Jammu February-01-2024- After 30 years of litigation, Justice Sanjeev Kumar of Jammu & Kashmir and Ladakh High Court set-aside the order of the Director, Sher-I-Kashmir Institute of Medical Sciences, Soura, Srinagar [“SKIMS”], whereby the petitioner has been removed as Professor Department of Cardiology from the services of the SKIMS for unauthorized willful absence from duty w.e.f. 19.05.1992.
This significant order has been passed in a petition filed by Dr. B.A.Wani aggrieved of and has called in question an order dated 08.12.1993 passed by the Director, Sher-I-Kashmir Institute of Medical Sciences, Soura, Srinagar [“SKIMS”], whereby the petitioner has been removed as Professor Department of Cardiology from the services of the SKIMS for unauthorized willful absence from duty w.e.f. 19.05.1992. The petitioner also prays for a direction to the SKIMS to accept his request for voluntary retirement in terms of Article 230 of the Jammu & Kashmir Civil Service Regulations (“CSR” for short) and treat him as having voluntarily retired from service with all consequential post-retirement benefits.
Justice Sanjeev Kumar after hearing both the sides, observed that in the reply affidavit filed by the Director of the Institute, there is no attempt made to explain the competence of the Director to impose penalty of removal from service of a gazetted officer. It is also not demonstrated by the respondents whether the status of the Professor and other faculty positions of SKIMS is that of a gazetted officer or not. The petitioner, too, has not placed on record any material to show that the petitioner at the time of his removal from service, in terms of the impugned order, was a gazetted officer. He, too, has failed to place on record any gazette/notification to show that the post of Professor in SKIMS is a gazetted post. In the absence of such material, it is not possible for this Court to come to any definite conclusion as to whether petitioner was a gazetted officer and could be removed from service only by the Government. However, if this Court holds that the impugned order is traceable to Article 128 of the CSR, yet in the absence of specific delegation made by the Government to the Director, SKIMS, the impugned order would be without jurisdiction and competence of the Director.
Justice Sanjeev Kumar found sufficient substance in the submission of Mr. Jan that the Director, SKIMS was not a competent authority to remove the petitioner from service, who at the relevant time was Professor and head of the department of Cardiology in SKIMS and more inclined to accept this plea for the simple reason that to the specific averments made by the petitioner in paragraph No.14 & 15 of the writ petition in respect of incompetence of the Director, SKIMS to issue the impugned order, there is no specific reply or rebuttal by the respondents. On this ground alone, I find the impugned order vitiated in law having been issued by an authority not competent to do so. In view of the above, the determination of plea of proportionality of penalty is held unnecessary.
With these observations, High Court allowed the petition with the observations that impugned order dated 08.12.1993 issued by the Director, SKIMS is set aside. Court further directed that the competent authority i.e. Government is left free to initiate fresh disciplinary action against the petitioner in accordance with law within a period of four weeks from today. That in the disciplinary action that may be initiated by the respondents/competent authority, the petitioner shall be given adequate opportunity to defend himself. The procedure laid down in Rule 33 of the CCA Rules shall be strictly adhered to in such disciplinary proceedings, which shall be concluded within a period of two months from the date charges are served upon the petitioner.
Court further said that in case no such proceedings are envisaged or initiated against the petitioner, his application for voluntary retirement under Article 230 of the CSR shall be considered and appropriate orders passed within one month from the date of expiry of time stipulated herein above for conclusion of the disciplinary proceedings.
Court further said that needless to say that in case respondents decide not to initiate any disciplinary proceedings and accept the request of the petitioner for voluntary retirement, post retiral benefits, as may be available to the petitioner under law shall be released without any further delay.JNF