Mohammad Iqbal vs State of Jammu & Kashmir and Others

V.K. Jhanji, J.—In this writ petition challenge is to order bearing No. 2258 of 1999 dated 21.10.1999, passed by Senior Superintendent of

Police, Doda, whereby services of the petitioner have been terminated. In brief the facts may be noticed.

Petitioner, a constable in the Police Department, was posted at District Police Lines, Doda, where from he was transferred to Banihal. He was

directed to report at his new place of posting on 10.4.1999. Station House Officer, Police Station Banihal, vide his signal No. 1255/PSB dated

18.07.1999 intimated that the petitioner had not yet reported at Police Station, Banihal, meaning thereby, that the petitioner remained un-

authorisedly absent from duty with effect from 10.4.1999 i.e, the date when he was relieved from District Police Lines, Doda, Vide Signal dated

20.7.1999, the petitioner was informed/directed through his home Police Station to report at his new place of posting within two days failing which

he would be removed from service, but he failed to report for duty. Again vide signal dated 24.9.1999, Station House Officer, Police Station,

Banihal, directed the petitioner to resume his duty but he did not bother to obey the orders and continuously remained absent from duty since

10.4.1999. Vide office order No. 2056 of 1999 dated 25.09.1999 a departmental enquiry was ordered to be conducted against the petitioner for

his unauthorised absence from duty with effect from 10.4.1999. Meanwhile, another notice dated 30.09.1999 was issued to the petitioner through

his home Police Station which was also got published in two local English Dailies, namely ""The State Times"" and ""The Himalayan Mail"" in their

issues dated 01.10.1999, whereunder the petitioner was directed to resume his duty within a week's time failing which, he was informed that, he

shall be removed from service. Petitioner, however, failed to report for duty despite issuance of notices and their publication in the newspapers.

Thereafter, vide office signal dated 4.10.1999, Station House Officer, Police Station, Mahore, informed the petitioner to resume his duty forthwith.

Station House Office, Police Station, Mahore, vide his signal dated 5.10.1999 also communicated to Station House Office, Police Station, Gool,

that since the village where the petitioner was residing fell in the jurisdiction of Police Station, Gool, as such the petitioner be informed to resume his

duty. Station House Officer, Police Station, Gool, vide his signals dated 7.10.1999 and 9.10.1999 intimated that as per the statement of family of

the petitioner, he was not available at home and had gone towards Udhampur. Since petitioner had failed to join duty despite repeated notices and

failed to face departmental enquiry, it was felt impracticable to hold a departmental enquiry against the petitioner who was continuously absent

from duty since 10.4.1999. The Senior Superintendent of Police, Doda, taking that it was not possible to hold departmental enquiry against the

petitioner and also that earlier too he had remained absent as many as seventeen times and punishment in that regard was awarded to him, formed

an opinion that the petitioner was not interested to serve in the police department any more and was a burden to the State Exchequer. He,

therefore, vide impugned order terminated the services of the petitioner with effect from 10.4.1999, the date when he absented himself from duty.

Writ petition has been filed by the petitioner impugning the order terminating his services. The only ground taken in the writ petition and urged by

the learned counsel for the petitioner at the hearing of the petition is that the order impugned is violative of Article 311 of the Constitution of India,

corresponding with Section 126 of the Constitution of Jammu and Kashmir, in as much as services of the petitioner could not have been terminated

without affording an opportunity of being heard or without holding enquiry as provided under the provisions of the Jammu and Kashmir Police

Rules.

Upon notice of the writ petition, respondents in their counter have stated that the petitioner was removed from service keeping in view his past

conduct of remaining absent from duty number of times and also not reporting to his new place of posting. Respondents have denied that the wife

of the petitioner was seriously ill and that it was because of this reason that he was prevented from joining the new place of posting. Further,

according to the respondents, the petitioner's wife was not suffering from an attack of acute depression. According to them, it was a manipulated

story. In regard to the allegation that petitioner was not given an opportunity of being heard, respondents have stated that before the issuance of

show cause notices in two newspapers, the family of the petitioner was informed through concerned Police Station directing the petitioner to join

the new place of posting and face the departmental enquiry but he failed to respond to the notices.

I have heard learned counsel for the parties and have carefully gone through the record of this case. It is not in dispute that petitioner failed to

join the new place of posting with effect from 10.4.1999. The record further reveals that in the past petitioner had remained absent as many as

seventeen times. Vide orders dated 20.10.1987 and 21.04.1990 a censure was awarded to the petitioner for his unauthorised absence. Again vide

orders dated 3.1.1991 and 23.1.1991 the annual increment of the petitioner was stopped for a period of six months, for his an-authorised

absence. Vide order dated 9.3.1991 the annual increment of the petitioner was stopped for a period of one year for his un-authorised absence.

Likewise vide orders dated 1.2.1993, 18.4.1995, 11.3.1996, 22.10.1996, 13.9.1997 and 31.3,1998 his increments were stopped running from

six months to two years for his un-authorised absence.

