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Judgment
Javed Iqbal Wani, J
The Petitioners in the instant petition filed under Article 226 of the Constitution of India implore for the following reliefs:-
(i) A writ, order of direction including one in the nature of Certiorari, quashing the impugned Communication dated 11.06.2021.
(ii) A writ, order or direction including one in the nature of Mandamus, commanding upon the respondents to release the arrears of pay of the deceased petitioner w.e.f. April, 1999 till 07.01.2021 and also the terminal benefits in the nature of leave encashment, GP Fund, Gratuity and Commutation Pension in favour of the petitioners and process the case for release of family pension in their favour as also the compassionate appointment case in favour of the petitioner No. 4.
(iii) Any other writ, order or direction which this Court may deem it fit and proper in the facts and circumstances of the case may also be passed in favour of the petitioners and against the respondents.
The facts under the shade and cover of which the reliefs aforesaid are being prayed by the petitioners, as stated in the petition would reveal that the petitioners are the legal heirs of one Mohd. Yousuf Bhat (for short ‘deceased’), who died in harness at the age of 52 years on 07.01.2021, stated to have been holding the post of Jamadar-I on substantive basis in the respondent-Institute.
It is being stated that the deceased while in service was placed under suspension by the respondents for unauthorized absence w.e.f. 01.10.1999 to 31.05.2000 vide order bearing No. 63 of 2000 dated 17.04.2000, followed by the appointment of one Sh. Ali Mohd. Sheikh as an Enquiry Officer for holding an enquiry thereof followed by issuance of order No. 322 of 2000 dated 06.11.2000, appointing one Dr. G.M. Dar as an Enquiry Officer.
It is being next stated that however without holding an enquiry against the deceased, the respondents issued a show cause notice to the deceased vide IMPA Order No. 298 of 2001 dated 17.09.2001, responded by the deceased on 26.09.2001 and thereafter without adhering the mandate of relevant rules, the respondents terminated the services of the deceased w.e.f. 01.10.1999 in terms of order No. 122 of 2003 dated 08.04.2003, aggrieved whereof, the deceased filed a writ petition bearing SWP No. 698/2004 before this Court, which petition is stated to have been allowed by the Court vide judgment dated 07.06.2005 while holding the termination order violative of the rules and principles of natural justice.
The deceased upon earning the aforesaid judgment dated 07.06.2005 is stated to have submitted his joining report on 14.07.2005 before the respondent-Institute and is stated to have been entertained by the respondent-Institute on 21.07.2005 and that the respondents without issuing an order of reinstatement of the deceased attached him with the Administrative Section vide office memo dated 03.09.2005.
It is being next stated that the respondents, however, did not pay either salary to the deceased since September, 1999 or else subsistence allowance for the period of his suspension but in the meantime, assailed the judgment dated 07.06.2005 in an appeal being LPA No. 121/2005 and that the same came to be disposed of in terms of order dated 04.08.2005, providing opportunity to the respondents to proceed afresh against the deceased in respect of the charges mentioned in the dismissal/removal order dated 17.09.2001 while clarifying that acceptance of the joining report of the deceased shall be without prejudice to the rights of the respondents.
It is being further stated that even though the LPA Bench in its order dated 09.11.2005 required the respondents to serve a charge-sheet upon the deceased and hold and complete the enquiry within a period of four months expiring on 09.03.2006, the respondents did not conduct any effective proceedings in the matter except appointing and changing the enquiry officers one after the other and also did not release the subsistence allowance in favour of the deceased despite of furnishing non-engagement certificate by him.
It is being next stated that the respondents instead of issuing a formal charge-sheet against the deceased, the enquiry officer issued a notice No. IMPA/EO/49/06/08 dated 05.04.2006 requiring therein the deceased to answer the charges of unauthorized absence after joining the duties within a week’s time and that the same came to be replied by the deceased on 07.04.2006, explaining therein his conduct after joining report dated 14.07.2005, as also that no charge-sheet had been issued by the competent authority against him besides contesting the competence of the enquiry officer to issue the notice in the shape of charge-sheet to him.
