Mohammad Iqbal Mir vs State Of Jammu & Kashmir And Others

In this petition, petitioner inter alia seeks following reliefs:

i) Writ of certiorari quashing the impugned termination order bearing No. 644 of 2004 dated 06-08-2004.

ii) Writ of mandamus commanding the respondents to allow the petitioner to resume his normal duty.

iii) Writ of mandamus commanding the respondents to treat the petitioner as on duty w.e.f 01-05-2004 till date by paying him emoluments for the period he remained out of service on the basis of impugned order by giving him all consequential service benefits such as promotion, periodical increments and also revised pay scale etc.

Facts giving rise to the filing of the instant petition have been briefly stated by the petitioner as:

i) The petitioner was enrolled in J&K Police on 08-06-1999 and was posted in the office of SHO Police Station, Bandipora where from it is reported that he absented on duties with effect from 01-05-2004, consequently a notice dated 21-07-2004 was issued to him on the basis of which he was directed to resume to his duties within a weeks' time and said notice get dispatched on 30-07-2004 from the office on the basis of which the weeks' time got expired in the office of Senior Superintendent of Police, Baramulla (respondent No. 3).

ii) The impugned order bearing No. 644 of 2004 dated 06-08-2004 got issued at the hands of the respondent No. 3 on the basis of which the petitioner was terminated by dispensing with requirement of enquiry as per prescribed norms. The petitioner instead of approaching to any court of law submitted a representation before the concerned authorities to get himself reinstated but with no fruitful result. Finally he reported on 20-07-2008 to Hon'ble the then Chief Minister for getting himself reinstated. The said representation got forwarded to Director General of Police at the hands of political Advisor to Chief Minister on 04-09-2009 with a request to take appropriate necessary action in the matter. The Director General slept over the matter unnecessarily compelling petitioner to submit another representation in the office of Director General of Police requesting him to reinstate the petitioner. In the meantime, petitioner filed another representation before respondent No. 2 to reinstate him back to the service.

Aggrieved by the order No. 644 of 2004 dated 06-08-2004, petitioner challenges the same on the following grounds:

a) That the petitioner could not approach the court soon after the passing of impugned order dated 06-08-2004 because he was representing for getting the needful done by reinstating him. Due to the inaction of the respondents he seeks the intervention of this court is sought to question the sanctity of the impugned order The pendency of the petitioner's case in the office of respondents justifies to approach court a "bit late" to get the order in question set aside.

b) That the impugned order deserves to be quashed/ set aside as that the basis for dispensing with the requirement of the notice is not given other than that the absence of the petitioner, who is attributed to have resumed duties. Debarring the petitioner from right to which he is entitled under the constitutional mandate is bad as it was obligatory for the respondent No. 3 to issue notices to the petitioner twice before getting his service terminated.

c) That the order dated 06-08-2004 is bad in the eyes of law. An individual can not be dismissed without following due procedure of law that too when an employee is working in a permanent cadre. Mandate of Constitution is that the authorities concerned have to issue notice twice in anticipation of any drastic action and hold the enquiry before order is issued..

d) That the petitioner was a permanent employee of the respondents department hence it was obligatory to allow him to the allegations forms basis for his termination..

Respondents have filed the objections in which they have stated that:

i) The petitioner came to be appointed as follower in the J&K Executive Police Vide DPO Baramulla Order No. 623 of 1999 dated 08-06-1999 and belt No. 53/F was allotted to him.

ii) The Petitioner was further posted in police Station Bandipora for performing Government duties while posted in Police Station Bandipora the petitioner absented himself unauthorizedly w.e.f 01-05-2004.

iii) The petitioner was informed vide Signal No. Estt/16955- 56 dated 15-05-2004 to resume his duties to which he did not pay any heed, thereafter his continuous absence a notice came to be issued vide DPO Baramulla Endorsement No. Estt/17805-06 dated 24-05-2004 directing the petitioner to resume duties, to which he failed and continued to remain absent from duties. Thereafter another final notice vide DPO Barmulla Endorsement No. Estt/24031-42 dated 21-07-2004 was served which he noted in presence of witnesses.

iv) That it is to be noted that the petitioner had absented himself on several occasions in his short span of service regarding which punishment of censure was awarded to petitioner in the year 2001 and annual increment was stopped twice for a period of three months and six months respectively during the year 2002 and censure was awarded to petitioner in the year 2003, besides period of absence in all 111 days was treated as diesnon as is reflected from the record.

v) Due to habitual absence from the duties and by resorting to all formalities, respondent department was constrained to issue order No. 644 of 2004 dated 08-08-2004 dismissing the petitioner from service.

