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Judgment
1 .The extraordinary jurisdiction of the court had been invoked so as to get the order, terminating the petitioners service in the Kamraz Rural Bank,
quashed. The circumstances in which the petition has been laid are:
2.Kamraz Rural Bank is a schedule bank with its head office at sopore: The petitioner was appointed, after having undergone the requisite training,
as the junior clerk on probation with effect from 14.10.1982 vide the Bank's order No. Per/Staff/8219328 dated 29.10.1982. Having thus served
the Bank for sometime the petitioner was promoted to the cadre of Senior cashiercumclerk on 1.7.1988.
3 .Petitioner's case is that right up from his childhood, he suffered from the disease Known as Ostomylits in his left femer. He had to undergo
surgical operation a couple of times but to no results so much so that he suffered in the month of November, 1986, such severe effects of the
decease as affected his normal life. Having not been able to get the disease properly diagnosed and treated the petitioner sought medical advice
from the All India Medical Institute and Safdar Jang Hospital at New Delhi. It is pleaded that due to the ill effects of the disease the petitioner left
the station of his place of posting with the Bank in June, 1989 without any permission but subsequently addressed the communication to the
respondentManager intimating about his ailment and inability to attend to his duties. The petitioner therefore, sought grant of leave with effect from
the date he had absented himself, that is 5. 6. 1989. He pleads that he did inform the Manager subsequently about his inability to attend his duties
and sought extension of leave vide the annexures D and E. After having got the ailment treated at the Institute at New Delhi, the petitioner returned
to the Valley and allegedly contacted Dr. T.S. Sethi, Orthopedic Surgeon, who advised him complete bed rest for a further period of two years.
The impugned order having not yielded any results entitles him to invoke the jurisdiction.
7.The quashment of the impugned order is thus sought with the direction to the respondents to treat the petitioner in service with all the
consequential monetary and service benefits.
8.Respondents 1 to 3 have filed the counter whereby the Bank has come to plead that the writ petition is not maintainable on the ground interalia
that the Bank being an industry in terms of the provisions of Industrial Disputes Act and the petitioner having been a workman of the said Bank he
has the remedy under the provisions of Industrial Disputes Act; that the writ jurisdiction cannot be invoked as the remedy by way of civil suit is
available to the petitioner. The writ petition is labelled as suffering from the malice of laches in as much as the impugned order having been issued
on 14.9.1990, the writ petition has been filed on 13.11.1994 without any plausible explanation for the delay in seeking the redressal through the
writ jurisdiction. It is further pleaded that the petitioner had the remedy of appeal against the impugned order which could have been preferred
within thirty days from the date when it was passed but he having not availed it disentitles him to be heard in writ jurisdiction, moreso then he has
invoked it nearly four years after having acquired the knowledge. It is further pleaded that on the unauthorised absence, having occasioned the
petitioner was called upon by notices, telegrams and publications to explain his unauthorised but to no effect. The continued unauthorised absence
from duty is violation of the Staff Service regulations which disentitles the petitioner to a hearing as to the vires of the impugned order which has
been passed in conformity with the principles of natural justice.
9.1n the rejoinder affidavit, the petitioner has come to controvert that his case could be adjudicated upon under the Industrial Disputes Act as the
Kamraz Rural Bank is a subsidiary and an allied unit of the J and K Bank, which has been held to be the instrumentality of the State. The petitioner
pleads that the matter is amenable to the writ jurisdiction. The impugned action is labelled to be derogatory to the constitutional guarantees in so far
as the major punishment of termination of services has been inflicted without opportunity to explain having been afforded. It is projected through
the rejoinder that the impugned order, that has been issued in clear violation of the principles of natural justice and in utter disregard to the mandate
of the law, is amenable to writ jurisdiction notwithstanding it having been invoked nearly after four years after the passing of the order. The remedy
of appeal could according to the petitioner have been available to him within thirty days of the issuance of the order, had it been passed in
consonance with the principles or natural justice. That having not been done, the remedy of appeal could not be efficacious.
10.The writ petition has been held to be maintainable by the Division Bench of this court vide the order passed on 23.10.1997 in LPA No.342/97.
