Jammu & Kashmir High Court - Srinagar Bench
Sajad Ahmad Shah And Anr vs State Of J&K And Ors on 2 December, 2019
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
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IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP No. 1542/2016
Reserved on: 28.11.2019
Pronounced on: 02.12.2019
Sajad Ahmad Shah and Anr.
.......Petitioner(s)
Through: Mr. Allauddin Ganai, Advocate
V/s
State of J&K and Ors.
......Respondent(s)
Through: Mr Hakim Aman Ali, Dy. AG
CORAM:
HON'BLE MR JUSTICE ALI MOHAMMAD MAGREY, JUDGE
Whether approved for reporting? Yes/No
JUDGMENT
01. In this petition, filed under Article 226 of the Constitution of India, the petitioners have craved the indulgence of this Court in granting them the following relief(s):
a) An appropriate writ, order or direction quashing the impugned order dated 27.06.2016.
b) A writ in the nature of mandamus, commanding the respondents to make the payment of the service benefits, such as the salary and other allied benefits accrued from the year 1989 till the date of the death of the deceased employee in favour of the petitioners and also the pensionary benefits in favour of the petitioner No. 2 after the date of death of the deceased employee.
c) A writ in the nature of mandamus commanding the respondents to appoint the petitioner No. 1 on compassionate basis in view of the death of his father in harness."
Brief facts of the case are summarized as under:-
02. Father of petitioner No. 1 and son of petitioner No. 2, namely Habibullah Shah (hereinafter referred to as "deceased") is stated to have worked in Power 2 Development Department on substantive basis as Lineman from 01.03.1973 and while continuing as such, till November, 1989, disappeared. The missing report is stated to have been lodged with the Police concerned- Police Station, Pattan. However, the body of the deceased employee was recovered on 24.01.2012 from the General Bus Stand, Jammu, and on identification petitioners received the dead body and performed the last rites. An inquest proceedings under Section 174 of Cr. PC were undertaken by SHO, Police Station, Jammu, resulting in filing of final report concluding that the deceased was mentally unsound and died a natural death on 24.01.2012, at Jammu Bus Stand.
03. Petitioners being the legal heirs of the deceased, approached the respondents for release of the benefits, viz salary/settlement of pension/payment of gratuity/ considering the petitioner No. 1 for compassionate appointment. The benefits were claimed on the strength of the deceased was an employee of PDD, died while in service and had to retire in 2013, on reaching the age of superannuation. The petitioner No. 1 being eligible claimed appointment on compassionate grounds with the application of SRO 43 of 1994, as also the petitioner No. 2, claimed the pensionary benefits/release of salary, gratuity etc., in terms of the applicable rules, however, the respondents having withhold the benefits, formed a ground for petitioner No. 1 to approach this Court in the first instance by filing SWP No. 2328/2013 and this Court in terms of final order dated 28.11.2013, disposed of the said writ petition with direction to respondents 2 and 4 to take decision on the claim of the petitioner for his appointment on compassionate grounds. Respondents having considered the matter, resulting in notifying the consideration order in terms of communication No. CE/M&RE/Adm-II/13230/As dated 27.06.2016, which is challenged in the present writ petition on the varied grounds with particular reference that the decision taken is contrary to the rules and the law.
Relevant grounds taken are highlighted below:
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A. That the impugned order is illegal, illogical and has been passed to hoodwink the petitioners, as such, the same is not sustainable in the eyes of law. Since the deceased was within the rolls of the department and in view of his unsoundness of mind he was incapacitated to join his services, therefore, the observations of the respondents that the provisions of Article 113 of the J&K CSR Vol-1 are applicable to the case, are by no stretch of imagination applicable in the facts and circumstances of the present case, in that as per Article 113 of CSR after five years continuous absence on leave, an officer is considered to be out of state employee, but in the present case the deceased employee had gone missing due to unsoundness of mind or otherwise and his whereabouts could not be ascertained till his dead body was recovered at General bus stand, Jammu, thus the question of his joining the services does not arise, as the non-joining of his services was due to his unsoundness of mind or his missing due to the reasons not known to the petitioners, therefore, the provisions of Article 113 of J&K CSR Vol-1 aforesaid are not applicable to the case in hand.
