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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU
Sanjay Dhar, J.
Vinod Kumar - Petitioner
Versus
Jammu Municipal Corporation and another - Respondents
SWP No. 2900 of 2016
Decided On : 20-04-2024
Enquiry Report - Suspension of Employee - J&K Civil Services (Classification, Control and Appeal) Rules, 1956 - Summary of Acts and Sections: J&K Civil Services (Classification, Control and Appeal) Rules, 1956 - Article 163 of J&K CSR - Rule 30 and Rule 35 of the CS(CCA) Rules - Main Legal Point: Violation of principles of natural justice in conducting enquiry and imposing punishment - Category: Employment Law - Disciplinary Proceedings
Fact of the Case:
The petitioner, an employee of the Jammu Municipal Corporation, challenged the treatment of his service period as dies non and the imposition of punishment for unauthorized absence. The petitioner contended that he was regularly attending duties during the suspension period and was not provided with a copy of the enquiry report to make a representation.
Finding of the Court:
The Court found that the petitioner was not provided with a copy of the enquiry report, leading to a violation of principles of natural justice. The Court quashed the impugned order treating the absence as unauthorized and directed the respondents to pay the petitioner's salary for the period in question, notionally promote him, and process his case for revised pension.
Issues: The key issues were the legality of conducting an enquiry against the petitioner after his superannuation, compliance with the J&K Civil Services Rules, and the violation of principles of natural justice in not providing the petitioner with a copy of the enquiry report.
Ratio Decidendi: The Court held that the enquiry conducted against the petitioner after his superannuation was justified based on the directions of the Court. However, the respondents failed to comply with the principles of natural justice by not providing the petitioner with a copy of the enquiry report, leading to a grave prejudice to the petitioner.
Final Decision: The Court quashed the impugned order, directed the payment of salary for the disputed period, notionally promoted the petitioner, and ordered the processing of his case for revised pension.
JUDGMENT :
1. The petitioner has challenged order No. JMC/Legal/170-71 dated 25.09.2017 issued by respondent No. 1, whereby his service period with effect from 23.12.1988 to 26.02.2001 has been treated as dies non. Challenge has also been thrown to enquiry report bearing No. MJ/Estt/4054 dated 26.08.2017 with a direction to the respondents to release salary of the petitioner with effect from 23.12.1988 to 26.02.2001 and to promote him to the post of Senior Assistant with effect from July, 2002.
2. As per case of the petitioner, he was appointed as Junior Assistant in the Jammu Municipal Corporation in the year, 1983 and he was placed under suspension in December, 1988. He approached this Court by way of a writ petition bearing SWP No. 228/1989 challenging his order of suspension. Vide judgment dated 06.09.1989 passed in the aforesaid writ petition, the respondents were directed to pay subsistence allowance to the petitioner and they were directed to expedite holding of enquiry so as to conclude the same within a period of one month.
3. It seems that the enquiry was not concluded within the stipulated time and this compelled the petitioner to file another writ petition bearing SWP No. 500/2000. The said writ petition was disposed of by this Court in terms of order dated 04.04.2000 and the respondents were directed that in case enquiry has not been completed, they shall release full pay of the petitioner and they shall hold enquiry against the petitioner day to day basis. Pursuant to this order, the respondents issued order bearing No. MC/Estt/13829-32 dated 08.03.2001 whereby the petitioner was reinstated into service. A show cause notice dated 14.12.2000 was issued against the petitioner and on 11.01.2005, an order came to be issued by respondent No. 2 whereby punishment of Censure was imposed upon him and the period of his unauthorized absence with effect from 23.12.1988 to 26.02.2001 was treated as dies non.
4. The petitioner again approached this Court by way of another writ petition bearing SWP No. 652/2005 challenging the aforesaid order dated 11.01.2005. The said writ petition came to be disposed of by this Court in terms of judgment dated 11.12.2015, whereby a direction was issued to the respondents to hold a fresh enquiry in accordance with law by providing adequate opportunity to the petitioner. The impugned order dated 11.01.2005 was also quashed. Pursuant to judgment dated 11.12.2015, a notice dated 21.09.2016 was served upon the petitioner and he was asked to submit his reply to certain questions to which the petitioner responded. Prior to this, the petitioner had been promoted as Senior Assistant in the year 2010 and he had superannuated on 31.01.2012.
5. After the afore-stated events, the petitioner filed the present writ petition seeking a direction upon the respondents that his promotion to the post of Senior Assistant be reckoned from the year, 2002 when he was actually due for such promotion. However, during the pendency of writ petition, the petitioner came to know that the respondents have issued the impugned order dated 25.09.2017, whereby his period of absence with effect from 23.12.1988 to 26.02.2001 has been treated as unauthorized absence and it has been considered as dies non. Accordingly, the petitioner amended the writ petition and laid challenged to the aforesaid order as well.
6. The petitioner has challenged the aforesaid action of the respondents by pleading that the subject matter of enquiry had all along been his absence from duty for one day in the year, 1988 when he was deputed on election duty, but he has been treated to be absent from duty for the entire period with effect from 23.12.1988 to 26.02.2001. It has been further pleaded that the petitioner, during the aforesaid period of his suspension, was regularly attending his duties and he had even discharged his election duty for which he had been also paid his dues. It has been further contended that after the superannuation of the petitioner,
The court upheld the dismissal of the appellant-petitioner for unauthorized absence, affirming that procedural fairness was maintained during the disciplinary inquiry.
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