Decided on December 31,1999

Gh Mohd Dhar Appellant
STATE OF JANDK Respondents


SYED BASHIR -UD -DIN, J. - (1.) IN this appeal judgment dated 1 -9 -1998 of learned Single Judge in SWP No. 653/ 83, titled Dr. Ghulam Mohd Bhat Vs. State of J&K and Anr. is impugned.
(2.) APPELLANT , petitioner before the writ court while serving as Senior Consultant, (Associate Professor)/Chairman Community Medicines in SKIMS Soura, Srinagar, Kashmir, left for Saudia Arabia on foreign assignment on 14 -03 -1983 without waiting for the applied leave to be sanctioned and no objection certificate being issued. However, he was discharged from service as Senior Consultant/Associate Professor in the Institute of Medical Sciences Soura Srinagar/ Medical College, Srinagar , by the Government of Jammu and Kashmir vide its order No: 582 -HME of 1983 dated 13 -09 -1983. Petitioner challenged this order of discharge from service in SWP No: 653/83. The writ court upon hearing decided the matter in terms as under: ..... This petition is disposed of with the direction that the petitioner would stand re -instated in service with effect from the date of termination. He would start getting wages with effect from the data he produces copy of the order passed by this Court before appointing authority, that authority would be at liberty to come to conclusion as to whether further enquiry is required to be held in this case or not. If it comes to the conclusion that further enquiry is required to be held then charge sheet would be served on the petitioner and enquiry officer would also be appointed. In case it is not proposed to proceed further in the matter then petitioner be reinstated and given all benefits minus back wages. Disposed of accordingly.  The learned counsel submits that while the order of discharge of petitioner from service has been set aside and he is reinstated, the writ courts part direction, giving option to the appointing authority to decide whether further enquiry is to be held or not followed by other indicate steps, cannot be implemented in so far as the petitioner has retired from service even before the learned Single Judge handed down the impugned judgment on 1 -9 -1998. He further canvases that once an employee retires on superannuation and ceases to be an employee, in absence of any rules providing for holding or continuance of departmental inquiry, after retirement the case is taken out of the general rule of holding enquiry at the option of appointing authority, once the employee retires and ceases to be so employed, the inquiry, as in this case, cannot be held.
(3.) THE counsel for respondents contends that the employer/Government has the liberty to conduct the enquiry, notwithstanding the admitted position that the petitioner ceased to be an employee of the Government on 1 -9 -1998. The date of judgment, as he had by then superannuated. The order of discharge referred as termination order in the judgment, has been set aside for the reason that the services of the petitioner could not have been brought to an end without holding an enquiry and without hearing in addition to the order being not reasoned one. The case revolves round unauthorised absence/overstay of leave interms of Article 128 of the Jammu and Kashmir C.S.R. Obviously, the enquiry has to be held in accordance with law. Holding of enquiry and providing an opportunity to the other side has to be on terms of Article 126 of the Constitution of Jammu and Kashmir and Rule 33 of Civil Services (Classification, Control and Appeal) Rules, 1956. The relevant rules nowhere provide that the enquiry should proceed against an employee who has retired on superannuation or for that matter has ceased to be member of service for any other reason.;

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