B. That Article 113 of the JKCSR postulates the service of notice upon the delinquent employee as well as an opportunity of being heard before returning the finding regarding the status of an employee as an out of state employee, but in the present case since the employee was missing for about 23 years and thereafter all of a sudden his dead body came to be recovered from the General Bus Stand, Jammu, thus the respondents had no occasion to serve a notice upon the deceased and give him an opportunity of being heard and render an authoritative pronouncement regarding his status, as such the expressions used by the respondents regarding the deceased as a delinquent employee and attributing that he deliberately remained absent from the duties is just a misnomer used by the respondents in the impugned 4 order in order to defeat the rights of the petitioners upon the service as well as the pensionary benefits of the deceased employee, as well as upon the entitlement of the petitioner No. 1 to be appointed on compassionate basis, therefore, the impugned order is not sustainable in the eyes of law. C. That as per law the father of petitioner No. 1 was in the services of the respondent department till his death and was due to superannuate on 15.03.2013, as his services have not been dispensed with, even though the records reveal that his salary has not been billed but that does not ipso facto terminate his services without following the procedure established under law and without there being any formal order with regard to the same, thus the petitioners by no stretch of imagination can be deprived of their entitlement to the service benefits of the deceased employee, hence, the impugned order is not sustainable and the same merits to be set aside and the respondents are liable to be directed to provide the service benefits of the deceased employee, comprising of his salary and pensionary benefits from the year 1988 till date.
D. That since the deceased employee has died in harness as such it was incumbent upon the respondents to appoint the petitioner No. 1 on compassionate grounds in the department in order to ensure that a source of livelihood is established for the dependents of the deceased employee, however, the respondents have for the sake of avoiding the payment of service dues of the deceased employee rejected the candidature of the petitioner No. 1 for his appointment on compassionate grounds brazenly, despite the fulfillment of the eligibility criteria by him by wrongly placing reliance upon Article 113 of the CSR Vol. 01.
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04. On notice objections stands filed on behalf of respondents by Superintending Engineer Elect. Maint. & RE Circle-II Srinagar, Kashmir, wherein it is stated that the case in hand does not fall within the parameters of SRO 43 of 1994. In this behalf, it is submitted that the case has been examined in compliance to the Hon'ble Court orders in light of Rules promulgated under compassionate Appointment Rules (SRO 43 of 1994). It has been observed that the SRO 43 of 1994 warrants compassionate appointment of any family member of the Government employee who dies in harness, while in the present case, father of petitioner No. 1 and son of petitioner No. 2, had unauthorizedly absented from his duties since Nov. 1989, i.e., for more than two decades and his dead body was found by the Police on 24.01.2012, as per SHO of Police Station Bus Stand, Jammu's reference No. 677/PSBS dated 05.07.2012. Accordingly, as per Article 113 of the JK CSR (Volume-I), he is considered to be out of State employee, keeping this in view, the case/claim of the petitioner has been found devoid of any merit, as such, rejected by the competent authority vide impugned decision, which has been taken by the authority with complete application of mind to the facts and circumstances of the case.
05. Heard learned counsel for the parties, perused the records and considered the matter.
06. Admittedly, the deceased Habibullah Shah was holding the substantive post in the Power Development Department till the time of his death, even on his disappearance/ absence from the duty, no action has been taken. The relationship between the deceased employee and the respondents remained in force/ intact, therefore, the stand taken by the respondents that the deceased employee on his absence from duty is treated to have abandoned the job or treated out of employment under Article 113 of J&K Civil Service Regulations, is not only misconceived but also misdirected. The argument has no substance on merit as the 6 period of absence by application of Article 113 of JK CSR can by no stretch of imagination form basis for abandonment of service of an employee unless procedure is followed and inquiry conducted.
07. True that the deceased employee Habibullah Shah had disappeared, which is admitted by the petitioners as well, while he was in service, but the admission of the Police in the shape of documents placed on record reveals that the efforts have been made to find out the deceased, but the deceased could not be located and finally found him dead on 24.01.2012 at Bus Stand, Jammu.
