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| Employee who shuns enquiry cannot cry denial of hearing: DB | | | Early Times Report
JAMMU, Aug 5: The High Court of Jammu & Kashmir and Ladakh has upheld the dismissal of a Jammu and Kashmir Tourism Development Corporation employee, ruling that a delinquent official who deliberately stays away from disciplinary proceedings despite repeated opportunities cannot later complain of violation of natural justice.
A Division Bench comprising Acting Chief Justice Sanjeev Kumar and Justice Mohd Yousuf Wani allowed an appeal filed by the Union Territory and set aside the October 11, 2022 judgment of a Single Judge, which had quashed the termination of JKTDC employee Abdul Rashid Durrani.
Durrani was appointed as an ad hoc waiter in 1983, regularised in 1985 and later promoted as Floor Supervisor in 2008. His services were terminated through an order dated August 22, 2012, with effect from May 31, 2010, on the charge of unauthorised absence from duty.
The employee claimed that he had remained attached with a former Tourism Minister, who was subsequently a Member of the Legislative Council, from May 2010 to October 2011. He alleged that his salary was withheld and his services were terminated without framing charges, holding a proper departmental enquiry or providing him an opportunity of hearing.
The Government, however, maintained that notices, a formal charge-sheet and a final show-cause notice had been issued to the employee at his residential address and were also published in a local newspaper. Despite this, he neither filed his defence nor resumed duty.
Deputy Advocate General Hakim Aman Ali appeared for the appellants, while Senior Advocate A. Haqani, assisted by Advocate Muneeba, represented the employee.
Examining Rule 145 of the JKTDC Employees Service Rules, the Division Bench observed that the provision requires definite charges, communication of allegations, reasonable opportunity to submit a defence and findings by the Enquiry Officer on each charge.
The Bench found that Durrani had appeared during the preliminary enquiry and claimed that he was working with the former Tourism Minister. However, he failed to produce any order from the competent authority placing his services at the disposal of the MLC.
The Court noted that the employee was repeatedly asked to resume duty and explain his absence. A notice was issued on March 29, 2011, followed by his suspension on November 18, 2011. Formal charges were subsequently framed, sent to his address and published in a newspaper, but he failed to respond.
"The Disciplinary Authority or Enquiry Officer is not under an obligation to postpone the proceedings indefinitely until the delinquent employee chooses to appear and participate," the Bench observed.
The Court further held that an employee who abstains from an enquiry despite having an adequate opportunity cannot subsequently allege denial of a reasonable opportunity to defend himself.
Referring to Durrani's representation dated November 16, 2016, the Bench noted that he had admitted that after his attachment with the then Tourism Minister ended, he could not resume duties due to personal circumstances. The Court observed that the certificate later obtained from the MLC appeared to be an additional ground created to counter the charge of unauthorised absence.
The Division Bench held that the employer had discharged the initial burden of proving unauthorised absence through the service record, following which it was for the employee to explain and rebut the charge.
Holding that the Single Judge had exceeded the permissible limits of judicial review by reassessing the adequacy of the disciplinary proceedings, the Bench ruled that the dismissal order suffered from neither procedural illegality nor violation of natural justice.
The appeal was accordingly allowed, the Single Judge's judgment was set aside and the dismissal order against Durrani was restored. His writ petition was also dismissed.
(JNF) |
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