(1.) BY this petition under Article 226 of the Constitution of India read with Section 103 of the State Constitution, the petitioner has challenged
order No. F. 2 (3) GRP/80/Admn dated January 2, 1980 passed by Respondent
No. 3 discharging the services of the petitioner, who was a Mechanic in
the University of Kashmir.
(2.) BRIEFLY stated the facts are that the petitioner was appointed as Mechanic in Gulmarg Research Observatory, one of the Wing of
University of Kashmir on November 9, 1986 on probation f r one year
effective from March 20, 1967, when the Observatory re -opened after
vacations. The order Annexure A was issued by the Registrar Respondent
No. 2. On completion of the period of probation successfully, he was made
permanent on the said post. On September 15 -1975, the petitioner was
served with a notice of show cause on the ground of mis appropriation of
lead metal, which was alleged to have been in his custody for several
months. He was required to show cause why an action should not be taken
against him "for mis -appropriation of departmental property with a
direction that the reply must be submitted to the Professor and Head of
the Department, who issued the notice on that very day by 3 P. M.
positively. Simultaneously on the very day, i.e., September, 15.1975, an
order came to be passed by Assistant Registrar (Admn.) suspending the
petitioner with immediate effect pending proper enquiry into the case. In
this very order it was mentioned that the petitioner will be
charge -sheeted separately On September 25 1975, a Memo was issued to the
petitioner signed by three dignitaries asking the petitioner verification
of the statement alleged to have been made by him in presence of the
other staff members of the Workshop and Departmental Committee Members
regarding the leveling screws assembly in writing within one hour on that
day. I need not to detail the entire proceedings , which took place from
the day when the petitioner was suspended till the conclusion of enquiry
and the order of discharge impugned in the present petition was passed by
the Deputy Registrar (Adm.) on January 2, 1980 Vide Annexure Wâ„¢ filed
with the petition, as a novel procedure has been adopted by the
authorities of making the enquiry into the alleged misconduct of the
petitioner and discharging him from the services without serving a proper
charge -sheet depriving the petitioner to defend himself on the charges,
which have been alleged in the order impugned.
(3.) THE Petition is contested by the respondents contending that the petitioner has been discharged from his services on a proper enquiry.
In reply to the grounds of attack in clause (k) of para 17 of the
counter, the fact of the applicability of the Jammu and Kashmir Civil
Services (Classification, Control and Appeal) Rules, 1956 to the services
of the petitioner have not been denied and alleged in the following words
"17 (k). The rules in Civil Services (Classification, Control and Appeal) Rules have been strictly followed and the enquiry conducted properly"
Learned counsel for the petitioner vehemently submitted that apart from serval infirmities of non -supply of the copies of the
statements, etc., and material documents against the show cause notices,
the authorities concerned, who were neither competent to serve the
charge -sheet nor were authorized to make the enquiry against the
petitioner, etc. etc., asking the petitioner to submit his explanation on
the very day when the show cause notice was served or within an hour to
submit the statement in writing confirming the particular allegation
deprived the petitioner to avail a reasonable opportunity of defending
himself and to show cause within a reasonable time , The conduct of the
authorities of the respondents to adopt the procedure not provided under
the rules and changing the stand from time to time and discharging the
petitioner on the alleged charges, for which the enquiry was not held nor
any proper charge - sheet was served on the petitioner violated not even
the principles of natural (justice but all norms of procedure and Rule 33
of the J&K Civil Services (Classification, Control and Appeal ) Rules,
1956 (hereinafter called the Rules) and thus the order impugned is liable to be quashed for the violation of rules as well as of the principles of
natural justice. In order to appreciate the arguments, as disputed by the
respondents, it will facilitate to reproduce the relevant part of Rule 33
of the rules, which runs as follows: -
"33 (1) Without prejudice to the provisions of the Public Servants Inquiries Act, 1977, no order (other than an order based on facts which had led to his conviction in a criminal court or by a -court martial) of dismissal, removal or reduction in rank (which includes reduction to a lower post and/or/lower time scale, and or to a lower stage in time -scale) but excludes the reversion to a lower post of person who is holding a higher post temporarily shall be passed on a person who is a member of a civil service, or holds a Civil Post under the State unless he has been informed in writing of the grounds on which it is proposed to take action and has afforded an adequate opportunity of defending himself. The grounds on it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the person charged, tog - with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration In passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the authority concerned so directs, an oral inquiry shall be held in respect of such of the allegations as are not admitted. At that enquiry such oral evidence will be heard as the inquiring officer considers necessary. The person charged shall be entitled to cross examine the witnesses, to give evidence in person and to have such witnesses called as he may wish provided that the officer conducting the inquiry may for sufficient reason to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof.
(2) xxx xxxxx xxx (3) xxx xxxxx xxx
(4) The competent authority may inquire into the charges itself or if it considers it necessary so to do, it may appoint an inquiry officer for the purpose."
The rule, therefore, prescribes that the competent authority, who in the instant case was the Registrar, as the order of appointment of the petitioner (Annexure -A) was passed by him shall on being satisfied that charges are required to be framed against the delinquent employee, shall so farmed definite charges together with the statement: of allegations on which each charge is based shall communicate the delinquent employee seeking his explanation. The rule further lays down that the employee shall be required within the reasonable time to put in a written statement of his defence. (Emphasis supplied by me). The above provision of the rule clearly indicates that serving a proper charge -sheet together with a statement of allegations and giving reasonable time to put in a written statement of his defence is a necessary requirement of the rule as well as the principles of natural justice, without which punishing a delinquent employee depriving him of his services will be violative of rules of natural justice and the in fraction of the service rules. In the instant case while arguing the learned counsel for the respondents very fairly and in my opinion rightly so submitted that the requirement of Rule 33 with respect to serving of the proper charge -sheet together with the statement of the allegations on which each charge is based in strict compliance of the rules do s not find place either on record or in the documents filed by the petitioner or the respondents. However, learned counsel for the respondents submitted that the show cause notices issued to the petitioner from time to time leveling the charges against him and the enquiry held giving all opportunities to the petitioner to defend himself and cross -examine the witnesses is a substantial compliance of the rules and was sufficient to inform the petitioner with what charges lie is required to meet Moreover, the Petitioner not being a civil servant within the meaning of Article 311 of the Constitution of India is not entitled to get a relief in the writ petition as be has been discharged from the service after a thorough and proper enquiry.