GH MOHD BAQAL Vs. STATE OF J&K
LAWS(J&K)-1992-5-30
HIGH COURT OF JAMMU AND KASHMIR
Decided on May 25,1992

Gh Mohd Baqal Appellant
VERSUS
STATE OF JANDK Respondents


Referred Judgements :-

DR. D.P. BHAT VERSUS STATE OF JANDK AND ORS. [REFERRED TO]
AB. GAFFAR SHEIKH VERSUS STATE AND ANOTHER [REFERRED TO]


JUDGEMENT

- (1.)THE petitioner challenges an order of respondent No.3 dated 26th September, 1983, whereby his services have been terminated on account of absence from duty as contemplated under Art. 128 of the J&K Civil Services Regulations. The petitioner in this petition has pleaded his adhoc appointment was regularised as quasi permanent by an order dated 20th December, 1975; that he fell ill and applied for leave. Ultimately he was registered for Psychiatry diseases on 1.9.1982 under Registration No. X -6021 where he remained admitted also for some time, but due to sickness could not apply of further leave, nor could inform the respondents about his illness. He suffered mental illness for eight years after which he recovered and reported to the respondent, but was informed that his services had been terminated under the impugned order; that the order passed by the respondent is without jurisdiction, short of competence as the powers are vested with Director, Health Services, his appointing authority; that the respondent has passed the order without any show cause notice or conducting any enquiry as notice issued by the respondent was only for attending the duties. Therefore, no punishment could be passed on the basis of the notice indicated in the order impugned.
(2.)THE respondents, on appearance, were given opportunity to file the counter which they failed. Ultimately, right to file the counter has been closed vide order dated 18.2.1992.
(3.)ON coming up this petition for hearing, Mr. A.Kotwal learned GA argued that the petition suffers from laches, having been filed after about ten years from the date of order impugned and on this point alone the petition should be dismissed despite the fact the counter has not been filed. The fact raised by the learned Government Advocate is established that after the order impugned hearing No. ES 11/116/3278 -81 the petitioner has for the first time filed this petition on 23.4.1991, pleading having reported for duty on March, 1991 and was informed that he has been terminated from service under the order impugned in this petition. Though the petitioner has not shown any record in the shape of prescriptions/treatment slips except his registration in Mental Hospital, Srinagar on 1.9.1982 He suddenly appears to have reported for duty in the year 1991, simply stating that mental condition was not good, without any proof, for the period of absence which he has to explain day today, what has not been done, except general excuse that he was mentally ailing -that too short of any continued certificates for the period of absence.
The petition could be decided on this preliminary point, as argued by learned GA had the order been passed by a competent authority after compliance with the Rule under which the petitioner has been terminated from service. The petitioner, in normal course, had a right to continue in service unless terminated in accordance with the Rules by a competent authority, what is not the situation here. Apparently, the services of the petitioner have been terminated under Art. 128 of the J&K CSR which is reproduce hereunder for ready reference: - "128. Absence without leave or after the end of leave involves loss of appointment except as provided in Article 203 (b) or when due to ill health in which case the absence must produce the certificate of Medical Officer." The Article quoted provides for loss of services subject to application of Art. 203 (1) of the CSR and due to ill health where the incumbent has to produce the certificate of Medical Officer. In this case the allegation is that the order itself is passed by a person, Chief Medical Officer, who is not the competent authority -the authority being vested in the Director, Health and Family Planning, Srinagar who is the appointing authority of the petitioner. Further, compliance of the Article is required by the respondent regarding competence and compliance of the Article under which the petitioners services have been terminated, has not been established by the respondent for want of filing the counter, therefore, the pleadings of the petitioner regarding incompetence of the respondent remains intact. On the above score the order of termination is without jurisdiction and for compliance of the Article, where even show cause notice has not been given to the petitioner to explain his absence what is required under the Article quoted. It has been repeatedly held that once an order is without jurisdiction and suffers for compliance of principles of natural justice, the petition under Art. 226 cannot be thrown simply on the basis of laches because the authority passing the order once has no jurisdiction, the order without jurisdiction cannot be justified even by the court, (SIC) if it may have been challenged after a long time, because once there is no jurisdiction to pass the order, the order itself is void -ab -initio and cannot be supported by any norm of law or Rule. On this point I am supported by a catena of judgments to be referred herein.



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