HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU SWP No. 1532/2004 Neelam Koul …..Appellant(s)/Petitioner(s) Through: Mr. Shafiq Choudhary, Adv. vs State of J&K and others .…. Respondent(s) Through: Mr. Ravinder Gupta, AAG Coram: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE ORDER 17.07.2025 Oral: 1. The petitioner herein has maintained the instant writ petition under Article 226 of the Constitution stating that she, the petitioner came to be appointed on contract basis in the J&K Project Construction Corporation Ltd, Jammu (for short “the Corporation”) on a consolidated salary of Rs. 3500/- vide order dated 16.03.1998 which consolidated salary came to be enhanced to Rs. 5500/- vide order dated 13.01.2001 with effect from 21.11.2000. 2. It is being also averred by the petitioner that an application for leave came to be submitted by her seeking leave of 12 days with effect from 23.01.2001 which came to be processed by respondent 3 herein to be placed before the competent authority and that the respondent 3 verbally allowed the petitioner to proceed on leave in anticipation thereof and that the petitioner had to resume her duties after availing the said leave on 04.02.2001, however, the said day i.e. 04.02.2001 being a Sunday, the petitioner had to report for duty on the next day i.e. Monday, but could not 16 2 SWP No. 1532/2004 resume of her duties on account of imposition of curfew in the Jammu City as such, the petitioner sought extension of her leave from respondent 2, whereafter the petitioner reported for duty on 17.02.2001. 3. It is being next pleaded that the petitioner, however, surprisingly received two (02) notices dated 30.01.2001 and 13.02.2001 issued by the respondents calling upon the petitioner vide notice dated 30.01.2001 as to why disciplinary action be not taken against her for unauthorized absence, stating further in the said notice that the said period of absence of the petitioner is treated as dies non requiring the accountant of the Corporation not to draw the salary of the petitioner for the said period of absence, whereas notice dated 13.02.2001 required the petitioner to explain as to why her services be not terminated for unauthorized absence. 4. It is being further stated that the petitioner responded to both the notices on 27.02.2001 and explained her position besides seeking release of her salary and that on account of no response from the respondents, thereupon the petitioner submitted another application on 19.03.2001 for release of her salary as also submitted another application dated 19.03.2001 for grant of 60 days’ leave. 5. It is being next stated that respondent 2 instead issued yet another notice dated 28.07.2001 to the petitioner calling upon her to explain within seven days from the date of issuance of the notice as to why her services be not terminated and that the said notice came to be responded by the petitioner on 01.08.2001, stating therein in the said response that, she, the petitioner could not resume her duties because of nonpayment of salary to her with 3 SWP No. 1532/2004 effect from 01.01.2001 by the Corporation as also owing to the general strike called by the employees of the Public Sector Undertakings and the Corporation in this regard. 6. It is being further stated that the Corporation did not consider the said reply of the petitioner, whereafter the petitioner again submitted an application on 08.11.2001 for release of salary in response to which respondent 3 in terms of letter dated 15.11.2001 informed the petitioner that the leave period is treated as dies non. 7. It is being further stated that in the meantime, the petitioner came to know that a notice has been published in the Daily Excelsior Newspaper by the Corporation on 04.12.2001 calling upon the petitioner as to why her services be not terminated on account of unauthorized absence, which notice came to be replied by the petitioner on 12.12.2001, however, without considering the said reply, the respondents issued the order of termination No. 3010-13 dated 26.06.2002 terminating the services of the petitioner with effect from 02.04.2002. 8. The petitioner has challenged the said order dated 26.06.2002 in the instant petition as also notice dated 30.01.2001, on multiple grounds urged in the petition including that the services of the petitioner were terminated without affording an opportunity of hearing to the petitioner. 9. Objections to the petition have been filed by the respondents, wherein it is being stated that after remaining unauthorizedly absent and upon publication of the notice in the Daily Newspaper on 22.11.2001, although the petitioner was allowed to resume her duties in terms of the letter dated 4 SWP No. 1532/2004 15.12.2001 with a condition that if the petitioner is found absent in future, same shall amount to break in service without any notice, the petitioner yet again remained absent from duty and instead submitted an application on 22.03.2002 in response to which, the petitioner came to be informed that the period of her unauthorized absence is treated as break in service vide order dated 31.04.2002. 10. It is being also stated that the petitioner after again remaining absent thereafter submitted 15 days leave application on 30.03.2002 with effect from 02.04.2002 which, however, was not entertained as no leave was in her credit, and on account of her habitual unauthorized absence and dismal performance, the services of the petitioner were terminated, after being afforded opportunity of hearing to the petitioner to explain her conduct and that the petitioner since was working on contract basis, regularization of her services was dependent on her performance in which she failed and consequently came to be terminated. Heard learned counsel for the parties and perused the record produced by the learned counsel for the respondents. 