AVTAR KRISHAN Vs. STATE OF J&K AND ORS

JUDGEMENT

(1.) Vide impugned order No. 26 of 2003 dated 11.01.2003 issued by Director General of Prisons, petitioner has been reverted to the lower rank of Selection Grade Warder. The period of absence w.e.f. 22.10.2002 has been directed to be treated as on leave whatever kind due to him. Dissatisfied therewith instant writ petition has been filed. It is projected that the order impugned has been passed in haste. No enquiry has been held nor has any reasonable opportunity been granted to the petitioner to explain his absence w.e.f. 22.10.2002. Allegedly petitioner had remained unauthorizedly absent w.e.f. 22.10.2002. Show cause notice had been served upon him, informing him as to why for unauthorized absence he be not discharged from service. He had submitted a detailed response stating therein that he had applied for leave w.e.f. 22.10.2002 and Superintendent District Jail, Kathua declined to accept the application, then he had sent it to the Director General of Prisons. He has placed a copy of leave application along with postal receipts on the records.

(2.) In the order impugned at Para 8, it has been noticed that the reply to the show cause notice was considered/examined but was not found based on facts. It is nowhere mentioned, as to how the reply was not found to be based on facts. No enquiry has been conducted, even petitioner has not been heard in support of his response.

(3.) Learned AAG appearing for the respondents vehemently contended that when an employee has chosen to remain absent unauthorizedly, the authority has the power to disengage under Article 128 of J&K CSR, as has been done, for exercising such power, there is no question of affording any opportunity to the delinquent of being heard only requirement is to serve the show cause notice. Such submission cannot be accepted.