LPA No. 164/2023 Page 1 of 10 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 29.05.2025 Pronounced on: 05.06.2025 LPA No. 164/2023 Abdul Rashid Ganai Age 58 years, S/o Gh. Mohammad Ganai, R/o Gazrial, Kupwara …Petitioner(s)/Appellant(s) Through: Mr. Nissar Ahmad Bhat, Adv. Vs. 1. State of J&K Th. Director SKIMS/ Ex-Officio Secretary to Government, H&ME Department, SKIMS-Soura, Srinagar. 2. Administrative Officer, Hospital Administration SKIMS Soura, Srinagar. 3. Accounts Officer/Convenor Enquiry Committee, SKIMS Soura, Srinagar. ...Respondent(s) Through: Ms. Maha Majeed, AC vice Mr. Mohsin Qadiri, Sr. AAG CORAM: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE HON’BLE MR. JUSTICE SANJAY PARIHAR, JUDGE J U D G M E N T Per Sanjeev Kumar, J 1. The order and judgment dated 14th July 2023 passed by the learned Single Judge of this Court [“the Writ Court”] in SWP No. 968/2006 is subject matter of challenge in this intra-court appeal. 2. Briefly stated the facts leading to the filing of this appeal, as are gatherable from the impugned judgment, are that the appellant was serving as Steward in Sheri Kashmir Institute of Medical Sciences, Soura, [“SKIMS”], Srinagar. In the month of August 2004, the appellant claims that he was on a visit to his home in village Gazrial of District Kupwara where he fell ill. The appellant applied for seven days’ leave with effect from 14th August 2004 and later requested for its extension on health grounds. It is submitted that though the leave Mohd Altaf Nima I attest to the accuracy and authenticity of this document 05.06.2025 LPA No. 164/2023 Page 2 of 10 was granted, but the request for extension was not accepted by SKIMS. 3. In the year 2005, the SKIMS issued charge-sheet vide Communication No. SIMS/HA/1669/2005-1162-64 dated 24th February 2005. The appellant claims that he tendered his explanation vide his communication dated 28th April 2005 and explained to the SKIMS authorities that because of his health conditions and non- communication of the orders issued to him by the authorities, he could not resume his duties. 4. The appellant claims that on 12th May 2005, he received a communication directing him to support his claim by medical documents and certificates from the doctors who had treated him during his illness. The appellant claims that he submitted all the medical documents asked for. The appellant received another communication dated 28th June 2005 from the Convener of Enquiry Committee informing him to appear in person before the Committee along with all supporting materials. The appellant pleaded his inability to appear on the ground that he had been advised bed rest by the doctors. The appellant received another letter from the Enquiry Committee on 18th July 2005 calling upon the appellant again to appear on 28th July 2005 before the Enquiry Committee. This was followed by another communication dated 28th July 2005 by giving another opportunity to the appellant to attend the enquiry on 10th August 2005. The appellant concededly did not appear before the Enquiry Committee. 5. The Administrative Officer of SKIMS issued a letter dated 27th September 2005 asking the appellant to get himself medically examined from HOD Medicine and submit his Medical Certificate. The appellant did not comply with the aforesaid direction and insisted that he had already submitted the certificates from the competent medical authority and that his case may be decided on merits in the light of said medical certificates. The enquiry proceedings were completed and the SKIMS vide its order No. SIMS/HA/1669/2005- 7462-65 dated 28th December 2005 issued a show cause notice to the appellant calling upon him to submit his response as to why he be not Mohd Altaf Nima I attest to the accuracy and authenticity of this document 05.06.2025 LPA No. 164/2023 Page 3 of 10 removed from service. The appellant submitted his reply on the same lines that he had already submitted his medical records and certificates and that his case be considered in light of the said documents. The SKIMS issued another communication on 21st January 2006 asking the appellant to submit documents and reply to the show cause notice dated 28th December 2005. The appellant did not respond and as a consequence thereof the competent authority vide office order No. SIMS/HA/532 of 2006 dated 01.06.2006 ordered the termination of the services of the appellant. It is this order of termination which was called in question by the appellant in SWP No. 968/2006. The petition was contested by the SKIMS. 