Syed Shabir Husain vs State of JK & Ors.

The instant Civil 2nd Appeal is filed against the judgment and decree dated 22nd of February, 2014 passed by the Court of learned Principal

District Judge, Baramulla in Civil First Appeal (File No. 2) titled ''Syed Shabir Hussain v. State & Ors.'', on the grounds detailed out in the appeal.

In terms of the settled position of law, this Court, while dealing with a Civil 2nd Appeal, has limited scope and, that too, with reference to an

issue, whether the appeal raises any substantial question(s) of law.

In order to arrive at a definite conclusion, vis-a-vis the existence of a substantial question of law, it shall be just and proper to detail out the facts

as available, in brief;

The appellant/ plaintiff had filed a suit for mandatory injunction on the grounds that he was working as Roller Operator in Mechanical Engineering

Department and was posted in the Mechanical Field, Sub Division, Pulwama, in the year 1992. The appellant had applied for two months earned

leave which, as claimed, was sanctioned w.e.f. 1st of June, 1992. On expiry of the period of leave, it is stated, that the appellant/ plaintiff, due to

domestic circumstances, sought extension of further two months and, thereafter, was lifted by the Army and was illegally detained for a period of

almost eleven years. On his release, the appellant/ plaintiff was produced before the Court of Judicial Magistrate, Bonyar, in a criminal case

registered in Police Station Boniyar, under FIR bearing No. 68/2004 under Section 2/3 EIMCO, which resulted in his acquittal on 23rd of June,

2005. After his acquittal and on being available, the appellant approached the respondents for resuming his duties and for releasing of his salary.

Since the respondents, as stated, failed to release the service benefits in favour of the appellant, therefore, the appellant had no option, but to file a

civil suit seeking a decree of mandatory injunction. The respondents challenged the maintainability of the said suit with reference to the provisions of

the Specific Relief Act as also its dismissal under Order 7 Rule 11 CPC for non-joinder of the necessary party, besides, seeking dismissal of the

suit on merits with reference to the appellant/ plaintiff having willfully absented himself from duties for prolonged period; on his involvement in the

militancy related activities; the appellant/plaintiff having been charge-sheeted had not responded the same; the respondents even issued show cause

notice published in the daily newspaper ""SRINAGAR TIMES"" on 27th of June, 1997; and the wife of the appellant/plaintiff having admitted that

her husband/plaintiff/ appellant had crossed the line of Control to joint militancy. As such, the appellant having remained absent from his duties for

more than 8 years, i.e. now 25 years, is not entitled to any benefit as he is treated as having abandoned service.

The first adjudicating Court, i.e. the Court of learned Sub Judge, Budgam, on the basis of pleadings, framed the following issues:

""Whether the plaintiff was working as Roller Operator in Mechanical Engineering Department and was posted in Mechanical Field

Sub Division Pulwama? OPP

Whether the plaintiff has been deprived of all the service benefits which would have normally accrued to him viz: salary, increments,

promotion, pensionary benefits, gratuity, leave salary etc? OPP

Whether the suit in the present form is not maintainable as such the suit is liable for dismissal? OPD

Whether the suit in view of the provisions of Specific Relief Act is not maintainable? OPD

Whether the suit in view of Order 7 Rule 11 CPC is liable for rejection? OPD

Whether the suit is liable for dismissal for non-joinder of the necessary party? OPD

Whether the suit is liable for dismissal for want of proper court fee? OPD

Whether there is any rule or provision, which provide service benefits to an official who had remained absent from duties

continuously for more than eight years without any information? OPD

Whether any cause of action has accrued to the plaintiff against the defendants? OPD

Relief? OP parties

On examination of the witnesses and on the basis of the material placed on record, the first adjudicating Court, in terms of judgment dated 24th

of April, 2012, recorded the following findings vis-a-vis the issue Nos. 1, 2 and 8:

ISSUE NO.1: Whether the plaintiff was working as Roller Operator in Mechanical Engineering Department and was posted in

Mechanical Field Sub Division Pulwama? OPP:

The onus to prove this issue was upon the plaintiff. Perusal of the pleadings of the plaintiff, the statements of the witnesses and the

documents placed on record makes it amply clear that the plaintiff has proved this issue that he was working as Roller Operator in

Mechanical Engineering Department and was posted in Mechanical Field Sub Division Pulwama. The defendants in their written

statement have also admitted this plea of the plaintiff. Therefore, the issue No.1 is decided in favour of the plaintiff.