Petitioner has filed the rejoinder in which he has stated that:

i) The reply submitted by the respondents is based on no cogent reason because of the fact that the petitioner became permanent employee of the respondent Department by completion of three years service commencing w.e.f 08-06-1999 having Belt No. 53 F of 1999 as per the details of the para -! Of the reply affidavit when he has shown to have remained absent from duty unauthorizedly w.e.f 01-05-2004 despite the fact that he left the police Station after obtaining proper permission from SHO concerned on the reason that his father was suffering from acute ailment authenticated by the Block Medical officer Gurrez as per his certificate dated 01-07-2004.

ii) That the petitioner is shown to have remained absent from police Station Bandipora w.e.f 01-05-2004 and a notice for his resuming the normal duty is reported to have been issued on 24-05-2004 when such notice3 was never communicated to the petitioner from police station Bandipora because the notice in question is cited to have been issued from the office of District Police officer, Baramulla and it is not explained once the petitioner was working in police station Bandipora as to how the notice was supposed to be communicated from Baramulla despite the fact that the said notice was never communicated to the petitioner.

iii) That the petitioner repeatedly through various representations sought his reinstatement even approached the office of Chief Minister and his case for necessary action was forwarded to District Police Officer Barmulla on 13-11-2009 thus there are no latches to seek quashment of order dated 06-08-2004.

iv) That there is no grievous allegations levelled against the petitioner which would have been a reason for the authority concerned to dispense with the enquiry with regarding of the case in hands and get the petitioner dismissed from service other than of having remained absent from his duties though after formal approval by SHO concerned, because the petitioner has not committed any Citations Act which would have been a reason for the authority to dispense with the enquiry with regarding of the case in hand because no FIR in this connection was ever lodged in any police station against the petitioner which would have been reason to get him discharged from his service on the basis of order under challenge., the authority concerned while passing the order has not examined the record and no reason for dispensing with the enquiry is narrated in the impugned order.

The petitioner has annexed with the petition following documents:

i) Copy of the Notice dated 21-07-2004 by virtue of which petitioner was directed to resume his duties within a weeks' time.

ii) Copy of the Order No. 644 of 2004 dated 06-08-2004 passed by Senior Superintendent of Police, Barmulla whereby petitioner's service was terminated.

iii) Copy of the representation dated 20-07-2008 submitted by the petitioner to the then Chief Minister for reinstatement of his service.

iv) Copy of the letter dated 04-09-2009 whereby representation of petitioner was forwarded by the office of Chief Minister to Director General of Police.

v) Copy of the representation submitted by the petitioner to the Director General of Police for reinstating him.

vi) Copy of the representation dated 1-2-2010 submitted by the petitioner to the Senior Superintendent of Police, Baramulla for reinstating him; and

vii) Copy of the Certificate dated 01-07-2004 issued by Block Medical Officer, Health and Family Welfare, Gurez whereby father of the petitioner was diagnosed with suffering from bilateral progressive diminution of vision with bilateral absent light perception (LR-Absent), with rejoinder.

Learned counsel for the petitioner while making reference of grounds projected in the petition contended that Rule 359 J&K Police Manual read with Article 126 of the J&K CSR did not permit such an order to be passed. To substantiate his arguments, he placed reliance on the judgments of this court reported in S.L. J 2002 (2) titled Attar Singh Vs. State and Ors., 2003 (1) S. L. J titled State of J&K and Ors. Vs. Mohammad Khalil Hajam, 2004 (II) S.L.J titled Mushtaq Ahmad Khan Vs. State of J&K and Ors. and has also placed copy of the judgement dated 28.07.2016 passed in SWP No. 391/ 2009 titled Manzoor Ahmed Ganie vs. State of J&K and ors.

