SYED QAMAR ALI Vs. STATE AND OTHERS
LAWS(J&K)-1993-11-13
HIGH COURT OF JAMMU AND KASHMIR
Decided on November 23,1993

Syed Qamar Ali Appellant
VERSUS
STATE AND OTHERS Respondents

JUDGEMENT

S.M. Rizvi, J. - (1.)By medium of this petition, the order of respondent No. 3, the Deputy Sales Tax Commissioner Jammu, dated 8th Aug., 1990, terminating the services of the petitioner, under Art. 128 of the Jammu and Kashmir Civil Service Regulations, w.e.f. 6th Feb., 1990, has been challenged, inter alia, on the following grounds:-
"(a) That the impugned order dated 8.8.1990 terminating the services of the petitioner under Art. 128 of the Jammu and Kashmir Civil Service Regulations being essentially an order of removal from services, can be legally and validly passed only in accordance with the rules and procedure as established by law, requiring, inter alia, that no member of a Civil service of the State shall be dismissed or removed from service except after an enquiry in which he has been informed in writing of the charges against him and the grounds on which it is proposed to take disciplinary action and given a reasonable opportunity of being heard in respect of those charges and after such enquiry if it is proposed to impose any major penalty, no such penalty be imposed until he has been given a reasonable opportunity of making a representation on the penalty proposed. As such the impugned order dated 8.8.1990 suffers, on the face of it, from the vice of illegality and unconstitutionality and is accordingly liable to be quashed;

(b) That Art. 12 of the J&K Civil Service Regulations only specifies particular misconduct entailing major penalty of loss of appointment with certain exceptions but there is nothing in Art. 128 C.S.R., authorising removal from service without observing the procedure as established by law and prescribed by the Constitution. Consequently, even in the case of loss of appointment in terms of Art. 128 C.S.R. the procedure as established by law and envisaged by the Constitution has to be observed on the pain of invalidation of the action taken in break of the procedural safeguards. The impugned order dated 8.8.1990 is, therefore, arbitrary and wholly unauthorised, and as such is liable to be quashed;

(c) That the impugned order dated 8.8.1990 is also discountenanced by the law and the Constitution inasmuch as terminates and thus removes the petitioner from service retrospectively. The impugned order dated 8.8.1990 on this count as well is liable to be quashed;

(d) That the treatment meted out to the petitioner by respondents 2 and 3 in the matter of services under the State is clearly arbitrary malicious and hostile inasmuch as the respondent No. 2 even on being urged by the respondent No. 1 to set right the wrong and remove the injustice, has failed without any cause on reason and obviously for oblige considerations to do the needful in vindication of Rule of Law. The impugned order dated 8.8.1990 in this view of the matter clearly offends the mandate of Art. 14, 16 and 21 of the Constitution as applicable to the State of Jammu and Kashmir and as such liable to be quashed;

(e) That the impugned order dated 8.8.1990 has the effect of nullifying the constitutional guarantees with which the services under the State are hinged and as a sequel thereto has resulted in grave miscarriage of justice and is, therefore, liable to be quashed;

(f) That the impugned order has resulted into manifest failure of justice and in order to prevent the failure justice so occasioned from being perpetuated, the impugned order dated 8.8.1990 merits to be quashed, in the interest of justice."

(2.)The petitioner was serving as an orderly in the Sales Tax Department, Jammu, on substantive basis, when he applied for leave on medical grounds for a period of thirty days w.e.f. 6th Feb., 1990, which was recommended to be sanctioned in his favour by his immediate Officer, the Excise and Taxation Officer concerned. Allegedly, he was relieved by the said E.T.O., from the date of application. It is submitted that during the course of his sickness, an extraordinary exigency cropped up in his family due to the sad and sudden demise of his uncle at Bagh, a place in the Pak Occupied Kashmir, and accordingly, the petitioner was required to accompany his parents to that place, in order to attend the mourning and to share the grief of the bereaved family. Allegedly, he was caught in an extraordinary situation, and under the dictates of situation and circumstances beyond his control, was left with no time to complete the formalities in the department for proceeding to Pak Occupied Kashmir. He, however, kept on seeking extensions of his leave period by submitting applications through his brother from Jammu.
(3.)On his return from Pak Occupied Kashmir, the petitioner reported for duty in the office of respondent No. 3 where he came to know about the order impugned in this petition. He preferred representation to the concerned Advisor to the Governor, in the form of appeal, against the said order, which however, was rejected.


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