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Judgment
This Letters Patent Appeal has been directed against the judgement dated September 1, 1999 whereby SWP No. 9277 98. seeking to quash
the termination order of the applicant, has been dismissed by the learned Single Judge.
A few facts necessary for the disposal of this appeal are that the appellant was working as Staff Graduate Nurse in the SheriKashmir Institute of
Medical Sciences. Soura. Srinagar (hereinafter referred to as ""the Institute""). On 16.02.1991 she submitted an application for sanction of 15 days's
earned leave in her favour and without the leave having been sanctioned she proceeded on leave. She extended the leave on the ground that she
was ailing and shall report for duty after she is certified by the Doctor to be fit to resume the duty. The respondent proceeded against her being
absent from duty. Her services came to be terminated vide order dated 31st January 1995. She challenged the legality and validity of the
termination order by means of SWP No. 252/95. The court vide judgement dated 07.07.1997, while allowing the writ petition, quashed the
termination order reserving liberty with the respondents to conduct fresh enquiry against the appellant for her alleged unauthorized absence with
effect from 21st February 1991 to 8th December 1994. This order was challenged by means of LPA No. 291/97. The Letters Patent Bench while
rejecting the appeal vide its order dated 24th October 1997 directed that the appellant be allowed to join her duties and in case the management
of the Institute decides to Initiate disciplinary proceedings against her they shall do so in accordance with law and complete it within a period of six
months.
Pursuant to the direction of the Court, the appellant was allowed to join her duties with effect from 22nd December 1997. The Enquiry
Committee came to be constituted. The charge sheet was drawn up on 10th February 1998 by the Director of the Institute and served upon the
appellant. The charge sheet has been replied through counsel by the appellant on 24th January 1998 demanding fresh charge sheet and the
statement of allegations whereupon the charge was based. After holding the enquiry, the report of the Enquiry Committee has been served on the
appellant and post enquiry notice also stood served. The post enquiry notice was challenged by means of SWP No. 328/98. Respondents served
another post enquiry notice which also came to be challenged by means of SWP No. 647/98. Both these writ petitions have been dismissed. The
appellant has filed reply to the show cause notice served by the respondents for proposed penalty as to why the appellant be not removed form
service. After completing the enquiry the respondents have terminated the service of the appellant vide order dated 22nd April, 1998.
The termination order was challenged by means of SWP No. 927/98 which has been disposed of by the learned Single Judge upholding the
enquiry and the termination order.
Aggrieved of the order of the learned Single Judge, the appellant has questioned the validity and legality of the order on grounds that:
i). the appellant was not served with the statement of allegations in terms of Rule 33 of the Jammu and Kashmir Civil Services (Classification,
Control and Appeal) Rules 1956;
ii). the documents on which reliance has been placed to substantiate the charge have not been supplied to the appellant;
iii). the services of lawyer have not been made available to the appellant despite demand; and
iv). the procedure prescribed by law for holding enquiry has not been fairly adopted by the respondents.
We have heard learned counsel for the parties and perused the record.
