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IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Mansoor Ahmad Mir, J.
Habib-Ullah Dar - Appellant
Versus
Chairman & Ors. - Respondent
SWP No. 2749/1994
Decided On : 25 July, 2005
Delay and Latches - Termination Order - JKSRTC Service Rules and Regulations 1979, Rule 148, Rule 151 - The court found that the termination order was passed without conducting an enquiry, which was mandatory under Rules 148 and 151 of JKSRTC Service Rules and Regulations 1979. The court also highlighted the incompetence of the officers who framed the charge sheet and passed the termination order, emphasizing that such orders are void and can be challenged at any time. The judgment referenced previous cases to support the finding that delay and latches should be considered before admission of the writ petition, and the petition cannot be dismissed on account of delay and latches if not pressed at the time of its admission.
Fact of the Case:
The petitioner sought quashing of the termination order on the grounds of incompetence of the authority and lack of enquiry. The respondents did not file a reply, and the petitioner's explanations for delay remained unrebutted.
Finding of the Court:
The court found that the termination order was passed without conducting a mandatory enquiry, and the delay in filing the petition was justified. The court also held that the orders passed by incompetent officers are void and can be challenged at any time.
Issues: Competence of the authority, delay and latches, necessity of conducting an enquiry before termination.
Ratio Decidendi: The court emphasized the mandatory requirement of conducting an enquiry before passing a termination order and highlighted the incompetence of the officers involved in framing the charge sheet and passing the termination order. The court also established that delay and latches should be considered before admission of the writ petition.
Final Decision: The petition was allowed, and the impugned termination order was quashed. The competent authority was commanded to conduct an enquiry if warranted, within three months from the date the order is communicated to the Corporation.
2. Mr. Hussain argued that charge sheet has been framed by incompetent authority and termination order has also been passed by incompetent authority.
3. The reply was submitted by the petitioner and after considering the reply, the respondents were under legal obligation to conduct enquiry but without following the enquiry, the termination order has been passed. It was mandatory on the part of the respondents to hold enquiry and provide opportunity to the petitioner in terms of Rules 148 and 151 of JKSRTC Service Rules and Regulations 1979. The impugned termination order disclose that without conducting enquiry, the petitioner was dismissed from the service.
4. Considered. In terms of Order dated 19.09.1987, contained in annexure P1, the petitioner was placed under suspension. The respondent no.2 i.e. General Manager framed charge sheet on 21st November, 1987 i.e. annexure P2 and petitioner submitted reply, contained in annexure P3. The petitioner assailed the said order of suspension by the medium of the writ petition which was conducted by a lawyer who migrated from the Valley. That the petitioner could not contact his lawyer. It appears that this writ petition has been filed after lapse of six years.
5. The question is, whether the petition is caught by delay and latches. The petitioner has explained how delay has crept in. The averments contained in the writ petition and affidavit sworn by the petitioner have remained unrebutted. Thus this court has to accept the explanation given by the petitioner.
6. In order to return finding on this issue also, it is necessary to hold whether petitioner has carved out a case. If the orders have been passed by incompetent officers then the said orders are void and then delay cannot be a ground to refuse the relief. The petitioner cannot be held guilty of latches when dismissal order is a nullity could be challenged at any time.
7. I have laid my hands on a judgment reported in 1999 SLJ 560 titled Ghulam Ahmad Bhat Vs. State, wherein the termination order was challenged after a lapse of ten years and it has been held that the petitioner cannot be held guilty of latches when dismissal order is a nullity in the eyes of law. It is pertinent to mention herein that this judgment has been upheld by the Apex Court. It is profitable to reproduce paras 8 and 9 of the said judgment herein;-
8. Mr. G. Mustaffa, learned Govt. Advocate, submitted that the petitioner had come to know about the termination of his services, therefore, it is not right to contend that the petitioner could file the petition only after receiving the termination order. We do not propose to examine the question whether actual receipt of the termination order is necessary in this case when petitioner had come to know about the order of termination sometime during the beginning of 1981. Having come to know of it, he preferred the appeal. Here, it is contended by the learned counsel for the State that this appeal was not received by the Department. We do not accept this contention. The petitioner has specifically submitted in para 5 of the petition that he filed appeal against the order termination, copy of which is Annexure P-3. He has also stated that this appeal was followed by a representation after 1 ½ year when the petitioner did not receive any result on his appeal. Again, he filed two other representations. Why the petitioner™s appeal was not decided is not understandable? The petitioner was waiting for the decision of respondents on his appeal. In corroboration of the statement that he had actually preferred the appeal, the petitioner has filed postal receipt which demonstrate that his appeal/representations were submitted to Assistant Labour Commissioner, Anantnag, Minister Incharge of th
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