KULJEET SINGH Vs. STATE OF J&K

JUDGEMENT

(1.) The instant appeal under Clause 12 of the Letters Patent preferred by the appellant- Kuljeet Singh is directed against judgment and order dated 13.03.2007 rendered by the learned Writ Court, holding that the appellant, who was working on the post of Helper as probationer was rightly discharged from service. It was further held that a notice to provide him opportunity to explain his conduct was sufficient. The learned Writ Court held that order dated 13.05.2004 was merely an order of discharge which could not have been regarded as order of dismissal warranting holding of a regular departmental enquiry.

(2.) Brief facts of the case are that the appellant- writ petitioner was appointed as Helper on compassionate grounds on 03.07.2003. He was to remain on probation for a period of one year which was to expire on 03.07.2004. His work and conduct during the period of probation was found unsatisfactory and it was held that on account of his negligence theft of a Generator Set has taken place from the premises of the Corporation. The order dated 13.05.2004 terminating the services of the appellant, which has been upheld by the learned Writ Court, would read as under:-

(3.) Mrs. Sindhu Sharma, learned counsel for the appellant has vehemently argued that the order terminating the services of the appellant is ex facie a stigmatic order which proceeds on the assumption that the appellant has been negligent in performing his duties which resulted in stealing of a Generator Set. According to the learned counsel, in the later paras of the order the appellant has been dubbed as a thief being involved in other theft cases. Once the aforesaid conclusion is reached by the respondents then such an order has to be regarded as an order of dismissal which could not have been passed without holding a regular departmental enquiry. Mrs. Sharma has relied upon Regulations known as the Jammu and Kashmir State Agro Industries Development Corporation Service Regulations, which contemplate holding of a regular departmental enquiry for any act of misconduct. Referring to Chapter VII of the Discipline and Appeal of the Regulations, learned counsel has relied upon Rule 84 (vi) and argued that for every act of misconduct procedure for imposing major penalty has been provided by Regulation 87. The appellant has neither been served with any charge sheet nor was any regular departmental enquiry held in terms of the Regulations. To substantiate her stand learned counsel has placed reliance on the judgment of Hon'ble the Supreme Court rendered in the case of State Bank of India and ors v. Palak Modi and anr, 2013 3 SCC 607 and argued that where allegations of misconduct constitutes foundation of action taken then the ultimate decision taken by a competent authority must be nullified on the ground of violation of rules of natural justice. In the cases where the order does not ex facie reveal any misconduct the Court can lift the veil and examine whether in the garb of termination simpliciter, the employer had in fact punished the employee for his misconduct.