The contention of Mr. Haqani, learned counsel representing the appellant is that the statement of allegations has not been served upon the
appellant in terms of the mandate contained in Rule 33 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956
(hereinafter referred to as the Rules of 1956'). Thus it has prejudiced her right. Be fore dilating upon this proposition, it is to be seen as to what is
the charge against the appellant. The appellant absented from duty for a period of 04 years and was aware of fact that the concerned respondent in
the charge sheet has conveyed to her that she is absent from 21st February, 1991 to 8th December, 1994. This is a simple charge against the
appellant. The requirement of the law in terms of the man date of Rule 33 of the Rules of 1956 is that the delinquent official is required to be
informed in writing of the grounds on which it is proposed to take action and to afford an adequate opportunity of defending himself, The
submission of Mr. Haqani is that the respondents were bound to frame a charge in a particular form. It is also his submission that the charge sheet
should have been accompanied by imputations of charge which has not been done by the respondents and thereby the appellant's rights have been
prejudiced. In support of his contention, he has relied upon the judgement of the Supreme Court in case State of U.P. Vs. Singhara Singh (AIR
1964 SC 358) particularly laying stress upon para 8 of the judgement wherein it is provided that it is obligatory upon respondents to act in the
manner law provides, otherwise it will frustrate the purpose of the enactment. By means of charge sheet what was required to be conveyed in this
particular case is that the appellant has to explain her conduct with regard to her absence for a particular period. It is not denied that the charge
sheet must contain the imputations of the charges. The imputations of the charge upon which the charge has been framed is only that the appellant
was absent from 21st February 1991 to 8th December 1994. The charge is not that ambiguous which needs elaborate imputations of charge for
framing a definite charge. In this case, particularly the charge itself is simple, definite and specific. What is the requirement of Rule 33 of the Rules
of 1956 is that the delinquent Officer is required to be informed about the accusations against him which he has to rebut It is not the form, but the
substance of the allegations which was to be conveyed and served upon the appellant. The respondents, accordingly, in the charge sheet have
conveyed to the appellant to explain her conduct with regard to her absence. Therefore, the substance of the charge has been conveyed and we do
not feel that if the charge is not framed and conveyed in a particular form it will prejudice the rights of the appellant.
The next contention of Mr. haqani is that appellant's right is also prejudiced to defend herself because the documents on the basis of which the
charge was framed has not been supplied to the appellant which amounts to denial of an opportunity of being heard and breach of principles of
natural justice. In support of this contention he has relied upon the judgement of the Supreme court in S.L. Kapoor v Jagmohan 1980 (a) SCC
379 and Mafatlal Barot v. Divl. Controller, State Transport Mehsana AIR 1966 SC 1364. To appreciate this contention of Mr. haqani, we have
to appreciate that what are the documents which have not been supplied to the appellant whereby her right has been prejudiced. His submission is
that the respondents stand is that the application of the appellant for sanction of earned leave has not been accepted. Leave has been refused and
communicated through telegram to the appellant. Copy of this telegram has not been made available to the appellant which prejudiced her right.
Therefore, the appellant was not in a position to defend her case. Assuming that copy of the telegram which according to the respondents was
posted to the appellant has not been made available, yet it cannot be denied and is borne out from the record and the pleadings that in the charge
sheet it has specifically been stated that the leave applied for has been refused. Assuming this document was supplied, it is not understandable how
that would have improved the case of the appellant. We are not convinced on this score also that if the communication whereby the leave has been
refused is not supplied, under such circumstances attending to this case, it will materially cause any prejudice to the case of the appellant or it could
be termed as breach of the principles of natural justice.
So far as the plea with regard to the permission for the services of a lawyer to the appellant is concerned Mr. Magrey representing the
respondents has stated that the appellant has not made any such request. Mr. Haqani has drawn the attention of the court on the counter affidavit
filed by the respondents which indicates that the respondents in reply affidavit have recorded that her request was considered and rejected. What
is required to be seen here is that if the appellant has not been granted permission to avail herself of Rs. the services of a lawyer in the currency of
the enquiry proceedings, does it amount to denial of an opportunity of being heard and breach of his contention Mr. Haqani has relied on the
judgement, board of russets port of Bombay v Dilip Kumar 1983 Labour Industrial Cases Vol. 16, 419. It cannot be denied on fact that the
appellant has taken a stand for her unauthorized absence that she could not attend the duties being suffering from ailment. The respondents have
written two letters to the appellant during the course of the enquiry on 18.02.1998 requesting her to present before the Enquiry Committee of the
scheduled date alongwith all documentary evidence, if any, in support of her claim. The other letter dated 21st February, 1998 was also sent to the
appellant requesting her to produce medical evidence, if any, before the Committee otherwise it shall be presumed that the appellant has nothing to
substantiate the charge and the claim shall be treated as baseless. Despite that no evidence was placed on record by the appellant. Let us recall
here that this is a case where the appellant has not at all produced any evidence with regard to her ailment despite the fact that the simple charge
against her was to explain her conduct with regard to absence which according to the appellant was duo to her ailment. Assuming the services of
the lawyer would have been provided to her, it is not understandable as to how the appellant would have improved her case. The proposition of
law cited at the Bar is not disputed, but again the question is that the appellant has not taken the trouble to substantiate claim of her ailment,
therefore, the services of the lawyer would not have improved her case and in such circumstances it cannot be said that opportunity of being heard
has been denied or principles of natural justice breached.