Per contra, Sr. AAG submitted that the order has been passed properly and the petitioner was informed in terms of the signal to resume his duty but he declined to appear before the respondents.

Considered the rival arguments and perused the material on record.

It would be proper herein to refer the impugned order assailed in terms of the instant petition :

"District Police Office Baramulla

ORDER No. 644 of 2004

Dated 06.08.2004

Whereas , you Follower Mohammad Iqbal Mir 53/F of Mohammad Skinder Mir R/o Markote Tehsil Gurez District Baramulla were appointed in J&K Executive Police in this district vide DPO Baramulla Order No. 623/1999 dated 08-06-1999.

Whereas you were posted in police station Bandipora wherefrom your absented yourself fro duties w.e.f 01-05-2004.

Whereas, you were informed to resume your duties through PS Gurez vide this Office signal No. Estt/16955-56 dated 15-05-2004 to which you did not pay any heed.,

Whereas, following your continuous absence, a Notice was issued against you vide this office endorsement No. Estt/17805-86 dated 24-05-2004, directed therein you to resume your duties to which you failed and continued to remain absent from duties.

Whereas, you were also informed through the medium of Final Notice issued under this office endorsement No. Estt/24031-42 dated 21.07.2004 to resume your duties to which you turned deaf ear and continued to remain at large.

Whereas you are aware of the rules and regulations of Department, your absence from duties amounts to gross misconduct and cannot be over looked especially in the present security scenario when the police is combating militancy.

Whereas, your absence from duties amounts to loss of appointment on your own volition.

Whereas, previously your absented from duties at several occasions for which punishments of CENSURE was awarded to you in the year 2001, your Annual Increment was stopped twice for a period of three months and six months respectively during the year 2002 and again CENSURE was awarded to you in the year 2003 besides your period of absence in all 111 days was treated as

DIESNON.

From the above facts it is evident that your are a habitual absentee and are not interested to serve in the Department further more. You were given several chances to mend your behavior , but the same did not yield any fruitful result. Therefore, in exercise of powers conferred under Article 126 (b) of J&K Constitution I, M. A. Khan-IPA Senior Superintendent of Police Baramulla dispensing with the enquiry, do hereby discharge you Follower Mohammad Iqbal 53/F(Bla) son of Mohammad Skinder Mir R/o Markote Tehsil Gurez District Baramulla from service w.e.f the date you absented yourself from duties i.e. 01-05-2004.

You are directed to deposit all the government/uniform articles in the concerned stores of DPL Baramulla within a weeks time, failing which action under law will be taken against your.

Sd/

(M.A.Khan)IPS

Sr. Superintendemnt of Police,

Baramulla

It is evident from the material as is placed on record and stand taken by the parties that the petitioner herein has been discharged from services while the enquiry which was otherwise required to be initiated in terms of the rules was dispensed with. Refuge has been taken to Section 126-B of the Constitution of Jammu and Kashmir. It would be proper herein to reproduce Section 126-B as:

"1) No such person who is a member of a civil service of the State or holds a civil post under the State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry 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 on him any such penalty, until except where he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry:

Provided that t his sub section shall not apply-

a) Where a person is dismissed or removed or reduced in rank on the ground of conduct w hic he has led to his conviction on a criminal charge; or

b) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded

by that authority in writing, it is not reasonably practicable to hold such inquiry; or

c) Where the Governor is satisfied that in the interest of the security of the State4, it is not expedient to hold such inquiry.

3) If, in respect of any such person as aforesaid, a' question arises whether it is reasonable to hold such inquiry as is referred in sub section (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in the rank shall be final".

On summary perusal of the provisions above referred, it is clear that no person who is a member of Civil Service of the State or holds a civil post under the State shall be dismissed or removed except after an enquiry in which he has been charged and given a reasonable opportunity of being heard in respect of those charges the inquiry is not held for which exception is carved out in terms of Clause b notified above.

