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2010 Supreme(J&K) 64
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Mohd. Yaqoob Mir, J.
Ab. Rashid Sheerwani (Dr.) - Appellant
Versus
State & Ors. - Respondent
SWP No. 2720/1997
Decided On : 22 February, 2010
Advocate For Appellant: M.A. Qayoom
Advocate For Respondent: None
Non-observance of the prescribed enquiry procedure as per the CCA Rules renders the termination of services illegal.
Headnote:
Termination - Government Order - J&K CSR Article 128 - Rule 33 and Rule 34 of the CCA Rules
Fact of the Case:
The petitioner, a surgeon, was absent from duty for over a decade. His services were terminated without following the prescribed enquiry procedure. The petitioner contended that the communication allowing his absence was crafted to his advantage.
Finding of the Court:
The court found the termination to be illegal due to non-observance of the enquiry procedure as prescribed by Rule 33 and Rule 34 of the CCA Rules. The court also noted the absence of action by the authorities for over 12 years.
Issues: Non-observance of enquiry procedure, validity of communication allowing absence, absence of action by authorities
Ratio Decidendi: Non-observance of the prescribed enquiry procedure renders the termination illegal. The absence of a government servant without leave or after the end of leave is considered misconduct and must be dealt with in accordance with the CCA Rules.
Final Decision: The petition succeeded, and the order of termination was set aside. The competent authority was directed to deal with the petitioner's prolonged absence strictly in accordance with Article 128 of the CSR and the procedure prescribed by the CCA Rules.
2. The factual matrix giving rise to the instant lis is that the petitioner was appointed as Assistant Surgeon substantively from 15.3.1968, later on he has also completed the post-graduation so has worked in different capacities at different places. After obtaining No Objection Certificate, the petitioner is stated to have proceeded abroad with effect from 30.4.1977 for a period of two years. On expiry continued to be abroad after 30.4.1979 i.e. the time of expiry of two years. Subsequently on 13.3.1982 he seems to have requested for extension of no objection, same has been allowed. In this behalf communication dated 10.8.1982 placed on record is quoted as under:
"Government of Jammu and Kashmir Health,
FW & Medical Education Department.
The Deputy Under Secretary,
For Education and Research,
Ministry of Health,
The Islamic Republic of Iran,
(Tehran).
NO:-MDA-568/68 Dated: 10-8-82
Subject:- Extension of no-objection in favour of Dr. A. R. Sheerwani, Surgeon Specialist.
Sir,
I am directed to refer your letter No.nil dated 13.3.1982, regarding the subjected noted above and to convey no objection of this department in favour of Dr. A.R. Sheerwani, Surgeon Specialist, for further period of 2 years, to enable him to continue his services at Iran.
His period of absence up to 5 years will be treated as leave without pay and beyond 5 years as dies non.
Yours faithfully,
(Syed Razl-ullah)
Under Secretary to Government,
Health, F. W. & Medical Education Department.
Copy to the:-
1/. Director Health Services, Kashmir for information.
2/. Dr. A. R. Sheerwani Surgeon Specialist for information."
3. The petitioner did not choose to return or to join the services till 1996, means after a gap of more than a decade of absence, in the year 1996 he moved an application for being permitted to join the services. Same was not allowed and was communicated accordingly in terms of the letter and communication dated 12.3.1997 and 29.5.1997 as the services of the petitioner were terminated vide Government order No.367-HME of 1996 dated 24.5.1996 for having remained unauthorisedly absent.
4. The contention of the petitioner is that before imposing the punishment of termination, the authorities concerned were required to conduct enquiry as ordained by Rule 33 of the Jammu and Kashmir Civil Services(Classification, Control and Appeal) rules 1956 (hereinafter for short referred to as "the CCA Rules"). No such enquiry has been conducted, as a result thereof petitioner has been deprived of projecting genuineness for absence. In support of this contention reliance has been placed on the judgment reported in 1994 S.L.J 372.
5. Considered.
6. Apparently the approach of the petitioner in claiming to join after more than a decade of unauthorized absence does not appeal to any reason or conscience. But, however, he seems to have had some nexus with the authorities who from the year 1984 till May, 1996 have not initiated any action against the petitioner. This 12 years gap of inaction on the part of respondents seems to be somewhat astonishing. Why they have slept over the matter for such a long period has not been explained. Then why they have not initiated the enquiry in accordance with the applicable rules, also seem to have been done with the object of extending benefit to the petitioner. This aspect of the matter is left to the best wisdom of the concerned authorities to ponder over.
7. The communication dated 10.8.1982 where-under no objection has been conveyed has been couched in a language which seem to have been crafted to wor
