Dil Mohammad Dar vs State of Jammu & Kashmir and Others

Mansoor Ahmad Mir, J.—Through the medium of this petition. Petitioner has challenged order No. 234 of 2004 dated 5-8.2004 passed by

Senior Superintendent of Police, Crime Kashmir-respondent No. 2, whereby petitioner came to be discharged from service with effect from 16-

01 -2004 by virtue of Article 128 of the J&K Civil Service Regulations read with Rule 359 of the J&K Police Rules, on the grounds that he was

unauthorizedly absent from duty from 16-01-2004 and a report to that extent was entered in the DD of the Police Crime Branch, Srinagar, vide

report No. 12 dated 16-1-2004. The impugned order also reveals that the delinquent official was asked to report for duty, but as allegedly, he had

not reported back and finally notice came to be published on 12-5-2004 in a daily local Newspaper, as alleged. The order also reveals that the

petitioner attended the office on 28-5-2004 with an application for permitting him to resume his duties, but he was not allowed to do so, for the

reasons detailed in the order impugned and finally came to be discharged from service without conducting any enquiry.

The impugned order on the face of it is illegal and merits to be quashed for the following reasons:

As per respondents' own showing, the petitioner had appeared before respondent No. 2 on 28-5-2004 and till that time, he was neither removed

from service nor placed under suspension and normally he should have been allowed to resume his duties. Be that as it may, the allegation against

him is that he was absent. The respondents should have conducted an enquiry in which petitioner should have been provided an opportunity of

being heard so as to ascertain the reasons for his absence. However, without conducting enquiry, he came to be discharged from service. An order

of discharge from service cannot be passed in terms of Rule 359 of the J&K Police Rules. An order of discharge can be passed in terms of Rule

187 of the J&K Police Rules, which reads as under:

DISCHARGE OF INEFFICIENTS: A constable who is found unlikely to prove an efficient police officer may be discharged by the

Superintendent at any time within three years of enrolment.

In terms of the above quoted rule, only probationer can be discharged from service without holding an enquiry. The petitioner at the time of his

discharge from service was not a probationer, but was a Selection Grade Constable. He came to be appointed as Constable and after successfully

completing the period of his probation and working on the post of Constable, he came to be promoted to the post of Selection Grade Constable.

Thus if he was required to be removed from service, enquiry was to be conducted first as provided by Rule 359 of the J&K Police Rules. Rule

359 read as under:

Procedure in Departmental Enquiries. 1) The following procedure shall be followed in departmental enquiries:

a) The enquiry shall, however, possibly be conducted by a gazetted officer empowered to inflict a major punishment upon the accused officer. Any

other gazetted officer or an Inspector specifically empowered by the Minister I/C Police Department to hold departmental enquiries (vide order

No. 636-C dated 27.6.1945) may be deputed to hold an inquiry or may institute an enquiry on his own initiative against an accused police officer

who is directly subordinate to him. Except that in the case of a complaint against a constable the inquiry may be conducted by an Inspector. The

final order, however, may be passed only by an officer empowered to inflict a major punishment upon the accused police officer.

b)....

Viewing thus, the impugned order having been passed without conducting enquiry is thus being bad in law, and is accordingly quashed.

However, respondents are at liberty to conduct an enquiry, if advised against the petitioner and pass appropriate orders providing full opportunity

of being heard to the petitioner. The intervening period from the date of discharge till to-date shall be subject to the out come of the enquiry, if

conducted. The enquiry shall be conducted against the petitioner within a period of three months from the date copy of this judgment is served

upon by the petitioner on the respondents against proper receipt.

The writ petition is accordingly granted.