Unauthorized Absence Cannot Amount To Automatic Cessation Of Service, Even If Delinquent Is A Probationer: J&K&L High Court

While quashing the order, the Division Bench noted that the power available with the competent authority under the Rule 21-(1) (b) of the CCA Rules, 1956, is only to discharge the probationer from probation in the event the performance is found not satisfactory which is not the case set out against the petitioner.

The bench in its judgement observed that the petitioner has been proceeded against on account of unauthorized absence and not on unsatisfactory performance, therefore, the very provision of law, on which the order of termination is based, is against facts and irrational. The court noted.

"In view of the legal position on the subject, the course adopted by the respondents in terminating the services of the petitioner under Rule 21-1-B of the CCA Rules of 1956 is uncalled for and declared to be bad in law...respondents have grossly erred in law in inflicting the punishment upon the petitioner on account of alleged five days (05) unauthorized absence as the allegation is not so grave to attract the major punishment of the kind adopted by the respondents...The gravity of the charge determines the severity of the punishment but in the instant case that principle also has not been followed. The proportionality refers to regulating the exercise of fundamental rights, the appropriate or least restrictive choice of measures as the case may demand."

Accepting the contention of the petitioners that the provision of law pressed into service by the respondents does not call for termination of a probationer on his unauthorized absence, the court observed that the power available with the competent authority under the said Rule is only to discharge the probationer from probation in the event his performance is not found satisfactory which is admittedly not the case set out against the petitioner. The petitioner has been proceeded against on account of unauthorized absence and not on unsatisfactory performance, therefore, the very provision of law, on which the order of termination is based, is against facts and irrational, underscored the judgement.

Placing reliance on the observations made by the Supreme Court in VP Ahuja v. State of Punjab & Ors., wherein it was held that the unauthorized absence cannot and must not amount to automatic cessation of service even if the delinquent is a probationer, the court termed the course adopted by the respondents in terminating the services of the petitioner under Rule 21-1-B of the CCA Rules of 1956 uncalled for and declared it to be bad in law.

Challenging his termination order the petitioner submitted that the respondents have grossly erred in law in inflicting the punishment upon the petitioner on account of alleged five days of unauthorized absence as the allegation is not so grave to attract the major punishment of the kind adopted by the respondents.

While perusing the record the court further observed that the termination order ex facie is stigmatic and punitive also as it is founded on the ground of alleged unauthorized absence which has been explained by the petitioner that he had developed the covid-19 symptoms, therefore, he, in order to save others from getting infected, stayed off . Demonstrating strong disapproval to the termination order, the bench recorded that the gravity of the charge determines the severity of the punishment but in the instant case that principle also has not been followed and the alleged absence for five days attributed to the Covid-19 symptoms by the petitioner has completely been overlooked and no minor punishment has been resorted to.

While allowing the petition and quashing the termination order, the Bench recorded that the respondents having failed to adhere to the procedure as spelt out and having mechanically terminated the services of the petitioner by a stigmatic order, the impugned order cannot withstand the test of law. Consequently, the petitioner was held to be entitled to the service benefits under law and was allowed to continue in service.

Case Title : Shahnawaz Shah v High Court of JK and others

Citation: 2022 LiveLaw (JKL) 45

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