MEHRAJ-UD-DIN ALLAI Vs. CHIEF ENGINEER

JUDGEMENT

(1.) THE petitioner, through the medium of this writ petition filed under Article 226 of the Constitution of India read with Section 103 of Constitution of Jammu & Kashmir, has come up with certain grievances which are adumbrated as follows:

(2.) PETITIONER was, admittedly, appointed by Executive Engineer, Field Mechanical Division Peernai, Lower Jelhum Project as Junior Assistant -cum -Typist vide order No. 336 -37 dated 24th April 1974 in pursuance of the selection made by District Recruitment Board, Baramulla. He was declared as quasi permanent against this post by Director Mechanical Design Circle, Srinagar vide order No. Estt/9/MDC of 1979 dated 28th May, 1979. In November, 1982 the petitioner was working under respondent No.4, Assistant Electric Engineer, Sub -Division, MR. Gung, Srinagar when the petitioners wife fell ill and he had to go outside the State for getting her medically treated. Petitioner, accordingly, moved an application to respondent No.4 on 3.11.1982 for sanction of eight days casual leave, with permission to leave the station, with effect from 4th November, 1982, The leave was, admittedly, duly sanctioned by respondent No.4 and permission to leave the station was also granted in favour of the petitioner. The petitioner alleges that he went outside the State for treatment of his wife and could not join his duties after availing of the said period of leave, because -he had to remain with his wife outside the State. He sought an extension of leave upto 20th April, 1983 by submitting various leave applications, from time to time, to respondent No.4 on 8 -11 -1982, 7,12.1982, 8.2.1983 and 20.3.1983. It was on 26th July, 1983 that respondent No.3 issued a letter to the petitioner directing him that before his leave case is processed further, medical certificate/ documents in proof of illness of his wife be produced in the Divisional office enabling him to take action accordingly. A copy of the letter NO. 3489 -90/IJI dated 26th July, 1983 is appended as annexure D to the petition. Petitioner replied the letter on 28th July, 1983 stating therein that on his return from Delhi, in transit, his brief case, containing the prescription, was lost. He was again asked to furnish the information as to whether any FIR was filed by him before the Railway Police for the loss of the brief case. This letter too was replied by the petitioner that on his return from Delhi, when he found his briefcase missing, he was eager to go to Srinagar with his ailing wife, so he did not report the matter to the Police. He has from time to time prayed to the authorities that his leave be sanctioned and his dues be paid to him. It is alleged that no correspondence was made with him by the respondents thereafter, though the petitioner kept on making applications, especially on 22.8.1983, to respondent No.3 requesting him that, after return from leave and assuming his duties, he has not been paid his salary and requested to release the same. When no heed was paid to his requests to release the salary, he made a representation to respondent No.2 also narrating all the facts. Even then his leave matter was not settled and no payment was made to him, though he had resumed the duty. The petitioner felt upset and made an application on 2nd November, 1983 to respondent No.4 for further leave of whatever kind due to him from 2.11.1983. Copy of the leave application is appended as annexure I to the petition. Instead of settling the leave period and paying him the dues, an order No. 72/III dated 13.3.1984 came to be passed by respondent No.3 by virtue of which the services of the petitioner were terminated with effect from 3.11.1983. The contention of the petitioner is that he left the State alongwith his wife with the permission of respondent after the leave was sanctioned for eight days. Thereafter, he extended his leave and he joined his duties on 21.4.1983. He continued to work with respondent No.4 till 2.11.1983 when he again proceeded on leave. He extended his leave by sending application dated 22.4.1984, but his services were terminated without any enquiry and without any notice of show cause having been issued to the petitioner. Contention of the petitioner is that he was not absconding. He had continued report with the respondents. Now the petitioner prays that Order No. 72/III dated 13.3.1984 issued by respondent No.3 by virtue of which the services of the petitioner were terminated, be quashed and has prayed for issuance of a writ in the nature of Mandamus commanding the respondents to pay the salary to the petitioner and settle his leave case and also allow him to join his duties.

(3.) COUNTER has been filed by respondents on 16.10.1985. No specific point has been taken up in the counter excepting three things: that question of facts is involved in it on which basis no writ can lie; secondly the main thrust of the respondents has been on the point that for the extension of leave petitioner has neither given the medical certificate, nor has shown any justification for such extension of leave; thirdly, that without getting the leave period settled, he again without permission, went on leave till his service were terminated.