The mechanism delineated under Rule 33 of J&K Civil Services (Classification, Control and Appeal) Rules, 1956 for removal or dismissal of Public Servant or a member of Civil Service may also need a mention here, to appreciate the merit of the petition. For reference, same is reproduced as under:

33.(1) Without- prejudice to provisions of the Public Servants Inquiries Act, 1977, no order (other than an order based on facts which had led to his conviction in a criminal court or by a court-martial) of dismissal, removal, or reduction in rank 1 [which includes reduction to a lower post and/or lower timescale, - and/or to a lower stage in time-scale] but excludes the reversion to a lower post of a person who is holding a higher post temporarily shall be passed on a person who is a member of a Civil service, or holds a Civil post under the State unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded and adequate opportunity of defending himself. The ground s on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the person charged, together with a statement of tile allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be head in person. If he so desires, or if the authority concerned so directs, an oral inquiry shall be held in respect of such of the allegations as are not admitted. At that inquiry such oral evidence will be heard, as the inquiring officer considers necessary. The person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish; provided that the officer conducting the inquiry may for sufficient reason to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof. (2) The rule shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to communicate with him, or where in the interest of the security of the State, it is considered not expedient to give to that person an opportunity of showing cause against the action proposed to be taken against him. All or any of the provisions of the rule may for sufficient reasons to be recorded in writing be waived, where there is difficulty in observing exactly the requirements of the rule and those requirements can in the opinion of the inquiring officer be waived without injustice to the person charged. (3) this shall also not apply where it is proposed to terminate the employment of a probationer whether during or at the end of the period of probation, or to dismiss, remove or reduce in rank a temporary government servant, for any specific fault or on account of his unsuitability for the service. 1 (4) the competent authority may inquire into the charges itself or if it considers it necessary so to do, it may appoint an inquiry officer for the purpose.]

Article 128 of J&K Civil Service Regulations lays down absence without leave or after the end of leave involves loss of appointment but having regard to the legal position noted above, same is to be read subject to safeguards as put forth under Section 126 of the Constitution of J&K and Rule 33 of J&K Civil Services (Classification, Control and Appeal) Rules 1956. Reliance in this regard can be placed on judgment of Hon'ble Apex Court in case titled Jai Shankar Vs. State of Rajasthan, AIR 1966 SC 492.

Similarly the question, if any, raised regarding dispensation of enquiry may require determination in light of principles of law laid down in Tulsi Ram Patels case provided the writ petition is otherwise maintainable.

A Division Bench of this Court in case titled Mushtaq Ahmed Khan vs. Stated of J&K & Others reported in 2004 (11) SLJ 445 has held as under:

"As is often said, rules of natural justice are not strait-jacket formula to be applied uniformly in all cases. Its application varies from case to case depending upon the facts and circumstances of the particular case. In other words, what shall be the extent of requirement of rules of natural justice would depend on the facts of a particular case. While in one case mere opportunity of hearing may satisfy the requirement of the rules, in another case, a full-fledged enquiry may have to be held depending on the rules, if any. It would also depend, among other things, on the response of the delinquent the nature of defence, if any taken by him and nature of action proposed. No hard and fast rule can be laid down. What is of essence is that he should be given a reasonable opportunity to offer defence. The requirements of rules of natural justice are; firstly, that the employee should know the nature of the charge or accusation against him. Secondly, that opportunity should be given to him to state his case, and thirdly, that the employer should act in good faith, that is to say, the action of the employer should be fair and reasonable. Proceeding on the assumption that on account of absence from duty beyond the prescribed, he would be deemed to have abandoned his job and, accordingly, treated as out of employment would amount to acting on a presumption that he has no defence to offer. There may be genuine cases in which the person remained away from duty for good reasons, such as, law and order situation, illness or incarceration. Unless an opportunity is given to him to state his case, he cannot explain his absence ....."

Quite apposite, it may be to quote Rule 334, 339 and 359 of Police Rules:

(1) No police officer shall be departmentally punished otherwise than a prescribed in these rules.

(2) Authorized departmental punishments: - The following punishments may be inflicted departmentally on police-officers of and below the rank of Inspector: -

(a) Dismissal (bar to re-employment in Government service).

