Ajaz Rasool Kar vs State

This petition calls in question Government order No. 640GR (Home of 1990) dated 19.5.1990, whereby the petitioner has been dismissed

from service.

The only point which is agitated by the L/C for the petitioner is that the petitioner is an employee of SICOP which is a corporation governed by

its own bylaws. According to those bylaws it is the Board o\ Directors who is the appointing authority and could only have passed an order of

dismissal. According to him the petitioner was neither a member of civil service of Union or State nor did he hold the post under them. As such the provision of section 126 of the Constitution of the Jammu and Kashmir was not applicable. The impugned order having been passed interms of the said provision of law is therefore beyond jurisdiction and nullity. The L/C for the petitioner has taken me through Government order No.299Ind

(DIC) of 1989 dated 12.10.1989. Whereby sanction was granted to the adjustment of the petitioner in SICOP on permanent basis. This order

also postulates that the service conditions and pay of the petitioner would thereafter be governed by the rules of the said corporation. Para 78 (V)

of the memorandum of association of the said corporation vestes the power of appointment and removal with the Board of Directothers The corporation has its distinct rules called the Jammu and Kashmir Small scale Industries Development Corporation limited (staff) service rules 1977.

Rule 65 provides for the punishment of an employee. SubRule (2) of Rule 65 contemplates as under:

No penality shall be imposed on any employee unless the appointing authority or such other authority empowered in this behalf, after giving an opportunity to the employee to explain after taking into account the explanation of the employee, is satisfied that a fair and proper enquiry was made the charges loading to the penalty were proved. The procedure for the enquiry and also the form and quantum of punishment shall empowered in this behalf''

A perusal of this provision of law makes it clear that any order of punishment passed by an authority other than the appointing authority is not

within jurisdiction. Governor is no doubt the head of the State but he cannot pass orders like the one impugned in this petition which relates to the termination of an employee of a corporation.

Mr. U.K. Jalali, AAG, has fairly conceeded to this position of law and he had no argument to repell this point.

On the foregoing analogy I find the order impugned by way of this petition to be beyond jurisdiction and nullity. That being so I have no alternative but to quash the same. Therefore, while allowing the writ I quash the order impugned in the petition. No order as to costs.