ABDUL MAJID KHAN Vs. STATE

JUDGEMENT

(1.) HOLDING the trade union activities of the petitioners to be prejudicial to the interests of the State the respondent Slate terminated the services of the petitioners vide various orders passed in the year 1975. The petitioners remained out of service till April 25, 1990 when they were reinstated after realising that their activities were not prejudicial to the interests of the State. It has been prayed by the petitioners that the original order of terminating their services be quashed along with the order impugned reinstating them in so far and to the extent the same deprives them of seniority, pension, increments, leave, salary, allowances and other benefits for the period between the date of their dismissal to the date of their reinstatement.

(2.) THE important facts for determining the controversy in the instant case are: that the petitioners are the office bearers and active members of the low paid employees and claim to be instrumental in establishing the organisation known as 'j and K Low Paid Employees Federation' (hereinafter referred to as the Federation) in the year 1956. Petitioner Abdul Majid Khan is the Chairman of the Federation whereas the other petitioners are office bearers. The Federation is stated to have given a call for State-wide strike in all Government offices to impress upon the State Government to grant Central pay-scales and Dearness Allowance to the employee serving in the State of Jammu and Kashmir. It is claimed that the strike was a total success and practically brought the Government to its knees forcing it to concede the demands. It is alleged that looking at the organisational capacity of the petitioners and their popularity among the employees, the then Government hit upon a plan of dismissing the petitioners and some other active members in the Federation movement. Services of the petitioners and others were terminated in terms of Section 126 (2) (c) of the Constitution of Jammu and Kashmir. It is submitted that the Federation continued agitating for the fulfilment of its demands including demand for the reinstatement of the dismissed employees including the petitioners. After about 4 years the then Government reinstated the dismissed employees in supersession of their earlier orders. It is alleged that after taking reins of the Government, late Sheikh Mohd. Abdullah dismissed 2400 employees who had been appointed by the outgoing ministry headed by Syed Mir Qasim as teachers, clerks and peons. Sheikh threatened that the employees of the State, including the members of the Federation who completed 25 years of services or 50 years of age shall be compulsorily retired. It is further alleged that Sheikh declared to hold examination of all the teachers in the State Education Department who were recruited during the last 22 years when he was out of power. The Federation declared to have risen to the occasion and asserted that the Government could not afford to ride roughshod over the rights of the employees and any such efforts on the part of the Sheikh would be resisted with all force at the command of the Federation. On the persistence of the demands of the Federation the Government was forced to take back all the 2400 employees earlier dismissed and gave up the idea of holding examination for the teachers. The action for retiring the employees at the age of 50 years or 25 years of active service, was also abandoned. It is claimed that the Government felt defeated and was in search of an opportunity to vindicate its prestige and honour by mis-using and abusing the Constitutional provisions and victimising those who provided leadership to the Federation. Consequently orders for the dismissal of the petitioners were issued on September 5, 1975. It is stated that the orders of dismissal were never served upon the petitioners. Till the date of filing of the present petition, no such order was shown to be in existence in so far as Abdul Majid petitioner was concerned, but the orders regarding other petitioners were published in the Government Gazette which have been attached with the petitions. The Federation continued with its trade union activities and included in the charter of demands the reinstatement of the dismissed employees including the petitioners. Despite promises by the administration nothing was done and it was only in 1990 when Shri Jag-mohan took over the administration of the State after the imposition of Governor's rule, that the demand for the reinstatement of the petitioners was dispassionately looked into. Ultimately the administration of Shri Jagmohan decided to reinstate the petitioners on April 25, 1990 subject, however, to certain conditions which have been incorporated in the individual orders served upon the petitioners. The petitioners have been deprived the benefits which they state, are permissible to a Government servant in the ordinary course of his service career including the benefits of seniority, promotion, arrears, allowances and pensionary benefits etc. It is submitted that the Government after having returned a definite and unambiguous finding that the petitioners were not guilty of indulging in any activity prejudicial to the interest of the State, the dismissal order ought to have been superseded and set aside unconditionally, the petitioners were entitled to the payment of interest upon the accumulated salary of which they were allegedly denied without any just cause. It is submitted that no reasons have been assigned nor indicated in the Government orders for depriving the petitioners the aforesaid benefits. It is submitted that power to reinstate has been exercised by the respondent State in a number of other cases in similar manner. It is alleged that the Government reinstated the colleagues of Sheikh Mohd. Abdullah who had also been dismissed from service after Sheikh's removal from power in the year 1953. Such persons named by the petitioners include Shri Sadro Din Mujahid, G. M. Shah, Ghulam Rasoul Mir, Mohd. Amin, Ghulam Mohd. Chiken, Syed Mubarak Shah and others. All such persons were given full benefits by way of salary, promotion, arrears etc. The petitioners claim to have been discriminated and subjected to hostile treatment without any justification. It is submitted that the initial order of dismissal of the petitioners was passed without any charge-sheet or enquiry which was void and liable to be considered non-existent. The petitioners have prayed for quashing the conditions imposed by the Government upon their reinstatement vide orders passed on April 25, 1990 with a direction to the respondents to grant them all the benefits to which they are entitled in the absence of their dismissal along with interest at the rate of 18% per annum on the arrears of salary that became due to them. The petitioners may also be promoted to the next higher ranks and given all consequential benefits.