This order took note of the fact that the respondents had not objected to the maintainability of the petition on the ground of the Bank being not an
Authority within the meaning of Act. 12 of the Constitution of India. The Division Bench on that basis directed the matter to be listed for final
hearing and that is how the matter has come up for adjudication.
11 .No counters have been filed for respondents 4 and 5. The counter affidavit filed on behalf of respondents 1 to 3 is not legally valid in so far as
it is not shown as to which of the three respondents in reference had subscribed under oath to it and had verified the contents thereof. Respondents
1 to 3 could have authorised any of its functionaries to sear in the affidavit in support of the objections which have been labelled as counter,
Record does not reveal as to which of the functionaries in reference had subscribed and verified under oath to the correctness of the contents of
the objections. It is, therefore, not possible to hold that a valid counter has been filed on behalf of the contesting respondents.
12.Be that as it is, the objections as to the maintainability of the writ petition are to be disposed of.
13 .Assuming that the petitioner had the remedy against the impugned order through the regular processes or appeal etc., yet availability of that
remedy cannot stand in his way in invoking the jurisdiction if it is otherwise found to be exerciseable in the case.
14.The controversy projected in the writ petition is labelled by the respondents to be an industrial dispute adjudicatable under the Industrial
Disputes Act but it is not shown as to what is the basis for raising such a defence. It is not shown in the first place that the bank is an industry and
the petitioner was a workman to attract the provisions of the Industrial Disputes Act or that the petitioner could have invoked the remedy available
under the Industrial Disputes Act. The objection qua the matter being referable to the Labour Court is in my opinion a ploy adopted to deprive the
petitioner of the remedy available under the writ jurisdiction.
15.It is projected for the petitioner that the impugned order came into existence without the principles of natural justice having been followed in so
far as no preliminary inquiry was to his knowledge held nor was any chargesheet ever served on him, muchless he having been afforded any
opportunity to meet the charges and explain his position. It is in this situation rightly contended that filing of appeal against the termination order
under the rules applicable could not be the efficacious remedy available to the petitioner.
16.The respondents have taken the stand that before the impugned order was passed, notices by name, telegram and publications had been issued
calling upon the petitioner to explain his cause vizaviz his absence. The contesting respondents have made a reference (para 8 of the objections) to
the copies of the communications and telegram alleged to have been addressed to the petitioner but it is intriguing that the copies have not been
annexed to the objections though a mention thereabout is made therein. In this situation it can be said for the petitioner that ostenoibly no notice,
muchless a chargesheet, was at any point of time served on the petitioner. Mere assertion that the notices and the telegrams and publication of
notices were issued, is not going to lead the contesting respondents anywhere as it was for them to come with the copies thereof or the receipts
thereabout to substantiate the assertion that the principles of natural justice had been complied with before the impugned order was recorded.
17.Assuming that the petitioner absented himself unauthorisedly from service with effect from 5.6.1989 and assuming further that his subsequent
communications and requests seeking extension of leave were rightly rejected yet under the principles of natural justice his service could not be
terminated without inquiry, chargesheet, right of hearing and right of defence. The petitioner could not have been thrown out of employment by
issuance of the impugned order which on the face of it was passed without by any opportunity of hearing having been provided to him. The
impugned order is thus on the face of it violative of the principles of natural justice and constitutional mandate which require that no person shall be
thrown out of his employment without affording him an opportunity either to explain his position or the right of making submission, in the case at
hand it being not shown that the impugned order is unconformity with the principles of natural justice, the respondents cannot resist the
maintainability of the writ petition on the ground that the petitioner had other efficacious remedies available under the Industrial Disputes Act or by
way of an appeal to the Competent Authority under the Regulations applicable or through a civil suit. I am of the opinion that the objection about
the maintainability of the writ on any of the alleged grounds is misconceived.
