Nazir Ahmad Khan vs State

Kawoosa (JJ).

Grievance of the petitioner is that he was working as Deputy Director (Central) in the department of Gardens, Parks and Floriculture. He

applied for ten days leave from 10th of December 1981 with permission to travel abroad Leave was sanctioned in this favour The petitioner could

not resume his duties and accordingly applied for extention of leave from time to time. He was not conveyed the fate of the extention of leave.

When the petitioner returned to Srinagar, he was informed that he stands terminated vide order of respondent No.2 dated 18.9.1987, then this

order was confirmed by the Government vide its order No.: HP (GPF) of' 1987 dated 16.10.1087. The petitioner has alleged that the impugned

orders for terminating his service are unConstitutional and void, so he filed this writ petition bearing SWP NO."" 1084/88 seeking the indulgence of

this court under Article 226 for issuance of Writ of Certiorari for quashing the termination order dated 18.9.1987 and subsequent order passed by

the government dated 16.10.1987 confirming the first order. Secondly he has sought the relief for issuance of writ of Mandamus with direction to

the respondents to treat the petitioner in service with all consequential benefits.

Case has been admitted for hearing on 10.8.1988 and the otherside was noticed. Despite various opportunities given to the respondents, no

counter was filed. On 6.5.1996 four weeks time was granted to the respondents for filing the counter, which was not availed of. After availing

sufficient opportunities for filing the counter, it was directed to proceeds the case for hearing, however, no counter has been field in this case. But

now the record has been produced after final arguments were concluded hi the case.

Heard learned counsel for the parties.

Learned Counsel for the petitioner has argued that the admitted position of the case is that the services of the petitioner has been terminated by

respondent No.2, who was Director, Gardens, Parks and Floriculture, J and K, he was not the appointing authority of the petitioner who too was

Deputy Director himself. Appointing authority of the petitioner was the Govt. (SIC) as the termination order is abinitio order and cannot be cured

by subsequently confirming it by the appointing authority. Secondly, it is an admitted position that the services of the petitioner have been

terminated under Article 128 of J and K Civil Service Regulations without framing the charge sheet, without conducting any enquiry and without

properly serving the notice to the petitioner.

Learned Counselor the otherside has taken refuge of Regulation 113 of Jammu and Kashmir Civil Service Regulations, which reads as under:

... .After five years continuous absence on leave, an officer is considered to be out of State employment...

Learned counsel for the respondents has contended that though the order of termination has been made by the Director who was subordinate to

the appointing authority, but it was later on confirmed by the government i.e. appointing authority. Secondly, it was convassed before me that as

the petitioner remained absent for more than five years, so no enquiry was needed and his services automatically stood terminated.

6.1 have given my thoughtful consideration to both the points. It is an admitted fact that he petitioner was Deputy Director, only one stop down to

respondent Director. It is an admitted fact that respondent No.2 was not the appointing authority of the petitioner and respondent No.2 was

subordinate to the appointing authority, so under Clause I of Article 311 of the Constitution of India, respondent No.2 could not terminate the

service of the petitioner for being subordinate to the appointing authority. I am inclined to agree with the learned counsel for the petitioner that the

order of termination passed by respondent No.2 is abinitio void. It is the government who is the appointing authority of the petitioner. Now the

only question arises whether this deficiency can be curred by confirming the order by the competent authority. Arguments advanced by counsel for

the respondents are not tenable in law because, it is only the appointing authority or equivalent in status to that authority which can terminate the

services of the official or officer Herein this case, respondent No.2 is admittedly subordinate to the appointing authority, he could not terminate the

services of the petitioner, so the order is void and void order means an order without jurisdiction. If the order passed by an authority is without

jurisdiction, the jurisdiction cannot be conferred later on by the competent authority. My view is fortified by various authorities in this behalf.

In No. Samasundaram Versus State of Madras reported in AIR 1956 page 419. The same point was involved and it was held as under:

...The petitioner was in fact appointed to the post of Deputy Jailer by the Inspector General of Police, though the Superintendent of Jails could

have made the appointment under the statutory rules. By an order of the Superintendent the petitioner was dismissed from service and on appeal to

the Inspector General of Prisons, the order was changed into one of removal. Held that the order of dismissal passed by the Superintendent of Jail

who was an authority lower in rank than the appointing authority was in violation of the provisions of Art.311 (1) and must be set aside. The fact

that the order was modified on appeal by the Inspector General of Prisons would not be sufficient to cure the initial lack of jurisdiction to punish the

petitioner...