6. The Writ Court having heard learned counsel appearing for both the sides and having gone through the record came to the conclusion that the impugned order of termination was passed by the SKIMS after following due process of law and, therefore, did not suffer from any legal infirmity. The writ petition filed by the appellant was accordingly dismissed vide order and judgment dated 14th July 2023 impugned in this appeal. The impugned judgment of the Writ Court is assailed by the appellant primarily on the ground that the SKIMS Authorities passed the order of termination of services of the appellant in violation of Rule 33 and 34 of The Jammu and Kashmir Civil Services (Classification Control and Appeal Rules), 1956 [“the Rules of 1956”]. Impugned order is also challenged on the ground that along with the show cause notice, the copy of the enquiry report was not served upon the appellant, as a result whereof, he could not make effective representation before the Disciplinary Authority. 7. Reliance was placed by the learned counsel for the appellant on the judgment of Hon’ble Supreme Court in the case of Managing Director, ECIL vs. B. Karunakar, AIR 1994 SC 1074. 8. Per contra, learned counsel for the respondents would submit that the services of the appellant were terminated after a full-fledged enquiry conducted by Enquiry Committee constituted by the Competent Authority, in which the appellant was given more than adequate opportunities to appear and defend his case. Mohd Altaf Nima I attest to the accuracy and authenticity of this document 05.06.2025 LPA No. 164/2023 Page 4 of 10 9. Having heard learned counsel for the parties and perused the material on record, we do find on facts that after the appellant was served with a charge sheet, he was given numerous opportunities to appear before the Enquiry Committee. He was on a medical leave of seven days with effect from 14th August 20004 and did not return to rejoin his duties. He had made an application for extension of leave on health grounds, but the same was declined. The charge sheet was to the extent that the appellant had remained unauthorizedly absent without any leave or permission from the employer. 10. The charge sheet was replied by the appellant but he could not produce adequate proof of his health condition. The medical certificates claimed to have been submitted by the appellant are purportedly issued by one Dr. Mushtaq Ahmad, (MD Medicine), as is claimed by him on two letter heads. The third certificate is also by the same doctor Dr. Mushtaq Ahmad, BUMS, MD: PGDHHM. and the disease which the appellant has been shown to be suffering is LBA. Admittedly, the appellant was never advised any hospitalization nor did he visit any Government hospital or dispensary in Kupwara. He was an employee of SKIMS which is a premier medical institute in the Union Territory of Jammu and Kashmir and, therefore, he would have got himself admitted for treatment in the Institute, if at all he was suffering from any disease. As a matter of fact, during the course of enquiry, the Administrative Officer of the Enquiry Committee advised the appellant to get himself medically examined from the Medicine Department of SKIMS and obtain a requisite certificate. He did not obey the direction of the authorities and insisted that the so-called medical prescriptions by some Dr. Mushtaq Ahmad be considered and appropriate decision on merits be taken. 11. There are numerous communications issued by the Enquiry Committee requesting the appellant to appear before the Committee and submit documents to demonstrate that he was prevented by medical condition to join back his duties. Admittedly, the appellant failed to cooperate with the Enquiry Committee. In these circumstances, the Enquiry Committee was left with no option, but to consider the material before it and render its findings. Mohd Altaf Nima I attest to the accuracy and authenticity of this document 05.06.2025 LPA No. 164/2023 Page 5 of 10 12. The Enquiry Committee ultimately submitted its report on 17th August 2005 to the Disciplinary/Competent Authority. The Director of SKIMS/Competent Authority considered the report submitted by the Departmental Enquiry Committee and arrived at the preliminary conclusion that the appellant deserved to be removed from service. Accordingly, the appellant was put on show cause notice as to why he be not removed from service of SKIMS with effect from 14th August 2004 on the charge of willful unauthorized absence from duties. 13. The appellant gave detailed reply to the show cause notice. From the reply to the show cause notice dated 2nd February 2006, it clearly transpires that the appellant was well aware of the charge against him and the findings returned by the Enquiry Committee. The appellant though pointed out the violation of prescribed procedure for conduct of disciplinary proceedings, but contended that he was prevented from attending his duties due to the circumstances beyond his control. He, therefore, requested the competent authority to treat his unauthorized absence as leave on medical grounds and allow him to perform his duties. The competent authority considered the explanation and found nothing new in it and, accordingly, took the decision to terminate his services. This is how the impugned order came to be passed. 