ISSUE NO.2: Whether the plaintiff has been deprived of all the service benefits which would have normally accrued to him viz.:

salary, increments, promotion, pensionary benefits, gratuity, leave salary etc? OPP

ISSUE NO.8: Whether there is any rule or provision, which provide service benefits to an official who had remained absent from

duties continuously for more than eight years without any information? OPD

ISSUE NOS. 2 and 8 are taken up together for determination, because these issues are inter-linked. The onus to prove issue No.2 is

upon the plaintiff and the issue No.8 is upon the defendants. The plea of the plaintiff is that he has been deprived of all the service

benefits which would have normally accrued to him like salary, increments, promotion, pensionary benefits, gratuity and leave salary.

The question is as to whether an employee, who has not attended his duties and has remained out of services for a pretty long time, is

entitled for these benefits? It is admitted by the plaintiff himself as also by the defendants that the plaintiff has remained out of service

for about 11 years. Plaintiff in order to justify his absence, has pleaded that he had applied for two months earned leave in the year

1992, then he applied for extension of leave for a further period of two months and in the meanwhile, he was taken by the Army from

Boniyar Bridge and was kept behind the bars for about 11 years in various camps. Thereafter he was released by the Army and then

was arrested by the Police in case FIR under Section 2/3 EIMCO, later he was acquitted of the charges by the Judicial Magistrate

Boniyar. During his cross examination, the plaintiff deposed that at the time, he was taken by the Army, there were many persons

who even went to the Army personnel vis-a-vis the said arrest. But the plaintiff could not disclose the names of any of those persons.

Assuming for the sake of arguments that the plaintiff was taken by the Army, then any of his family members especially his wife should

have lodged the missing report or approach any authority about his arrest. At least Lumberdar or Chowkidar should have been

informed about the arrest of the plaintiff. The family members of the plaintiff have not made any representation before any authority

about the lifting of the plaintiff by the Army. No representation has been made before the District Magistrate. Even SSP or SHO

concerned have not been shown/ proved by the plaintiff that any of his family members, relatives, neighbours or friends have made

any effort for lodging the report about the arrest of the plaintiff. Even no application has been filed before the nearest Judicial

Magistrate or any other forum. Plaintiff in addition to himself has produced and examined only one witness namely Abdul Rehman

Lone in support of his plaint. The said witness deposed that he did not know the plaintiff. He has only deposed that plaintiff was

working in the defendant department. Even during his cross examination, the said witness deposed that plaintiff had visited Pakistan

on proper visa, but this fact has not been disclosed by the plaintiff neither in the plaint nor in his statement before the court. The wife

or any other close relative/ neighbour of the plaintiff was best witness for the plaintiff, who could have established that the plaintiff was

lifted/ taken by the Army, but the plaintiff has not examined his wife or any other close relative/ neighbour as witness in the case.

Plaintiff has even failed to produce and examined the Lumberdar and Chowkidar as witnesses in the case, when these persons are

deemed to be well versed with the information/ situation about the inhabitants of the village. Plaintiff has also failed to produce any of

his neighbor as witness in the case. Therefore, it can be safely said that the plaintiff has totally failed to prove that he was arrested by

the Army and has been detained for eleven long years in different camps. Plaintiff has only pleaded this ground but he has failed to

prove it by any cogent documentary or oral evidence.

Plaintiff in order to prove his arrest has placed on record, the copy of the FIR by virtue of which he was arrested by the Police

Station Boniyar. The contents of the said FIR reveals that the plaintiff has crossed the limits of Indian Territory in the year 1992 and

had went to the Pakistan Occupied Kashmir for obtaining Arms and Ammunition training. He returned back on 22-11-2004 and

straight way surrendered before the SSP Baramulla. Accordingly a criminal case was filed against the plaintiff before the court of

Judicial Magistrate, Boniyar, but the State/ prosecution has failed to prove the said case against the plaintiff which resulted in the

acquittal of the accused in the said case.

