Excelsior Correspondent
JAMMU, Nov 2: High Court of Jammu & Kashmir and Ladakh has quashed the order by virtue of which the Gram Rozgar Sewak was disengaged with the direction to the respondents to allow the petitioner to perform his duties under MGNREGA and release unpaid wages.
The case before Justice Wasim Sadiq Nargal was that petitioner Reyaz Ahmed Sohil was appointed and engaged as Gram Rozgar Sevak with effect from 15.07.2009 and posted in Panchayat Halqa Sarbagni-A and Panchayat Halqa Sarbagni-B in Ramban.
As per the stand of the petitioner, he was performing his duties entirely to the satisfaction of his superior officers and on 28.09.2011 FIR was registered against him on the allegation that he had sold 21 bags of Government cement to one Ayaz Ahmed, son of Abdul Rashid Naik. Even after the registration of the FIR, he was performing his duties.
On the basis of the FIR, the petitioner was disengaged by virtue of order dated 09.04.2012 and the same was challenged before the High Court on the ground that order is stigmatic as no opportunity of being heard has ever been given to him therefore the same is unconstitutional, illegal and liable to be quashed.
After hearing counsels for the parties and perusal of record, Justice Wasim Sadiq Nargal observed, “the order impugned has been issued against the petitioner on the basis of some FIR which is registered against him. The order is stigmatic, and, thus, the respondents were under legal obligation to have conducted a detailed enquiry against the petitioner by providing him opportunity of being heard with regard to his alleged misconduct and allegations leveled against him in the FIR”.
“The respondents have issued the order impugned in a haste manner without conducting any enquiry, as such, the same is stigmatic and punitive in nature. The petitioner has been condemned unheard and, thus, the stigmatic order of dis-engagement cannot sustain the test of law as the allegations of alleged misconduct have not been enquired into by the respondents nor any opportunity of being heard has been given to the petitioner to rebut the allegations leveled in the FIR”, High Court said.
The respondents have also taken a specific stand that the service of the petitioner shall be terminable with immediate effect on the basis of proven non-performance or mis-performance and, accordingly justified that the order impugned. “However, from a perusal of the order impugned, there is no whisper with regard to any non-performance or mis-performance on the part of the petitioner, which could be the basis for issuance of order impugned”, High Court said.
“FIR which was registered against the petitioner culminated into challan and pursuant to the trial, the petitioner stood acquitted. Thus, it was incumbent on the part of the respondents to have conducted a full-fledge enquiry against him by way of disciplinary proceedings against the petitioner as the law is settled that the departmental proceedings and criminal proceedings can go hand-in-hand and since the petitioner stood exonerated in the criminal case, the respondents were not justified in upholding the order of termination by virtue of stigmatic order”, Justice Nargal said.
With these observations, Justice Nargal quashed the impugned order with the direction to the respondents to allow the petitioner to perform his duties as Gram Rozgar Sewak in Panchayat Halqa Sarbagni-A and Panchayat Halqa Sarbagni-B under MGNREGA. The respondents have further been directed to release unpaid salary/wages/arrears for the period for which he has worked.
“However, the respondents are not precluded to conduct the enquiry with regard to the alleged misconduct as reflected in the order of disengagement by providing an opportunity of being heard to the petitioner and the continuance of the petitioner will be subject to the outcome of the said inquiry, if conducted”, High Court concluded.
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