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| Db set-aside the order of dismissal and remitted matter back to writ Court | | | Early Times Report
Jammu, Sept 10: In a rarest of the rare case where the Division Bench remitted the matter back to the Writ Court to decide the same a fresh. In the present case the Division Bench of J&K High Court Jammu Wing comprising Chief Justice Dr. Aftab H Saikia and Justice Mohd Yaqoob Mir has set-aside the judgment and matter remitted back to the writ Court with a request to decide the petition a fresh.
This direction has been passed in a petition filed by Abdul Razak a BSF personal who was dismissed from service by the order of Commandant 63 BN BSF and order was issued on June 29, 2001 on the basis that appellant without leave had absented so was given opportunity to show cause to which he did not respond. Thereafter the appellant was dismissed. Aggrieved by this petitioner filed a petition in the State High Court Jammu Wing and after order of Single Judge, petitioner filed present LPA.
DB after hearing Adv Rohit Kapoor appearing for the petitioner whereas Adv Ajay Sharma CGSC appearing for the Union of India observed that the direction clearly indicates that the appellant was alleging hostility on the part of Commandant (respondent No.3). A suspicious circumstance is noticed i.e. if the appellant was dismissed on June 29, 2001, why the counsel appearing for the respondents in the earlier writ petition bearing SWP No.281/2001 did not make mention of the same on July 23, 2001 when the direction was passed by the Court. This aspect of the matter has remained to be looked into by the Writ Court.
In view of the stated position, DB is of the considered view that the important aspect of malafides attributed to the Commandant knowing well that the appellant is attributing malafides and hostility against him should not have passed the order of dismissal, when propriety demanded the same. Therefore, the order of dismissal from service by the said Commandant cannot be termed to be fair so cannot sustain. In view of the stated position, Division Bench of the considered view that the important aspect of malafides attributed to the respondent No.3 who was impleaded by name as party in the earlier filed petition knowing well that the appellant is attributing malafides and hostility against him should not have passed the order of dismissal, when propriety demanded the same, whether such action could be said to be fair, all these matters are required to be looked into and appreciated. With these observation he impugned judgment is set-aside and the matter is remitted back to the Writ remanded with a request to decide the writ petition afresh after keeping in view the observations made by Division Bench. JNF
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