Mohd.Ishaq Bhat vs State of J&K and Others

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 respondent authorities 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 June190. On 13th Oct1 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 Section 497 and 380 of the Penal Code. The appellant was

ultimately acquitted. A judgement 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 came to be acquitted. A judgement 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. 12th 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 Vs. State of U. P. and others. 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 Vs. State of Haryana, 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 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 Vs. 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 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 Vs. T. Venkatarama appa (1996) 6 SCC 455 and senior Supdt. of Post Officers V. A. Gopalan (1997) 11 SCC

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. SherelKashmir Institute of Medical Science

Soura Vs. Mrs Sarla Jalali. It has been observed :

(i) Mere absence from duty is not perse 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 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 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