It is being further stated that despite submission of the reply to the notice issued by the enquiry officer, the deceased was not permitted to justify his absence from duty w.e.f. 01.10.1999 to 31.05.2000 or else was allowed to produce his witnesses or submit his medical record thereto and that instead of taking appropriate steps to ensure the implementation of the judgment/order of this Court passed in the earlier proceedings, the respondents proceeded to issue a show cause notice dated 05.10.2007 against the deceased, calling upon him to explain as to why his services be not terminated w.e.f. 01.10.1999 while relying upon the enquiry report drawn by the enquiry officer.
The said notice dated 05.10.2007 is stated to have been replied in detail by the deceased on 19.11.2007 while pointing out the legal infirmities thereto and that after submitting the aforesaid reply to the show cause notice, the health condition of the deceased deteriorated, owing to which reason, the petitioner No. 1 herein being his wife submitted an application on 20.01.2008 before the respondents, seeking appropriate relief(s) therein, followed by a legal notice issued by the counsel dated 11.03.2009 and series of applications and legal notices.
The deceased is stated to have died on 07.01.2021 at the age of 52 years after attracting fatal ailments and undergoing various surgical operations.
It is being further stated that since the disciplinary proceedings initiated against the deceased were not concluded by the respondents and the deceased continued to remain in service though under suspension with the respondents, the respondents came to be approached by the petitioners for processing the case of the deceased for payment arrears of pay, as also the settlement of his family pension case in favour of the petitioner No. 1, inasmuch as, release of all terminal benefits admissible under rules and the respondents, are stated to have not responded to the claims lodged by the petitioners even for providing compassionate appointment to one of the legal heirs of the deceased under SRO 42 of 2004 and are instead stated to have addressed impugned communication dated 11.06.2021 to the petitioners.
The petitioners have maintained the instant petition on the following grounds, which in extenso are extracted and reproduced hereunder:-
(i) The impugned communication is incompetent both on facts as also in law and smacks of arbitrariness and mechanical exercise of power;
(ii) The impugned communication is also illegal, as the same is based on the order dated 08.04.2003 despite the fact that the same stands already quashed by this Court. Reliance placed on the said order by the respondents smacks of not only non-application of mind on the part of the respondents, but also mechanical exercise of power, infested with whims and caprice;
(iii) The impugned communication, as also the so-called disciplinary proceedings held by the respondents are contrary to and in disregard of the orders and commands of this Court. The respondents have not at all served the charge-sheet, as directed by this Court upon the deceased-petitioner nor did the respondents hold the enquiry as had been directed by this Court. As a matter of facts, the respondents in the matter of conduct of disciplinary proceedings indulged in their own whims and caprices, which is writ large on the fact of the record;
(iv) The impugned communication and the so-called disciplinary proceedings held by the respondents are violative of the rules and principles of natural justice, equity and good conscience and fair play. As stated above, neither any charge-sheet was issued by the respondents against the deceased-petitioner nor did the respondents at any point of time apprise him or grant him any opportunity of defence against the allegations of unauthorized absence;
(v) The impugned communication and the treatment meted out to the deceased-petitioner is also violative of the mandate of fairness in the matters of disciplinary proceedings and public enjoyment in that in gross disregard of the deceased-petitioners’ fundamental rights neither he as paid the salary since the month of April, 1999 till his death in the year 2021 nor he was paid the subsistence allowance in view of his continued suspension since April, 1999. In the absence of any payment obviously not only that the deceased-petitioner alongwith his family was put to starvation and agonizing frustration in the matters of defence and survival, the same as well had a very bad impact on his death, which as stated above ultimately tragically consumed his life at the prime age of 52 years;
(vi) The impugned communication and the disciplinary proceedings are bad in law being infested with fatal error of legal malice;
(vii) The failure of the respondents to release the arrears of pay of the deceased-petitioner since April, 1999 till his death on 07.01.2021 coupled with their omission to release his terminal benefits and process the family pension case and compassionate appointment case is again arbitrary in nature.
Reply to the petition has been filed by the respondents, wherein it is, inter-alia, stated that the impugned communication came to be addressed to the petitioners in response to a representation submitted by the wife of the deceased though it is being admitted that the case of the deceased stands forwarded to the General Administration Department, being the Administrative Department of the Institute, for considering the case as per the Court directions.
