Mohd Ishaq Bhat vs State of Jammu and Kashmir

T.S. Doabia, J.—The appellant's conduct who came to be appointed on adhoc basis, was not found satisfactory. His services were dispensed with. He is said to have been involved in a theft case. It was further stated that he was absent w.e.f. 12th Nov '90. It is in these circumstances, the services of the appellant were deemed to have come to an end. It is also stated that as the adhoc tenure for which the appellant came to be appointed was not extended, therefore, his services came to an end by afflux of time.

This action of the respondentauthorities was the subject matter of challenge in a Writ Petition. This stands dismissed. The appellant has preferred this appeal under Clause 12 of the Letters Patent Appeal. The facts in brief be again recapitulated :

The father of the appellant was a class IV employee. He sought premature retirement. This led to the adjustment of the appellant in place of his father. The appellant came to be appointed on adhoc basis. This happened on 25th Oct '89. Thereafter, the tenure of the appellant was extended on 21st June '90. On 13th Oct '90, the appellant was placed under suspension by Tehsildar, Banihal. This was because he was found to be absent w.e.f. 12th Nov 90. It is further reported that he had broken the lock of the trunk of the Naib Tehsildar and had committed theft of cash amounting to Rs. 200/. It is also a fact that the appellant was tried in a case under Sections 497 and 380 of the Penal Code. The appellant was ultimately acquitted. A judgment of acquittal was recorded on 5th April '94. When the appellant came to be acquitted, he preferred representations seeking reinstatement. As the work and conduct of the appellant during the period of his adhoc services, was not found to be satisfactory, his plea for reinstatement was not accepted. It is under these circumstances, he approached this court.

It is not in dispute that the appellant was absent w.e.f. 12 Nov '90. It is also a fact that the appellant was involved in a criminal case. In this criminal case, he was acquitted. Taking into consideration, the above factor, the writ petition was dismissed.

The learned counsel for the appellant has placed reliance on AIR 1985 SC 84, Nepal Singh v. State of U.P. and ors. In the above case, the services of a Government servant on temporary appointment were brought to an end. As the allegations of misconduct were attributed, the order of termination was held to be bad. Again in Babu Lal v. State of Haryana, 1991(1) SCT 474 (SC) : AIR 1991 SC 1310 , an employee was placed under suspension. This was on account of pendency of criminal proceedings. The criminal proceedings ended in acquittal. The Supreme Court of India was of the view that the termination of the services during the pendency of the suspension pending criminal proceedings was bad and the appellant was held entitled to reinstatement and also to regularisation. In the above case, Babu Lal appellant was appointed on adhoc basis against the quota of exserviceman. His appointment was purely temporary on adhoc basis and was not to exceed six months. Even to such a tenure holder, relief of reinstatement was granted. The fact that the appellant therein was placed under suspension was taken note of. Appellant's counsel has also placed reliance on AIR 1986 SC 1790, Rajinder Kour v. State of Punjab. In this case, it was observed that the court can go into the question whether the order of discharge is by way of punishment or is a simple order of discharge.

In the present case, the appellant was placed under suspension. The order of suspension has been placed on record as Annexure P.5. It be seen that in the objections preferred by the State, the fact that the order of suspension came to be passed, has not been commented upon. As a matter of fact, one of the prayers made in the writ petition was that the appellant be provided with suspension allowance also. Even this aspect of the matter is not refuted in the objections preferred by the State. The stand taken in the objections is that even if the suspension order has been passed that has no legal force because the services of the petitioner were already terminated by afflux of time in terms of nature of appointment.

No doubt the appellant's tenure was adhoc in nature but some right did vest in him. The position in this case is somewhat similar to that which existed in Babu Lal's case (supra). However, this is not the end of the matter. The appellant was not attending to his duties. He was absent. He was involved in a criminal case also. For this the respondents were not responsible. Again acquittal in prosecution does not bar holding of department enquiry. See State of Karnataka v. T. Venkataramaappa, 1997(1) SCT 484 (SC) : 1996(6) SCC 455 and Senior Supdt. of Post Offices v. A. Gopalan, 1999(2) SCT 295 (SC) : 1997(11) SCC 239 . Absence from service if not explained can be made a ground for snapping relationship of master and servant. However, an enquiry has to be held visavis the cause of absence. In Letters Patent Appeal No. 340/1997 decided on 11.2.1999, SheraIKashmir Institute of Medical Science, Soura v. Mrs. Sarla Jalali, it has been observed :

(i) Mere absence from duty is not per se misconduct.

(ii) Where an employee process on leave and does not resume duties even then some enquiry is required to be held. Service tenure cannot be brought to an end without compliance of principles of natural justice.

(iii) Even in the presence of some service regulation visualising concept of automatic termination in case of absence an enquiry is required to be held.

(iv) The order of termination has to be preceded by hearing and the order so passed has to be reasoned one.

(v) When order of reinstatement is passed then preponderance of view is that back wages are not to be allowed.

(vi) The Competent Authority should be left free to decide as to whether it wishes to leave the matter as it is or wants to hold further enquiry where order of termination is set aside.

In these circumstances the respondents are directed to look into the matter at their own level. In case they form on opinion that the conduct of the appellant is not such which disables him to continue in service then such steps as justice of the case required to be taken. Let some decision be taken within a period of three months. The period of three months would begin from the date copy of order passed by this court is made available to the respondents by the petitioner.

Disposed of accordingly.