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IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
N. Paul Vasantha Kumar, J.
Basharat Salim - Appellant
Vs.
National Institute of Technology (NIT), Srinagar and Ors. - Respondents
SWP No. 1627/1999
Decided On : 28-08-2015
Termination - Service Leave - Order of Termination - [APPLIED MECHANICS] - [AIR 1963 Supreme Court 395, AIR 1966 Supreme Court 1313, (2010) 9 Supreme Court Cases 157, (2012) 6 Supreme Court Cases 384] - The court set aside the order of termination as it was not communicated to the petitioner, citing legal precedents that an order must be communicated to have effect. The petitioner was entitled to be treated as in service without reference to the order of termination and to receive withheld salary and service benefits.
Fact of the Case:
The petitioner, a lecturer, applied for leave and sought extensions, but no reply was given. He rejoined duty before the expiry of the leave but was terminated without following proper procedures.
Finding of the Court:
The court found that the order of termination was unsustainable as the petitioner had rejoined duty before the expiry of the leave and had not been paid salary despite performing duties.
Issues: The issues included the communication of leave extensions, non-payment of salary, and the lack of proper procedures followed in the termination.
Ratio Decidendi: The court held that an order must be communicated to have effect, and the petitioner was entitled to be treated as in service without reference to the order of termination.
Final Decision: The court set aside the order of termination, directed the petitioner to be treated as in service, and ordered the respondents to calculate and pay the petitioner's salary and other benefits within two months.
N. Paul Vasantha Kumar, C.J.
1. This writ petition is filed praying to quash the order No. BOG. 74/Board-62/99 dated 19.03.1999 and direct the respondents to treat the petitioner as in service without any break and entitle him to all consequential benefits. Case of the petitioner is that he was appointed as Lecturer Applied Mechanics in Regional Engineering College on 01.03.1982 and he continued as Lecturer till 21.10.1986. Vide order No. 215 of 1986 he was promoted as Assistant Professor on probation for one year in the Water Resources Development. In the year 1985, petitioner was deputed by the College to take up his Research status at Indian Institute of Technology. Petitioner completed his research Thesis from 22.07.1985 to 26.08.1989. The petitioner submitted his PhD Thesis on 25.08.1989 and resumed his duties in the college. He was asked to sign an agreement in the year 1985 before his deputation for taking up research course. In terms of the agreement, the petitioner was required to serve the college for 5 years after completing his PhD course. Petitioner continued in the College from 28.08.1989 to 01.03.1994. He applied for earned leave w.e.f. 22.11.1993 to 24.12.1993 for a period of 33 days. In continuation to winter vacation w.e.f. 25.12.1993 to 28.02.1994, the said leave was sanctioned. Petitioner on the said date filed another leave application to the College to sanction leave in his favour for one year w.e.f. 01.03.1994 to 28.02.1995. The leave applied was in continuation to the earlier leave duty sanctioned. According to the petitioner, no reply was conveyed either accepting his leave or rejecting his leave request. On 01.03.1995 he again submitted a leave application seeking extension of leave upto 24.08.1995. Petitioner after availing the leave joined the college on 19.08.1995 even before the expiry of the leave applied. He attended the college and he was assigned various duties including examination duties, teaching etc. He was not paid salary from August 1995 in spite of reporting duty and discharging his duties vide communication dated 17.10.1995, he requested the Principal to release salary from the date of his joining, but the same was not released. Another communication was addressed by the Department on 31.12.1995 stating that he will wait for the decision of the college in the matter and also stated that if the college intends to take any adverse decision in the matter, petitioner may be given opportunity of being heard before any such decision is taken. However on 19.03.1999 order of termination was passed. The said order is challenged on various grounds by contending that on expiry of the leave, he applied for extension of leave and no order regarding rejection of leave having been communicated. It is also contended that after the 2nd extension of leave before the expiry of the leave applied he rejoined the duty and discharged his duties and without considering the said aspects, order of termination was passed, the same is unsustainable.
2. It is not in dispute that the petitioner has initially applied for 33 days leave followed with winter vacation. Thereafter he had submitted his application seeking extension of leave for one year for which no reply was given. Before the expiry of the said leave, he again submitted an application seeking further extension of leave for which also no reply was given. Petitioner rejoined the duty before the expiry of the second spell of leave applied and he discharged his duties from 19.08.1995. Without noticing the said fact, the impugned order of termination was passed on 19.03.1999.
3. It is seen from the records that in spite of the petition pending from 1999, no counter/response has been filed to oppose the prayers made in the writ petition.
4. It is an admitted fact that petitioner after applied for extension of leave rejoined duty in August 1995 and served till the impugned order was passed for which he was not paid any salary. He has performed examination
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