JUDGMENT :

MOKSHA KHAJURIA KAZMI, J.

CM No. 5240/2023

This is an application seeking condonation of delay in filing the Letters Patent Appeal. On the grounds taken in the CM, the application is allowed and the LPA bearing No. 162/2023 is taken on board.

Application disposed of.

LPA No. 162/2023

1. In this intra-court appeal, appellants have challenged judgment dated 24.05.2023 passed by learned Single Judge in writ petition bearing WP (C) No. 1502/2021 titled as Shahzada Yousaf and Others vs. J&K Institute of Management, Public Administration and Rural Development and Another.

FACTUAL MATRIX

2. In terms of order No. 178 of 1987 dated 30.03.1987 issued by Appellate department, the deceased Mohammad Yousuf Bhat was initially appointed as Orderly in IMPARD, Srinagar and subsequently in pursuance to SRO 28 dated 15.01.1996, he was promoted/designated as Jamadar-I w.e.f. 25.01.1996. The deceased official remained unauthorised absent from his duties with effect from 01.10.1999 to 30.11.1999. Accordingly, order No. 122 of 2003 dated 08.04.2003 was issued in terms of which the services of the deceased official were terminated with effect from 01.10.1999.

3. Being aggrieved of the termination order, the deceased official approached this court by way of a writ petition bearing SWP No. 698/2004. This court on 07.06.2005 quashed the termination order dated 08.04.2003 of the deceased official, the operative portion whereof is reproduced below:

“Under these circumstances the impugned order cannot stand as the same have been passed in violation of rules as well as principle of natural justice. Petition is allowed. Order impugned No. IMPA Order No. 122 of 2003 dated 8.4.2003 is hereby quashed.”

4. The appellants, thereafter, filed LPA No. 121/2005, against the judgment passed on 07.06.2005. The Division Bench of this Court disposed of the appeal with following directions:

(i) That the appellants are at liberty to serve charge sheet upon the respondent to prove the misconduct of un-authorized absence and hold an enquiry which shall be completed within four months.

(ii) That the respondent is directed to associate with the enquiry proceedings. If he fails to associate with the enquiry in that event the respondent may proceed ex-parte.

(iii) That pay emoluments from the date of his termination from service till the date he resumes the duty pursuant to this order shall be dependent upon the result of the enquiry, to be conducted by the appellants within four months.

(iv) The applicants shall make payment of the charge allowance to the respondent suspendee under rules.

5. It is stated that in terms of the judgment passed by Division Bench of this Court, the appellant department released subsistence allowance as admissible under rules in favour of the deceased vide order No. 348 of 2006 dated 09.01.2006. A fresh enquiry was conducted by Dr. Mushtaq Ahmad Khan, the then Associate Professor, IMPARD vide order No. 448 of 2006 dated 25.03.2006. It is stated that various notices were served upon deceased official for explaining his position on account of his unauthorised absence vide communications dated 30.08.2005, 19.09.2005, 23.01.2006, 15.02.2006 and 13.03.2006.

6. It is stated that the enquiry officer furnished the report before the department and concluded that the administrative action of the Institute terminating the services of the deceased official is worth to be maintained. It was also concluded that the decision of terminating his services is not only in accordance with the relevant provisions contained in Article 128 of CSR and Rule 30 of JKCCA rules, but also is in consonance with the judgment passed by Supreme Court in case of the dismissal of an employee of North Eastern Karnataka Road Transport Corporation wherein it is held that over staying on leave or un-authorised absenteeism from the work place enables the employer to dismiss the employee as it amounts to serious misconduct.

7. On the basis of the enquiry report, a show cause notice was served upon