KRISHAN LAL vs STATE TH.HOUSING DEPTT.AND ORS.

HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU

Case No: SWP No. 264/2008

IA No. 388/2008
c/w
SWP No. 302/2008
IA No. 462/2008

Reserved on : 08.10.2026

Pronounced on : 30.10.2026
Uploaded on: 30.10.2026


Krishan Lal c/w
Jawahar Lal

…. Appellant(s)/Petitioner(s)

Through:- Mr. Rahul Pant, Sr. Advocate with
Ms. Neha Mahajan, Advocate,
Mr. Anirudh Sharma, Advocate,
Mr. P.N.Goja, Sr. Advocate with
Mr. Abhinav Jamwal, Advocate

v/s


State of J&K and others …..Respondent(s)

Through:- Mr. Ravinder Gupta, AAG


CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE

JUDGMENT

1. Through the medium of afore-titled two writ petitions, the writ
petitioners have challenged enquiry proceedings and termination
orders issued against them. Since both these writ petitions arise out
of a single inquiry report dated 11.12.2007, therefore, the same are
being taken up together for their decision.
2. SWP No. 264/2008 : This writ petition has been filed by Krishan Lal,
who was a permanent employee of the Srinagar Municipal
Corporation, Srinagar. In the year 1990, during large-scale migration


SWP No. 264/2008
Page 1 of 19
c/w SWP No. 302/2008

from Kashmir Valley, he migrated to Jammu and came to be adjusted
in Jammu Municipal Corporation, Jammu. According to the
petitioner, though he was attached to Jammu Municipal Corporation,
Jammu, he continued to draw his salary from Srinagar Municipal
Corporation, Srinagar, as a migrant employee. It has been submitted
that the petitioner was never assigned the duties of cashier or the duty
of collecting cash, but he was wrongly shown as In-charge of the
single-window counter to monitor cash transactions and the
remittance of cash into the Treasury.
3. On 18.09.2007, a charge sheet was served upon the petitioner, in
which it was alleged that he had misappropriated an amount of
₹2,00,432/- during the years 2005-06, 2006-07 and 2007-08. It has
been submitted that the petitioner furnished his reply to the charge
sheet on 27.09.2007, denying the allegations. On 27.09.2007 itself,
an Enquiry Officer was appointed, and on 09.10.2007, the petitioner
was placed under suspension. On 11.12.2007, the Enquiry report was
submitted by the enquiry officer to the Commissioner concluding that
the petitioner was found responsible for mis-appropriating an amount
of ₹2,00,432/-.
4. According to the petitioner, no notice was served upon him by the
enquiry officer before proceeding ahead with the enquiry. It has been
submitted that the charges have not been proved against the
petitioner. It has been further submitted that respondent No. 3, after
receiving the enquiry report from respondent No. 5, issued a show-
cause notice dated 26.12.2007, informing the petitioner that the
competent authority proposed to impose a penalty under Rule 30,


SWP No. 264/2008
Page 2 of 19
c/w SWP No. 302/2008

sub-clause (viii) of the J&K Civil Services (Classification, Control
and Appeal) Rules, 1956 (hereinafter referred to as “the Rules of
1956”). The petitioner submitted his reply to the show-cause notice
on 03.01.2008, wherein the findings of the Enquiry Officer were
disputed. It was also submitted by the petitioner in his reply that he
had been forced to part with his GP Fund and bank loan.
5. It has further been submitted that respondent No. 3, vide impugned
order dated 08.02.2008, proceeded to terminate the services of the
petitioner with effect from 08.02.2008, with a further direction to
respondent No. 6 to initiate recovery proceedings against the
petitioner.
6. The petitioner has challenged the impugned action of the respondents
on the grounds that respondent no.3 had no jurisdiction to issue the
impugned order of termination because the petitioner is an employee
of Srinagar Municipal Corporation and not an employee of Jammu
Municipal Corporation. It has been submitted that respondent no.3 is
neither the appointing authority of the petitioner nor has he been
authorized by the Government to take action against the petitioner.
7. It has been contended that the Enquiry Officer has not held the
petitioner guilty of misconduct. It has also been contended that the
petitioner has been condemned unheard.
8. Initially, the petitioner had sought a writ of quo warranto against
respondent No. 3 on the ground that he was not authorized to hold
the post of Commissioner, Jammu Municipal Corporation, but during
the pendency of the writ petition, the said contention was given up by
the petitioner.


