AMA SHEIKH Vs. STATE

JUDGEMENT

(1.) THE petitioners were appointed as Safaiwallas in the notified area committee Shopian. According to them they filed the writ petition bearing SWP No. 1215/87, seeking a direction to grant them the pay scale of Rs. 345 -940 as was paid to their counter parts in Jammu and Srinagar Wing of the Municipalities. When this petition came up for consideration before the court, the court passed the following order: Issue notice to the respondents returnable within two weeks to show cause why the petition be not admitted to hearing. Issue notice in the stay application also returnable within two week. Till then subject to -objections by the otherside, the services of the petitioner shall be allowed to continue subject to application of rules.

(2.) THE petitioners submit that after passing of the, above mentioned order the respondent No. 2 started them and withheld their salary and finally on 22 -12 -1987 terminated their services. The order of termination is contained in Annexure -P2 and P3 of this petition and have been challenged by this writ petition From the perusal of the order of termination it is clear that the respondent Administrator has exercised his powers while terminating the services of the petitioner under Essential Services Maintenance Ordinance Samvat 2001. The respondents have filed their objections, which are no record, but nobody appeared on their behalf for arguing the matter. On 26th of June 1995, Mr. Bazaz GA, appeared for Learned Advocate General and the case was directed to be listed on 28th of June 1995. On 28th of June 1995, no body appealed on behalf of respondents. After hearing L/c for the petitioner 1 had directed that learned Advocate General is at liberty to file written submissions within two days. The written submissions were not filed. Therefore, the matter is being decided without hearing the arguments of the respondents. The main contention of the petitioners is that there is no power under the Essential services maintenance ordinance samvat 2001, by which services of tee employees could have been terminated. Section 3 of the Act empowers the Government to declare a particular service an essential service. This has been done in the present case by issuing a notification on 30th of June 1987 under SRO 354. The L/c for the petitioner admits that although the service has been declared so be "essential service" interms of the section -3 of the ordinance, but that gives no power to respondents to terminate the services of the petitioners. He has drawn, my attention to various provisions of the ordinance. Section -7 is the only provision which is penal provision of the ordinance, is reproduced below: 7 Penalties and procedure: (1) Any person found guilty of an offence under this ordinance shall be punishable with imprisonment for a term which may extend to one year and shall also be liable to fine:

(3.) NO court shall take cognizance of any offence under this ordinance except upon complaint in writing made by: