Irshad Ahmad Dar vs State and Others

Muzaffar Hussain Attar, Judge

Despite directions record has not been produced.

Petitioner, a Constable in the respondent department has been ordered to be discharged from service w.e.f 1st July 2002, the date of his

absence vide order No. 53/2003 dated 15.01.2003 by respondent No.4.

The order of discharge has been passed on the allegation that the petitioner remained unauthorizedly absent from duty w.e.f 1st July 2002 till the

passing of the discharge order. It is this order, which is called in question in this petition.

Perusal of the pleadings reveal that prior to discharge of the petitioner from services he was ordered to be placed under Suspension vide order

dated 15th January 2002. Petitioner being aggrieved of the said order also has challenged the same as well in this writ petition.

Heard Id counsel for parties. Considered the matter. Ld counsel for petitioner referred to the pleadings as are obtaining in the writ petition as

also in rejoinder affidavit. The ld counsel submitted that the petitioner was enrolled as Constable in the year 1997 and was not on probation. The ld

counsel submitted that in terms of Rule 187 of J&K Police Rules, a Constable who is found unlikely to prove an efficient police officer, provides

for his discharge at any time within three years from the enrollment. The ld counsel submitted that the petitioner was enrolled in the year 1997, he

could not be discharged. The ld counsel further submitted, assuming that the expression discharge has been wrongly used in the impugned order

and further assuming that the petitioner has been dismissed from services, in such eventuality the respondent-competent authority was duty bound

to initiate regular enquiry in accordance with the Rule 359 of Jammu and Kashmir Police Rules. The ld counsel while referring to the impugned

order as also to reply affidavit filed by respondents submitted that it is admitted that no regular enquiry in accordance with Rule 359 of J&K Police

Rules has been conducted in this case. Ld counsel accordingly submitted that the impugned order in such circumstances being illegal deserves to be

quashed.

Mr. A. M. Magray, ld Sr. AAG, appearing on behalf of respondents vehemently argued that the petitioner who is member of Police

Department, a disciplined force, is required to discharge his duties in accordance with mandate of rules and is duty bound to obey the lawful orders

of superior officers. Ld counsel further submitted that the petitioner was ordered to work in SOG and from the date he was relieved to join in

SOG, he absconded and despite issuance of notice he did not resume his duties. So in the facts and circumstances of this case it can be safely said

that petitioner had absconded. The ld counsel further submitted that in the facts and circumstances of this case, though, the enquiry officer was

appointed but enquiry could not be concluded for the reason that the petitioner had absconded and could not be contacted. The Id counsel also

submitted that the petitioner is habitual absentee and earlier period of unauthorized absence of 157 days was treated as dies-non. The Id counsel

submitted that such person cannot be retained in disciplined force. Ld counsel submitted that the petition deserves to be dismissed.

True it is, that a member of a police force has to discharge his duties strictly in accordance with the mandate of law and in accordance with the

lawful command of the superior officers. A member of police force cannot be permitted to play pranks with his duty, in a state where the necessity

of having disciplined force is must for running the affairs of the state. A member of the police force is, thus, duty bound to discharge his duties

honestly and in accordance with the mandate of law. A member of the police force if commits any misconduct is to be dealt with in accordance

with the mandate of law and no unwarranted leniency is to be shown to the member of the disciplined force who has voluntarily committed any

misconduct.

Our state is governed by rule of law. The Constitution of J&K as also Constitution of India has afforded protection to its employees. Section

126 of the Constitution of J&K read with Article 311 of the Constitution of India mandates that no employee shall be dismissed or removed from

services except after enquiry, in which he is informed of the charges, is conducted and is given a reasonable opportunity of being heard. The State

Government in obedience to the mandate contained in aforementioned provisions has provided complete mechanism in police rules for inflicting

punishments which are mentioned in Section 334 of the said Rules. Dismissal from service is one of the authorized departmental punishment

provided in Rule 334(2) of J&K Police Rules. Rule 359 provides procedure for departmental enquiries.

In this case, it appears that enquiry officer was appointed and departmental enquiry was initiated. The enquiry officer has, however, shown his

inability to conclude the enquiry on the alleged ground that the petitioner did not co-operate as he was absconding. This ground, however, is not

sustainable in law in the facts and circumstances of this case to deny relief to the petitioner, in as much as, the record is not produced before the

court to show that after initiation of enquiry the petitioner was actually served with the notice/charge sheet. Further if after service of notice/charge

sheet, the petitioner had failed to appear before the enquiry officer, the enquiry officer had to proceed with the enquiry in ex-parte and then record

findings. Admittedly, the enquiry has not been brought to its logical conclusion. The order impugned in this writ petition could not have, thus, been

passed. The impugned order in these circumstances is rendered illegal. The concern of Mr. A.M. Magray, ld Sr. AAG, that the petitioner is a

habitual absentee and could not be retained in disciplined force can be a ground for passing appropriate orders against the petitioner in the

departmental proceedings. As recorded, hereinabove, the enquiry has not been brought to its logical conclusion in this case. The impugned order

as already stated is unsustainable in the facts and circumstances of this case.

The argument of the ld counsel for the petitioner that in the impugned order respondent No.4 has mentioned the expression 'discharge' so the

order is rendered bad on this score, is not acceptable as mentioning of a wrong word in the departmental proceedings/orders would not change the

nature of the proceedings or the order, such a submission cannot become ground for annulling the order. However, as the court has arrived at

finding that the order is illegal, the writ petition deserves to be allowed and is allowed in the following manner:

(a) By issuance of a writ of certiorari the impugned order No. 53/2003 dated 15.01.2003 issued by respondent No.4 is quashed.

(b) The respondent-competent authority is given liberty to initiate enquiry against the petitioner, if so desired /advised. In the event, the enquiry is

initiated, same shall be concluded within a period of three months from the date of receipt of this order and appropriate orders in accordance with

law be passed.

(c) Petitioner to appear before the respondent-competent authority within ten days from today.