REYYAN FAZIL Vs. STATE

JUDGEMENT

(1.) PETITIONER was serving as Assistant Accountant in the State Government. He was transferred to the office of Director, Libraries in the year 1992 vide order dated 10 -4 -1992. Petitioners case is that while serving with the office of Chief Librarian, he proceeded on leave due to threat perception, in view of the turmoil in the valley. It is stated in the petition that his father namely Fazil Kashmir! and his brother are famous personalities of the Valley and keeping in view the threat to their lives, the family shifted to Delhi where petitioner also joined them. The petitioner left for Delhi in May 1992 and returned to Valley only in January 1998, when he approached respondent No.3 to allow him to join his service back as according to him, his services had not been terminated in the meanwhile. He has further submitted that he was not permitted to join in the office and on the contrary, a communication bearing No.DDAT/R -55/1175 -76 dated 16 -02 -1998 was issued by the Deputy Director, Accounts and Treasuries, Srinagar, whereby petitioner was informed that he has lost the appointment under the provisions of Article 113 of the Jammu and Kashmir Civil Service Regulations Vol. I, as he has absented from duties for more than 5 years continuously, that too unauthorisedly. It is this order which has been assailed in the present petition.

(2.) OBJECTIONS stand filed to the writ petition, wherein respondents took a stand that the petitioner voluntarily abandoned his services with effect from 20 -7 -1992. He did not report for duty and remained absent. The Chief Librarian, in whose office, petitioner was serving, informed the absence of the petitioner to Deputy Director, Accounts and Treasuries. It is further stated that the petitioner never applied for leave and the application dated 5 -5 -1992 forming annexure 2 -X with the writ petition was never made in the office. The petitioner is continuously absent for period of more than 5 years, which has resulted in automatic loss of his service under law. It is also mentioned that the petitioner has not tendered any valid justification for his absence from duty.

(3.) I have heard learned counsel for the parties. It is urged by Mr. Aijaz, learned counsel for the petitioner that though the petitioner remained absent, but no order for termination of his service was ever passed and thus he has a right to rejoining the duty in absence of termination of his services by the competent authority. He has also argued that petitioner has not been provided any opportunity of being heard which resulted violation of principles of natural justice. He cannot be denied rejoining of his services even after a gap of 6 years or so. His contention is that before terminating the services of the petitioner, an enquiry is required to be held in accordance with the mandate of Rule 33 of the Jammu and Kashmir Civil Services (Classification, Control and Appeals) Rules, 1956. He has submitted that even where an employee remains absent for a period of more than 5 years and Article 113 of the Civil Service Regulations is to be invoked enquiry is required to be conducted or at least, the person effected be issued show cause notice and provided an opportunity of being heard.