14. The Writ Court has analyzed the legal and factual position obtaining in the case and has come to the conclusion that there was no violation of principle of natural justice in the matter of conduct of the Disciplinary Enquiry against the appellant. The Enquiry Committee was careful enough to provide the appellant numerous opportunities to appear and produce documents in his defense. The appellant all along showed defiance to the communication issued by the Enquiry Committee and insisted that the medical prescription which he has sent to the Enquiry Committee be considered and appropriate decision taken on merits. It is nowhere alleged by the appellant that the enquiry was conducted without following the procedure laid down in Rule 33 and 34 of the Rules of 1956. 15. During the course of arguments, Mr. Nisar Ahmed, learned counsel appearing for the appellant restricted his challenge to the judgment of the learned Single Judge and the order of termination passed by the Mohd Altaf Nima I attest to the accuracy and authenticity of this document 05.06.2025 LPA No. 164/2023 Page 6 of 10 SKIMS only on the ground that failure of the competent authority to provide him a copy of the enquiry report along with the show cause notice has seriously prejudiced his right to make effective representation and persuade the competent authority to either exonerate him or impose lesser punishment. We, therefore, focused our analysis on the aforesaid ground of challenge. 16. It is not in dispute that the disciplinary proceedings in the SKIMS are governed by the Rules of 1956. The removal from service is one of the major punishments prescribed in Rule 30. 17. In terms of Rule 34 which is reproduced hereunder, it is clearly provided that the delinquent employee is entitled to a copy of the proceedings prepared under Rule 33 including the recommendations, if any, in regard to the punishment in a case where the competent authority arrives at a provisional conclusion to inflict the penalty of dismissal, removal or reduction in rank: “34. After the inquiry against a government servant has been completed, and after the authority competent to impose penalty has arrived at provisional conclusions in regard to the penalty to be imposed, the government servant charged shall, if the penalty proposed is dismissal, removal or reduction in rank, be supplied with a copy of the proceedings prepared under rule 33 excluding the recommendations, if any, in regard to punishment, made by the officer conducting the inquiry and asked the show cause by a particular date with affords him reasonable time, why the proposed penalty should not be imposed on him.” 18. Rule 35 is also significant and is required to be set out below. “35. Without prejudice to the provisions of rule 33, no order imposing the penalty[specified in clauses (i), (ii), (iii) and (v)] of rule 30 (other than an order based on facts which have led of his conviction in a criminal court or by a court-martial, or an order superseding him for promotion to a higher post on the ground of his unfitness for that post) on any government servant to whom these rules are applicable shall be passed unless he has been given an adequate opportunity of making any representation that he may desire to make any such representation, if any, has been taken into consideration before the order is passed: Provided Mohd Altaf Nima I attest to the accuracy and authenticity of this document 05.06.2025 LPA No. 164/2023 Page 7 of 10 that the requirements of this rule may, for sufficient reasons to be recorded in writing, be waived where there is difficulty in observing them and where they can be waived without injustice to the officer concerned.” 19. From conjoint reading of Rule 34 and Rule 35, it is abundantly clear that where the competent authority proposes to impose a penalty of dismissal, removal or reduction in rank on the delinquent employee, it is under an obligation to provide a copy of the proceedings prepared under Rule 33, i.e., copy of the enquiry report to the delinquent. 20. Rule 35 mandates the providing of adequate opportunity of making representation against the proposed penalty. The right to make representation is not a mere formality, but a vital right given to a delinquent employee to persuade the competent authority not to impose the proposed penalty. This is an opportunity to the delinquent employee to convince and persuade the employer to either exonerate him of the charges or impose a penalty lesser than the penalty proposed. 