08. Mere absence of an employee even for an indefinite period cannot form a ground for the respondents to declare him as having lost the employment by application of Article 113 of J&K CSR Vol-I. Law is no more res-integra. The stand taken by the respondents has no substance and cannot be accepted, as the same is contrary to the Judgment of the Division Bench of this Court rendered in case LPA No. 46/2004 titled Mushtaq Ahmad Khan Vs. State of J&K and Ors., reported in 2004 (3) JKJ 10 [HC (DB)]. Paragraphs 5 to 10 and 13 to 15 being relevant are taken note of:-
5. "In Jai Shanker v. State of Rajasthan, AIR 1966 SC 492, the relevant Regulation reads as under:
"An individual who absents himself without permission or who remains absent without permission for one month or longer after the end of his leave should be considered to have sacrificed his appointment and may only be reinstated with the sanction of the competent authority."
It was considered on behalf of the state that the Regulation operates automatically and no question of removal is involved as the person concerned must be considered to have sacrificed his appointment. Rejecting the contention, a Constitution Bench of the Supreme Court observed:
"One circumstance deserving removal may be over-staying one's leave. This is a fault which may entitle Government in a suitable case to consider a man as unfit to continue in service. But even if a Regulation is made, it is necessary that Government should give the person an opportunity of showing cause why he should not be removed...It is true that the Government may visit the punishment of discharge or removal from service on a person who has absented himself by overstaying his leave, but we do not think that Government can order a person to be discharged from service without at least telling him that they propose to remove him and giving him an opportunity of showing cause why he should not be removed. A removal is removal and if it is punishment for over-staying one's leave an opportunity must be given to the person against whom 7 such an order is proposed, no matter how the Regulation describes it. To give no opportunity is to go against Article 311 and this is what has happened there."
6. In Deokinandan Prasad v. State of Bihar, (1971)2 SCC 330, a case from the State of Bihar, the relevant provision was a under:
"Unless the State Government, in view of the special circumstances of the case shall otherwise determine, Government servant after five years of continuous absence from duty, elsewhere than on foreign service in India, whether with or without leave, ceases to be in Government employ."
Referring to the decision in Jai Shanker v. State of Rajasthan, the Supreme Court held that even if it was a question of automatic termination of service for being continuously absent for five years, Article 311 applied to such a case and, therefore, without enquiry, the person cannot be treated as out of employment on account of his absence from duty.
7. What has been said in the context of Regulation 13 of the Jodhpur Service Regulations or Rule 76 of the Bihar Service Code, respectively, would apply with full force in the instant case as Regulation 113 of the J&K Civil Service Regulations is akin to said provision. Regulation 113 may at this stage be quoted as under:
"After five years continuous absence on leave, an officer is considered to be out of State employ."
8. As indicated above, it is not the stand of the Advocate General that absence from duty results in automatic termination of service of the person concerned.
According to him, the scope of enquiry would be limited to finding out only the period of absence. If the period of absence is five years or more, he would be treated to have abandoned the job by virtue of Regulation 113 of the CSR. The submission proceeds on the assumption that in all cases of unauthorized absence from duty, the person concerned has no defence to offer. Such a presumption is not sustainable in law. The notion that the employee has no defence in the facts and circumstances of a particular case was disapproved by the supreme court in Board of High School and Intermediate Education v. Kumari Chitra Srivastava, U.P., 1970(1) SCC 121. In that case, the respondent was denied admission to the examination on the ground of deficiency of attendance. The fact that she was short in attendance was not in dispute. The principal of the institution, however, had recommended her case stating that she could not attend the requisite of classes as the concerned teacher was on leave. The High Court upheld the case of the respondent holding that by cancelling the examination the Board "inflicted a penalty" and if opportunity had been given to the petitioner to present her case, she might have persuaded the Board not to cancel the examination. In appeal before the Supreme Court it was submitted on behalf of the Board that as the facts were not in dispute no useful purpose would have been served if the Board had served a show cause notice on the petitioner. The Supreme Court rejected the contention observing:
"..Whether a duty arises in a particular case to issue a show cause notice before inflicting a penalty does not depend on the authority's satisfaction that the person to be penalized has no defence but on the nature of the order proposed to be passed."
