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| HC quashes termination order, directs DG Prisons to reinstate petitioner | | | Jammu, March 26
Justice JP Singh of J&K High Court Jammu wing in a significant judgment has quashed the order passed by Director General Prisons and Fire Services J&K on November 7, 2002, with the directions to reinstate the petitioner in service.
This significant judgment has been passed in a writ petition filed by Sanjeev Kumar who was discharged from the service vide DG Prisons order and challenged the same on the ground that the petitioner was appointed as Warder in the prison department on June 22, 1996. During the course of his service he sought change of his cadre from warder to junior assistant. Non-consideration of his request was given by the authorities the petitioner claimed and filed a petition in the High Court. It appears from the writ petition that a show cause notice on October 9, 2002 was served upon the petitioner, informing him about his failure to join training academy and remaining on authorized absence. Lenient view was however taken by the department allowing him to join duty and his period of absence was treated as on leave and three years annual increments were stopped. He was again selected for undergoing training, but failed upon this the SP District Jail Jammu was directed to conduct enquiry in his unauthorized absence. In his report Superintendent District Jail submitted that another show-cause notice was served upon the petitioner and considering his reply there too, he was ultimately discharged from service taking refuse under Article 128 of J&K Civil Service Regulation Vol. I. aggrieved by the order of the DG Prisons and Fire Services, challenged the order.
Advocate Surinder Kour appearing for the petitioner submitted that Director General of Prisons and Fire Service's order dated November 7, 2002 was violative of section 126 of the constitution of J&K because the petitioner had been removed from the service without holding any enquiry. On the other hand AAG B S Salathia when asked by the court as to whether any enquiry had been held in the alleged absence of the petitioner from duty, fairly submitted that no enquiry appeared to have been conducted by the respondents into the absence of the petitioner before discharging him from service. According to AAG BS Salathia, the petitioner had been discharged by the respondents in view of what was contained in Article 128 of JK Civil Service Regulation Violation 1.
Justice JP Singh, after considering the submissions of the Advocate Surinder Kour appearing for the petitioner and AAG BS Salathia appearing for the respondents, observed that Article 128 of J&K Civil Service regulations does not, as such, empower the Disciplinary authority to dispense with the services of an employee. All that is provided is that an employee on absence without leave or after end of the leave, incurs loss of appointment, in other words all that it provides is the consequence of absence of leave or after the end of leave nothing more than that. In order to proceed against the employee for his absence without leave, an enquiry is required to be conducted as mandated by section 126 (2) of the J&K Constitution. This enquiry, is required to be conducted in accordance with the provisions of J&K Civil Services (classification, control and appeal rules) 1956, which according to the respondents would apply to the case of the petitioner. The respondents have not conducted any enquiry before passing the order of discharge against the petitioner alleging him guilty of misconduct. The order of discharge, in the opinion of the court, is not an order of discharged simplicitor, but on the other hand, an order of discharge coupled with stigma and part taking the character of an order of termination. This order of termination could not have been passed by the respondents accept after holding an enquiry in accordance with the rules which were applicable. With these observations court declared the order of Director General of Prisons and Fire Services dated November 7, 2002 as illegal and in violation of section 126 (2) of Constitution of J&K and allowed the petition and quashed the order with the direction to reinstate the petitioner in service. Court also said that allowing of this petition will not, however, come in the way of the respondents to proceed against the petitioner for his alleged absence from duty in accordance with law, in case they elect to do so.
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