21. In the instant case, the provisions of Rule 34 and 35 have been given a total go-bye. Rule 34 and 35 embodys the principle of law enunciated by the Hon'ble Supreme Court in the Constitution Bench Judgment in the case B. Karunakar (supra). It is authoritatively laid down by the Hon'ble Supreme Court that when the Enquiry Officer is not the Disciplinary Authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the Disciplinary Authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges leveled against him. That right is a part of employees right to defend himself against the charges leveled against him. A denial of the enquiry officer's report before the Disciplinary Authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of principles of natural justice. The Supreme Court even went to the extent of holding that even if the statutory rules in a given case provide for denying the enquiry report to the employee, the same would be against the principles of natural justice and, therefore, invalid. Notwithstanding the statutory prescription to the contrary, a Mohd Altaf Nima I attest to the accuracy and authenticity of this document 05.06.2025 LPA No. 164/2023 Page 8 of 10 delinquent employee shall be entitled to a copy of the report as part of the compliance with the principles of natural justice. The judgment further lays down that the copy of the enquiry report is required to be furnished where the enquiry officer is not the Disciplinary Authority even in cases of minor penalty. The judgment also lays down that where such non-compliance is demonstrated, the reinstatement with back wages should not be mechanically ordered. The court should furnish him the copy of the enquiry report and afford him an opportunity to show if and how a prejudice has been caused to him. 22. In view of the clear provisions of Rule 34 and Rule 35 of the Rules of 1956 and dictum of law laid down in the B. Karunakar, we find that in the instant case, the failure of the competent authority to furnish a copy of enquiry proceedings/report to the appellant has worked to his serious prejudice. In the instant case, the prejudice is presumed. Had the copy of the report of enquiry been furnished to the appellant, there were chances that he would have convinced and persuaded the competent authority to drop the charges and exonerate him. Probably he could have made the competent authority to agree that the punishment of removal from service was harsh and a lesser punishment may be imposed. All this could not happen as the complete set of enquiry report/the proceedings conducted by the Enquiry Committee were not provided to the appellant. We are aware that the appellant while replying to the show cause notice of proposed penalty had not asked for enquiry report, but that does not absolve the competent authority to comply with mandatory requirement of law. 23. We could have provided copy of the enquiry proceedings to the appellant in the open court and afforded him an opportunity to show prejudice, but we are not doing so for the reason that in the instant case, the prejudice is apparent. Not only the respondents have acted in violation of the law laid down by the Supreme Court in the B. Karunakar, but they have failed to comply with the provisions of Rule 34 and Rule 35 of the Rules of 1956 which are aimed at ensuring that the employer does not impose a major penalty without complying with the principles of natural justice. This aspect of the matter has not Mohd Altaf Nima I attest to the accuracy and authenticity of this document 05.06.2025 LPA No. 164/2023 Page 9 of 10 been considered by the Writ Court. We, therefore, find merit in this appeal to the extent discussed above. 24. The appeal is thus allowed and the impugned order of termination of services of the appellant dated 1st June 2006 passed by Director SKIMS is set-aside. 25. The matter shall go back to the competent authority to proceed with the enquiry proceedings from the stage of submission of enquiry report by the Enquiry Committee in the following manner:- (i) That the competent authority/Disciplinary Authority shall provide copy of the enquiry report/proceedings submitted by the Enquiry Committee to the appellant and call upon him to make his representation, if any, against the enquiry report within a period of four weeks of the service of the copy of the enquiry report. (ii) That the competent authority shall consider the representation, if any, received from the appellant against the enquiry report/proceedings and take an appropriate decision with regard to the exoneration or imposition of appropriate penalty. (iii) In case the competent authority proposes to impose a penalty, minor or major, it shall serve a show cause notice upon the appellant and shall also provide him the copy of the decision taken in terms of para (ii) above. The appellant shall be given four weeks’ time to file reply to the show cause notice. (iv) That upon consideration of the reply to the show cause notice, the competent authority shall pass appropriate order of exoneration Mohd Altaf Nima I attest to the accuracy and authenticity of this document 05.06.2025 LPA No. 164/2023 Page 10 of 10 or imposition of appropriate penalty on the appellant, as the case may be. 26. Let the appellant appear before the competent authority on any working day within a period of two weeks from the date of this judgment. The competent authority shall follow the steps indicated in paragraph No. 25 above and complete the proceedings within a period of three months from the date of appearance of the appellant before such authority. (SANJAY PARIHAR) (SANJEEV KUMAR) JUDGE JUDGE SRINAGAR: 05.06.2025 Altaf Whether approved for reporting? Yes Mohd Altaf Nima I attest to the accuracy and authenticity of this document 05.06.2025