18.Regulation 30 of the Staff Service Regulations, 1982 (hereinafter referred to as the ""Regulation"") of the respondent. Bank provides for the
penalties which can be imposed under the regulations on any officer or employee of the Bank. The Regulation runs as under:
30( 1) without prejudice to the provisions of other regulations, an officer or employee who commits a breach of these regulations or who displays,
negligence, inefficiency or indolence, or who knowingly does anything detrimental to the interests 01 the Bank or in conflict with its instructions or
who commits a breach of discipline or is guilty of any other act of misconduct, shall be liable to the following penalties:
(a) reprimand;
(b) delay or stoppage of increments or promotion;
(c) degradation to lower post or grade or to a stage in his incremental scale;
(d) recovery from pay of the whole or part of any pecuniary loss caused to the Bank by the officer or employee;
(e) removal from service which shall not be a disqualification for future employment;
(f) dismissal.
(2) No officer or employee shall be subjected to the penalities referred to in clause (b), (c), (d), (e), or (f) of subregulation(l) except by an order in
writing signed by the Chairman and no such order shall be passed without the charge being formulated in writing and given to the said officer or
employee so that he shall have reasonable opportunity to answer them in writing or in person, as he prefers and in the latter case his defence shall
be taken down in writing and read to him;
Provided that the requirements of this subregulation may be waived, if the facts on the basis of which action to be taken have been established in a
court of law or court martial, or where the officer or employee has absconded or where it was for any other reason impracticable to communicate
with him or where there is difficulty in observing them and the requirements can be waived without injustice to him. In every case where all or any
of the requirements of this subregulation are waived, the reasons for so doing shall be recorded in writing.
(3).........................
(4).........................
19.SubRegulation (2) of Regulation 30, quoted above, mandates that no officer or employees of the Bank shall be visited by any of me penalties
referred to in clause (b), (c), (d), (e) or (f) of Subregulation (1) except by an order in writing signed by the Chairman and no such order shall be
passed without the chargesheet being formulated in writing and given to the said officer or employee so that he shall have reasonable opportunity to
answer them in writing or in person, as he prefers and in case he answers them in person his defence shall be taken down in writing and read over
to him. The mandate of this subregulation is in conformity with the principles of natural justice and the constitutional guarantees. It provides that
while imposing any of the penalties, including the termination or removal, the order shall be passed only after a charge is formulated in writing and
served on the delinquent or defaulter and he is given the reasonable opportunity to answer the charge in writing or in person and is further given a
chance to lead his defence. The regulation thus provides the holding of an inquiry, framing of the chargesheet, service of chargesheet and affording
of the opportunity to the defaulter or delinquent to explain his position and to produce his defence. True it is that the proviso added to
subregulation (2) of Regulation 30 leaves the scope to dispense with the holding of the inquiry but the grounds to dispense with the inquiry have to
be indicated in writing or else dispensation of inquiry will render the order of infliction of the penalty violative of the mandate of the regulation. The
termination order has, in the second place to be, signed by the Chairman of the bank.
20.1n the case at hand the impugned order suffers from the defect that it has not been signed by the Chairman but has been signed by the
Manager, Personnel. It is not clear from the record not is it shown that the Manager (Pers) had issued the impugned termination order as the
Chairman of the bank, which he exfacie leave no option to the singing of the order for imposing of any of the penalties by the chairman. The order
in reference is on the other hand issued under the signatures of the Manager (Pers) which is thus nonest in the eyes of law.
21.The impugned order does make a mention that any explanation for unauthorised absence had been called. It instead gives out that notice was
published in daily ""Aftab"" calling upon the petitioner to resume his duties. None of the copies of the notices or the publications, so referred to have
been put on to the mandate of subregulations(2) of Regulation 30 of the Regulations in reference.
22.lt was for the respondents to show that inquiry has been held, a chargesheet served on the petitioner and he had been given a reasonable
opportunity to answer to same and to produce defence. Mere assertion that notices were served or published could not be a substitute for a
fullfledged inquiry or serving of a chargesneet. Intimation or direction to resume duty, allegedly conveyed telegraphically or by publication, could
not be a substitute for a chargesheet required to be formulated under subregulation (2) of Regulation 30.
