MOHD IBRAHIM Vs. STATE

JUDGEMENT

(1.) MOHD Ibrahim has filed this petition under Article 32 2 -A of the Constitution of India read with section 103 of the Constitution of Jammu and Kashmir for issuance of writ of mandamus or such other appropriate writ or direction directing the respondent No. 4 to allow the petitioner to render his normal duty as Khidmatgar at Chest Diseases Hospital Srinagarand continue on his said post at the said hospital and release petitioners salary due to him since May, 1968 which he is entitled to draw and receive under the K. C. S. R. It is averred by the petitioner that he was initially appointed as an orderly in the B. C. C. Organization, Office of the Directorate of Health Services on or about

(2.) ND of December 1960. The petitioner worked in the said department for about four years and was posted at various places in the State; thereafter the petitioner was transferred to the Tuberculosis office vide Government Order No. 796 -98 of 1965 -Annexure A. The petitioner was thereafter retained in the Chest Diseases Hospital Sri -nagar Vide Government Order No. 112 -29 of 1966 -Annexure B. Since then the petitioner has been working as Khidmatgar orderly in the said Chest Diseases Hospital Srinagar from 15 -6 -66. The petitioner is a permanent Government Servant and he in this capacity discharged his duties as Khidmatgar obediently. However, in consequence of report made to the Police by the Superintendent Chest Diseases Hospital, respondent No. 4, alleging theft in her private quarter, the petitioner alongwith five other service hands of the Hospital was kept under interrogation by the police at the Police Station Kothi Bagh and made to be present at the Police Station from 9 -5 -68 to 24th May 1968 ; but the petitioner and the other five persons were discharged as the police were satisfied about their innocence. Report to this effect was nude by the police to the respondent No. 4. As soon as the petitioner was discharged by the Police he reported himself for duty to respondent No. 4 and requested her to allow the petitioner to discharge his duty as Khidmatgar at the said Hospital as usual but the respondent No. 4 refused to do so and did not assign the work to him. Although the petitioner always remained and ever continues to remain present at the said hospital during the duty hours and the petitioner solicited the respondent No. 4 both in writing and verbally to allow him to resume his work yet she did not allow him to do so. Notices vide copies of the same Annexures C to I were also sent to the respondent for the release of the petitioners pay but the said respondent did not respond and on the other hand withheld the salary due to the petitioner. In consequence of the treatment being meeted out to him by the respondent the petitioner was put to untold hardship and suffering. It is further averred that the petitioner is being denied his rights and claims to post he holds. No order of suspension, dismissal, demotion or even show cause notice in regard to any act or omission or commission ascribed to the petitioner has been served on the petitioner by the respondent. Even then the petitioner is unauthorisedly being refused to render his usual duty and his salary is being unlawfully withheld The petitioner has further averred that the relevant record containing the applications of the petitioner and remarks made by the authorities concerned thereon, are lying in the office of respondent No. 4 and that record could reveal the true state of facts. The conduct and action of respondent No. 4 are wholly unjustified and are violative of the constitution, law and procedure prescribed in this behalf. The petitioner has, therefore, prayed for the issuance of an appropriate writ in his favour. 2 The petition is supported by an affidavit and alongwith the petition the petitioner has filed documents annexure A to I.

(3.) THE respondents through the Deputy Advocate General has filed their objections But these objections are not supported by any affidavit, nor has any of the respondents sworn to the facts mentioned in the affidavit as correct. In the said objections it is not denied that the petitioner was appointed as an orderly though it is denied that he is permanent hand. It is further denied that the petitioner attended his duties since May 1968. It is, however, admitted that a theft had taken place in the quarters of the respondent No. 4 and a report to that effect was lodged to the police Station Kothi Bagh where a case under sections 380, 457 R. P. C, was registered, but no particular person was, however nominated in the aforesaid report to be suspected of the theft. The investigating officer also called the petitioner for interrogation in view of his past antecedents. It was reported that during the house search of the petitioner a large number of articles belonging to the Hospital had been recovered by the police. Although the case against the petitioner was closed as untraced by the police authorities, no final report as regards the recovery of other stolen articles made from the house search of the petitioner has as yet been received. The petitioner unauthorisedly remained absent since May, 68 which resulted in his loss of service under Article 128 K. C. S. R, The petitioner being a temporary Government servant had no right to hold the post in question and his absence from duties automatically resulted in the discharge of his service. The petitioner could not have rejoined his duties merely on the ground that the police authorities had reported the case untraced. The petitioner stood discharged from service and therefore had lost all his rights to the post in question. The petitioner continued to absent from his duty even after the report of the police was received. Accordingly the question of his being permitted to join his duties did not arise. The petitioner was not entitled to any relief and his petition merited dismissal.