Srinagar- J&K and Ladakh High Court has set aside Director SKIMS’s order regarding removal of a former Head of Department Cardiology for unauthorized absence from services in 1993.
A bench of Justice Sanjeev Kumar was hearing a petition by the former HoD, Dr. B.A.Wani, calling in question the 8 December 1993 order by the Director, Sher-I-Kashmir Institute of Medical Sciences, Soura, Srinagar (SKIMS) whereby he was removed as Professor Department of Cardiology from the services for unauthorized willful absence from duty from 19 May 1992. DR Wani had also prayed 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) and treat him as having voluntarily retired from service with all consequential postretirement benefits.
“….I, therefore, find sufficient substance in the submission ……that the Director, SKIMS was not a competent authority to remove the petitioner (Dr Wani) from service, who at the relevant time was Professor and head of the department of Cardiology in SKIMS,” the Bench said.
The court said that it was more inclined to accept this plea for the simple reason in view of the specific averments made by Dr Wani in his petition regarding incompetence of the Director, SKIMS to issue the order and “no specific reply or rebuttal” by the authorities.
“On this ground alone, 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 direction followed submissions by Dr Wani’s counsel that he was appointed as Professor in SKIMS by the Government and, therefore, could have been reduced in rank, dismissed or removed from service only by the Government. He said it is not in dispute that the disciplinary proceedings against employees of the SKIMS including its faculty positions are governed by the CSR and CCA Rules, 1956, the major penalty including reduction in rank, removal or dismissal from service can be imposed only by the Government and such powers cannot be delegated by the Government to any authority subordinate to it.
“Impugned order dated 08.12.1993 issued by the Director, SKIMS is set aside,” the court said, adding, “The competent authority i.e. Government is left free to initiate fresh disciplinary action against the petitioner (Dr Wani) in accordance with law within a period of four weeks…”.
In the disciplinary action that may be initiated by the competent authority, the court said, Dr Wani 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 of two months from the date charges are served upon the petitioner (Dr Wani).”
In case no such proceedings are envisaged or initiated against Dr wani, 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 for conclusion of the disciplinary proceedings, the court said.
“Needless to say that in case respondents (authorities) decide not to initiate any disciplinary proceedings and accept the request of the petitioner (Dr Wani) for voluntary retirement, post retiral benefits, as may be available to the petitioner under law shall be released without any further delay.”
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