But here in this case, the acquittal of the accused in the aforesaid criminal case will not justify the long absence of 11 years of the

plaintiff. Because in the aforesaid criminal case, the prosecution has failed to prove the contents of the FIR/ charge sheet, which does

not mean that the plaintiff has justified his 11 years absence. It was obligatory upon the plaintiff to prove his absence with reliable and

cogent evidence and mere pleading that he has been acquitted in the aforesaid criminal case will not justify his plea. As per the version

of the defendants, they have framed the charge sheet against the plaintiff and have issued the show cause notice vide letter

No.MDA/517-19 dated 16-06-1997 which was published in local daily Srinagar Times in its issue 27-06-1997. Further the

defendants have submitted that in response to the issuance of show cause notice, the wife of the plaintiff has approached the

defendants with the submissions that her husband (plaintiff) had left for Pakistan. But the defendants have totally failed to place on

record, the copy of the show cause notice, News paper cutting or the application of the wife of the plaintiff. Defendants have also not

proved these versions during the course of trial. It seems that the defendants have slept over the matter and have not taken the case

of the plaintiff to its logical end. Neither the termination nor the suspension of the plaintiff is proved in the case, however, the

abandonment of the service by the plaintiff is proved, because the plaintiff has remained out of service for a long period of 11 years

and he has not justified his absence by any documentary or oral evidence. Therefore, it cannot be said that the plaintiff has been

deprived of his service benefits.

Viewed thus the plaintiff has failed to prove that he was taken by the Army.

Obviously, plaintiff has failed to prove that despite remaining absent, he was entitled to the service benefits and he has been deprived

of the same. However, the issue No.2, as such is decided against the plaintiff.

So far as the issue No.8 is concerned, its onus to prove has been shown upon the defendants. But so far as the said issue is

concerned, it was the plaintiff who was liable to show the rule position or provision under which he was entitled to receive the service

benefits despite having absent from duty. Be that as it may, the defendants have submitted at para 8 of their written statement that

there is no rule or provision which may provide service benefits to an official who had remained absent from duties continuously for

more than 8 years without any information to the department concerned. On the contrary, the plaintiff has not satisfied this Court by

showing any rule position that despite absent from duty, he is entitled to the service benefits.

Learned counsel for the plaintiff in order to substantive his arguments has relied upon the following judgments:

Judgment of our own Hon''ble High Court reported as Mushtaq Ahmad Khan Vs. State of J&K and others 2004(II) SLJ 445,

wherein it has been held that absence from duty, howsoever long cannot result in automatic cessation of employment-Delinquent

absent for more than five years cannot be deemed to have abandoned his employment and cannot be treated out of employment-but

the circumstances under which he remained absent have to be seen-In all such cases the person concerned has to be given an

opportunity of hearing...depending on the nature of defence taken by him-whether a full fledged enquiry as per Rule 33 of J&K Civil

Service (Classification Control and Appeal) Rules should be held will depend upon the facts of the case and left to the discretion of

the authority subject to scrutiny and judicial review.

Judgment of Hon''ble Supreme Court reported as M/S Scooters India Vs. M. Yaqoob and another 2001 SLJ 271, wherein it has

been held that over staying leave does not automatically terminate the service of an employee- if any order/ rule provides for such

automatic termination without providing opportunity of being heard to the delinquent official, such order/ rule is not to be acted upon.

Judgment of our Hon''ble High Court reported as Gh. Ahmad Bhat Vs. State of J&K SLJ 1999 V. 2 Page 560, wherein it has been

held that No enquiry conducted before dismissal-appeal against such dismissal kept pending and not decided despite representations-

subsequently writ petition to challenge the dismissal order filed-held the petitioners cannot be held guilty of latches. Such dismissal

order being a nullity could have been challenged at any time-dismissal order quashed and the petitioners to be deemed to had been in

service with all consequential benefits-Judgment varied by the Supreme Court party by holding that the petition from the date of

dismissal till filing of writ petition will get half salary and thereafter full salary.

Judgment of our own Hon''ble High Court reported as Mohammad Baqir Vs. State of J&K and others 2005(II) SLJ 495, wherein it

has been held that petition while on leave asked to resume duty and thereafter placed under suspension-no notice or charge sheet

served on the petitioner nor any inquiry conducted- termination held illegal.