11. Perusal of the record available on the file as also that the record produced by the counsel for the respondents reveals that the petitioner indisputably came to be served multiple show cause notices for her unauthorized absence which notices came to be responded by the petitioner from time to time. Admittedly it emerges from the record that the petitioner was permitted to resume her duties on 15.12.2001 after the publication of the show cause notice in the Newspaper (Daily Excelsior), whereafter the 5 SWP No. 1532/2004 respondents alleged that the petitioner yet again absented without any leave though submitted an application for leave with effect from 02.04.2002 which application, however was not entertained. It is not forthcoming either from the reply filed by the respondents or from the record produced by the counsel for the respondents that after resuming her duties on 15.12.2001, when did the petitioner remain absent without leave and also as to whether any show cause notice, thereafter, was issued to her either for resumption of duties or else a notice proposing termination of her services till the issuance of the impugned order dated 26.06.2002. In absence of any such notice issued by the respondent-Corporation to the petitioner, it cannot be but be said that the respondents have terminated the services of the petitioner in terms of the impugned order without following minimal principle of natural justice. Here a reference to the doctrine of audi alteram partem and its application to judicial; quasi judicial and administrative institutions considered by the Apex Court in series of the judgments become imperative. The Apex Court in case titled as M/s. Dharampal Satyampal Limited v Deputy Commissioner of Central Excise Gauhati and others reported in (2015) 8 SCC 519 has at paras 21, 24 and 28, held as under: “21. In Common Law, the concept and doctrine of natural justice, particularly which is made applicable in the decision making by judicial and quasi- judicial bodies, has assumed different connotation. It is developed with this fundamental in mind that those whose duty is to decide, must act judicially. They must deal with the question referred both without bias and they must given to each of the parties to adequately present the case made. It is perceived that the practice of aforesaid attributes in mind only would lead to doing justice. Since these attributes are treated as natural or fundamental, it is known as 'natural justice'. The principles of natural justice developed over a period of time and which is still in vogue and valid even today were: (i) rule against 6 SWP No. 1532/2004 bias, i.e. nemo judex in propria sua causa; and (ii) opportunity of being heard to the concerned party, i.e. audi alteram partem. These are known as principles of natural justice. To these principles a third principle is added, which is of recent origin. It is duty to give reasons in support of decision, namely, passing of a 'reasoned order'. 24. The principles have sound jurisprudential basis. Since the function of the judicial and quasi-judicial authorities is to secure justice with fairness, these principles provide great humanizing factor intended to invest law with fairness to secure justice and to prevent miscarriage of justice. The principles are extended even to those who have to take administrative decision and who are not necessarily discharging judicial or quasi-judicial functions. They are a kind of code of fair administrative procedure. In this context, procedure is not a matter of secondary importance as it is only by procedural fairness shown in the decision making that decision becomes acceptable. In its proper sense, thus, natural justice would mean the natural sense of what is right and wrong. 28. It is on the aforesaid jurisprudential premise that the fundamental principles of natural justice, including audi alteram partem, have developed. It is for this reason that the courts have consistently insisted that such procedural fairness has to be adhered to before a decision is made and infraction thereof has led to the quashing of decisions taken. In many statutes, provisions are made ensuring that a notice is given to a person against whom an order is likely to be passed before a decision is made, but there may be instances where though an authority is vested with the powers to pass such orders, which affect the liberty or property of an individual but the statute may not contain a provision for prior hearing. But what is important to be noted is that the applicability of principles of natural justice is not dependent upon any statutory provision. The principle has to be mandatorily applied irrespective of the fact as to whether there is any such statutory provision or not. 12. Having regard to the aforesaid position of law and the fact that the respondents did not issue notice to the petitioner herein, after the petitioner was allowed to resume her duties on 15.12.2001 either for resumption of duty or else of the proposed termination of her services before issuance of the order of termination, the only inescapable conclusion that could be drawn is that the respondents have grossly faulted the law in the matter. 13. Viewed thus, for what has been observed, considered and analyzed hereinabove, the instant petition succeeds, as a consequence whereof, 7 SWP No. 1532/2004 impugned order No. 3010-13 dated 26.06.2002 is quashed, with a direction to the respondents to re-induct the petitioner in service against the post the petitioner was holding at the of the termination of her services and extend her all services benefits to which she is entitled thereto except the monetary benefits for the period, the petitioner herein has remained out of service. 14. The record produced by the counsel for the respondents is returned back in the open court. (JAVED IQBAL WANI) JUDGE Jammu 17.07.2025 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No Rakesh Kumar 2025.07.23 11:43 I attest to the accuracy and integrity of this document