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Judgment
Challenge in this petition is directed towards the order No. 276/1992 dated 05.05.1992 passed by the respondent No.4, Commandant, 08th
BP JKAP Srinagar, removing the petitioner from his services w.e.f. 1.02.1992, from the date he absented from duties and order No.
M15/9337066 dated 17.09.1993 whereby his representation has been rejected by the Director General of Police.
The petitioner has averred in the petition that while working as constable in 08th Bn. JKAP, he proceeded oh leave on 09th of Feb. 1992 for
the period of ten days with two prefixing days with permission to leave the station on account of illness of his father and the petitioner was to rejoin
his duties on 21st of Feb. 1992 but because of the deteriorating condition of his ailing father he could not resume his duties until May, 1992. During
this period, he sought extension by sending telegraphic message. It is alleged that he appeared before the respondents No.4 for resumption of
duties but instead he was told that he has been removed from the services vide impugned order dated 05.05.1992 for his continuous and
unauthorised absence. He made a representation to DGP for his reinstatement which came to be rejected vide communication No. 15/9337066
dated 17.09.1993.
The petitioner has challenged the impugned order, setting out the grounds in the appeal that neither any inquiry has been conducted before
passing the impugned order whereby the petitioner has .been removed from the services nor any show cause notice was issued to him to meet the
requirement of principles of natural justice. The petitioner has been condemned without affording him an opportunity of being heard.
Respondents have filed objections/ counter affidavit stating therein that the petitioner has been removed from the services under the impugned
order and due inquiry has been conducted and action thereafter under Rule 187 of the J&K Police Manual has been taken in removing the
petitioner from the services. The case of the petitioner, was considered by the Police Head Quarter and has been rejected on merit. The petitioner
is a habitual absentee and the character verification obtained in respect of petitioner was found adverse as per the report of theCID. The petitioner
was supposed to report for duties on 21 st of Feb. 1992. On his failure to report back, he was marked absent in the daily dairy of) Battalion. He
was also informed through the local S.H.O. for resuming his duties through signals dated 29.02.1992 and 27.04.1992. Despite that, the petitioner
having not resumed his duties was discharged vide impugned order which suffers from no illegality. Further the allegation is that the petitioner was
found a suspect being involved in antinational activities.
I have heard the learned counsel for the parties and persued the record.
So far as the allegations of respondents that the petitioner was found involved in antinational activities, there is no evidence on record to show
that after the appointment of the petitioner in the year 1990, he is found involved in any antiational activities. The evidence taken into consideration
by the respondent relates to a period before his appointment. This accusation against the petitioner cannot be weighed for the reasons that this
circumstance has already been noticed and considered by the respondents at the time of making an offer of appointment to the petitioner.
Dealing with the question of absence from duties, it is admitted case of the petitioner that he proceeded on leave on 09th of Feb. 1992 and was
expected to resume his duties on 21st of Feb. 1992. The petitioner has stated in the petition that he sought extention of leave by telegraphic
message which has not been denied by the respondents while replying the averments of para 3 of the petition.
Removal from service is a major penalty and cannot be imposed siplicitor without observing the principles of natural justice and affording an
opportunity to the delinquent employee to show cause as to why he should not be removed from the service for his alleged misconduct or
remaining on unauthorised leave oroverstayal of leave Though Rule 128 of the CSR is worded with the language that absence from duties entails
loss of employment, but it is not res Integra and has been dealt with by the Hon'ble Supreme Court long back in 1966 in a case titled Jai Shanker
Vs. State of Rajasthan reported in AIR 1966 SC 492, wherein it is held as under:
The removal of a Government servant from service for overstaying his leave is illegal even though it is provided by the Service Regulation that any
individual who absents himself without permission after the end of his leave would be considered to have sacrificed his appointment and may be
reinstated only with the sanction of the competent authority.
A discharge from service of an incumbent by way of punishment amounts to removal from service, and the constitutional protection of Art. 311
cannot be taken away from his by contending that under the Service Regulations the incumbent himself gives up the employment and all that the
Government foes is not to allow the person to be reinstated. It is true that there is no compulsion on the part of the Government to retain a person
in service if he is unfit and deserves dismissal or removal and one circumstance deserving removal may be overstaying one's leave But a person is
entitled to continue in service if he wants until his service is terminated in accordance with law. It is true that the Regulation speaks of reinstatement
but what it really amounts to is that a person would not be reinstated if he is ordered to be discharged of removed from service The question of
reinstatement can only be considered if it is first considered when the person should be removed or discharged from service. Whichever way one
looks at the matter, the order of the Government involves a termination of the service, when the incumbent is willing to serve. The Regulation
involves a punishment for overstaying one's leave and the burden is thrown on the incumbent to secure reinstatement by showing cause. No doubt,
the Government may visit the punishment of discharge or removal from service on a person who has absented himself by overstaying his leave, but
it cannot order a person to be discharged from service without at least telling him that they proposes to remove him and giving him an opportunity
of showing cause why he should not be removed. If this is done the incumbent will be entitled to move against the punishment for, if his plea
succeeds, he will not be removed and no question of reinstatement will arise. It may be convenient to describe him as seeking reinstatement but this
is not tantamount to saying that because the person will only be reinstated by an appropriate authority, that the removal and if it is punishment for
overstaying one's leave an opportunity must be given to the person against whom such an order is proposed, no matter how the Regulation
describes it.
The case of the petitioner is also that he proceeded on an authorised leave and thereafter overstayed because of ailment of his father which
prevented him from resuming his duties. The compulsion of the petitoner to resume duties could have been explained by him, had the petitoner
been given an opportunity of being heard. The Government employee cannot be condemned unheard even though the Regulation may prescribe
the loss of employment on unauthorised absence from duties. The law laid down by the Hon'ble Supreme Court fully applied to the case of the
petitioner and the respondents have not proved in the court of law that any show cause notice had been served upon the petitioner to explain his
conduct.
The respondents have also not shown any record to the court with regard to holding of any inquiry against the petitioner though it is stated in
the reply that due inquiry has been conducted and action thereafter under Rule 187 of the J&K Police Manual has been taken for removing the
petitioner. The respondents must have established before the court by production of record that due inquiry has been conducted and the removal
of the petitioner from service is in accordance with the provisions of law. No such record has been produced, thereafter, adverse inference can
safely be drawn against the respondents, so far as conducting inquiry against the petitioner is concerned.
Persual of the impugned order also reveals that the petitioner has been removed from the services invoking power under Regulation 128 of the
CSR and not under Rule 187 of the J&K Police Manual. This contention of the learned counsel for the respondent that action of removal of the
petitioner from services has been taken under Rule 187 of the J&K Police Manual, has no substance.
12 The impugned order for these reasons need to be interfered and set aside. 13. For the foregoing reasons, the writ petition is allowed and the
impugned order No. 276/92 dated 05.05.1992 and Communication NO. M15/9337066 dt. 17.09.1993 are set Mde. However, the respondents
are at lib'o conduct an inquiry into the conduct all the petitioner for the accusation and allegations levelled against him, in accordance with law.