Excelsior Correspondent
JAMMU, Sept 18: Division Bench of State High Court comprising Chief Justice N Paul Vasanthakumar and Justice Bansi Lal Bhat today held that once the order of dismissal is set-aside, the reinstatement must follow or else the person shall be treated to be under suspension for the purpose of continuing the departmental proceedings.
These observations have been made in LPA filed by constable Mohammad Sidiq, whose service was terminated by Order No.319 of 1991 dated 16.06.1991 with retrospective effect from 24.02.1991. The order was passed on the ground that the appellant remained absent from duty from 24.02.1991 and he was allegedly involved in militancy related activities.
This order was challenged by the medium of petition and the writ court while taking note of the fact that without conducting enquiry the dismissal order was passed, set-aside the order of dismissal and gave liberty to the respondent department to conduct inquiry within six months.
It was also ordered that if no inquiry is conducted against the appellant or if he succeeds in such inquiry, the appellant would be entitled to reinstatement in service prospectively without any back wages.
Thereafter, respondents conducted the enquiry and the appellant was exonerated from the charge of being involved in the militancy related activities and the enquiry officer gave a finding that appellant was negligent in not informing his seniors before proceeding to Srinagar. In terms of the judgment of the writ court and recommendations of the enquiry officer, the Superintendent of Police, Kupwara, vide Order No 184 of 1998 dated 09.05.1998, directed reinstatement of the appellant in service prospectively without back wages with effect from the date he joins for duty in DPL Kupwara.
The order dated 09.05.1998 was put to challenge by the petitioner through another petition by contending that serious charge against the appellant (being involved in militancy related activities) having not been proved and his absence from duty was not willful even if there is negligence on the part of the appellant, the censure order having been imposed denying continuity of service on reinstatement from 24.02.1991 to May, 1998 is illegal.
“The dismissal order passed against the appellant on 16.06.1991 with retrospective effect from 24.02.1991 is wrong. It is sell settled principle of law that there cannot be any retrospective dismissal. It is also well settled that once the order of dismissal is set-aside, the reinstatement must follow or else the person shall be treated to be under suspension for the purpose of continuing the departmental proceedings”, the DB observed.
“In such circumstances, the submission made by counsel for the appellant is fair enough and for the ends of justice we set-aside the order dated 09.05.1998 in so far as denial of continuity in service from 24.02.1991 till reinstatement alone is concerned”, the DB said, adding “the appellant shall not be entitled to salary for this period and except for salary, for all other purpose the same shall be counted”.
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