SWP No. 264/2008
Page 3 of 19
c/w SWP No. 302/2008

9. After the filing of the reply by the respondents, the petitioner has
filed a rejoinder in which he has contended that his services have
been terminated in a most illegal and arbitrary manner, in complete
violation of the principles of natural justice. He has further contended
that the enquiry was not conducted in his presence, nor were the
statements of the witnesses recorded in his presence. It has been
contended that the statements of the witnesses were recorded behind
his back and that the procedure for holding a departmental inquiry
was not followed at all. It has been submitted that the record of the
enquiry would show that he has never willfully evaded the enquiry
proceedings, as has been alleged by the respondents.
10. SWP No.302/2008 : This writ petition has been filed by Jawahar Lal
Koul. As per the case of the petitioner, he was appointed as a Class-
IV employee in the Jammu Municipal Corporation, Jammu, in the
year 1987. It has been submitted that the employees of the Jammu
Municipal Corporation are governed by the provisions of the Rules
of 1956 in matters relating to disciplinary proceedings. It has been
submitted that a charge sheet relating to allegations of
misappropriation and embezzlement of funds came to be framed
against the petitioner on 18.09.2007. The petitioner was suspended in
terms of order dated 18.08.2007. The charge sheet was replied to by
the petitioner in terms of reply dated 24.09.2007, whereafter, on
27.09.2007, an Enquiry Officer was appointed by respondent No. 2.
It has been submitted that, vide communication dated 05.10.2007, the
Enquiry Officer asked the petitioner to report to his office. The
petitioner, vide his application dated 11.10.2007, sought permission


SWP No. 264/2008
Page 4 of 19
c/w SWP No. 302/2008

to engage an advocate or, in the alternative, to avail the services of an
authorized agent or co-employee as his defence representative. It has
been submitted that an ex parte enquiry came to be conducted by
the Enquiry Officer and the petitioner was never called upon to
participate in the proceedings, nor was he allowed to lead evidence in
his defence. It has been further submitted that no notice was served
upon the petitioner for attending the enquiry proceedings and that, on
11.12.2007, the Enquiry Officer submitted its report.
11. It has been submitted that, on 26.12.2007, respondent No. 2 issued a
notice to the petitioner proposing the imposition of penalty of
dismissal from service upon him. The same was replied to by the
petitioner vide his communication dated 02.01.2008, wherein it was
specifically mentioned that he was not allowed the assistance of a
representative in the departmental enquiry, nor was he allowed to
cross-examine the witnesses. It has been submitted that, without
considering the reply of the petitioner, the impugned termination
order dated 08.02.2008 came to be issued against him.
12. The petitioner has challenged the impugned action of the respondents
on the grounds that the mandatory provisions of Rule 33 of the Rules
of 1956 have not been adhered to by the respondents while issuing
the impugned order against him. It has been submitted that the
petitioner was attending his office and had not absconded, therefore,
it was not open to the Enquiry Officer to proceed ex parte against
him. It has been contended that the petitioner was not given an
opportunity of being heard by the Enquiry Officer. It has also been
contended that the petitioner is only a matriculate and, therefore, he


SWP No. 264/2008
Page 5 of 19
c/w SWP No. 302/2008

was not in a position to defend himself properly and, for this reason,
he had sought the assistance of an Advocate or a co-employee, which
was not permitted. It has been submitted that, in fact, no decision was
taken by the Enquiry Officer on his application, nor was he called
upon to attend the enquiry or to cross-examine the witnesses or to
lead evidence in his defence. It has been contended that the impugned
order of termination is bad in the eyes of law because it seeks to
recover the amount allegedly misappropriated by the petitioner. It has
been submitted that, as per Rule 30 of the Rules of 1956, the
punishment of recovery of amount cannot be inflicted upon a
delinquent employee and only the punishment of recovery from the
pay of a delinquent employee can be inflicted.
13. The respondents have contested both the writ petitions by filing
separate replies. However, in both the writ petitions, the stand of the
respondents is similar. It has been contended by the respondents that
petitioner Krishan Lal, who was a Senior Assistant (Migrant), was
functioning as In-charge of the Single Window Counter to monitor
cash transactions and remittances into the Treasury. It has been
submitted that the said petitioner has admitted in his reply to the
charge sheet that he was posted as In-charge of the Single Window
Counter. It has also been submitted that petitioner Krishan Lal has
admitted that he had issued temporary receipts to persons from other
sections in good faith because of the heavy rush at the counter and
that the entire cash amount received by him was handed over to the
cashier, who was responsible for issuing GRs. It has also been
submitted that petitioner Krishan Lal cannot absolve himself of his


