The court ruled that treating the petitioner's absence as unauthorized was arbitrary, as he provided medical documentation and was not given a fair hearing.

ORDER :

1. The petitioner has challenged order No.2459-66/Bix/FCC dated 14.12.2020 issued by respondent No.1, whereby his unauthorized absence with effect from 30.04.200 to 19.06.2020 has been treated as dies-non and the same has been directed to be recorded in his service book.

2. As per case of the petitioner, in the year 2020, he was posted as I/C Range Manager, Pattan, in J&K Forest Development Corporation Division, Baramulla. On 20.04.2020, respondent No.1 issued an order whereby the petitioner was transferred and posted as I/C Sales Range, Baramulla Boniyar. According to the petitioner, on 21.04.2020, he started suffering from back pain and, accordingly, he consulted Orthopaedic doctors at Bone & Joint Hospital, Srinagar, and he was advised bed rest from three days. On 28th April, 2020, he again consulted doctors at Bone & Joint Hospital, Srinagar, on account of seriousness of his illness and he was again advised bed rest for two more weeks. The petitioner is stated to have applied for earned leave on medical grounds for a period of twenty days from 30th April, 2020 through speed post and then on 19.05.2020, he again sought extension of the said leave for a further period of thirty days with effect from 19.05.2020 to 19.06.2020.

3. On 28.05.2020, the petitioner is stated to have received a show cause notice from respondent No.4 alleging therein that he had wilfully remained absent from duty and had failed to hand over charge of his office to the new incumbent who had joined at Pattan in his place. Vide his communication dated 08.06.2020, the petitioner is stated to have responded to the show cause notice and conveyed to respondent No.4 the circumstances on account of which he had been unable to attend his office. It was also informed by him that he had handed over the charge to Shri Mohammad Ashraf Dar immediately on 30.04.2020 for handing over the same to the new incumbent.

4. It has been submitted by the petitioner that on the recommendations of respondent No.4, respondent No.1 issued the impugned order dated 14.12.2020, whereby the period of absence of the petitioner from duty has been treated as dies-non and his salary has been withheld.

5. The petitioner has challenged the impugned order on the ground that the same is arbitrary as the same has been passed without proper application of mind. It has been further submitted that neither any enquiry has been conducted by the respondents before passing the impugned order, nor the petitioner has been given an opportunity of hearing. It has been submitted that the reply to the show cause notice filed by the petitioner has not been considered by the respondents while passing the impugned order and they have not taken into account the fact that the petitioner was unable to attend his duties for the reasons beyond his control. It has been further contended that the respondents, without conducting any enquiry regarding genuineness of the medical record produced by the petitioner, have termed his absence from duty as ‘unauthorized’, though the petitioner had clearly applied for grant of leave on health grounds. According to the petitioner, it was not open to the respondents to pass the impugned order, particularly when the application for grant of leave submitted by him was not even rejected by the respondents.

6. The respondents have filed their reply to the writ petition wherein it has been submitted that the petitioner, instead of complying with the transfer order dated 20.02.2020, sent an application for grant of leave through WhatsApp messenger on 29.04.2020 at 5.00 p.m. to respondent No.4. It has been admitted by the respondents that along with the application, the petitioner had also submitted the medical record issued by Bone & Joint Hospital, Barzulla Srinagar, which indicated that he had been advised to take rest for three days in the first instance and thereafter for two more weeks. It has been contended by the respondents that the reply to show cause notice furnished by th