Having regard to the aforesaid judgments, it can be safely said that these judgments are of no help to the plaintiff, because the

termination or the suspension of the plaintiff is not proved in the case. Had there been any termination or suspension order against the

plaintiff, these judgments would have definitely application on the present case, but in absence of termination or suspension order, the

plaintiff cannot take shield of these judgments. Secondly the plaintiff has not justified his unauthorized absence from service for a long

period of 11 years. Plaintiff''s prayer is simply to direct the defendants to pay him the service benefits like salary, promotion,

increments, gratuity and leave salary etc. Plaintiff has not justified as to why such direction shall be issued when he has failed to justify

his unauthorized absence from service. The absence of the plaintiff for 11 years is proved in the case beyond any shadow of doubt. It

is not proved that the plaintiff was taken by the Army. Plaintiff in addition to himself has produced only one witness in support of his

case, but the said witness during his cross examination has deposed against the plaintiff by stating that as per the letter of SSP,

Baramulla dated 03-09-1998, the plaintiff has visited Pakistan on proper Visa and did not return back. The said witness was not the

witness of the defendant, but was produced by the plaintiff so as to support his version. Therefore, when the suspension or

termination order is not challenged and the plaintiff has not justified his absence from service, as such this court cannot grant the relief

as prayed for by the plaintiff. It is the authorities concerned, who can consider the case of the plaintiff as per the Service rules having

bearing on the matter. This court cannot pass the decree without establishing the case by cogent and reliable documentary as well as

oral evidence.

Viewed thus the issue No.8 is decided in favour of the defendants and against the plaintiff.

On the findings recorded with reference to the issue Nos. 2 and 8, the issue No.10, i.e. the relief, was also decided against the plaintiff/appellant

in the following manner:

ISSUE NO. 10: Relief:

As the main issues, i.e. issue Nos. 2 and 8, upon which the whole suit was depending, have been decided against the plaintiff and in

favour of the defendants, therefore, the plaintiff is not entitled to the relief as prayed for by him in the suit. Accordingly the suit of the

plaintiff is dismissed. Due to peculiar circumstances, there shall be no order as to the costs. Office is directed to prepare the decree

sheet accordingly. Case is disposed of and after due completion be consigned to the records.

Against the judgment aforesaid dated 24th of February, 2012, the appellant/ plaintiff filed a Civil First Appeal before the Court of learned

Principal District Judge, Budgam, which has, on consideration of the matter, after examining the evidence on record and discussing the law on the

subject, upheld the judgment and decree of the 1st adjudicating Court, and, accordingly, dismissed the appeal, in terms of its order dated 22nd of

February, 2014.

On scanning the whole material on record as also the evidence, this Court is of the opinion that the questions raised in the appeal filed by the

appellant/ plaintiff are not, in any manner, substantial questions of law. In order to ascertain the questions/issues raised by the appellant/ plaintiff, it

has become necessary to take note of the said issues, which are reproduced as under:

I. ""Whether a Government employee who is substantively appointed on overstaying leave without been placed under suspension or

having been dismissed/ terminated could be denied the service and other retiral benefits?

II. Whether the Appellate Court could dismiss the Appeal of the Appellant in clear violation of the law laid down by the Apex Court

in the Judgment M/S Scooter India V/S Mohd Yaqub and also law laid down by this Hon''ble Court vide Judgment reported in 2004

Vol 2 SLJ Page 445 and also against the law laid down by the Hon''ble Division Bench in the case of Dr. Gh. Mohammad Dar V/S

State of J&K reported in SLJ 2000 Vol-I Page 5?

III. Whether the Appellate Court could dismiss the Appeal of the Appellant when the finding of the Trial Court was based on no

evidence lead by the respondents?

IV. Whether the appellant who keeping in view the provisions of Article 175, 176 and 177 of J&K CSR is entitled to receive

pensionary and other retiral benefit could be denied the same?

In view of the whole exercise undertaken by the Courts below, after hearing the parties and scanning the recorded evidence, coupled with the

applicability of the rules and the laws on the subject, it can be safely observed that there is no substantial question of law which requires to be

answered in the appeal in hand. Therefore, the appeal is unnecessary, as such, is dismissed. Interim directions, if any, in force as on date, shall

stand vacated.

Dismissal of this appeal shall not form an impediment for the appellant to work out his remedy, as provided under law, for the release of

benefits from the respondents on account of his services rendered in the respondent Department.