SWP No. 264/2008
Page 6 of 19
c/w SWP No. 302/2008

lapse in issuing temporary receipts in respect of the cash received
from other officials.
14. It has been submitted that after framing of charges against both the
petitioners, the charge sheet was served upon them to which both the
petitioners submitted their separate replies, which were not found to
be satisfactory leading to appointment of enquiry officer. It has been
submitted that after appointment of enquiry officer, petitioner
Krishan Lal appeared before the enquiry officer and sought 20 days
leave, which was dis-allowed. It has been submitted that petitioner
Krishan Lal remained elusive and he did not report to the enquiry
officer. A communication dated 05.10.2007 was issued by the
enquiry officer but petitioner Krishan Lal did not report in person. It
has been further submitted that on 15.10.2007, the enquiry officer
gave final opportunity to petitioner Krishan Lal to record his
statement, enable cross examination of the witnesses and produce
material or witnesses in his defence, in response to which he
submitted his reply dated 05.11.2007, but, did not present himself
before the enquiry officer.
15. Regarding petitioner Jawahar Lal Koul, it has been submitted that he
never appeared before the Enquiry Officer, either personally or
through an Advocate. However, he submitted an application dated
11.10.2007 seeking permission to appear along with his counsel or
authorised agent but never appeared personally or through an
authorised agent before the Enquiry Officer. It has been submitted
that a final opportunity to appear and cross-examine the witnesses
and to produce material documents and witnesses in his defence was


SWP No. 264/2008
Page 7 of 19
c/w SWP No. 302/2008

given to the petitioner by the Enquiry Officer in terms of
communication dated 15.10.2007.
16. It is the stand of the respondents that petitioner Krishan Lal, though
an employee of the Srinagar Municipal Corporation, was, for all
practical purposes, working under the Jammu Municipal Corporation,
as such, respondent No.3, on the strength of Government Order No.
304-JK of 1990 dated 14.03.1990, was competent to pass the
impugned order of termination of the petitioner-Krishan Lal. It has
been contended that the enquiry was conducted in accordance with
the provisions of Rule 33 of the Rules of 1956 and that the petitioners
were given a full opportunity of being heard. It has been submitted
that the petitioners never appeared before the Enquiry Officer and
instead they chose to stay away despite having been given an
opportunity in this regard. It has also been contended that the
petitioners have been found guilty of having committed
embezzlement of the revenue of the Municipal Corporation, for
which they were required to be punished. It has also been contended
that there is no legal bar to recover the embezzled amount from a
delinquent employee.
17. It is pertinent to mention here that the respondents were directed to
produce before the Court the record relating to the enquiry conducted
against the petitioners. However, despite directions, they did not
produce the record. Ultimately, an affidavit came to be filed by the
Commissioner, Jammu Municipal Corporation, on 15.07.2023,
wherein it has been stated that the record in question was not
traceable despite the best efforts having been made by the officials to


