering respondent to pass the order impugned dated 26.06.2008. Therefore, the order impugned has been rightly passed by the answering respondents and the present petition deserves to be dismissed.
h) That the argument of the petitioner that he was not provided the opportunity to furnish the medical records of his illness to substantiate his case is not tenable at all. In fact, the petitioner joined his services after 98 days and failed to produce any documentary proof in support of his claim during departmental inquiry. Not only this, petitioner even failed to produce the same before the Hon'ble Court even after eight years of passing of the order impugned dated 26.06.2008. Therefore, this plea of the petitioner is nothing but an afterthought and lacks merits and the present petition deserves to be dismissed on this count also.
5. Heard learned counsel for the parties and perused the material on record.
6. The grounds raised by the petitioner in his case are as follows:-
a) That the order impugned is against all cannons of law, and as such, cannot be sustained in the eyes of law and deserves to be quashed.
b) That the order impugned deserves to be quashed because no legal and valid enquiry, whatsoever, has been conducted by the HARSHIT HARSHIT YADAV YADAV :: 8 :: T.A. No. 61/8563/2021 respondents before passing the order dated 26-06-2008 which is impugned in the present petition.
c) That the order impugned also deserves to be quashed because the same is violative of the fundamental, legal and statutory rights of the petitioner and the order impugned is also against the service rules. It is well settled principles of laws that no employee can be removed from the service unless and until the charges are framed by the Disciplinary authority or the appointing authority, the copy of the charges is served upon the delinquent official and thereafter enquiry officer is appointed and proper enquiry is conducted and after the conduct of the enquiry the opinion is formed and then a show cause notice is issued; but from the bare perusal of the order impugned it is clear that no legal, valid enquiry, whatsoever, was conducted by the respondents before passing the Order impugned and, as such the order impugned is against all cannons of law and, as such, the same cannot be sustained in the eyes of law and deserves to be quashed.
d) That the Order impugned also deserves to be quashed because the same is violative of Jar principles of natural justice in, as much as, no opportunity has been afforded to the petitioner nor any enquiry has been conducted and, as such, the order impugned deserves to be quashed.
e) That the order impugned also deserves to be quashed as the same is against all the cannons of law. From the bare perusal of the order impugned, it is apparent that the alleged charge sheet as HARSHIT HARSHIT YADAV YADAV :: 9 :: T.A. No. 61/8563/2021 mentioned in the order impugned has been framed by the Enquiry officer which is violative of law and the order passed on the basis of charges framed by incompetent authority are bad in law and cannot be sustained in the eyes of law and as such the order impugned is void-abinitio and deserves to be set aside.
Moreover from the order impugned it is also clear that the witness examined was prior to the framing of charge by the Enquiry officer and after the framing of charge no formal enquiry was conducted except asking the petitioner to submit reply to the charge-sheet and non-filing of the reply, recommendation were made to the respondent No.3.
f) That the order impugned also deserves to be set aside as the reply submitted by the petitioner to the respondent No.3 in response to show cause notice dated 16-06-2008 has not been considered by the respondent No.3. The petitioner submitted before the respondent No.3 that he can produce the medical record and sometime be granted but the respondent No.3 did not provide any opportunity to the petitioner and passed the order impugned. The petitioner has submitted in the reply at para No.5 that some time be afforded to produce the medical record with regard to illness but the respondent No.3 did not afforded the time nor made any mention in the order impugned to that effect which clearly shows the bias mind of the respondent No.3. The action of respondent No.3 is malafide and abuse of process of law.