(b) Removal (not a bar to re-employment in Government service in another department)

(c) Compulsory retirement before attainment of the age of superannuation.

(d) Withholding of increments

(e) Confinement to quarters for a period not exceeding 15 days (for constables only)

(f) Fine not exceeding one month's pay.

(g) Reduction to a lower rank, grade or time scale or to a lower stage in the same time scale.

(h) Punishment drill, extra guard or other duty not exceeding 15 days (for constables only)

(i) Censure

(j) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of order.

(k) forfeature of increment.

(3) For the purpose of these rules the term "Major Punishment" shall be held to mean any authorized punishment of dismissal, removal, compulsory retirement, withholding of increments, fine, reduction, recovery from pay and forfeiture of increment. The term "Minor Punishment" shall mean all other authorized punishments.

Explanation - Stopping a police officer of and below the Rank of Inspector at an efficiency bar in the time scale of his pay on the ground of his unfitness to cross the bar does not amount to withholding of increment or promotion within the meaning of this rule.

339 Removal

Removal should be the penalty in all cases where it is not thought necessary to bar future re-employment under Government in another department for which the person may be suited, and an order of removal should not be accompanied by any subsidiary orders which would operate as such a bar or otherwise prejudice the person in question:

Explanation: The discharge -

(a) Of a person appointed on probation, before the termination of his period of probation;

(b) Of a person appointed otherwise than under contract to hold a temporary appointment on the expiration of the period of the appointment;

(c) Of a person engaged under contract in accordance with the terms of his contract; does not amount to dismissal or removal within the meaning of these rules.

359 Procedure in department enquiries.

(1) The following procedure shall be followed in departmental enquiries: -

(a) The enquiry shall, whenever, possible be conducted by a gazette officer empowered to inflict a major punishment upon the accused officer. Any other gazetted officer or an Inspector specially empowered by the Minister I/C Police Department, to hold departmental enquiries (vide order No. 636-C dated 27.06.1945) may be deputed to hold an enquiry 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 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.

(2) The officer conducting the inquiry shall summon the accused police officer before him and shall record and read out to him a statement summarising the alleged misconduct in such a way as to give notice of the circumstances in regard to which evidence is to be recorded.

(3) If the accused police officer at this stage admits the misconduct alleged against him 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.

Whenever a serious default is reported and the preliminary enquiry is necessary before a definite charge can be framed, this is usually best done on the spot and might be carried out by the Sub-Inspector of the particular Police Station in the case of head constables and constables serving under him or by the Inspector of the circle in the case of Sub-Inspectors within his charge. AT the same time it must be left to Superintendent of Police to select the most suitable officers for the purpose or to do it themselves when such a course appears desirable.

When the preliminary enquiry indicates a criminal offence, application for permission to prosecute should at once be made to the authority competent to dismiss the officer and permission should be promptly granted if that authority agrees that there is prima facie case of prosecution.

4) If the accused police officer does not admit that misconduct the officer conducting the enquiry shall proceed to record such evidence oral and documentary in proof of the accusation as is available and necessary to support the charge. Whenever possible witnesses shall be examined direct and in the presence of the accused who shall be given opportunity to cross examine them. The officer conducting the enquiry is empowered however to bring on to the record the statement of any witness whose presence cannot in the opinion of such officer be produced without undue delay and expense or inconvenience if he considers such statement necessary and provided that it has been recorded and attested by a police officer not below the rank of Inspector or by a Magistrate and is signed by the person making it. The accused shall be bound to answer questions which the enquiring officer may see fit to put to him, with a view to elucidating the facts referred to in statements or documents brought on the record as herein provided.

(5) When the evidence in support of the allegations has been recorded, the enquiring officer shall :

(a) if he considers that such allegations are not substantiated either discharge the accused himself if he is empowered to punish him or recommend his discharge to the Superintendent or other officer who may be so empowered, or

(b) proceed to frame a formal charge or charges in writing, explain them to the accused officer and call upon him to answer them.