SWP No. 264/2008
Page 8 of 19
c/w SWP No. 302/2008

locate the same. It has been submitted in the affidavit that the Jammu
Municipal Corporation is not in a position to produce the record. In
the affidavit, it has been submitted that a committee of officials was
constituted to trace the record, but the record could not be traced,
whereafter, the matter was referred to the Crime Branch for proper
investigation in terms of communications dated 09.02.2023 and
06.06.2023.
18. I have heard learned counsel for the parties and I have perused the
pleadings and record of the case.
19. The first contention that is required to be dealt with is whether the
Commissioner, Jammu Municipal Corporation, Jammu, is competent
to issue an order of termination in respect of an official who is
admittedly an employee of the Srinagar Municipal Corporation.
Petitioner Krishan Lal is admittedly an employee of the Srinagar
Municipal Corporation who, after his migration to Jammu, was
allowed to function as an employee in the JMC, Jammu. A perusal of
the service book of petitioner Krishan Lal, which has been produced
by learned counsel for the respondents, would reveal that his lien has
not been terminated in his parent organization and that he has not
been absorbed in the Jammu Municipal Corporation, Jammu.
20. It is to be noted that the Srinagar Municipal Corporation and the
Jammu Municipal Corporation are two different entities constituted
under the J&K Municipal Corporation Act. Sub Section (8) of
Section 2 of the said Act defines a Corporation as a Municipal
Corporation declared and constituted under Sections (3) and (4) of
the said Act. As per Section (3) of the said Act, the areas comprised


SWP No. 264/2008
Page 9 of 19
c/w SWP No. 302/2008

within the limits of the municipal areas of Jammu and Srinagar have
been declared as the Municipal Corporations of Jammu and Srinagar,
respectively. As per Section (4) of the said Act, a Corporation is a
body corporate having perpetual succession and a common seal, with
the power to acquire, hold and dispose of property, and may, by the
said name, sue and be sued.
21. From the above legal framework, it becomes clear that a Corporation
constituted under the J&K Municipal Corporation Act is a distinct
entity and each Corporation constituted under the said Act is an
independent body. The Administrative Department of both the
Srinagar and Jammu Municipal Corporations may be the same, but
they have separate and independent legal existence.
22. Section 45 of the Act provides for the appointment of a
Commissioner of a particular Municipal Corporation, and Section 50
of the Act prescribes the functions of the Commissioner. As per the
said provision, the Commissioner of a Municipal Corporation can
exercise powers for the purposes of carrying out the provisions of the
Act. Thus, each Municipal Corporation has a separate Commissioner
who exercises powers under the Act, subject to the control of the
Corporation. Section 67 of the Act vests the Corporation with the
power to appoint officers and servants of the Corporation and to
prescribe qualifications, methods of recruitment, salary, leave
allowances and other conditions of service, including disciplinary
matters, of such officers/servants. Thus, the appointing authority of
an employee of a particular Corporation is the said Corporation and
not an authority that is not part of the said Corporation. Thus, the


SWP No. 264/2008
Page 10 of 19
c/w SWP No. 302/2008

Commissioner of the Srinagar Municipal Corporation has powers
relating to appointment and disciplinary matters concerning the
employees of the said Corporation, whereas the Commissioner of the
Jammu Municipal Corporation, Jammu, has powers in connection
with the appointment, disciplinary matters, etc., of employees of the
Jammu Municipal Corporation, Jammu. In the instant case, petitioner
Krishan Lal was admittedly an employee of the Srinagar Municipal
Corporation who was allowed to function with the Jammu Municipal
Corporation. The disciplinary control in respect of petitioner-Krishan
Lal vested in his appointing authority, viz., the Srinagar Municipal
Corporation.
23. Learned counsel for the respondents has relied upon Government
Order No. 304-GR of 1990 dated 14.03.1990 to contend that the
disciplinary control of migrant employees was vested in the
organization to which they were attached. The aforesaid Government
Order provides that in view of the disturbance in the Valley,
employees of the departments who were working in the Kashmir
Division, upon their migration to the Jammu Division, would be
permitted to draw their salaries in the Jammu Division and such
employees were asked to assist in the performance of additional work
assigned to them in terms of the said order. Learned counsel for the
respondents has particularly placed heavy reliance upon sub clauses
(iv) and (v) of Clause (C) of the said order, which read as under:-
“(iv) For the purpose of assisting them in the performance of the
additional work assigned to them under this order, the heads of
Departments and the Administrative Depts. may call upon the
services of the employees who have migrated to Jammu Division
temporarily. Any such employee refusing to perform the duty
assigned to him shall face disciplinary action.


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Page 11 of 19
c/w SWP No. 302/2008

(v) In respect of employees who have migrated to Kathua and
Udhampur Districts, Heads of Departments will make special
arrangements at the concerned location to collect the particulars
and disburse the pay/leave salary. The pay/leave salary shall be
drawn by the Head of the department but may be disbursed through
the concerned District Officer.”

