JUDGMENT
Y.P. Nargotra, J.
1. The petitioner was recruited as a Constable in J&K Armed Police in the year 1993. The petitioner after serving for 4 to 5 years was confirmed on his post. He absented from his duty on 12th of July 1999 and did not report back so his services were brought to an end by order No. 215 of 2000 dated 23.3.2000 issued by the Commandant JKAP XIIIBN Draba Poonch. Admittedly the respondents have conducted no enquiry into the cause of his absence before passing the order of termination of his services. In the order of termination it has been stated that notices were issued to the petitioner through SHO Police Station Rajouri for directing the petitioner to resume his duty immediately, failing which a legal action under rules will be taken against the petitioner, but nothing has been heard from SHO concerned meaning thereby that these notices were not served upon the petitioner. It has further been mentioned in the order that final attendance notice was served upon the petitioner on 4th of January 2000 and copy of the same was received by the petitioner on 5th of January 2000 at his home in presence of the two witnesses. Still the petitioner did not report back to join duty. Another show cause notice was got published in Daily Excelsior newspaper of its issue dated 9th of February 2000. Despite the publication of such notice the petitioner did not report back for duty, so taking note of the long period of un-authorized absence of the petitioner and presuming thereby that petitioner was not interested in serving the department petitioner was removed from service w.e.f. the date of his un-authorized absence from duty i.e. 12.07.1999. The petitioner has challenged the aforesaid order dated 23rd of March 2000 of his removal from service passed by respondents through the present writ petition. The case projected by the petitioner is that in the month of June-July 1999 he went in severe depression and as a result of which he lost control on his mind. He suffered from severe psychiatric disorder and remained wandering from one place to another. Ultimately he received treatment under the supervision and guidance of Dr. J.P. Goswamy Assistant Surgeon, J&K Health Services posted in Psychiatric Hospital, Amphalla and remained under his treatment from 15.7.1999 to 11.7.2000. It has further been pleaded by the petitioner that during all this period the he was not under control of his senses and was not even aware of the fact of his being posted as a constable. That he regained control of his senses in the month of July 2000 and thereafter he went to his Unit where he was informed that he stands removed from service. Mr. Pant learned counsel for the petitioner has argued that absence from duty is not a misconduct and therefore it is only willful absence from duty amounts to misconduct and under Article 311 of the Constitution of J&K read with Section 12C of the Constitution of J&K and Rule 359 of J&K Police Manual, enquiry before passing the order of removal is a must. According to Mr. Pant, in the present case no enquiry was conducted by the respondents to determine as to whether the absence of the petitioner was willful or was for the reasons pleaded by him in the writ petition. He further contends that notices issued by the respondents to the petitioner being issued during the period of his suffering from severe psychiatric disorder cannot be deemed to be the proper notices because of the reasons that petitioner was not in a fit stand of mind to understand the implications of the notices or of what was being contemplated thereby. In view of his mental disability he was not in a position to receive notice from the respondents and therefore service of any such notice during the period cannot be said to be a valid service. He further submits that the order of removal of the petitioner from service having been passed without holding any enquiry is bad in law and merits to be set aside. In support of his contentions he relied upon a decision of this Court reported in 2003(1) SLJ 95 State of J&K and Ors. v. Mohammad Khalil Hajam, in which it has been held that if services of an employee who has remained absent is to be brought to an end, an enquiry is to be held with a view to determine as to whether act of absence is willful or not. He also relied upon a Division Bench Judgment of this Court reported in 2000 KLJ 274 Mohd Jshaq Bhat v. State and Ors., in which it was held that;
“No doubt the appellant’s tenure was adhoc in nature but some right did vest in him. The position in this case is somewhat similar to that which existed in Babu Lal’s case supra. However this is not the end of matter. The appellant was not attending to his duties. He was absent. He was involved in a criminal case also. For this the respondents were not responsible. Again acquittal in prosecution does not bar holding of department enquiry. See State of Karnataka v. T. Venkatr Aramaapa (1996) 6 SCC 455 and Senior Supdt. of Post Officer v. A. Gopalan (1997) 11 SCC 239. Absence from service if not explained can be made a ground for snapping relationship of master and servant, however, an enquiry has to be held is-a-vis the cause of absence. In Letters Patent Appeal No. 340/1997 decided on 11.2.1999 Shere-I-Kaskmir Institute of Medical Sciences Soura v. Mrs. Sarla Jalali, it has been observed:
(i) Mere absence from duty is not perse misconduct,
(ii) Whether an employee process on leave and dos not resume duties even then some enquiry is required to be held. Service tenure cannot be brought to an end without compliance of principles of natural justice.
