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IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
G.A. Kuchhai, J.
Gh. Mohd. Baqal - Appellant
Versus
State Of J&K & Ors. - Respondent
SWP No. 523/1991
Decided On : 25 May, 1992
JURISDICTION - ARTICLE 128 OF THE J&K CIVIL SERVICES REGULATIONS - ARTICLE 226 OF THE CONSTITUTION OF INDIA - ARTICLE 311 OF THE CONSTITUTION OF INDIA - SECTION 126 OF THE J&K STATE CONSTITUTION - TERMINATION OF SERVICE - SHOW CAUSE NOTICE - MENTAL ILLNESS - LACHES - WRIT OF CERTIORARI - COSTS - SUMMARY
Fact of the Case:
The petitioner, a quasi-permanent employee, was terminated from service for absence from duty under Article 128 of the J&K Civil Services Regulations. He challenged the termination order on the grounds of incompetence of the authority, lack of show cause notice, and mental illness.
Finding of the Court:
The court held that the termination order was passed by an incompetent authority, without jurisdiction, and without compliance with the provisions of Article 128 of the J&K Civil Services Regulations. The court also held that the petitioner's mental illness was a valid excuse for his absence and that he was entitled to a show cause notice before termination of his service.
Issues: 1. Whether the termination order was passed by a competent authority. 2. Whether the termination order was passed in compliance with the provisions of Article 128 of the J&K Civil Services Regulations. 3. Whether the petitioner's mental illness was a valid excuse for his absence. 4. Whether the petitioner was entitled to a show cause notice before termination of his service. 5. Whether the petition was barred by laches.
Ratio Decidendi: 1. The court held that the termination order was passed by an incompetent authority because the Chief Medical Officer, who passed the order, was not the petitioner's appointing authority. 2. The court held that the termination order was not passed in compliance with the provisions of Article 128 of the J&K Civil Services Regulations because the petitioner was not given a show cause notice to explain his absence. 3. The court held that the petitioner's mental illness was a valid excuse for his absence because he had produced a certificate of registration from a psychiatrist. 4. The court held that the petitioner was entitled to a show cause notice before termination of his service because the termination order was a penalty under Article 128 of the J&K Civil Services Regulations. 5. The court held that the petition was not barred by laches because the petitioner had filed the petition within a reasonable time after he recovered from his mental illness.
Final Decision: The court allowed the petition, quashed the termination order, and directed the respondent to hold an enquiry into the petitioner's absence and to grant him consequential relief.
2. The respondents, on appearance, were given opportunity to file the counter which they failed. Ultimately, right to file the counter has been closed vide order dated 18.2.1992.
3. On coming up this petition for hearing, Mr. A.Kotwal learned GA argued that the petition suffers from laches, having been filed after about ten years from the date of order impugned and on this point alone the petition should be dismissed despite the fact the counter has not been filed. The fact raised by the learned Government Advocate is established that after the order impugned hearing No. ES 11/116/3278-81 the petitioner has for the first time filed this petition on 23.4.1991, pleading having reported for duty on March, 1991 and was informed that he has been terminated from service under the order impugned in this petition. Though the petitioner has not shown any record in the shape of prescriptions/treatment slips except his registration in Mental Hospital, Srinagar on 1.9.1982 He suddenly appears to have reported for duty in the year 1991, simply stating that mental condition was not good, without any proof, for the period of absence which he has to explain day today, what has not been done, except general excuse that he was mentally ailing-that too short of any continued certificates for the period of absence.
4. The petition could be decided on this preliminary point, as argued by learned GA had the order been passed by a competent authority after compliance with the Rule under which the petitioner has been terminated from service. The petitioner, in normal course, had a right to continue in service unless terminated in accordance with the Rules by a competent authority, what is not the situation here. Apparently, the services of the petitioner have been terminated under Art. 128 of the J&K CSR which is reproduce hereunder for ready reference:-
"128. Absence without leave or after the end of leave involves loss of appointment except as provided in Article 203 (b) or when due to ill health in which case the absence must produce the certificate of Medical Officer."
The Article quoted provides for loss of services subject to application of Art. 203 (1) of the CSR and due to ill health where the incumbent has to produce the certificate of Medical Officer. In this case the allegation is that the order itself is passed by a person, Chief Medical Officer, who is not the competent authority-the authority being vested in the Director, Health and Family Planning, Srinagar who is the appointing authority of the petitioner. Further, compliance of the Article is required by the respondent regarding competence and compliance of the Article under which the petitioners services have been terminated, has not
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