23.The requirement of serving of chargesheet or inquiry could be dispensed with had the respondents recorded with reasons that the same could
not be served as the petitioner had absconded or that the service of chargesheet was impracticable in the circumstances or that the requirement to
serve the chargesheet could be waived without injustice to him. The proviso to subregulation (2) to Regulation 30 required the recording of the
reasons to dispense with the service of notice, chargesheet and inquiry. There is exfacie nothing on which it can be said that the requirement of
subregulation (2) of Regulation 30 were waived nor were ostencibly there any reasons present to adopt such a course.
24.The impugned order, apart from the infirmities from which it suffers, takes note of the fact that the petitioner had telegraphically informed the
Bank, from time to time, about his illhealth. The leave of absence as was sought could not be sanctioned, vide the impugned order, for want of
requisite supportive material. The mention of this fact in the impugned order indicates that the respondents were in know of the fact that the
petitioner had projected his illness as the cause of his absence from duty. It would have been thus fair enough in this circumstances if the petitioner
had been afforded an opportunity by formulation of the charge sheet to substantiate his alleged cause of unauthorised absence from duty. The Bank
may have issued notices, telegrams and made publications calling upon the petitioner to resume his duty but same could not be a substitute to the
formulation of the chargesheet which was required by subregulation (2) of Regulation 30 of the Regulations applicable. It is thus rightly contended
that the impugned order, apart from being defective and invalid as having been not signed by the Chairman, suffers the infirmity of being
(insupportable on the ground that it has been passed without the requirement of holding the inquiry, framing of charges, serving of the chargesheet
and affording the opportunity of defence/hearing to the petitioner. The order is thus violative of the mandate of the regulations applicable.
25.The matter of fact is that the petitioner got the information about the termination order on 14.9.1990. This is pleaded by him in the petition
which he filed nearly after four years thereafter, namely on'23.11.1994. On the first impression one can say that the petition suffers from the ralice
of laches or delay which can disentitle the petitioner to the relief sought.
26.The petitioner has come to plead that after getting the information about the termination order had made representations, at intervals, seeking
reconsideration of the order. The question that arises is whether the making* of the representations to the bank for reconsideration of the
tennination order was a legal remedy available to the petitioner so as to entitle him to the relief sought through the petition which has been filed long
after the passing of the order. Having once issued the order, for the recorded reasons, whether correct or otherwise, it could not lie, under the
regulation, with the Banks of any of its functionaries to reconsider the matter and cancel the order, the making of representations thus was not a
legal mode available to the petitioner. He cannot be, therefore, heart to say that the delay in seeking the relief through the writ jurisdiction is
reasonably explained.
27.The question is whether the delay or laches can by itself be the ground for dismissal of the petition notwithstanding that the order impugned has
flowed from the breach of the principles of natural justice and mandate of the law. The impugned order is not only in utter disregard of the
principles of natural justice but is also violative of the mandate of subregulation (2) of the Regulation 30 of the Regulations. The petitioner being a
public servant was entitled to be heart before his services could have been terminated on the ground of unauthorised absence. Subregulation (2) of
the regulation 30 provides the safeguards against arbitrary action of imposing penalties on its employees by the Bank. The inquiry envisaged by
subregulation (2) was not a mere empty formality.
28.Notwithstanding the existence of any other remedy that mite have been available to the petitioner, he is not debarred to invoke the writ
jurisdiction to get the termination order quashed on the twine grounds; firstly that it has been signed and issued by an incompetent bank officer and
is thus a noneest; and secondly; that it has been passed in utter disregard of the principles of natural justice. The regulations required the holding of
an inquiry and it further required that on inquiry, on charge having been formulated, on right of defence having been offered, the punishment in the
nature of removal or termination could be imposed only by the order signed by the chairman and none else. On none of these touchstones is the
impugned order sustainable. In the totality of circumstances the delay in filing the writ petition deserves to be condoned and is accordingly
condoned thereby.
30.The petition is for the above said reasons hereby allowed the impugned order No. Per/StafF90/923(A) dated: 14.9.1990 is quashed. The
respondents are directed to hold under the regulations, the inquiry against the petitioner about his alleged unauthorised absence. The inquiry shall
be concluded within four months from the date when the order is communicated. The petitioner may be paid in the meanwhile the subsistence
allowance as permissible under the rules/regulations applicable.