Jammu & Kashmir High Court - Srinagar Bench
Mohammad Hussain Dar vs State & Ors on 11 October, 2012
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP No. 752 of 2010 Mohammad Hussain Dar Petitioners State & ors Respondents !Mr. Hakeem Aman Ali, Advocate ^Mr. Shah Aamir, Advocate Mr. A. M. Magray, Advocate Honble Mr. Justice Mohammad Yaqoob Mir, Judge Date:11/10/2012 : J U D G M E N T :
1. By virtue of order No.527 of 2009 dated 08.07.2009, passed by respondent SSP, Anantnag, annual increment of the petitioner has been forfeited for a period of two years treating the period of his absence/discharge with effect from 27.2.2003 to 13.9.2008 as dies-non on the principle of no work no pay. Aggrieved thereof, instant petition has been filed.
2. It is contended that the order has been passed in violation to the order dated 29.7.2008 passed in SWP No.1654/2006, so deserves to be quashed.
3. Petitioner has been appointed as Constable on 06.06.2000. He has remained absent from duties, as a result thereof he has been discharged from service with effect from 27.2.2004 vide orderNo.981 of 2004 dated 27.8.2004. Said order of discharge has been question in writ petition(SWP) No.1654/2006 captioned Mohammad Hussain Dar Vs. State & ors, same has been decided on 29.7.2008 with the following direction:
In the given circumstances of the case, this petition merits to be allowed and is accordingly allowed and the order No.981/2004 dated 27.8.2004 is quashed. However, respondents are at liberty to conduct an enquiry strictly in accordance with the rules occupying the field and pass appropriate orders after hearing the petitioner. The period from the date of absence till to date shall be subject to outcome of the departmental enquiry. It goes without saying that if enquiry is not conducted and concluded within the period of three months, then petitioner shall be entitled to all the service benefits including seniority minus the monetary benefits for period, from the date of absence till today and shall not be treated as break in his service. The period of three months shall commence from the date copy of this order is served by the petitioner on the respondents against proper receipt.
4. What emerges from above is that the respondents were left free to conduct enquiry in accordance with governing rules within a period of three months and in case of default in conduct and concluding the enquiry within the period of three months, petitioner shall be entitled to all service benefits including seniority minus the monetary benefits for the period from the date of absence till today (means 29.7.2008) and same shall not be treated as break in his service. Period of three months was to commence from the date copy of the order is served upon respondents against proper receipt.
5. Order admittedly has been served upon the respondents. In compliance thereof, petitioner has been reinstated into service on 13.9.2008 pending departmental enquiry into his conduct which has been entrusted to Chief Prosecuting Officer DPO, Anantnag.
6. Learned counsel for the petitioner would contend that on expiry of three months, in terms of judgment rendered in SWP No.1654/2006, there was no scope for the respondents to conduct the enquiry and to pass the impugned order. The respondents have not sought leave of the Court or have not sought extension of time for conduct and completion of enquiry, therefore, they have passed the order impugned in violation to the said judgment. Learned counsel submits that a similar question arose for consideration before the High Court of Rajasthan in writ petition No.1247/2003 decided on 24.5.2005 in case titled Dr. O. P. Garg Vs. State of Rajasthan & ors. In the said case the respondents therein were directed to conclude the enquiry and to pass appropriate orders within a period of four months from the date of filing of certified copy of the order before the enquiry officer. It was also provided that in case enquiry is not concluded within four months, respondents shall seek extension of time from the Court. Neither enquiry was concluded within the period prescribed nor extension of time was sought. In the said judgment it was concluded that the enquiry proceedings and any decision thereon after completion of the period prescribed by the Court was without authority of law. Accordingly the enquiry proceedings after the expiry of four months as prescribed by the Court was declared to be non-est. Finally the disciplinary proceedings conducted by the respondents therein after completion of four months from 24.4.2000 were declared non-est and quashed. All orders including order dated 1.10.2002 as was impugned were quashed.
7. Applying the said ratio to the present case, the order impugned in this petition also deserves to be quashed. This Court while disposing of writ petition(SWP) No.1654/2006 had specifically provided three months time for conclusion of the enquiry which has not been done. Judgment rendered in the said writ petition has not been challenged which has attained finality, therefore, the respondents were to complete the enquiry within the period prescribed or in alternative were to seek permission and extension of time from the Court for concluding the enquiry and to pass orders thereon which admittedly has not been done. Therefore, the order impugned runs contrary to the judgment passed by the Court while disposing of earlier writ petition.
8. Viewed thus, writ petition allowed, order impugned bearing No.527 dated 08.07.2009 is quashed.
(Mohammad Yaqoob Mir) Judge Srinagar 11.10.2012 Mohammad Altaf