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Synopsis

The Jammu and Kashmir (J&K) and Ladakh High Court, in a verdict that reverberates with historical sensitivity, has quashed the order for the removal of a doctor who was absent from service due the mass exodus that swept through the region in 1990.

Justice M. A. Chowdhary, delivered the verdict stating that “the initiation, conduct, conclusion of enquiry, rejection order and resultant removal of petitioner from service, being wrong, illegal and arbitrary, are liable to be quashed.”

“Initiation and conduct of enquiry against the petitioner and consequent termination of her services, were all misconceived and unsustainable," the court held.

The case revolved around a medical professional, Dr. Vijay Tikoo (Petitioner), who amidst the turbulence of the 1990 militancy exodus, found herself compelled to relocate to Delhi, away from her native Kashmir and was registered as a migrant in Delhi. She held the position of Additional Professor in the esteemed Department of Anesthesiology at SKIMS (Sher-i-Kashmir Institute of Medical Sciences).

Despite efforts to continue her service remotely, including requests to practice privately in Delhi, the petitioner faced challenges in maintaining regular communication with her workplace.

Having completed 20 years of qualifying service, the petitioner sought voluntary retirement as an Associate Professor on March 2, 2002. However, as she awaited orders regarding her retirement, a public notice dated January 8, 2005, was issued to faculty members who had migrated early in 1990, calling upon them to explain why they should not be deemed unauthorisedly absent from their posts.

In response, the petitioner vehemently contested any allegations of absence, asserting her adherence to service regulations and her entitlement to voluntary retirement under Article 226(3) of the Jammu & Kashmir Civil Service Regulations. Despite her efforts, the institute diverged from addressing her retirement application and initiated proceedings against her alleged absence.

Senior Advocate M.Y. Bhat, representing the petitioner, emphasised the unique challenges posed by the volatile situation in the Kashmir Valley. He argued that the eruption of militancy and the resulting law and order issues, coupled with threats to the lives of minority communities, rendered their adjustment within the system unfeasible. Instead, they were permitted to continue drawing their salaries and accessing other service benefits. Bhat contended that despite the adversities, they were effectively treated as active members of the service, enjoying all entitlements, including retirement benefits.

The petitioner's case was challenged through SWP No. 468/2005, leading to a court directive for the inquiry to proceed but withholding any final decisions pending court approval. Despite ongoing legal proceedings, the respondents (SKIMS) served a notice on March 25, 2008, proposing the petitioner's removal from the institute's rolls, citing unauthorised willful absence from July 1991 onwards. The petitioner refuted these allegations, maintaining her presence and adherence to regulations.

The respondents, represented by Government Advocate Iliyas Nazir Laway, contended that the petitioner's service records indicated abandonment of leave salary from July 1991 and subsequent absence. They asserted that requisite notices and opportunities were provided, and the petitioner's removal was conducted following due process.

In the year 2002, when the petitioner applied for voluntary retirement from the services of the respondent-Institute. The institute initiated the process for her retirement, however, queries were raised regarding the absence of entries in her service record during her migration period.

Despite the petitioner's migration due to the adverse situation in the Valley and her application for voluntary retirement, the process was stalled due to the lack of recorded entries during her migration period. Instead of finalising her retirement, an enquiry was initiated into her alleged absence from duty, leading to her eventual removal from service.

During the proceedings, the Government Advocate contended that the petitioner's clean qualifying service and age made her eligible for voluntary retirement. However, due to the pending enquiry, her retirement was deemed impermissible. This contention, however, was said to be misplaced, by the court, as the petitioner had applied for retirement in 2002, much earlier than the initiation of the enquiry in 2005.

The court opined that the responsibility for recording entries in the petitioner's service book lay with the Controlling Authority, not the petitioner herself. Therefore, holding her accountable for this lapse was unjust. The institute or the Migrant Registration Centre should have taken steps to record the necessary entries to facilitate her voluntary retirement.

Considering the circumstances, the court concluded that “The proceedings for initiating disciplinary proceedings against the petitioner with regard to absence from duty, appear to have been initiated arbitrarily. Having regard to the facts and circumstances of the case, the impugned order of removal of the petitioner from service, based on the enquiry, in the considered opinion of this Court, is wrong, illegal and arbitrary action on the part of the respondents, which is not sustainable in the eyes of law.”

In light of the findings, the court issued the following directions:

1. The respondents were directed to consider treating the petitioner as having been prematurely retired from service effective from March 2, 2002, and to release all service/pensionary benefits due to her.
2. The government order dated November 29, 2019, rejecting the petitioner's case, was quashed. Subsequently, the government order dated August 2, 2012, which deemed the petitioner to have been removed from service since July 1991, was also quashed.
3. The enquiry conducted by the Enquiry Committee, found to be against the principles of natural justice, was quashed.

 

Cause Title: Dr. Vijay Tikoo v Union Territory of J&K [WP(C) No. 1542/2021]