24. From a perusal of the aforesaid clauses, it appears that any migrant
employee refusing to perform the duties duly assigned to them were
liable to face disciplinary action. However, there is nothing in the
said order to indicate that the disciplinary control of migrant
employees was transferred to the heads of the offices where they
were assigned additional work. The Government Order (supra) in no
manner leads to the conclusion that migrant employees were
absorbed in the organizations/departments to which they were
attached for the purpose of performing additional work. Therefore, it
cannot be stated that the services of petitioner Krishan Lal were
absorbed in the Jammu Municipal Corporation so as to conclude that
the Commissioner, Jammu Municipal Corporation, had become the
appointing authority of the said official.
25. In view of the aforesaid circumstances, it was not legally permissible
for the Commissioner, Jammu Municipal Corporation, to pass an
order of termination against petitioner Krishan Lal. If, in the enquiry
initiated against him, he was found guilty of the charges, his case, for
the purpose of taking a decision regarding the imposition of
punishment, ought to have been placed before the appointing
authority, viz., the Commissioner, Srinagar Municipal Corporation.
The impugned order of termination of petitioner Krishan Lal has
been issued by the Commissioner, Jammu Municipal Corporation,


SWP No. 264/2008
Page 12 of 19
c/w SWP No. 302/2008

who was not competent to pass such order. On this ground alone, the
same is liable to be set aside.
26. That takes us to the question as to whether the enquiry proceedings
were conducted by the respondents against the petitioners in
accordance with the procedure prescribed under Rule 33 of the Rules
of 1956. Before considering this issue, it would be apt to notice the
provisions contained in Rule 33 of the Rules of 1956, which read as
under:
“33 .(1) Without- prejudice to provisions of the Public
Servants Inquiries Act, 1977, no order (other than an order based
on facts which had led to his conviction in a criminal court or by a
court-martial) of dismissal, removal, or reduction in rank 1 [which
includes reduction to a lower post and/or lower timescale, - and/or
to a lower stage in time-scale] but excludes the reversion to a lower
post of a person who is holding a higher post temporarily shall be
passed on a person who is a member of a Civil service, or holds a
Civil post under the State unless he has been informed in writing of
the grounds on which it is proposed to take action and has been
afforded and adequate opportunity of defending himself. The
ground s on which it is proposed to take action shall be reduced in
the form of a definite charge or charges which shall be
communicated to the person charged, together with a statement of
tile allegations on which each charge is based and of any other
circumstances which it is proposed to take into consideration in
passing orders on the case. He shall be required, within a
reasonable time, to put in a written statement of his defence and to
state whether he desires to be head in person. If he so desires, or if
the authority concerned so directs, an oral inquiry shall be held in
respect of such of the allegations as are not admitted. At that
inquiry such oral evidence will be heard, as the inquiring officer
considers necessary. The person charged shall be entitled to cross-
examine the witnesses, to give evidence in person and to have such
witnesses called as he may wish; provided that the officer
conducting the inquiry may for sufficient reason to be recorded in
writing refuse to call a witness. The proceedings shall contain a
sufficient record of the evidence and statement of the findings and
the grounds thereof.
(2) The rule shall not apply where the person concerned has
absconded, or where it is for other reasons impracticable to
communicate with him, or where in the interest of the security of
the State, it is considered not expedient to give to that person an
opportunity of showing cause against the action proposed to be
taken against him. All or any of the provisions of the rule may for
sufficient reasons to be recorded in writing be waived, where there
is difficulty in observing exactly the requirements of the rule and


SWP No. 264/2008
Page 13 of 19
c/w SWP No. 302/2008

those requirements can in the opinion of the inquiring officer be
waived without injustice to the person charged.
(3) This shall also not apply where it is proposed to terminate
the employment of a probationer whether during or at the end of
the period of probation, or to dismiss, remove or reduce in rank a
temporary government servant, for any specific fault or on account
of his unsuitability for the service.
(4) The competent authority may inquire into the charges itself
or if it considers it necessary so to do, it may appoint an inquiry
officer for the purpose.”

