J&K CSR | Absence From Duty Regardless Of Duration Does Not Mean Automatic Job Termination, Right To Hearing Is Essential: High Court

A bench of Justices Sanjeev Kumar and Rajesh Sekhri cited Regulation 113 of J&K Civil Service Regulation (CSR) and observed,

“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”

The court added,

“Whether a full-fledged enquiry as envisaged under Rule 33 of the J&K civil Services (Classification, Control and Appeal) Rules, 1956, should be held or not, will depend upon the facts of the case and be left to be discretion of the authority, subject to scrutiny and judicial review in future if such an occasion would arise”

Background of the Case:

These observations came in a case dating back to 1989 when Habibullah Shah, the father of Sajad Ahmad Shah and an employee in the Power Development Department, went missing. Though a missing report was filed at a Police Station, his whereabouts remained unknown until January 24, 2012, when his body was discovered at the Jammu Bus Stand. A subsequent investigation attributed his death to natural causes due to mental unsoundness.

Following Shah's death, his family sought service benefits accrued during his absence and compassionate employment for his son, Sajad. When the government failed to respond, the family filed a writ petition and the single judge ruled in favor of the family, ordering benefits release and consideration of compassionate appeal which led to the current appeal.

The appellants argued that under Regulation 113 of the J&K CSR, an employee absent for over five years without leave is deemed out of service, disqualifying the family from claiming benefits or compassionate appointment. Conversely, the family contended that Shah's absence was due to mental unsoundness, which should have been treated differently. They also asserted that no notice was issued or inquiry held regarding his absence before declaring him out of service.

Court Observations:

Adjudicating upon the matter Justice Sanjeev Kumar, writing for the bench, reaffirmed the necessity of procedural fairness in employment cessation cases, stating that “absence from duty, howsoever long, cannot result in automatic cessation of employment.”

The court ruled that Shah's absence, given the circumstances, did not justify termination without due process, including a notice or inquiry, as stipulated in Rule 33 of the J&K CSR.

The bench emphasized: “In all such cases, the person concerned has to be given an opportunity of hearing, and depending on the nature of defense taken by him, further action should be taken.”

The court further stated that whether a full inquiry is required depends on individual case facts and remains at the authority's discretion, subject to judicial review if necessary, “Whether a full-fledged inquiry as envisaged under Rule 33… should be held or not, will depend upon the facts of the case and be left to the discretion of the authority.”, the court underlined.

The Division Bench referred to the prior judgment in Mushtaq Ahmad Khan v. State of J&K, in which the court held that employment cannot end automatically due to prolonged absence. This precedent strengthened the court's view that Regulation 113's application in Shah's case was erroneous without procedural adherence to natural justice principles.

Additionally, the bench noted the absence of documentary evidence proving that Shah's family faced a continuous financial crisis, despite the passage of time. It cited the Supreme Court's ruling in State of West Bengal v. Debabrata Tiwari & Ors. 2023, which clarified that compassionate appointments should address immediate financial hardship and cannot be claimed as a vested right years after the employee's death.

The court remarked, “There is no material placed on record…to demonstrate that the family of the deceased despite lapse of so many years continues to be in distress and financial crisis.”

In conclusion, the court upheld part of the single judge's decision, ordering the release of Shah's service benefits, excluding salary from 1989 to his death but including gratuity and post-retirement benefits to his legal heirs. It partially allowed the appeal, setting aside compassionate appointment considerations due to the elapsed time and lack of evidence for financial hardship.

Case Title: UT Of J&K Vs Sajad Ahmad Shah & Anr

Citation: 2024 LiveLaw (JKL) 306

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