In Suraj Narain Anand Versus The North West Frontier Province reported in A.I.R. (29) 1942 Federal Court 3. In this case the petitioner was

appointed by Inspector General of Police and his services were terminated by Deputy Inspector General of Police, who was only a subordinate

authority. It was held that Deputy Inspector General of Police was not competent to dismiss the petitioner from service.

The same point came up before the Apex Court in Mysore S.R.T.C. Versus Mirja, A. 1977 S.C. Page 747. The same law was laid by the

Apex Court that if the appointment is made by the Head of the Department and the dismissal order is passed by Subordinate Authority, order of

dismissal is without jurisdiction and as such void and inoperative having been passed in contravention of Article 311 (1) of the Constitution of

India. The fact that the order was confirmed on appeal by Head of the Department cannot cure the initial defect.

For these reasons therefore, it is held that the order passed by respondent No.2 was illegal, lacking the original jurisdiction to pass such an order

could not cured by subsequent order passed by the GovernmentCompetent Authority.

Second point involved in this case need not to be discussed in detail. It has been held in catena of authorities by the Apex Court and by this

court also that Article 128 of Civil Service Regulations which entails the loss of service in case of absence from duty or overstaying the leave

cannot take away the safe guards given to a government servant by Article 311 of the Constitution of India and Section 126 of the Constitution of

Jammu and Kashmir State. It has been held by this court also that Article 128 of Civil Service Regulations demonstrates the effect of remaining

absent from service or overstaying the leave but it does not intend to throw the rule of natural justice to winds and to deprive the officer or official

from the protection given to him by the constitutional provisions and the rules made thereunder, (Classification, Control and Appeal Rules, 1956).

Every officer or official has certain guarantees under the provisions of constitution and under Classification, Control and Appeal Rules, 1956 in

case of removal from service. He is entitled to be charge sheeted first and then the competent authority is required to conduct the full dressed

enquiry against him in which the official or officer is to be associated with and is given full opportunity of being heard. By one stroke of pen he

cannot be removed from the service. (See S.L.J. 1994 Page 462, AIR 1996 SC 492, and AIR 1971 SC 1409).

Here in this case, the respondents have taken the plea that his services were terminated under regulation 113, for he remaining absent for more

than five years. The record which has been produced by the respondents reveals otherwise. From the record, it is evident that the petitioner had

been allowed by the Home Department to go abroad. He had applied for leave which was granted to him and then he applied for extention of

leave upto 1986, but he was not conveyed the result thereof. It is apparent from a letter No. Estt (GPC) 87/342628 dated September 18, 1987.

Respondent No.2 writes to the petitioner that he has remained absent for more than five years, so he is deemed to have incurred loss of

appointment in terms of Article 128 of J and K Civil Service Regulations and therefore his service were terminated. Copy of the letter was

forwarded to Principal Secretary to Hon'ble Chief Minister, J and K, Srinagar for information and that the petitioner has not applied for extention

of his unauthorised leave with effect from 17.4.1986. From this letter, it is apparent that the petitioner has applied for leave upto 1986 and his

services came to be terminated in September 1987. It is obvious from the record that the petitioner has applied for the extention of leave

continuously upto 1986, but the fate of that extention of leave is not known nor it was conveyed to him. It is not the case of the respondents mat

his extention of leave was rejected, so in the light of these facts, the contention of respondents that the petitioner has remained unauthorised absent

for more than five years does not seem to be cogent. However, admitted position is that no enquiry was conducted, no charge sheet was framed

against him and no notice under Article 128 of Jammu and Kashmir Civil Service Regulations was served upon the petitioner.

For these reasons therefore, this writ petition is allowed. Order of termination dated 18.9.1987 passed by respondent No.2 and later on

confirmed by the Government vide Order No..49HP (GPP) of 1987 dated 16.10.1987 are quashed. They are deemed to be nonest. The

petitioner be deemed in service from the date of passing of the impugned order. But however, it will be open for the respondents to suspend him

after reinstatement and conduct the enquiry if they so choose, within five months, failing which all the consequential benefits be paid to the petitioner

subject to satisfying the competent authority that he was not engaged in any other employment, business of profession of gain during the termination

period.

No order as to costs.