(6) The accused officer shall be required to state the defence witnesses whom he wishes to call and may be given time in no case exceeding 48 hours to prepare a list of such witnesses together with a summary of the facts as to which they will testify. The enquiring officer shall be empowered to refuse to hear any witnesses whose evidence he considers will be irrelevant or unnecessary in regard to the specifiedcharge framed in which case he shall record the reason for his refusal. He shall record the statements of those defence witnesses whom he decides to admit in the presence of the accused, who shall be allowed to address questions to them the answers to which shall be recorded, provided that the enquiring officer may cause to be recorded by any other officer not below the rank of Inspector the statement of any such witness whose presence cannot be secured without undue delay or inconvenience and may bring such statement on to the record. The accused may file documentary evidence and may for this purpose be allowed access to such files and papers except such as form part of the record of the confidential office of the Superintendent of Police as the enquiring officer deems fit. The supply of copies of documents to the accused shall be subject to the ordinary rules regarding copying fees.

(7) At the conclusion of the defence evidence or if the enquiring officer so directs at any earlier stage, following the framing of a charge the accused shall be required to state his own answer to the charge. He may be permitted to file a written statement and may be given time not exceeding one week for its preparation but shall be bound to make an oral statement in answer to all questions which the enquiring officer may see fit to put to him arising out of the charge, the recorded evidence or his own written statement.

(8) The enquiring officer shall then proceed to pass orders of acquittal or punishment if empowered to do so, or to forward the case with his finding and recommendations to an officer having the necessary powers.

(9) Nothing in the foregoing rules shall debar a Superintendent of Police from making or causing to be made a preliminary investigation into the conduct of a suspected officer. Such an enquiry is not infrequently necessary to ascertain the nature and degree of misconduct which is to be formally enquired into. The suspected police officer may o/r may not be present at such preliminary enquiry8 as ordered by the Superintendent of Police or other gazetted officer initiating the investigation but shall not cross examine witnesses. The file of such a preliminary investigation shall form no part of the formal departmental record but may be used for the purpose of sub rule 4 above.

(10) this rule shall also not apply where it is proposed to terminate the employment of a probationer whether during or at the end of the period of probation.

(11) (1) As laid down in Section 126 of the Constitution of Jammu and Kashmir no officer shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2) 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, provided that this clause shall not apply:-

a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which he led to his conviction on a criminal charge;

b) Where an authority empowered to dismiss or remove an officer or to reduce him in the rank is satisfied that for some reason to be recorded by that authority in writing it is snot reasonably practicable to give to that person an opportunity of showing cause; or

c) Where the Sadar-i-Riyasat is satisfied that in the interest of the security of the State it is not expedient to give to that officer such an opportunity.

(3) If any question arises whether it is reasonably practicable to give to any offer an opportunity of showing cause under clause (2) above, the decision thereon of the authority empowered to dismiss or remove such officer or to reduce him in rank, as the case may be, shall be final.

18 The admitted case of the petitioner has been that he was appointed vide Order No. 623 of 1999 dated 08-06-1999 and had been away from place of duty without leave leading to his discharge from service in pursuance to order No. 644 of 2004 dated 08-08-2004. It is vaguely pleaded that up to 2009 he had been asking the respondents herein to relook into the matter but the same was of no avail. The representation as admitted by him has been submitted before the Chief Minister on 20-07-2008. It is stated to have been forwarded to Director General on 04-09-2009 by him. It is not the case of the petitioner that he had reasonably prosecuted the matter for reconsideration immediately after discharge or had taken recourse to inbuild mechanism of Rules for challenging the same i.e. under the Police Rules.

19 .Rule 364 of the Police Rules provides that the aggrieved person has a right to file an appeal before the competent authority. It shall be quite appropriate to have a glance of said rule:

"1) Every police officer shall be entitled to appeal as hereinafter provided, from an order passed by any authority imposing upon him any of the penalties specified in clauses (a), (b), (c), (d),(e), (f), (g), (j) and

(k) of sub-rule (2) of rule 334, provided that no appeal shall lie against the order made by the government. No appeal shall also lie against the punishment of extra drill and confinement to quarters.

