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1988 Supreme(J&K) 153
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
S.M. Rizvi, J.
Syed Zaffar Mehdi - Appellant
Versus
State - Respondent
SWP No. 169/1984
Decided On : 17 August, 1988
Advocate For Appellant: S.L. Koul
Advocate For Respondent: Nemo
A government servant cannot be removed from service without being given a proper opportunity to show cause against the proposed termination, and that such termination cannot be discriminatory.
Headnote:
CONSTITUTIONAL LAW - ARTICLE 311 - REMOVAL FROM SERVICE - PROCEDURE - OPPORTUNITY OF HEARING - DISCRIMINATION - ARTICLE 14 - ARTICLE 16.
Fact of the Case:
The petitioner, an Assistant Professor in the Medical College, Srinagar, was terminated from service for unauthorized absence from duty. He challenged the termination order, arguing that he was not given an opportunity to show cause against the proposed termination, and that the order was discriminatory as other similarly situated employees were not terminated.
Finding of the Court:
The court held that the termination order was illegal and violative of the petitioner's rights under Article 311(2) of the Constitution of India, Section 126 of the Constitution of Jammu and Kashmir, and Rule 33 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules. The court found that the petitioner was not given a proper opportunity to show cause against the proposed termination, and that the order was discriminatory as other similarly situated employees were not terminated.
Issues: 1. Whether the termination order was illegal and violative of the petitioner's rights under Article 311(2) of the Constitution of India, Section 126 of the Constitution of Jammu and Kashmir, and Rule 33 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules? 2. Whether the order was discriminatory as other similarly situated employees were not terminated?
Ratio Decidendi: The court held that the termination order was illegal and violative of the petitioner's rights under Article 311(2) of the Constitution of India, Section 126 of the Constitution of Jammu and Kashmir, and Rule 33 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules. The court found that the petitioner was not given a proper opportunity to show cause against the proposed termination, and that the order was discriminatory as other similarly situated employees were not terminated. The court held that the petitioner had a right to know the specific charge that was levelled against him and also the allegation on which it was based, and must be given an adequate opportunity to show cause against the punishment proposed to be imposed on him.
Final Decision: The court allowed the writ petition and quashed the termination order. The petitioner was deemed to be in continuous service with all consequential benefits as admissible under rules. The court directed that if any action was proposed to be taken against the petitioner for alleged over-staying on leave, it should be strictly in accordance with the law and principles of natural justice, after making a proper inquiry in the matter under rules.
2. It is averred in the petition that the petitioner after having passed his M.B.B.S., Examination from the Government Medical College, Srinagar, has secured further qualification by way of M.D, from the same College, and M R.C P. from England. After having secured the Degree of M.D., he was appointed as Lecturer in the Department of Medicine in Government Medical College, Srinagar, in the year 1974. After having worked as a Lecturer, he proceeded to England for higher studies and secured M.R.C.P. Degree. On his return from England, he was promoted to the post of Assistant Professor in the department of Medicine in Government Medical College, Srinagar. He applied for leave in 1983 and was relieved on 30-3-1983. He proceeded to Saudi Arabia for a short assignment. Due to some compelling reasons he could not return to India to join his duties on the expiry of leave. He did not receive any show cause notice, as alleged by the respondents, and nor the order impugned, whereunder his services have been terminated.
3. According to him, the order impugned has been passed by invoking the power under Article 128 of the J&FC C.S.R., which could not be exercised without giving him an opportunity of explaining the cause of absence.
4. It is alleged that the order impugned violates the provisions of Section 126 of the Constitution of Jammu & Kashmir and Article 311 of the Constitution of India
5. It is further alleged that there are other instances like Dr. Subhash Gupta, Professor of Opthamology, and Dr. I. P. Kohli, Professor of EN.T., where the respondent has not terminated their services on the same ground, thereby a discrimination has been made between the petitioner and those persons similarly situated, which is violation of Articles 14 and 16 of the Constitution of India.
6. Despite repeated opportunities, the counter affidavit was not filed by the respondent The writ petition was admitted on 12-4-1984. For a long time, nobody appeared for the respondent/State. Eventually, after more than three years, Mr. Aijaz Government Advocate appeared on 17-9-1987. He was given four weeks time to file the counter. The counter was not filed by him within the said period. He was given further time in this behalf. On 8 4-1988 last opportunity of further four weeks was granted to file the counter. Even then counter has not been filed. On 26-6-1988 the right to file the counter was closed.
7. The result of non-filing of the counter affidavit would be that all the factual allegations made by the petitioner in his writ petition on affidavit would remain un-rebutted.
8. The learned counsel for the petitioner was heard at great length. Nobody appeared for the respondent to argue the case. Firstly the case came up for hearing on 14-7-1988 but nobody appeared for the respondent. The case was posted for hearing on 20-7-1988. On that date, it could not be taken up for hearing. Despite a long wait till the rising of the court, nobody appeared for the respondent, even to ask for an adjournment. The petition has already grown very old and Mr. Kaul submitted that the petitioner was without any job for a long time. In these circumstances, there was no reason to adjourn the case for hearing any further.
9. Before going into the merits of the case, it would be advantageous to reproduce the order impugned itself for its critical appreciation, which reads, as under: -
GOVERNMENT OF JAMMU & KASHMIR HEALTH AND MEDICAL EDUCATION DEPARTMENT
Subject: - Un-authorised absence of Dr. Zaffar Mehdi, Assistant Professor Medicine, Medical College, Srinagar.
Government Order No. 17-HME of 1984
Dated 5-1 - 1984
Whereas Dr. Zaf
