Termination of services without following the procedure established by law and without issuing a show cause notice is unconstitutional. Absence of an employee after expiry of leave will not by itself amount to abandoning the employment.

1. The petitioner, a Dental Surgeon, working in the Health Services, Kashmir, proceeded on three months earned leave, duly sanctioned by the competent author#31;ity on the ground of his mother's ailment. It is the case of the petitioner that he had to take her mother to Delhi for specialized treatment and, therefore, sought exten#31;sion in his leave initially for three months and then for another period of three months. It is also the case of the petitioner that he had threats from militants, being the member of a family having political background, owing allegiance to Congress-I. In support of this submission, petitioner has appended a copy of letter dated 08.07.1999, addressed by Director General Police, CID J&K, Srinagar, to the Com#31;missioner/Secretary to Government, Education Department, J&K, Srinagar, on the representation of petitioner's wife, which evidences that the petitioner's family, being staunch workers of Congress-I, had threatening from unknown militants. The petitioner states that on account of the above, he could not resume his duty and, therefore, sought extension in his leave from time to time in accordance with the provisions of the Leave Rules applicable to him. It is averred in the petition that at no point of time the petitioner was informed that his requests for extension of leave had been rejected. On the contrary, the respondents issued a proclamation in one of the daily newspapers of Srinagar on 23.12.2002 and, a composite order, being Govern#31;ment order No. 1017-HME of 2002 dated 23.12.2002, appended as Annexure P3 to this petition, was issued whereby a large number of doctors, including the petitioner, were terminated and published in a newspaper. Petitioner's name in the said composite order figures at serial No. 127 of the doctors so terminated by the Government.

2. The petitioner has challenged the aforesaid order of termination in this writ petition to the extent it relates to him, inter alia, on the ground of it being unconstitu#31;tional, dehors the Rules and violative of principles of natural justice, as no enquiry was held, and no show cause notice was issued to him.

3. The respondents have filed their reply. There is no denial to the fact that the petitioner's services were terminated without enquiry and without issuing him a show cause notice. Instead, it is stated that he has lost the employment even under the Service Rules which provide that an employee loses his employment if he remains out of employment for five years, even if he may have proceeded on leave, and that the petitioner has abandoned the service. It is also stated in the reply that the petitioner has avoided to associate with the enquiry that was ordered.

4. Heard learned counsels for the parties and considered the matter.

5. Mr. A.M. Magray, learned Senior A AG, representing the respondents, on perusal of the original records, fairly conceded that no show cause notice had been issued to the petitioner. This statement shortens the controversy. There are judgments, galore, that punishment of termination of services of a government employee can be imposed only after following the procedure established by law and after issuing the second show cause notice to the delinquent official. It is also established law that absence of an employee after expiry of leave will not by itself amount to abandoning the employment. Reference in this connection may be made to the judgements of the Supreme Court in Jai Shanker v. State of Rajasthan, AIR 1966 SC 492; and Deokinandan Prasad v. State of Bihar, 1972 (2) SCC 330; the Division Bench judgement of this Court in Mushtaq Ahmad Khan v. State of J and K & ors., 2004 (II) SLJ 445 : 2004 (3) JKJ HC-10 (DB), as also the judgements delivered by different coordinate Benches of this Court in Dr. Tasneem Gowhar v. State & ors., 2005 (II) SLJ 633:2005 (Supp.) JKJ HC-183; Subhash Chander v. State of J&K & ors., 2007 (1) JKJ HC-443 : 2007 (1) SLJ 209; Dr. Abdul Rashid Sheerwani v. State & ors., 2010

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