HARSHIT HARSHIT
YADAV YADAV
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g) That the order impugned also deserves to be quashed as the same is an outcome of the non application of mind and without reasons. Major punishment has been imposed without adhering to the mandate of law.10
h) That the order impugned also deserves to be set-aside as the same has been passed in a hot-haste in as much the show cause notice was issued on 16-06-2008, the reply was submitted by the petitioner on 19-06-2008 and without affording any opportunity to produce the record, the order impugned was passed on 26-06- 2008 thereby removing the petitioner from service.
i) That even otherwise, the order impugned deserves to be quashed, assuming though not admitting that the facts stated in the order are correct, yet punishment awarded to the petitioner is not commensurate with the misconduct alleged to have been committed by the petitioner with regard to his overstayed of leave. The order impugned is in violation of Rule 337 of the Police Rules.
7. In the matter of Union of India & Ors. v. Subrata Nath [2022 SCC Online 1617], the Hon'ble Apex Court has held as follows:
19. Laying down the broad parameters within which the High Court ought to exercise its powers under Article 226/227 of the Constitution of India and matters relating to disciplinary proceedings, a two Judge Bench of this Court in Union of India and Others v. P. Gunasekaran held thus :
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second HARSHIT HARSHIT YADAV YADAV :: 11 :: T.A. No. 61/8563/2021 court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
********
22. To sum up the legal position, being fact finding authorities, both the Disciplinary Authority and the Appellate Authority are vested with HARSHIT HARSHIT YADAV YADAV :: 12 :: T.A. No. 61/8563/2021 the exclusive power to examine the evidence forming part of the inquiry report. On finding the evidence to be adequate and reliable during the departmental inquiry, the Disciplinary Authority has the discretion to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the misconduct. However, in exercise of powers of judicial review, the High Court or for that matter, the Tribunal cannot ordinarily reappreciate the evidence to arrive at its own conclusion in respect of the penalty imposed unless and until the punishment imposed is so disproportionate to the offence that it would shock the conscience of the High Court/Tribunal or is found to be flawed for other reasons, as enumerated in P. Gunasekaran (supra). If the punishment imposed on the delinquent employee is such that shocks the conscience of the High Court or the Tribunal, then the Disciplinary/Appellate Authority may be called upon to re-consider the penalty imposed. Only in exceptional circumstances, which need to be mentioned, should the High Court/Tribunal decide to impose appropriate punishment by itself, on offering cogent reasons therefor.
8. In view of the aforesaid law of the Hon'ble Apex Court, the facts of the present case are being analyzed and evaluated.
9. From the perusal of the impugned dismissal order dated 26.06.2008, it is manifest that a formal departmental inquiry was conducted against the applicant for unauthorized absence of 98 days. E.O. submitted his findings ex-parte recommending that the period of absence of the said petitioner be treated as "Dies Non". But the disciplinary authority not agreeing with the recommendations of the E.O. and looking the previous record of the applicant, served a show cause-notice to the petitioner vide dated 16.06.2008. Petitioner has submitted his reply to the show cause notice dated 16.06.2008. After this, the impugned order dated 26.06.2008 passed by the disciplinary authority whereby the petitioner has been removed from service.
11. Perusal of the impugned dismissal order further reveals that no fresh charge sheet was issued to the petitioner and no fresh inquiry was HARSHIT HARSHIT YADAV YADAV :: 13 :: T.A. No. 61/8563/2021 conducted in the matter. Only fresh show cause notice was issued to the petitioner and after received the reply from the petitioner, the impugned order of removal from service was passed. Hence, there is violation of the principles of natural justice in conducting the proceedings; and the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
12. As per above discussions, this Tribunal is of the considered opinion that order for removal from service is not sustainable in the eyes of law and deserves to be quashed.
13. Accordingly, the impugned order for removal from service dated 26.06.2008 is quashed. Respondents are directed to conduct fresh inquiry in the matter as per rules and in accordance with principle of natural justice by giving him an opportunity to defend himself, within a period of six months from the date of this order, and pass a reasoned and speaking order.
For avoidance of doubts, it is clear that joining of the petitioner would be subject to final outcome of the enquiry report. No costs.
(RAM MOHAN JOHRI) (RAJINDER SINGH DOGRA)
Member (A) Member (J)
/JNS/
HARSHIT HARSHIT
YADAV YADAV