27. From a plain reading of the aforesaid Rule, it comes to the fore that
punishment of dismissal of a delinquent employee can be imposed
only if he has been informed in writing of the grounds on which
action is proposed to be taken and has been afforded an adequate
opportunity of hearing and defending himself. It further provides that
the grounds on which the action is proposed to be taken have to be
reduced to the form of definite charge or charges, and the same have
to be communicated to the person charged, together with the
statement of allegations on which the charge is based and any other
circumstances which are proposed to be taken into consideration
while passing orders in his case. The delinquent official has to be
given a reasonable time to submit his answer to the charges and to
state whether he desires to be heard in person and, if he opts to do so,
an oral enquiry has to be held in respect of the allegations which are
not admitted. In such an enquiry, the delinquent employee would be
entitled to cross-examine the witnesses, give evidence in person and
produce witnesses. There has to be a record of the proceedings
containing the record of evidence and a statement of findings and the
grounds thereof.
28. In light of the aforesaid legal position, let us now examine whether
the aforesaid requirements have been adhered to by the respondents


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Page 14 of 19
c/w SWP No. 302/2008

while imposing the punishment of dismissal upon the petitioners. It is
an admitted case of the parties that both the petitioners were served
with memos of charges, to which they furnished their replies. While
petitioner Krishan Lal furnished his reply to the charges vide his
communication dated 25.09.2007, petitioner Jawahar Lal Koul
submitted his reply to the charges vide his communication dated
24.09.2007.
29. So far as petitioner Jawahar Lal Koul is concerned, he has denied
both the charges and has claimed that even if there was any loss, the
same could not be attributed to him. He has contended that he was
working only as a Mali and, as such, the question of his receiving
cash during the operation of the single-window counter did not arise.
He denied having received any money, as, according to him, the
same was beyond the scope of his duties.
30. So far as petitioner Krishan Lal is concerned, he did admit that he
was posted as In-charge of the single-window counter for a few days,
but according to him, cash was being dealt with by petitioner
Jawahar Lal Koul. He also admitted that some amount received
remained un-deposited in the Treasury because the same was being
used to meet office expenses, but the amount was thereafter
deposited into the Treasury. He also submitted that he had issued
temporary receipts to some officials in good faith and had handed
over the entire cash to the cashier, who was responsible for issuing
GRs. On the basis of these contentions, petitioner Krishan Lal denied
his involvement in the misappropriation of any amount.


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Page 15 of 19
c/w SWP No. 302/2008

31. The contention of the respondents is that, as petitioner Krishan Lal
has almost admitted the charge of receiving money and using it to
meet office expenses, and issuing kacha receipts upon receipt of cash,
there was hardly any requirement to hold an enquiry, but even then, a
full-fledged enquiry was held in the matter.
32. In the above context, it is to be noted that even though petitioner
Krishan Lal has admitted having worked as Incharge single-window
counter and having received the cash against kacha receipts, still
then, he has put up a defence that he handed over the cash to Jawahar
Lal Koul who was supposed to issue GRs and he has also put up a
defence that it was not his duty to deposit the cash into treasury as
the said duty was assigned to regular cashier, namely, Jawahar Lal
Koul. Thus, his admission is not an unequivocal but he has taken a
definite defence in his reply to the charge sheet, therefore, enquiry
was required to be conducted in the case and rightly the respondents
proceeded to hold an enquiry by appointing an Enquiry Officer.
33. The next question that falls for determination is as to whether the
Enquiry Officer has adhered to the procedure prescribed under Rule
33 of Rules of 1956. It is the stand of the respondents that the
Enquiry Officer served notice dated 05.10.2007 upon both the
petitioners calling upon them to participate in the enquiry
proceedings. It has also been submitted that another notice dated
15.10.2007 was served upon both the petitioners calling upon them to
appear for recording their statements, to cross-examine the witnesses
and to produce material or witnesses in defence. Inspite of this, they
did not participate in the enquiry proceedings. It has been submitted,