It is being next stated that the deceased at the time of his death was not holding the post of Jamadar-I and was not on the rules of the Institute though it is being admitted that the deceased was placed under suspension for unauthorized absence and was consequently terminated in terms of order dated 08.04.2003, which order came to be quashed by the Court on 07.06.2005.
It is being next stated in the reply that the deceased after passing of the judgment dated 07.06.2005 only submitted his joining report, however, did not attend to his duties though he was asked to report to his duties in terms of communication dated 30.08.2005.
It is being further stated that after passing of the judgment/order by this Court, an Enquiry Officer was appointed for holding enquiry against the deceased therein and that the enquiry was held, providing ample opportunity to the deceased to justify his absence from duty, resulting into issuance of show cause notice dated 05.10.2007, calling upon the deceased as to why his services be not terminated w.e.f. 01.10.1999.
Heard learned counsel for the parties and perused the record.
It is not in dispute that the deceased was an employee of the respondent-Institute and his services had been terminated vide order No. 122 of 2003 dated 08.04.2003, which order indisputably came be quashed by this Court in SWP No. 698/2004 upon challenge thrown to the same by the deceased.
It is also not in dispute that the said judgment dated 07.06.2005 came to be questioned by the respondent-Institute in LPA No. 121/2005 and the same came to be disposed of with the directions contained therein, which directions being relevant and germane herein are extracted in extenso and reproduced hereunder:-
“(i) That the appellants are at liberty to serve charge sheet upon the respondent to prove the misconduct of unauthorized absence and hold an enquiry which shall be completed within four weeks.
(i) That the respondent is directed to associate with the enquiry proceedings. If he fails to associate with the enquiry in that event the respondent may proceedex-parte.
(ii) That pay emoluments from the date of his termination from service till the date he resumes the duty pursuant to this order shall be dependent upon the result of the enquiry, to be conducted by the appellants within four weeks;
(iii) The appellants shall make payment of the charge allowance to the respondent suspendee under rules.”
As emerges from a plain reading of the aforesaid directions passed by the LPA Bench, the respondent-Institute came to be granted an opportunity to serve charge-sheet upon the deceased to prove the misconduct of unauthorized absence and hold and conclude the enquiry within four months while directing the deceased to associate with the said enquiry, providing further that in the event respondent fails to associate with the enquiry, the Institute may proceed ex-parte.
Perusal of the record would reveal that the respondent-Institute appointed an enquiry officer subsequent to the passing of the directions by the LPA Bench initially vide order dated 10.12.2005, followed by the order dated 25.03.2006, whereby Dr. Mushtaq Ahmed Khan, Associate Professor came to be appointed as an enquiry officer in place of Dr. S.N. Alam, who had been appointed as an enquiry officer in terms of order dated 10.12.2005.
Record would further reveal that the said enquiry officer appointed vide order dated 25.03.2006, issued a notice/articles of charge to the deceased on 05.04.2006. Record would also demonstrate that the deceased submitted his reply to the said notice (articles of charge) on 17.04.2006, wherein the he had, inter-alia, questioned the appointment of the said enquiry officer before framing and serving of charge-sheet upon him.
The record of enquiry produced by the respondents would reveal that the enquiry officer proceeded with the enquiry notwithstanding the objection raised qua the service of charge-sheet after appointment of the enquiry officer and consequently concluded the same on 17.06.2006, holding that the order of termination dated 08.04.2003 issued against the deceased is worth to be maintained having been issued in accordance with the relevant provisions contained in Article 128 of the J&K Civil Services Regulations (CSR) and Rule 30 of the J&KCC & A Rules and also being in tune with the judgment of the Hon’ble Supreme Court rendered in case titled as, “North Eastern Karnataka Road Transport Corporation vs. Ashappa, reported in 2006 (5)SCC 137”, wherein overstaying of leave or unauthorized absence enables the employer to dismiss the employee being a serious misconduct.
