Jammu & Kashmir High Court
State Of Jammu & Kashmir vs Jugal Kishore Sharma on 8 August, 2017
Bench: Alok Aradhe, Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
LPASW No.138/2017
MP No.1/2017
Date of order: 08.08.2017.
State of Jammu & Kashmir Vs. Jugal Kishore Sharma
Coram:
Hon'ble Mr. Justice Alok Aradhe, Judge
Hon'ble Mr. Justice Sanjeev Kumar, Judge
Appearing counsel:
For the Petitioner/Appellant (s) : Mr. S.S.Nanda, Sr. AAG.
For the Respondent(s) :
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
1. Heard on the question of admission.
2. In this intra court appeal, the appellant has assailed the validity of order dated 28.10.2016 passed by a Learned Single Judge of this Court by which writ petition preferred by the respondent has been allowed.
3. The facts giving rise to the filing of this appeal, briefly stated are that the respondent at the relevant time was serving as Executive Engineer in Urban Local Bodies, Jammu and was served Memorandum dated 15.07.2013 by which he was served with Article of charges in which it was stated that he has manipulated/tampered his date of birth as recorded in his original date of birth certificate. By aforesaid memorandum, a penalty of removal from service was proposed to be imposed _______________________________________________________________________________________ LPASW No.138 of 2017 Page 1 of 4 on the respondent and opportunity in terms of Rule 33(i) of J&K Civil Services (Classification, Control and Appeal) Rules, 1956 was given to him to submit his defence in writing within 15 days. The respondent assailed the aforesaid memorandum through SWP No.1618/2013 and a Bench of this Court by order dated 26.07.2013 has stayed the operation of the impugned memorandum dated 15.07.2013. Pursuant to the order dated 26.07.2013, Secretary, Housing and Urban Development Department served the petitioner with fresh article of charges along with statement of imputation for showing cause as to why the major penalty be not imposed on him. Thereafter by order dated 23.08.2013, the penalty of removal from service was imposed on the respondent. Being aggrieved, the respondent challenged the aforesaid order in SWP No.2827/2013 before a learned Single Judge of this Court and the leaned Single Judge vide order dated 28.10.2016, inter alia, held that the departmental enquiry has been held against the respondent in violation of procedure prescribed under Article 311 of the Constitution read with Section 126 of the State Constitution as well as Rule 30 read with Rule 33 of J&K Civil Services (Classification, Control and Appeal) Rules, 1956 and in violation of the principle of natural _______________________________________________________________________________________ LPASW No.138 of 2017 Page 2 of 4 justice. Accordingly, the impugned order of removal from service was quashed and the writ petition was allowed.
4. Learned senior AAG submitted that from the material available on record, it is evident that the document was manipulated and the service book was tempered by the respondent as he had altered his date of birth.
5. We have considered the submissions made by learned Senior Additional Advocate General and have perused the record. From the perusal of the record, it is evident that the procedure prescribed under Article 311 of the Constitution read with Section 126 of the State Constitution as well as Rule 30 read with Rule 33 of J&K Civil Services (Classification, Control and Appeal) Rules, 1956 has not been followed while holding the departmental enquiry against the respondent, which is evident from the finding recorded by the learned Single Judge in paragraph Nos. 7 to 10 of the order, which is impugned in this appeal. Learned senior AAG was even unable to demonstrate before us that the procedure prescribed for imposition of major penalty of removal from service was followed and submitted that record of the departmental enquiry held against the respondent has been washed away in floods.
6. For the aforesaid reasons, we do not find any merit in this appeal, however, we deem it appropriate to modify the _______________________________________________________________________________________ LPASW No.138 of 2017 Page 3 of 4 order passed by the learned Single Judge and to grant liberty to the appellant to proceed afresh in accordance with law against the respondent as the order of dismissal has been quashed by the learned Single Judge on account of procedural irregularities. To the aforesaid extent, the order passed by the learned Single Judge is modified.
7. Accordingly, the appeal is disposed of.
(Sanjeev Kumar) (Alok Aradhe)
Judge Judge
Jammu
08.08.2017
Vinod.
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