ABDUL KHALIQ SHEIKH Vs. DEPUTY COMMISSIONER, BARAMULLA

JUDGEMENT

(1.) This is a petition under Article 32 (2-a) of the Constitution of India, as applied to the State, and Section 103 of the State Constitution for issue of writ of certiorari quashing order No. SQ/4865-67 dated 27-1 -1971 passed by the respondent and for a writ of mandamus directing the respondent to treat the petitioner on duty from the date of his suspension for the purposes of pay, increment and promotion etc.

(2.) The case of the petitioner, who was an employee of the Revenue Department of the State, is that he was working as Girdawar of Chatoosa Circle, Sopore, when the respondent vide his order No. SQ/559-69 dated 8-5-1970 ordered his transfer from the said circle to Tehsil Office, Sopore, as Statistical Girdawar, that when his substitute viz., Shri Mohamad Akbar Khan came to take over from him, he did not hand-over to him as no order of transfer had been received by him; that on the report of the Tehsildar Sopore, a copy of which was not furnished to him, the respondent ordered his suspension vide his No. 1349/SQ dated 1-7-1970; that thereafter without ordering his reinstatement the respondent vide his No. SQ/1925-27 dated 22-8-1970 shifted his lien to Tehsil Office, Gulmarg, as Backward Qanoon-go (Girdawar), which was not valid and legal; that vide his order No. SQ/4005 dated 18-11-1970 the respondent called upon the petitioner to file his objections explaining his position in respect of his so-called absence from duty; that although no copy of his report had been supplied by the Tehsildar to him, he submitted his objections; that subsequently the respondent charge-sheeted him vide his No. SQ/4552, dated 20-12-1970 which was violative of Section 126 of the State Constitution as in addition to the charges it contained the punishment proposed to be imposed on the petitioner which showed that the respondent was biased against the petitioner and had made up his mind to terminate his services without perusing the written statement; that after receipt of the explanation from the petitioner the respondent again violated the mandatory provisions of Section 126 (2) of the Constitution, corresponding to Article 311 (2) of the Constitution of India, as no second notice as required by the provisions of the aforesaid article of the Constitution was served upon him before passing the order terminating his services; that the aforesaid composite notice containing the charge-sheet and the proposed punishment does not comply with the aforesaid mandatory provisions of the Constitution; that the impugned order is also violative of Rules 32, 33 and 35 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, for want of two notices; and that he is innocent and has not been afforded reasonable opportunity of being heard by adducing evidence in respect of his explanation and to defend himself.

(3.) The petition has been contested by the respondent averring inter alia that the petitioner is estopped from making the petition as he accepted the respondent's order terminating his services, stood for election from the Parliamentary Constituency of Baramulla and submitted an application dated 2-2-1971 for grant of a 'No demand' certificate treating his services to have been validly terminated; that the petition is not tenable as the, petitioner did not choose to file any appeal or revision before the competent authority under the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, that the petitioner was transferred vide respondent's Order No. SQ/559-69 dated 8-5-1970, and posted as Statistical Girdawar, Sopore, and in his place one Mohamad Akbar Khan was appointed as Girdawar Chatoosa, that a copy of this order was served upon the petitioner and other concerned persons through the Tehsildar Sopore; that it was reported by the Tehsildar, Sopore, that though Mohamad Akbar Khan had reported himself for duty in compliance with the aforesaid order, the petitioner had not handed-over the charge to him nor had he reported himself at the new place of his posting; that in view of his non-compliance with the aforesaid order the petitioner was placed under suspension by the respondent vide his order No. 1349/SQ dated 1-7-1970; that the petitioner's assertion that the transfer order was not served on him is belied by his own application dated 25-5-1970 whereby he sought cancellation of his order of transfer, that the respondent was not under any legal obligation to furnish to the petitioner a copy of the report of the Tehsildar on the basis of which the latter was suspended; that the petitioner's lien was shifted to Tahsil Office, Gulmarg, vide respondent's order No. 1925-27/SQ dated 28-7-1970 which is perfectly valid; that in view of the petitioner's non-compliance with the orders and his unauthorised absence from duty a show cause notice under No. SQ/4005 dated 18-11-1970 was issued to him and he was called upon to file his objections, if any, in regard thereto; that the petitioner submitted his explanation which was not found satisfactory and accordingly another show cause notice No. SQ/4552 dated 26-12-1970 was served upon the petitioner to show cause as to why he should not be dismissed from service; that the petitioner submitted an explanation to the second show cause notice which was considered; that on consideration of all the relevant material facts and circumstances, the respondent issued order No. SQ/4865-67 dated 27-1-1971 terminating the petitioner's services, which was duly communicated to him; that the aforesaid notices and the impugned order does not violate the provisions of the Constitution as alleged; that the petitioner's services have been terminated after proper enquiry and after affording him an opportunity to defend his case; and that though the petitioner did not make any specific prayer for producing any evidence nevertheless a chance was afforded to him to produce his evidence but he did not avail of the same.