Ghulam Mohd.Kala vs State and others

The petitioner was a constable in the Jammu and Kashmir Armed Police, serving as constable No. 597 in IV Battalion, at Srinagar, and has

been removed from service by the Commandant of his Battalion on 19.12.1992 allegedly for remaining absent unauthorisedly from his unit, with

effect from 28.8.1992 till the said order was passed against him.

By medium of this writ petition he has challenged the order of his removal from service interalia on the following grounds:

i. That on 27.8.1992 he had gone to his home after attending his duties, when he suffered an acute attack of sehizophrenia on 28.8.1992, and was

taken to Psychiatric Diseases Hospital Srinagar for treatment, and remained under treatment till 25.11.1992. His contention is that it was due to the

said ailment that he could not attend his duty.

ii. That the order impugned has been passed against him without following the procedure as established by law. Allegedly he has been removed

from service without affrording him an opportunity of being heard, as required under Rule 334 of the Jammu and Kashmir Police Rules and Article

120 of the Jammu and Kashmir C.S.R.

In the counter it is stated that the petitioner remained absent unauthorisedly and notice was given to him through the S.H.O. concerned to

resume his duty. He did not resume his duty and nor informed the department about his illness till the order impugned was passed against him. It is

further stated that even before his removal from service he used to remain absent/ unauthorisedly, off and on, and has been punished for the same.

I have heard the learned counsel for the parties, and have gone through the file as well.

It may be stated at the very outset that the petitioner has produced a medical certificate issued by Registrar, Govt. Hospital for Psychiatric

Diseases Srinagar, wherein it is stated that the he was a registered patient of that Hospital and was seen in the O.P.D on 29.8.1992, and

diagnosed as a case of acute schizophrenic episode. He later attended the O.P.D regularly and lastly was seen on 25.12.1992. It has been

certified that during the said period he was not able to attend his work.

The medical certificate primafacie is proof of the fact that the petitioner was suffering from a disease for the period he was shown absent

unauthorisedly.

From the perusal of the impugned order, removing the petitioner from service, it is manifest that no inquiry whatsoever has been held into the

alleged unauthorised absence of the petitioner from duty. It is only stated that notices were given to him through the SHO concerned to resume his

duty. The respondents have not produced any proof that any notice was actually issued to the petitioner, or if issued, was served upon him.

Neither any record has been produced to substantiate this, nor the receipt of notice has been produced. Moreover the mere issuance of notice for

resumption of duty is not sufficient to impose a major punishment on a delinquent.

The law is very clear on the subject as to how a Government servant is to be punished for any misconduct. Not only the Police Rules and the

Service Rules are clear on this subject, but even Article 311 of the Constitution of India corresponding to section 126 of the Constitution of Jammu

and Kashmir has in unambiguous terms mandated the principle that no punishment can be imposed without affording the delinquent a reasonable

opportunity of being heard. This matter is no more resintegral in our country. Not only almost all the High Courts in the country but even the Apex

Court has finally settled the controversy. After all we are governed by rule of law and therefore passing of an order against a person without giving

him an opportunity to defend himself, is not only arbitrary and unreasonable but an absolute negation of the principles of natural justice.

In the Police Rules it is clearly laid down that in all departmental cases in which the alleged offence is such as to merit major punishment, if

proved, a record shall be kept which shall contain: (i) the charge, (ii) the evidence supporting the charge, (iii) the defence of the accusedofficer, (iv)

the statements of the defence witnesses if any, (v) the findings of the officer conducting the case, and (vi) the final order.

It has been laid down that the procedure prescribed for the trial of summon cases shall apply mutatismutandis to the departmental enquires.

Similarly in the Jammu and Kashmir (Classification, Control and Appeal) Rules, it is laid down that the delinquent officer shall be

chargesheeted on the allegation leveled, against him, his reply obtained and then inquiry held into it, and he given an opportunity to defend himself,

before awarding any major punishment upon him.

Above all Article 311 of the Constitution of India corresponding to section 126 of the Constitution of Jammu and Kashmir guarantees the

service conditions of a Government servant and no adverse order can be passed against him at his back without following the procedure as

established by law.

In the present case the respondents have thrown to winds not only the mandate of Police Rules and the Service Rules but even the sacrosancut

guarantee as enshrined in the Constitution. The petitioner has not been heard at all before removing him from service. No chargesheet has been

framed against him on the allegation of his unauthorised absence, no inquiry held and no opportunity afforded to him to defend himself. In this view

of the matter, how can such an arbitrary order and that too of removing a permanent Government servant from service who has put in more than

ten years service, be upheld by the court.

The result is that I allow the petition and by a writ of certiorari quash the order impugned. It is directed that the petitioner shall be deemed to

be in continuous service without any break with all consequential benefits, of course treating him on leave for the period he was absent due to his

illness. The respondents shall however have the liberty to make an inquiry into the genuiness or otherwise of the unauthorised absence of the

petitioner on account of his alleged illness, determine his fitness for his continuance or otherwise in the police service. If the respondents choose to

make any such inquiry, it shall be strictly in accordance with law and after taking the petitioner back into service.

The Petitioner is also held entitled to cost which are assessed at Rs. 1000/.