HC quashes termination order of tourism employee

Srinagar, Oct 11: Quashing a termination order against a Floor Supervisor, who was working in Tourism department, the High Court of Jammu & Kashmir and Ladakh observed that justice is not only law and its administration, but is, in most cases, above law and is done to safeguard an individual from whatever he/she seeks protection.
“Our country aims at the goal of achieving a welfare State where everyone is/ has to be, as far as possible, looked after,” the court of Chief Justice Ali Mohammad Magrey said.
The court recorded that principles of natural justice are imbibed from the Constitution itself.
“These are of paramount importance and nobody can be condemned unheard,” the bench said.
The court passed these observations in a plea of Abdul Rashid Durrani challenging the order of termination of services passed by the Tourism Department on August, 22, 2012 on the basis of alleged unauthorized absence from duty.
Perusing the records and provision of law, the court noted that it can be seen from a naked eye that the enquiry, as provided under the Employees Service Rules of J&K Tourism Development Corporation Limited governing the service of the petitioner, has not been conducted in the process of inflicting the major punishment of termination from service.
The bench noted that the petitioner has been thrown out by an order of discharge without following the due procedure of law, with a premeditated design to divest him of his right to participate in the enquiry.
Justice Magrey ruled that an opportunity of being heard is the ‘sine-qua-non’ of every enquiry and in case of any departure, reasons justifying so have to be spelt out.
“The principles of natural justice appear to have been violated with impunity in this case,” the court recorded.
It underscored that the defence of the petitioner has been “shut by deception” and the conduct of a full dressed enquiry has been given a complete go by.
The bench pointed out that the records bear testimony to the fact that adequate opportunity of hearing has not been provided to the petitioner and the rules of natural justice have been made “casualty”.
The court held that the rules relating to reasonableness, good faith, justice, equity and good conscience, which are a part of law and relate to administration of justice and fairness, have been followed in “breach and, resultantly, it has caused miscarriage of justice.”
It recorded that the condition precedent for initiating a disciplinary action against any member of the government service in general, and to which the petitioner belongs in particular, is not only the conduct of an enquiry, but it should also appear that due adherence and strict compliance to the manner and procedure as laid down under Rule 145 of the Employees Service Rules has been followed in its letter and spirit and any deviation thereof will render the order imposing penalty bad and liable to be set aside.
In the case of the present petitioner, the court pointed out, although an enquiry appears to have been conducted into the alleged callousness in duty on the part of the petitioner, “but it is clear beyond any shadow of doubt that the provisions of Rule 145 of the Rules had not been complied with while conducting the enquiry and, therefore, the order imposing penalty of dismissal upon the petitioner is unconstitutional, illegal and bad in law.”
Justice Magrey underscored that the record placed by the respondents does not provide even an inkling of how and in what manner the enquiry was conducted into the matter of the unauthorized absence of the petitioner.
“There is no evidence on record to state and show that the statement summarizing the alleged misconduct on the part of the petitioner was read over and explained to him. Not even a murmur has been made to state that any evidence was recorded in the case,” the court noted.
Allowing the plea, the court noted that the procedure laid down for conducting the enquiry as prescribed in the Rules does not appear to have been followed at any stage, as a consequence of which, the order of dismissal cannot survive and sustain in the eyes of law,
Quashing the order, the court said that the penalty imposed upon the petitioner, being contrary to the law and reason, cannot be upheld.
The bench directed the respondents to release all the consequential service benefits in favour of the petitioner to which he is found entitled in accordance with the law and the rules governing the field.
The case of the petitioner is that in 1983, he was appointed as a Waiter on ad hoc basis in the Tourism department, whereafter he was regularized on substantive basis over the said post in 1985.
Subsequently, the petitioner was promoted to the post of Floor Supervisor in the year 2008.
It was stated that the petitioner was sent on deputation with the Tourism Department and attached to the Personnel Section of the then Tourism Minister till September, 2008, whereafter he was ordered to be posted at different places in the Corporation, including at TE Gulmarg and Cheshmashahi Hutments.
The plea stated that petitioner was further attached with the Member Legislative Council with effect from May, 01, 2010 till December, 31, 2011.
It was submitted that the respondents without any rhyme or reason, withheld the pay emoluments of the petitioner since May, 01, 2010 and subsequently, on August, 22, 2012, in terms of order passed by the Tourism department the services of the petitioner was terminated from May 31, 2010 on the basis of allegation of unauthorized absence from duty.