Mohd. Ashraf Malik vs State and Others

Muzaffar Hussain Attar, Judge

The writ petition is filed in the year 1991. The petitioner was working as Constable in the respondent department and on the allegations of

unauthorized absence from duty was ordered to be removed from service. He was removed from service on the allegation of remaining

unauthorizedly absent from duty vide order dated 17th May 1990. The said order has been challenged in SWP No. 2684/91. The said writ

petition was dismissed for non prosecution on 3rd of Nov. 1999 and restored to its original number by order dated 09th Dec. 2009 passed in

restoration No. 160/07. It appears that while first petition was dismissed for non prosecution, the petitioner filed another petition challenged same

order in SWP No. 1178/06. The reply affidavit has been filed by the respondents in the said writ petition. In the first writ petition, the order of

removal was not placed on record, for the reason that same was not provided to the petitioner. Subsequently, it appears that order of removal was

provided to the petitioner, and that is why the same has been placed on record of the subsequent writ petition. The two writ petitions are thus

clubbed together.

Admit. Mr. A.M. Magray, Id Sr. AAG appeared and submitted that he has instructions to accept the notice on behalf of respondents. Ld

counsel also submitted that the reply affidavit filed in SWP No. 1178/06 be treated as counter affidavit. His statement is taken on record. Prayer is

allowed.

In view of the controversy involved in this case, Mr. Magray ld Sr. AAG in his fairness submitted that he has no objection in taking up this case

for final disposal. The case is accordingly taken up for final disposal.

The case of the petitioner as admitted by the respondents is that he was working as constable in the respondent department. The pleadings in

both the petitions show that petitioner was suffering from some ailment and he was admitted in Government SMHS Hospital Srinagar into surgical

unit under MRD No. 43256 from 61h January, 1990 to 17th April, 1990. It is further case of the petitioner that he was advised to have complete

bed rest up to 17th May, 1990. Petitioner further pleaded in the writ petition that he had informed the respondent department telegraphically and

had requested for extension of leave. The petitioner on 20th May, 1990 went to resume his duties but Commandant 6th Bn. JKAP did not allow

him to join and directed him to seek instructions from Director General of Police. The petitioner's further case is that he was not permitted to join

and was told that he had been dismissed from service. The petitioner requested for issuance of copy of dismissal order which was not given to him.

The petitioner filed an application requesting therein for issuance of copy of dismissal order, but same was not still given to him and in these

circumstances the petitioner could not place on record of SWP No. 2684/91 the copy of dismissal order. The said writ petition was dismissed for

non prosecution. Thereafter the petitioner filed the subsequent writ petition. The petitioner has placed the order of dismissal issued by

Commandant 6th Bn. JKAP Zewan dated 17th May 1990 on record of second writ petition. The perusal of the said order reveals that the

petitioner along with other persons was ordered to be removed from service with effect from date he had remained un-authorizedly absent from

duty i.e 6th January 1990. The grounds on which the order of removal has been challenged are summarized as under:

(a) The petitioner had not willfully and deliberately absented from duty but because of his ailment he was prevented from performing the duty.

(b) The leave was sought but petitioner was not informed about its extension or rejection.

(c) No enquiry as provided by J&K Police Rules was conducted and no notice was issued to the petitioner before ordering for his removal from

services.

Mr. Magray, Id Sr. AAG, submitted that in the year 1990 the State of J&K, more particularly Valley of Kashmir, was ushered into abnormal

circumstances and it was deemed necessary to have the police force available with the State authorities. The petitioner absented from duty. Ld

counsel submitted that though, from the impugned order it appears that enquiry has not been conducted but in the given circumstances conducting

of enquiry in respect of a member of disciplinary force would have not served interest of the State, the ld counsel submitted that the petitioners

dismissal is justified.

The philosophy of rule of law is that the relationship between Government and its subjects is to be determined by having reference to the law

and rules occupying the field. A democratic society is always governed by rule of law and what is magical about it is that even in extreme adverse

circumstances, the state has to be guided by rule of law in all its actions. The provisions of the Constitution and other laws have to be preserved

and maintained even in extreme adverse conditions. The actions of authorities are to be governed by rule of law.

Section 126 of the Constitution of J&K read with section 311 of the Constitution of India affords protection to an employee. The Jammu and

Kashmir Police Rules also provide the mode, method and procedure for dealing with the employees of the police force. Rule 334 (1) of the J&K

Police Rules provide that no police officer shall be punished otherwise than as prescribed in these rules. Rule 334(2) (b) of J&K Police Rules

provides that removal of employee is one of the authorized departmental punishment. Rule 359 of the Police Rules provide complete code for

dealing with the person on whom punishment is intended to be inflicted. Admittedly the Rule 359 of the Police Rules has been observed in

complete breach. No enquiry has been conducted, even show cause notice has not been issued before ordering removal of the petitioner from

service. The Id counsel for respondents submitted that they be given liberty to initiate enquiry against the petitioner in accordance with the rules. Ld

counsel also submitted that the salary from the date of absence from duty till the date of passing of the judgment may not be ordered to be paid to

the petitioner and same be kept subject to outcome of departmental enquiry. The submission made by ld counsel are justified in the fact situation of

the case.

For the above stated reasons, this petition is allowed in the following terms:

(a) By issuance of writ of certiorari the impugned order No. 369/90 dated 17th may, 1990 is quashed to the extent of petitioner.

(b) The respondents are given liberty to initiate enquiry in accordance with the rules, if so advised.

(c) Payments/salary of the petitioner from the date of his alleged unauthorized absence till today shall be determined by the authorities in

accordance with the rules.

Petitions disposed of.