(3.) IN the counter-affidavits filed on behalf of the respondent-State it is submitted that the writ petitions filed by the petitioners were not maintainable and the Government was justified to pass the orders of their reinstatement with any condition which was deemed, by the authorities, to be proper. It is submitted that the affairs of the State require to maintain discipline, absolute integrity, devotion to duty and exhibit good conduct which being essential characteristics of the service entitled the Government employees to continue to remain in service being eligible to the grant of pension on superannuation. The respondents claim to have framed rules known as Jammu and Kashmir Civil Services Regulations (CSR, for short) in exercise of their power under Section 124 of the State Constitution. They have also framed the Jammu and Kashmir Government Employees Conduct Rules, 1971 and the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1950. The Government claims to have the power to impose penalties like dismissal or removal from service upon any delinquent Government employee for good and sufficient reasons. The petitioners' involvement in the trade union activities and being President and active members of the Federation has been admitted. It is however, submitted that with a view to muster the authority of the Government employees as a pressure upon the Government to yield to their demands, the petitioners acted prejudicially and as a consequence of repeated strikes the work in the offices of the State Government suffered causing inconvenience to the public in general and essential services in particular which prompted the State to take the decision to dismiss such employees including the petitioners from the service of the State for their prejudicial activities vide orders issued on September 5, 1975. It is admitted that the petitioners approached the Government for reconsideration of their cases upon which the respondent-State claims to have taken a lenient view and decided to reinstate the petitioners vide orders issued on April 24, 1990 subject to the conditions incorporated therein. The dismissal of the petitioners initially and their reinstatement in the year 1971 has been admitted. The threats attributed to Sheikh Mohd. Abdullah are denied for want of documentary evidence. The challenge to the orders of dismissal of the petitioners issued on September 5, 1975 has been described to be deleted and suffering from legal infirmity. The service of the dismissal orders issued in the year 1975 has been stated to be inferred and implied. The petitioners are stated to have not objected to the orders of dismissal during the last 15/16 years. However, submission of the petitioners of having made representation has not been denied. It is submitted that the activities of the petitioners were considered to be prejudicial to the interest of the State by the Government of the time on the basis of the reports of different agencies under the State. The petitioners' activities are stated to be in the nature of misconduct forcing the State to dismiss them from their services. It is submitted that as the petitioners have not worked against any post for the last about 15/16 years as such they are not entitled to the payment of any remuneration on the doctrine of 'no work, no wages'. It is further stated that as the petitioners were not actively working in the service under the Government, they are not entitled to increments of the intervening period salary etc. The impugned order is stated to be legal, valid and according to law. State claims to have the privilege not to hold any enquiry where it is neither reasonably practicable nor expedient to hold any such enquiry into the allegations of misconduct and other prejudicial activities to the interests of the State. The dismissal and reinstatement of the colleagues of late Sheikh Mohd. Abdullah, as stated by the petitioners has not been denied. It is submitted that the petitioners cannot equate their cases with such other persons. It is submitted that the circumstances in both the cases were at poles apart and the petitioners have not been subjected to any hostile treatment. The writ petitions are stated to be misconceived and liable to be dismissed.