AB WANI GANIA Vs. STATE OF J&K

JUDGEMENT

(1.) THROUGH the medium of this petition, the petitioner has sought indulgence of this court by invoking the jurisdiction of this court under Article 226 of the Constitution of India read with Section 104 of the Constitution of Jammu & Kashmir for issuance of writ of certiorari for quashing Order No. 2968 -70 dated 08 -06 -1962 issued by respondent No. 4, Deputy Director, Animal Husbandry Department, and for mandamus commanding the respondents to re -instate the petitioner and allow him all service benefits with effect from the date of suspension i.e. 8 -5 -1962, including salary, seniority and promotion etc. to which the petitioner would have been entitled in the normal course of the tenure of his service in the absence of the impugned suspension order. Briefly put, the case of the petitioner is that he was appointed as Stock Assistant in the Department of Animal Husbandry by respondent No.3 vide his order No. 171 -96/one dated 14.4.1959. In pursuance of the aforesaid order of appointment, the petitioner was posted as Stock Assistant at Hakura vide order issued by respondent No.4 under his enforcement No. 546 -618 dated 18th April, 1959. A copy of the order is enclosed as annexure P1 with the petition. The petitioner came to be transferred and posted as Stock Assistant, Kaprin. During his posting there, the petitioner proceeded on casual leave for 6th and 7th May, 1962 after having duly applied for the same. However, while on leave, the petitioner, due to the some ailment could not resume his duties on 8 -5 -1962 and he applied for extension of leave on medical grounds to the vetrenity Assistant surgeon at Kaprim. When the petitioner went to the office for resumption of duty, he came to know that respondent No.4 had placed him under suspension with effect from 6th May, 1962 for his unauthorised absence from duty. Petitioner submitted an application to respondent No.4 stating therein the reasons for his remaining on leave on medical grounds and submitted the medical certificate and thus requested for his re -instatement. It is further pleaded that no action was taken in the matter by the respondents. Petitioner continued to send representations to respondents 3 and 4 for an early settlement of his suspension case and payment of subsistence allowance. The respondent slept over the matter. They neither charge sheeted him nor re -instated him. They also did not terminate his services. He thus filed this writ petition in 1989 before this court praying for the aforementioned reliefs. On 18th April, 1989 this court issued notice to the otherside to show cause why the petition be not admitted to hearing and, meanwhile, made a direction to the respondents to pay subsistence allowance to the petitioner.

(2.) THE admitted position of the case is now that subsistence allowance of Rs. 1,62,000/ - approximately has been paid to him from the date of suspension. The case has been admitted to hearing and counter also has been filed.

(3.) THE respondents plea in the counter is that the petitioner remained absent unauthorisedly. After his suspension, he did not resume his duty nor remained present before the concerned authority, as such, under Article 113 of the J&K Civil Service Regulations the petitioner ceased to be the State employee for remaining absent for more than five years. It has been admitted that the petitioner was appointed in 1959 as Stock Assistant he worked till May, 1962 in the Department. He proceeded on casual leave for two days, but did not return thereafter. On 8.6.1962 he was placed under suspension, but after the suspension also he did not come to the office, nor he approached the Department for settlement of his suspension case. It has been contended that the petitioner was detained under the order of District Magistrate, Anantnag on 9.8.1965 and was later on released. Petitioner never approached the respondents for reinstatement after his release from Jail, Respondents have pleaded that the petitioner for the first time submitted an application in the year 1975 for settlement of his suspension case after 13 years when he had already ceased to be a State employee. Lastly, it has been pleaded that the present petition suffers fro latches and the petitioner has failed to explain the delay in filing the writ petition.