(iii) Even in the presence of some service regulation-visualizing concept of automatic termination in case of absence an enquiry is required to be held.
(iv) The order of termination has to be preceded by hearing and the order so passed has to be reasoned one.
(v) When order of reinstatement is passed then preponderance of view is that back wages are not to be allowed.
(vi) The Competent Authority should be left free to decide as to whether it wishes to leave the matter as it is or wants to hold further enquiry where order of termination is set aside.”
2. Mr. Salathia, learned counsel for the respondents does not dispute the preposition of law that for passing the order of termination or removal from service on the ground of absence from duty an enquiry is required to be held for determining the question as to whether the absence of the employee was willful. He however contends that this rule is not of a general application. He argues that in a case where notice is given to the absentee employee to appear before the competent authority for assuming duty and despite such notice if the absentee employee does not care to resume duty it can be presumed that he is not interested in the employment and in such circumstances enquire can be dispensed with. He argues that in the present case also as the petitioner had not joined his duty despite being served with a notice personally and through publication in the newspaper, therefore his removal from service without holding the enquiry was justified. In support of his contention he relies upon a judgment of this Court rendered in case Mohd Iqbal v. State and Anr., SWP 1434/2000, in which it has been held;
“It is admitted case of the parties that no enquiry as contemplated under Rule 359 of the J&K Police Rule was held against the petitioner. In such a situation the question which arises for consideration is whether the order terminating the services of the petitioner without following the procedure as laid down under rule 359 is bad in law?. In my considered view the holding of enquiry as envisaged Under Section 126 of the Constitution of J&K and Rule 359 of J&K Police Rules may be necessary before the services of an employee are terminated for absence without leave or absence after leave, but this principle of law has no universal application. In cases where the facts disclose that the employee had absconded or where it is impossible to communicate with him, then the order in my view does not suffer from any legal infirmity.”
3. In my considered view the observation made in the above said case cannot be applied to the facts of the present case because for the simple reason that it is not a case where the petitioner has absconded or it was impossible for the employer to communicate with him. Here the notice stands served upon the petitioner but despite notice he had not appeared before the respondents. The question of enquiry in the present case depends upon the validity of the service of the notice. Petitioner’s ease is that he was mentally sick and was suffering from psychiatric disorder and therefore was in a legal disability to acknowledge the service of the notice. Can a notice served upon a mentally sick person be a valid service of notice upon him? My answer would be in the negative. Service of notice can be valid only if a person upon whom it is served is in a position to understand what that notice is, meaning thereby that he should be in a fit mental stage to understand the implication of the notice. In the present case enquiry has not been held. The question as to whether the petitioner was in fact suffering from such mental disorder has not been determined. Mr. Salathia learned counsel for the respondents submits that simply because the petitioner has filed medical certificates obtained from a Doctor it cannot be held that petitioner in fact suffered from Mental illness as projected by him in the writ petition during the relevant period. It is true that this Court cannot embark upon the enquiry to find out the genuineness of the medical certificates nor this Court can go into the question as to whether petitioner in fact was suffering from the mental disorder as alleged by him being a matter of proof, yet the fact remains that had the enquiry been conducted the genuineness of the claim of the petitioner could have been gone into. It is settled principle of law that an employee against whom the order of termination is recorded, must be afforded an opportunity of being heard in a departmental enquiry as after all absence from duty is not perse misconduct. It will amount to misconduct if it is shown that absence from duty was willful. Therefore in the circumstances of this case enquiry should not have been dispensed with, therefore the order of termination which has been passed without holding an enquiry is bad in law therefore is hereby quashed with a direction to the respondents to hold a departmental enquiry by giving opportunity of being heard to the petitioner for enabling him to explain his absence from duty and in that enquiry genuineness of the medical certificates, copies of which have been filed by the petitioner may also be gone into. After such enquiry the respondents shall be free to impose any punishment permissible under law if the absence of the petitioner is found deliberate and willful.