Withdrawing Of Appointment Without Holding Inquiry Is Illegal Even During Probationary Period: J&K High Court

A bench of Justice M.A. Chowdhary while acknowledging the employer's right to assess suitability, stated that the mere pendency of criminal proceedings is not a reflection of the character and antecedents of a person and cannot make a person ineligible for appointment unless it results in conviction. Moreover, it cannot be a ground to terminate services without holding an inquiry.

The court relied on its own judgment in Faheem vs. Union of Kashmir & Ors (2003), wherein it held that if the termination of temporary service on account of misconduct attaches a stigma and is punitive, it cannot be done without holding a proper inquiry.

The court further observed that the petitioners had proceeded against the respondent prematurely without waiting for the outcome of his trial before a criminal court regarding the charge framed against him. The court stated that it was open to the petitioners to take action in the matter if the respondent was found guilty.

BACKGROUND

The respondent was appointed as Class IV in PWD (R&B) under SRO 43 (compassionate appointment scheme) after the death of his father. After the respondent joined the service, the Chief Engineer, PWD, withdrew his appointment, citing a pending criminal case against him. The respondent challenged the withdrawal before the tribunal, which set aside the order.

The court upheld the tribunal's decision to set aside the withdrawal order. It ruled that the mere pendency of criminal proceedings does not bar an employee from appointment and cannot be used as a ground to terminate services, especially without holding an inquiry where the employee is given a full opportunity to be heard.

The court also relied on Pawan Kumar vs. Union of India (2023) 12 SCC 317, in which it was held that mere suppression of material facts or supplying incorrect information does not entitle the employer to terminate services without holding an inquiry.

The court granted liberty to the employer to take a fresh decision after the conclusion of the pending trial and accordingly, the petition was disposed of.

APPEARANCE:

Ravinder Gupta, AAG for Petitioners

Sheikh Najeeb, Advocate for Respondent.

Case-Title : Union Territory of J&K vs Arsam Imtiyaz Malik, 2025

Citation: 2025 LiveLaw (JKL) 42