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Judgment
The petitioner was a Dia on the establishment on respondents. She is alleged to have performed an abortion on the person of one Mst. Shugufta
and the latter is, said to have expired due to ht abortion. Through he medium of this writ petition, petitioner assails orders of suspension,
termination and findings of enquiry office and the relevant facts having direct bearing on the issues involved are that the petitioner was placed under
suspension by virtue of an order hearing No. RCKRC/SUSP/ 7577 dated 27/01/1986, the suspension order was followed by articles of charge
issued vide No.RCFIR/120/22363S dated 12/08/1986, which form annexureB to the objections of the otherside, a reply was submitted by the
petitioner on 21/08/1986, which forms annexureC to the objections, wherein she has denied the charge leveled against her. It is contended that an
order of termination was served on the petitioner, she was to id that an enquiry was allegedly conducted against bar, but no material whatsoever
was Supplied to the petitioner despite repeated requests.
It is submitted that several representation were filed by the petitioner for her reinstatement, but she was slot reinstated, leaving no option for her
but to Invoke the jurisdiction of this court. Respondents were put"" on ""notice. Objections to the admissibility of the writ petition were filed
accompanies by several annexures. Petition came to be admitted Respondents were afforded opportunities to file counter, but they did not chouse
to avail of the opportunity, which conduct result J in closure of counter,
The petitioner has also 'lied a supplementary affidavit, which too has been taken on record vide order of the court dated 19/08/ 1986. On
03/07/1996, a direction came to be passed commanding the respondents to produce the relevant record of the enquiry, in compliance thereto the
record is available with the LC for the respondent, which is taken on file of this case and it is provided that it shall form part of this court file now till
the matter is finally adjudicated upon.
I have heard LC for the petitioner and have perused the record as well. From, the record, following propositions emerge:
a) Respondents contend that the petitioner has been dealt with by an enquiry officer and it is on the basis of the enquiry report, that the service of
the petitioner have been terminated.
b) The petitioner controverts the stand of the respondents on the ground that no enquiry has been conducted within her knowledge and there is no
evidence on the basis of which finding of guilt has been returned against her. Thus it is canvassed that the order of termination is violative of her
rights.
Rival contentions of the patties necessitated perusal of the record pertaining to the enquiry and have perused the file which contains joint
statements of Ghulam Qadirand Mohd. Afzal allegedly recorded on 08/11/ 1986, these statements do not provide any evidence against the
petitioner. There ate two statements of the petitioner on the file in which she has denied knowledge about abortion, but has admitted the fact of her
arrest by police as also her release on bail. She has also slated that the police has seized some instruments, besides blood stained cotton and
clothes, however, she has denied the correctness of the statements made by the staff of the office of the respondents The file also reveals that she
had left without signing her statement which is dated 19/09/1986. On this statement there are three signatures and thumb impression, but particulars
of the person who has affixed the thumb impression are not reflected. This statement does not depict any incriminating evidence against the
petitioner. There are few signatures also on the reverse of page (8) of the file, but their particulars too are not available. Other documents which
form part of the file are articles of charge, reply of the petitioner, notices for appearance dated 01/09/1987 addressed to the President, J and K
State Branch, Red Cross Jammu. a letter of the Secretary to the Governor, show cause notice dated 13/04/1987 and its reply the order of
dismissal bearing No. FIR/ 101 1 dated 02/05/1987 and the Enquiry report.
