JUDGEMENT
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(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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