Directs disciplinary action against the doctor for unauthorised absence from duty
Srinagar: The High Court today set aside a 1993 order by Director Sher-i-Kashmir Institute of Medical Sciences (SKIMS) Soura, terminating the services of a professor of cardiology with a further direction that disciplinary action be initiated against the doctor for unauthorised absence from duty.
Justice Sanjeev Kumar allowed the petition of Dr B A Wani, who had challenged the order dated 08.12.1993 passed by the Director SKIMS whereby the doctor had been removed as Professor, Department of Cardiology, from the services for unauthorized wilful absence from duty with effect from May 19, 1992.
The petitioner doctor had also prayed 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 postretirement benefits.
The petitioner was initially appointed as Assistant Surgeon Grade II in SMHS Hospital vide Government Order in 1966. During the course of service as Assistant Surgeon Grade-II in the Medical Department of the then State, he was deputed to undergo DM Medicine (Cardiology) at PGI, Chandigarh.
On completion of DM Cardiology, he was appointed as Assistant Professor in Government Medical College, Srinagar in 1981. His services were later on transferred and he was appointed as Senior Consultant (Associate Professor) in the department of Cardiology of SKIMS in the last month of the same year 1981. Here he rose to the position of Professor Cardiology in the year 1986.
While the petitioner was serving as Professor, Department of Cardiology in SKIMS, an application was made by the petitioner, and an earned leave for 80 days was sanctioned from 29.02.1992 with the condition that no extension in the leave as sanctioned shall be granted. This was also so undertaken by the petitioner in writing.
On expiry of the sanctioned earned leave, the petitioner did not report back for duties and requested for extension of leave on medical grounds. The request was acceded to by the SKIMS and extraordinary leave without allowances of 126 days w.e.f. 28.08.1992 to 31.12.1992 was sanctioned.
The petitioner, however, failed to produce the medical certificate. He did not report for duties even after 31.12.1992.
The petitioner was put on show cause notice and was offered an opportunity to be heard in person before the disciplinary authority; however he again failed to respond.
Instead, he sought voluntary retirement from service which was declined by the competent authority.
The impugned order of his removal from services was assailed by the petitioner on the ground that the Director SKIMS is not competent to initiate any disciplinary action against him or order his removal from service. The order was also challenged on the ground that no enquiry, as envisaged under Rule 33 of the Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 [CCA Rules] were conducted.
The court agreed with the contention of the counsel for the petitioner that he could have been reduced in rank, dismissed or removed from service only by the Government and not the director.
It said that in the absence of a specific delegation made by the Government to the Director SKIMS, the order of removal would be without jurisdiction and competence of the director.
“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,” the judge Kumar said while setting aside the order by the Director SKIMS.
He said “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.”
The bench said 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 two months from the date charges are served upon the petitioner.
It said “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.”
Concluding his judgment, the judge said in case respondents decide not to initiate any disciplinary proceedings and accept the request of the petitioner for voluntary retirement, post-retirement benefits, as may be available to the petitioner under law, shall be released without any further delay.