It is pertinent to mention here that last para of page (1) of enquiry report reveals that the enquiry officer has examined four witnesses, namely
Mohd. Afzal Bhat. Ghulam Qadir. Mohd. Shafi, Nazir Ahmed and Mohd. Shafi is said to be the star witness, but his statement is not on the file,
same is true about the statement of Nazir Ahmad. I had directed the LC for the respondents to produce the said statements, but he has expressed
his inability on the reason that the statements are not traceable from the office of respondents, which I believe is nothing but an excuse. Thus record
produced leads nowhere but unfolds the state of confusion, so much so, the statements of witnesses which form (he basis of the enquiry report are
missing and such conduct of respondents hints at their unfairness visavis petitioner, obviously the enquiry report loses significance and She only
conclusion which court can reasonably arrive at, is that the punishment of termination has been inflicted on the petitioner not only in violation of
procedure established under law but also on no evidence and to punish an employee on no evidence tantamounts to a commission of an error of
law and the termination order having been passed on no evidence is not only perverse but unreasonable as well, therefore, the order of termination
is liable to be quashed.
Here arises a question as to which rules are to be adhered to by the respondents while conducting the enquiry and it is relevant to observe that
the respondent organisation is creation of the statute and as per materiel available the services of the employees of the said applicable to the
government servants of the organisation are governed by the same rules which are applicable to the government servants of the state, therefore,
respondents are required to conduct the enquiry in accordance with the procedure envisaged under the J and K Civil Services (Classification
Control and Appeal) Rules, 1956. It is also relevant to observe here that the respondent organisation is a creation of the statute which is an
undisputed fact and falls within the ambit of Article 12 of the Constitution, hence amenable to a writ jurisdiction of the court. This observation has
been made by me to deal with the arguments of LC for the respondents who contented that Indian Red Cross Society does not fall within the
scope of Article 12 of the Constitution which stands accordingly answered in this para.
8, No doubt, I have come to conclusion that the termination order against the petitioner is bad in law, therefore, indulgence of the court is
warranted in so far as termination order is concerned, but to what relief the petitioner is entitled to for the period she has been out of service and
while passing an order I can not afford to lose sight of a few important facts which are detailed her under:
a) Order of termination bearing No. FIR/120/1013 has been issued on 02/05/1987 and the petitioner has come to the court on 07/ 02/1992 i.e.
after a lapse of about half a decade;
b) Writ Petition was withdrawn on 08/ 04/1993 and liberty was sought to file a fresh writ petition, against the order of termination, despite the fact
that the order of termination was already impugned through the writ petition, subsequently a review petition was filed, order got reviewed and writ
petition was restored to its original number, which fact is evident from notings of the Registry dated 11/03/1996 and 18/06/1996. It is also
reflected from the order passed by the court on 08/05/1997, 02/09/1997, 09/09/1997 and 04/12/1997 that inspite of the fact that writ petition
had come up for arguments, but neither the petitioner nor her counsel caused appearance.
c) The facts detailed in sub paras a and b indicate that the petitioner has on the one hand come to the court after a considerable delay and on the
other hand she has protected the pendency of the writ petition unnecessarily and for her such conduct, the state exchequer cannot be burdened.
Therefore, while granting the relief, these facts shall have to be weighed against the petitioner.
For the forgoing reasons, I allow this writ petition with the following directions:
i) The impugned orders bearing No.FIR/120/1013 dated 02/05/1987 is quashed;
ii) Death of a lady has taken place which suggested seriousness of the allegations, therefore, the respondents shall conduct and complete an enquiry
in accordance with the rules within a reasonable period of time and it shall depend upon the look out of respondents to decide whether they should
reinstate the petitioner or not during the pendency of enquiry and with a view to do away with any ambiguity, it is clarified that the order of
suspension bearing No.RCKPC/SUSP/7577 dated 27/01/1986 is not interfered with by this judgment;
iii) In case the enquiry culminates declaring the petitioner unscathed, yet the petitioner shall not be entitled to any kind of pecuniary benefit from the
date of termination viz. 02/05/1987 till date because of the reasons detailed in para 8 sub paras a,bandc;
iv) The treatment for the period form 27/01/19986 ( date of suspension) till 02/05/ 1987 ( date of termination) and the period commencing from
today till the enquiry is finally concluded shall be determined by the respondents while passing final orders;
v) It is further provided that in case the enquiry indicts the petitioner, this judgment shall not debar her from invoking the remedy if available and
advised.