Jammu & Kashmir High Court - Srinagar Bench
Union Territory Of J&K & Ors vs Aishiq Hussain Dar & Ors on 18 November, 2020
Bench: Sanjeev Kumar, Rajnesh Oswal
Item No.103 Admission
List
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(THROUGH VIRTUAL MODE)
CM No. 4813/2020 in
LPA No. 136/2020
CM No. 4814/2020
CM No. 4815/2020
Caveat No. 813/2020
Reserved on 09.11.2020.
Pronounced on 18.11.2020
Union Territory of J&K & Ors. ...Appellant(s)
Through: Mr. Shah Amir, AAG
V/s
Aishiq Hussain Dar & Ors. ...Respondent(s)
Through: Mr. Altaf Haqani, Advocate. (Caveators) CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE (ORDER) CM No. 4813/2020 Requirement of affixing the Court fee is dispensed with due to Covid-19. CM disposed of.
Caveat No. 813/2020
Mr. Haqani, Advocate who is on caveat enters appears and waives notice on behalf of the caveators/respondents.
Caveat discharged.
CM No. 4814/2020.
The Letters Patent Appeal in hand, filed by the appellants against the judgment of the learned Single Judge dated 19th March 2020, passed in WP (C) No. 742/2020, clubbed with SWP No. 2648/2018, CCP (S) No. 249/2019, is delayed by 160 days, hence this application for seeking condonation of delay in filing this appeal.
For the reasons stated in the application, coupled with submissions made at Bar by the learned counsel, appearing for the parties, we are of the view that the appellants have sufficiently explained the delay of 160 days in -2- filing the appeal. Accordingly, the application is allowed and delay of 160 days in filing the appeal is condoned. CM disposed of.
LPA No. 136/2020.
The appellants in this Letters Patent Appeal are aggrieved and assail the judgment dated 19th March 2020, passed by the learned Single Judge in WP (C) No. 742/2020, clubbed with SWP No. 2648/2018, CCP (S) No. 402/2019, titled as Ashiq Hussain Dar and others vs. Union Territory of J&K & Ors. Before proceeding to appreciate the grounds of challenge, urged by Mr. Shah Amir, AAG in support of appeal, it is necessary to briefly notice the few facts.
The respondents are working as Class-IV employees in the appellant- department on substantive basis for the last about 15 years and have been contributing towards the General Provident Fund (GPF) as per the numbers and the computer codes, allotted to them by the appellants. It appears that the Chief Accounts Officer, District Fund Office, Bandipora vide his communication dated 22nd January 2018, raised some controversy regarding correct allotment of GP fund numbers and computer codes of Class-IV employees including the respondents, working in the office of Block Medical Officer, Hajan. The said communication provided that the GPF contribution of the respondents be stopped till further instructions. This communication, as can be seen from the records, was followed by another letter of Chief Medical Officer, concerned dated 13th January 2018, whereby the Block Development Officer, Hajan was directed to stop the salary of the respondents.
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The short grievance of the respondents in the writ petition was that their appointments as Class-IV employees was genuine and that they had been working in substantive basis for more than a decade and, therefore, unless a proper enquiry in accordance with law was held and their appointments were declared illegal, the appellants have no right or authority to withhold their salary and stop their GP fund contributions. It further transpires that in the aforesaid writ petition, learned Single Judge, passed the interim order, directing the Chief Accounts Officer, Directorate of Health Services, Kashmir, to ensure the release of the withheld salary of the respondents in accordance with the rules, governing the field. In compliance to the aforesaid directions, Director, Health Services, Kashmir vide order No. 381-NG of 2019 dated 29th August 2019, considered the claim of the respondents and rejected the same, being devoid of any merit. It is this rejection order, passed by the Director Health Services, Kashmir which was made subject matter of challenge in the writ petition, disposed of by the learned Single Judge in terms of the impugned judgment.
In the backdrop of aforesaid facts, the appellants seek to challenge the impugned judgment, primarily on the ground that the appointments of the respondents as Class-IV have been found to be without following due process of law and, therefore, they are not entitled to continue in services nor can they be paid any salary or allowed to make subscription to the GP fund. It is submitted that with regard to their appointments, the matter has already been taken up with the Crime Branch, Kashmir which is investigating the matter. It is submitted that prima-facie, the appellants have found the appointment of -4- the respondents contrary to law and, therefore, no premium can put on such irregular and illegal appointments.
Per-contra, Mr. Haqani, representing the respondents submits that neither the Crime Branch nor any enquiry, constituted by the appellants so for indicted the appointments of the respondents. He, therefore, submits that simply because the genuineness or otherwise of the appointments of respondents is under probe, cannot be a ground to deny the respondents salary for the period they perform their duties. A fortiori, they can also be not denied their right to make GPF subscriptions/contributions.
Having heard learned counsel for the parties and perused the record, we are of the view that the judgment of the learned writ Court, impugned in this letters patent appeal is, well reasoned and does not call for any interference. The learned Single Judge has rightly concluded that so long the appointment of the respondents is intact and has not been held to be illegal or irregular by any competent authority, they cannot be denied the salary for the period they perform their duties. It is rightly held by the learned Single Judge that taking the work from the respondents without paying their due salary is tantamount to "Begar" which is constitutionally prohibited. Thus the view taken by the learned Single Judge is unexceptionable and, therefore, cannot be interfered with.
We, therefore, find no merit in this appeal and the same is, accordingly dismissed.
( RAJNESH OSWAL) (SANJEEV KUMAR)
JUDGE JUDGE
Srinagar
18.11.2020
"Ab. Rashid"
Whether the order is speaking: Yes/No.
Whether the order is reportable: Yes/No.
ABDUL RASHID GANAI
2020.11.18 14:36
I attest to the accuracy and
integrity of this document