2) Appeal shall lie:-

a) From an original order of punishment of a subordinate officer to the next higher officer;

b) From an original order of punishment of a Head of Department to the Minister-in-charge;

c) From an order of punishment of a Minister-in-charge to the Government.

3) No appeal shall lie from an order passed in appeal under this rule, provided that the Government or the a authority next higher than the one to which the appeal lies may revise any such order of a subordinate authority in cases of the penalties of dismissal and removal if it is satisfied that there has been a substantial miscarriage of justice"

Precedents which have followed from various courts for exercise of power under Article 226 of the Constitution of India read with Section 103 of the Constitution of J&K depict that as a matter of prudence and propriety the courts have evolved certain self-restraints over a period of years for exercising power conferred under the said Article/Section. It may also be required to be underlined herein that the jurisdiction under Article 226 of the Constitution of India which is discretionary in nature, has to be exercised sparingly where no other efficacious remedy is available.

May be it so, the respondent No. 3 was not right in dispensing with the enquiry but same need not have to be gone into in view of the delay and latches in filing the instant petition. The petitioner herein if had earlier asked the respondents to reconsider the order challenging herein has not produced any material to substantiate that he had acted promptly or without any reasonable delay. It is his admission that he approached the Chief Minister and Chief Minister then forwarded his representation to Director General of Police, after a gap of 05 years. The plea taken for condoning the delay or justifying laches cannot be said to be plausible.

In "State of J&K & Ors Vs. C. N. Mulla" reported in 2009 (2) JKJ(HC) 654, the Division Bench of this Court while taking reliance on various judgments of the Hon'ble Apex Court, enunciated that if a person chose to sit over the matter and then woke up after a long delay, he would be disentitled to the discretionary relief of a Constitutional Court. Their Lordships took note of the fact that the petitioner therein was a highly qualified doctor and a duty was cast on him to report for duty once the leave period was over. Filing of the representation would not come to his rescue, has been further observed. If there had been a delay on the part of the State or its functionaries in considering the request for further leave, other remedies as provided by law are available to the public servants. If concerned officers would have failed to take notice of the requests made before it, the petitioner could have reached the Court seeking a Writ of Mandamus directing the respondents to consider his request for further leave or seeking permission to join duty. In the case in hand, the respondents have placed on record various documents wherefrom it had been ex-facie seen that the petitioner had been repeatedly asked to resume duties and to defend himself but no response has been received from the petitioner herein.

In "Gh. Mustaffa Geelani Vs. State of J&K & Ors." reported in 2009 (3) JKJ (HC) 799, a Single Bench also declined to intervene when the petitioner therein had deliberately sat over the matter from 30.04.1990 to 06.11.1996. The Court observed that the petitioner cannot be permitted to cover up the deliberate delay by simply stating that he had no knowledge about the passing of order of termination. The petitioner therein had not been able to place any material on record to show that he made any serious effort from 30-04-1990 to 06-11-1996 in pursuing the matter.

24.The petitioner herein admittedly belongs to a service which expects maintenance of punctuality and discipline from all its ranks. The cause pleaded by him for being away from the duty cannot be said in the estimation of a reasonable and prudent man to be sufficient for not reporting for duties for 05 years. His stand that his father was ill and so he was not able to attend the duty does not appear to be creditworthy or legally acceptable. There is nothing on record from which it can be deduced that the petitioner was affected to such an extent by any domestic compulsion or exigency that he was incapacitated to resume the duties within a reasonable period after his absence. Article 14 of the Limitation Act, prescribes time limit of one year to challenge the order of an officer of the Government passed in his official capacity and not otherwise expressly provided. The petitioner herein admittedly has not made any serious effort to in shown his interest of being aggrieve of the action taken.

Nothing substantial as noted above has been done by petitioner from 08-08-2004 to enquire about the status of his employment within reasonable time. The justification noted above tendered by petitioner for such a long delay in approaching the Court appears to be not tenable.

Viewed thus, I am of the opinion that case for exercise of jurisdiction under Section 226 of the Constitution of India read with 103 Constitution of J&K is not made out. Petition is held liable for dismissal and is accordingly dismissed.