Another plea of Mr. Haqani is that the procedure prescribed for holding enquiry has not been followed. We have gone through the judgement
of the Learned Single Judge who has recorded a finding in the course of the judgement that there is no breach of the statutory procedure contained
in Rules 33 and 34 of the Rules of 1956, which deals with and prescribed procedure for holding enquiry. It has not been specifically stated as to
how the procedure has not been followed. The observance of the procedure has been disputed on the ground that the respondents have not
supplied the documents and framed the proper charge. We, therefore, could not find out that there is any breach in following the procedure for
conducting the enquiry.
His another argument is that the report has been submitted by the Enquiry Committee vide letter dated 11.03.1998 which has been annexed as
annexure 'B' with the writ petition whereas annexure 'D' annexed with the writ petition also reveals that this report has been sent on 20th March,
1998. Pointing out this, his submission is that the enquiry report is predated and that the appellant approached the respondents on 20th March,
1998 and stie was told that the enquiry is complete. As a result the appellant could not place before the enquiry committee the material evidence.
Assuming this is the situation, an offer has been extended to the appellant in the court if the appellant is in possession of any evidence of her
ailment, she is at liberty to place it before the court, taking the court into confidence that the appellant was really ailing. Learned counsel for the
appellant could not do so, It is, therefore, immaterial whether the report is forwarded on 11th or 20th March, 1998.
The last argument of learned counsel for the appellant is that the punishment awarded is disproportionate to the misconduct and reliance has
been placed by him on the fact that the same Institute the other employees alike the appellant, they have been imposed lesser punishment. These
employees are not parties in the writ petition. It is for the respondents to appreciate what should be the quantum of the punishment in a particular
case where on the basis of the enquiry punishment has been awarded. It is settled proposition of law that the court cannot sit in appeal over any
proceeding of enquiry. Notwithstanding that, it is still required to be seen as to whether penalty imposed is disproportionate. It depends upon the
facts of the case. Herein the appellant applied for earned leave by submitting an application. She did not wait for its sanction. She treated it as
sanctioned or in the alternative it can be said that she abandoned the service without waiting for sanction of the leave. The appellant is working in
Medical Institute as Staff Graduate Nurse where such staff is required on emergency basis. Earned leave cannot be claimed as a matter of right.
Employer is within his rights even to refuse leave. The leave application put by the appellant on the first instance is not on account of ailment.
Extension of leave was sought on the ground of ailment. The public servant cannot assume that once the application is presented it stood
sanctioned. If the public servant behaves in such a manner it amounts to abandonment of the services on the part of the public servant.
It is also to be seen that what pre vented the appellant from resuming the duty. The appellant's stand is that she was suffering from ailment.
After the charge was framed, to meet it during enquiryor even before us, not an iota of evidence has been placed on record by the appellant to
substantiate her this claim. It appears that this claim of the appellant was totally false. Had three been any truth, it is unexpected that the appellant
would have withheld the said evidence, It is expected that the appellant would have brought it before the Enquiry Officer for appreciation, to
exhibit and establish her stand. In such circum stances we do not feel that the punishment awarded is disproportionate.
On the cummulative effect of all the facts and law discussed above, we could not find any reason or sustainable ground to interfere with the
judgement of the learned Single Judge. The result is that the appeal tails and is dismissed.