DB stays termination of employee


Jammu, Oct 9: A Division Bench of Jammu & Kashmir High Court Comp-rising Justice Ali Mohammad Magrey and Justice stayed the termination employee posted in Principal District & Sessions Judge Srinagar with observations that absence from duty, howsoever long,
cannot result in automatic cessation
of employment.
The petitioner Shahnwaz Shah challenges the Order bearing No. 925 of 2021/Psy dated 30.09.2021 for short impugned order, in terms whereof the service of the petitioner has been terminated with immediate effect in application of Rule 21-(1) (b) of the Jammu and Kashmir Civil Services (Classification, Control And Appeal) Rules, 1956, for short CCA Rules of 1956. Briefly put the case of the petitioner is that he has been appointed against the post of Orderly in terms of Order No. 427 dated 16.1.2020 against the available vacancy in District Srinagar, issued by the Principal District & Sessions Judge, Srinagar, on the basis of the selection made by the Selection Committee and as approved by the Competent Authority, and while performing his duties as such in the court of Principal Judge, Family Court, Srinagar, amidst the ongoing Covid-19 Pandemic, the petitioner proceeded on leave. Taking note of the absence of the petitioner, the competent authority initiated disciplinary action and issued the memorandum/ charges along with note of explanation to the petitioner in terms of communication no. 3313/PDJS/Adm/2021 dated 31.8.2021. The articles of charges contained the allegations against the petitioner vis-a-vis his unauthorized absence from duties w.e.f. 22.5.2021 to 27.5.2021.
DB after hearing both the sides observed that the petitioner is admittedly holding the post of Orderly against a clear vacancy and while on probation, has been terminated from service by application of Rule 21 (1) (b) of the CCA Rules of 1956 on the charges of absence from duties.
DB further observed that the power available with the competent authority under the said Rule is only to discharge the probationer from probation in the event the performance is found not satisfactory. We are fortified in our view by the judgment of this Court passed in the case titled Mushtaq Ahmad Khan v. State of J&K and others. DB is of the view that absence from duty, howsoever long, cannot result in automatic cessation of employment. In all such cases the person concerned has to be given an opportunity of hearing and, depending on the nature of defence taken by him, further action should be taken." Prima facie, We are satisfied that the impugned order is against the principles of law and being in violation of the Rules and the Constitution, therefore, we propose to stay the operation of the impugned order.
DB is conscious of the fact that the impugned order of which the quashment is sought amounts to grant of principal relief, but at the same time the petitioner cannot be made to suffer as the court has recorded its prima facie satisfaction that the impugned order is bad in law. In that view of the matter, the petitioner has satisfied the principles of grant of interim relief and issued Notice returnable within four weeks and ordered that in the meanwhile, the operation of the impugned order shall stay and the petitioner shall be allowed to perform his duties as Orderly.

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