The law qua the disciplinary enquiry is that the same is quasi-judicial in nature and in the matter of holding of a disciplinary enquiry, the competent authority or the appointing authority on being satisfied on the basis of the facts and material available before it, that charges are required to be framed against the delinquent officers, may frame definite charges and serve the same on the delinquent concerned alongwith the statement of allegations, seeking his explanation by way of written statement of defence and if the delinquent officer denies the charges, the competent authority on the basis of the material before it, may decide to proceed against the delinquent officer and in the event the competent authority decides to proceed against the delinquent officer, it has to order an enquiry into the charges having served upon the delinquent officer by the competent authority and an enquiry officer would then be appointed by the competent authority, whereupon the said enquiry officer has to hold an enquiry into the charges drawn and framed by the competent authority against the delinquent officer and conclude the enquiry in accordance with the rules of natural justice. The aforesaid view has been laid down by the Apex Court in case titled as “Delhi Development Authority vs H. C. Khurana, reported in (1993) 3 Supreme Court Cases 196”.
Thus in law, the basic fundamental requirement or first step in the matter of holding of a disciplinary inquiry against a delinquent officer is the framing of the charges by the competent authority, i.e., the authority competent to impose punishment.
In the instant case perusal of the record, however, reveals that, no charge-sheet had been drawn and framed by the disciplinary authority of the deceased, but the same had been drawn, framed and served under the name and style of show cause notice by the enquiry officer, namely, Dr. Mushtaq Ahmed Khan vide notice dated 05.04.2006 and ironically the appointment of the said enquiry officer has preceded the drawing and framing of the said notice/charge-sheet against the deceased by the competent authority when it ought to have been vice-versa. This inaction on the part of the respondents cannot but said to be putting a cart before the hourse.
Assuming the said exercise undertaken by the respondents against the deceased to be legally tenable, yet the perusal of the enquiry report drawn by the said enquiry officer would tend to show that the same has not been conducted in accordance with the settled principles and norms, so much so, the conclusions drawn by the enquiry officer in the enquiry report are not otherwise also legally tenable, in that, the respondent-Institute was permitted by the LPA Bench in its order dated 09.11.2005 (supra) to hold the inquiry into the unauthorized absence of the deceased and not into the validity or otherwise of the order of termination dated 08.04.2003 issued against the deceased and having been quashed by this Court in earlier round of litigation, in SWP No. 698/2004 vide judgment dated 07.06.2005. The respondents, seemingly, have proceeded in the matter casually without application of mind, inasmuch as, in breach and violation of the principles of law governing and regulating the holding of a disciplinary enquiry and in the process, admittedly, violated legal, statutory and fundamental rights qua the service of the deceased and after his death, the present petitioners being his legal heirs while issuing the impugned communication dated 11.06.2021. Thus, the proceedings initiated by the respondents against the deceased having resulted into issuance of the impugned communication dated 11.06.2021 based on the order of appointment of the enquiry officer dated 25.03.2006, the charge-sheet/notice dated 05.04.2006 including the enquiry report dated 17.06.2006 cannot, but said to be illegal.
In view of the aforesaid position, facts and circumstances obtaining in the matter, the respondents have divested and disentitled themselves of any right to proceed in the matter against the deceased or else the petitioners herein after having failed to avail the opportunity granted to them by the LPA Bench in its order dated 07.06.2005, wherein the respondents had been permitted to hold and conclude the enquiry against the deceased for mis-conduct of unauthorized absence and within four months. The petitioners consequently become eligible and entitled to the reliefs prayed in the petition, moreso, in view of the stand taken by the respondents that the case of the petitioners stand forwarded to the General Administration Department being the Administrative Department of the Institute for consideration in the light of orders passed by this Court.
Viewed thus, what has been observed, considered and analysed hereinabove, the petition deserves to be allowed. Accordingly, the petition is allowed and by issuance of a writ of certiorari, the impugned Communication dated 11.06.2021 is quashed and by issuance of writ of mandamus, the respondents are commanded to release the arrears of pay of the deceased in favour of the petitioners w.e.f. April, 1999 till 07.01.2021 alongwith all terminal benefits consisting of leave encashment, GP Fund, Gratuity and Commutation Pension and further to process the case for release of family pension in their favour. The respondents are further commanded to accord consideration to the case of the petitioner No. 4 for appointment on compassionate basis in terms of the relevant rules governing and regulating such compassionate appointment.
Writ petition is, accordingly, disposed of, alongwith connected application.
The original record be returned to counsel for the respondents.