9. A similar view was expressed, though in a somewhat different context, earlier in State of Mysore v. K. Manche Gowda, AIR 1964 SC 506. Dealing with the question as to whether in awarding the particular punishment, the past record of the employee (of which he apparently must be aware) could be taken into consideration, without informing him and giving opportunity to explain the same, the Supreme Court observed thus:
"It would be no answer to suggest that every Government servant must have had knowledge of the fact that his past record would necessarily be taken into 8 consideration by the Government in inflicting punishment on him; nor would it be an adequate answer to say that he knew as a matter of the fact that the earlier punishments were imposed on him or that he knew of his past record. This contention misses the real point, namely, that, what the Government servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him. It is not possible for him to know what period of his past record or what acts or omissions of his in a particular period would be considered. If that fact was brought to his notice, he might explain that he had no knowledge of the remarks of his superior officers, that he had adequate explanation to offer for the alleged remarks or that his conduct subsequent to the remarks had been exemplary or at any rate approved by the superior officers. Even if the authority concerned took into consideration only the facts which he was punished, it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities concerned till the time of the present enquiry. He may have many other explanations. The point is not whether his explanation would be acceptable, but whether he has been given an opportunity to give his explanation. We cannot accept the doctrine of 'presumptive knowledge' or that of 'purposeless enquiry', as their acceptance will be subversive of the principle of 'reasonable opportunity'."
10. Learned Advocate General submitted that where a person remains absent for a long period, he would be deemed to have abandoned the job and in such a case he cannot insist on opportunity of hearing and a full-fledged enquiry; a mere notice calling upon him to report for duty and failure of the person to do so should be considered enough to treat him as having abandoned the service. He placed reliance on Dharmaratkmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution v. Educational Appellate Tribunal, (1999) 7 SCC 332 and Syndicate Bank v. General Secy., Syndicate bank Staff Assn., (2000) 5 SCC 65.
13. In the above premises, we are of the view that absence from duty, howsoever long, cannot result in automatic cessation of employment. In all such cases the person concerned has to be given an opportunity of hearing and, depending on the nature of defence taken by him, further action should be taken.
14. Whether a full-fledged enquiry as per Rule 33 of the Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956 should be held or not will depend upon the facts of the case and be left to the discretion of the authority, subject to scrutiny and judicial review in future if such an occasion would arise.
15. Coming to the instant case, it is true that the appellant in his joining application himself stated that his absence was unauthorized from 1992, but the circumstances under which he remained absent have to be seen and for this an opportunity of hearing has to be given to the appellant. He cannot be treated to have abandoned the job or treated out of employment under Regulation 113 of the CSR. The respondents are, therefore, directed to consider the appellant's case in light of the findings and observations made hereinabove."
09. Mere absence is perse misconduct, therefore, as per settled position of law needs departmental enquiry.
10. In view of the fact situation, as the deceased employee had died during service, therefore, enquiry is not possible. In that view of the matter the writ petition is allowed in the following mannder:-
I. By writ of certiorari, the impugned order dated 27.06.2016 is quashed.9
II. By writ of mandamus, the respondents are directed to release the service benefits, viz salary, gratuity and other allied benefits which had accrued to the deceased from the year 1989 till his death in favour of the petitioners and also the pensionary benefits in favour of petitioner No. 2 after death of the deceased employee.
III. By a writ of mandamus, respondents are directed to consider the case of petitioner No. 1 for appointment on compassionate basis in view of death of his father in harness. The exercise shall be undertaken immediately and completed within three months from the date certified copy of the Judgment is served on the respondents.
11. Disposed of.
(Ali Mohammad Magrey) Judge Srinagar 02.12.2019 Mohammad Yasin Dar MOHAMMAD YASIN DAR 2019.12.02 17:46 I attest to the accuracy and integrity of this document