It is true that Section 126 of the Constitution of Jammu and Kashmir, which is para metaria to Article 311 of the Constitution of Jammu and

Kashmir, provides that no person, who is a member of civil service or holds a civil post under the State shall be dismissed or removed by an

authority subordinate to that by which he was appointed and no such person, as aforesaid shall be dismissed or removed or reduced in rank

except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of

those charges and where, it is proposed after such inquiry to impose upon him any such penalty, such penalty may be imposed on the basis of the

evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty

proposed. Rule 359 of the J&K Police Rule provides that no police officer shall be dismissed or removed or reduced in rank until he has been

given a reasonable opportunity of showing cause orally and also in writing against the action proposed to be taken in regard to him. Rule 359 also

provides detailed procedure in regard to departmental enquiries. It provides that, in case of a Constable, the enquiry 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. It

further provides that if the accused police officer admits the misconduct the officer conducting the enquiry may proceed forthwith to record a final

order if it is within his power to do so, or a finding to be forwarded to an officer empowered to decide the case.

It is admitted case of the parties that no enquiry as contemplated under rule 359 of the J&K Police Rule was held against the petitioner. In such

a situation the question which arises for consideration is whether the order terminating the services of the petitioner without following the procedure

as laid down under rule 359 is bad in law? In my considered view the holding of enquiry as envisaged u/s 126 of the Constitution of J&K and Rule

359 of the J&K Police Rules may be necessary before the services of an employee are terminated for absence without leave or absence after

leave, but this principle of law has no universal application. In cases where the facts disclose that the employee had absconded or where it is

impossible to communicate with him, then the order in my view does not suffer from any legal infirmity. In Mrs. Maneka Gandhi Vs. Union of India

(UOI) and Another, the Supreme court said that since the audi alteram partem rule is intended to inject justice into the law, it cannot be applied to

defeat the ends of justice, or to make the law lifeless, absurd stultifying, self defeating or plainly contrary to the common sense of the situation.

Bhagwati, J (as his lordship then was) in Maneka Gandhi's case (supra) said, ""What opportunity may be regarded as reasonable would necessarily

depend on the practical necessities of the situation. It may be a sophisticated full fledged hearing or it may be hearing which is very brief and

minimal; it may be a hearing prior to the decision or it may even be post decisional remedial hearing. The audi alteram partem rule is sufficiently

flexible to permit modifications and variations to suit the exigencies of myriad kinds of situations which may arise"". The Supreme Court thus has

settled that audi alteram partem rule is not cast in a rigid mould and that it may suffer situational modifications.

Various notices were issued to the petitioner to resume duty and face departmental enquiry. One such notice, which has been placed on record

as annexure 'B', was issued by the Senior Superintendent of Police, Doda, intimating the petitioner that the departmental enquiry to be conducted

by him has been ordered against the petitioner for his unauthorised absence from duty with effect from 10.4,1999 and ordered that the petitioner

must join within one week from the date of publication in the newspaper failing which he shall be removed from services for un-authorised absence

from duty. The petitioner did not respond to the notice. It is true that no enquiry was held but in my opinion nothing further was required to be

done. The petitioner did not reply to the notices nor did he resume the duty. There was no denial of the allegations and no request was made by

him to hold an enquiry. Even if the enquiry would have been held, it would not have yielded any result in absence of any reply by the petitioner or

any defence regarding his absence from duty. Therefore, it was not incumbent upon the Senior Superintendent of Police to conduct an exparte

enquiry. In my view, there had not been any violation of principles of natural justice as alleged.

Lastly, learned counsel for the petitioner contended that the impugned order is liable to be quashed because while imposing penalty of removal

from service, the punishing authority did not take into consideration that the petitioner had already put in service of eighteen years. He contended

that the punishing authority has the discretion to impose minor as well as major penalty and it is always not necessary to impose the punishment of

removal or dismissal from service simply because charge of misconduct is proved against the delinquent. He further submitted that in the facts and

circumstances of the case lesser punishment ought to have been awarded to the petitioner.

On the other hand, learned counsel appearing on behalf of the respondents contended that the petitioner has been removed from service

because he remained absent from duty not once but as many as seventeen times during the tenure of his service. He submitted that discretion

exercised by the punishing authority to impose penalty of removal from service does not suffer from any legal infirmity and, therefore, does not

require any interference by this Court under Article 226 of the Constitution of India.

The law is well settled that the question of choice and quantum of punishment is within the jurisdiction and discretion of the disciplinary

authority. The punishing authority is vested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the

misconduct. The petitioner in this case was a member of discipline force. This is not the solitary instance in the service career of the petitioner that

he remained absent. In fact, he was a habitual absentee and despite having been given as many as seventeen chances failed to mend himself. In

such a situation, I do not think that punishment is disproportionate to the misconduct proved.

In view of the above, I do not find any merit in this writ petition which is, accordingly, dismissed.