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Page 16 of 19
c/w SWP No. 302/2008

in fact, petitioner Krishan Lal had responded to notice dated
15.10.2007 by filing his reply meaning thereby that he has received
the said notice.
34. So far as petitioner Jawahar Lal Koul is concerned, his definite stand
is that he did not receive notice dated 15.10.2007 and that the receipt
placed on record by the respondents along with their reply, has not
been executed by him.
35. If we have a look at the reply filed by petitioner Krishan Lal to notice
dated 15.10.2007 issued by the Enquiry Officer, it would reveal that,
in the said reply, he has reiterated what he had stated in his reply to
the charge sheet. He has further stated that, after filing his reply to
notice dated 18.09.2007, he had proceeded to Haryana to attend to his
ailing brother due to an emergency. Regarding petitioner Jawahar Lal
Koul, the receipt of notice dated 15.10.2007 annexed to the reply
filed by the respondents would reveal that it was received by some
person, ‘Aarti’ on 25.10.2007. The signatures on the receipt do not
pertain to petitioner Jawahar Lal Koul; therefore, it cannot be stated
that he had received the said notice.
36. There is nothing on record to show that the petitioners were given
notice of the date and venue of the enquiry by virtue of notices dated
05.10.2007 and 15.10.2007, upon which the respondents have placed
reliance. In the absence of notification of the date and venue of the
enquiry, it was not possible for the petitioners to come forward to
cross-examine the witnesses of the Department, nor was it possible
for them to produce their own witnesses before the Enquiry Officer.
Mere issuance of notices by the Enquiry Officer, which may have


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Page 17 of 19
c/w SWP No. 302/2008

been received by the petitioners, does not satisfy the requirements of
law. A delinquent employee has to be informed about the date and
venue of the enquiry proceedings so that, on the appointed date and
at the fixed venue, he is able to appear before the Enquiry Officer to
make submissions and produce his defence. It seems that the Enquiry
Officer has only completed an empty formality by issuing notices to
the delinquent officials without actually following the mandate of
law.
37. The fact that the respondents have been unable to produce the record
relating to the enquiry before this Court makes the matters worse for
them. In the absence of the record and in view of the definite stand of
the petitioners that they were not afforded an opportunity to cross-
examine the witnesses of the Department and to produce their own
witnesses/documents, it can be safely inferred that the requirements
of Rule 33 of the Rules of 1956 were not adhered to by the Enquiry
Officer before concluding the inquiry. A perusal of the enquiry report
would reveal that no reference has been made to the statements of the
witnesses examined during the enquiry proceedings. Even the dates
on which important events, such as the examination of witnesses, had
taken place do not find mention in the report. The names of the
witnesses also do not find mention in the report. As already stated,
Rule 33 of the Rules of 1956 mandates the Enquiry Officer to
maintain a record of the proceedings, which, in the instant case, does
not appear to have been maintained by the Enquiry Officer.
38. For the foregoing reasons, it is clear that the Enquiry Officer has not
followed the mandate of Rule 33 of the Rules of 1956 while


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Page 18 of 19
c/w SWP No. 302/2008

conducting the enquiry against the petitioners. The enquiry report is,
therefore, vitiated, and as such, the order of dismissal of the
petitioners could not have been based upon such a report.
39. Ordinarily, the respondents ought to have been given an opportunity
to hold a fresh inquiry against the petitioners by remanding the
matter to the Enquiry Officer, but during the pendency of the writ
petitions, both the petitioners have crossed the age of superannuation,
therefore, it would not be open to the respondents to hold a fresh
inquiry against them once the relationship of employer and employee
has come to an end.
40. For the reasons stated hereinbefore, both the writ petitions are
allowed and the impugned termination orders of the petitioners shall
stand quashed. The petitioners are directed to be reinstated in service
with 50% of the back wages. The respondents shall also proceed to
process the cases of the petitioners for release of retiral benefits
including pension in their favour. Entire exercise shall be undertaken
by the respondents within a period of three months from the date of
receipt of copy of this order.
41. Disposed of as above along with connected CM(s).

(Sanjay Dhar)
Judge

Jammu
30.10.2026
Madan Verma-Secy

Whether order is speaking? Yes.
Whether order is reportable? Yes.




SWP No. 264/2008
Page 19 of 19
c/w SWP No. 302/2008


MADAN LAL VERMA
2026.10.30 16:48
I attest to the accuracy and
integrity of this document