Mohd. Sayed Khan vs State and Others

Mohd. Yaqoob Mir, J.—Quashment of the order No. 369 of 1990 dated 17.5.1990, issued by Respondent No. 5, where-under Petitioner

has been removed from the service, is sought.

Petitioner admittedly had been appointed as Constable in the Respondent department on 15.3.1984, in the year 1990 claim to have proceeded

on ten days casual leave with effect from 17.5.1990, on 27.5.1990 has moved an application before Respondent No. 5 stating therein that he had

left on station leave but in daily register he has been shown absent, therefore, order may be issued for permitting him to mark his presence. When

he could not get any response, he allege to have served a legal notice through Advocate Mr. Maqbool Ahmad on 27.7.1995, based on which the

Respondent No. 5 has communicated to Respondent No. 4 that from the records it is found that the Constable (Petitioner) has been removed

from service under Article 335 of the J&K Police Manual, without giving Petitioner a show cause notice which is mandatory, therefore, the order

may not stand the test of law in the Court. Then again Respondent No. 5 has communicated to Respondent No. 3 on 5.4.1996 that the order

impugned will be declared null and void by the competent court on the two counts, same are reproduced here-under:

a) That as per the available records neither has any depart menial enquiry been ordered nor initiated suo-moto, let alone its conclusion (even ex-

parte) of issue of any show cause notice to the said Ex. Const.

b) That a few notice are recorded to have been flashed from the Bn, Hqrs. during first quarter of 1990 asking the then absentee Const to resume

duties, but these are wrongly directed through P/S Booniyar instead of P/S Baramulla in whose jurisdiction (Village Binner) he had been living.

In the meantime Petitioner had filed a civil suit praying therein that the order No. 369 of 1990 may be declared as null and void. The said suit

has been instituted in the year 1996 but having remained pending for a pretty long period of about 13 years with no prospect of its conclusion

prompted the Petitioner on the advice to withdraw the same which has been withdrawn, on 7.2.2009, but before withdrawal of the suit instant

petition has been filed on 28.2.2008.

Learned Counsel for the Respondents, Mr. Magray, vehemently contended that the writ petition is not maintainable. Buttressing the submissions,

firstly stated that the order of removal is dated 17.5.1990, when the Petitioner has served the notice on 26.7.1995, then has filed the suit in the

year 1996 and instant petition in the year 2008. Therefore, petition is hit by latches.

Learned Counsel for the Respondents was pointedly-asked as to whether due procedure has been adopted before removing the Petitioner from

service when it is a major punishment having the result of depriving the Petitioner of his valuable rights, he was candid enough to state that

Respondent No. 5 himself has in his communication dated 5.4.1996 clearly indicated that neither departmental enquiry was conducted nor any

show cause police was issued. In a way the due procedure and the mandate of the law has not been followed, resultantly the guaranteed

fundamental right and the rights guaranteed under Article 311 of the Constitution of India have been violated.

The question of latches looses significance when the same are pitted against substantial justice. The latches loose significance in the instant case

because of two counts, first the Petitioner on 27.5.1990 had moved a proper application before the Respondent No. 5 but no response was given.

It is only when notice was served through Advocate on 26.7,1995, he came to know that the order of removal has been passed and immediately

filed the civil suit. The filing of the civil suit was absolutely on the legal advice. When it took long time with no expectation of its results in sight in

near future, the Petitioner has been advised to file the writ petition as there was no question of fact in dispute. Legal position was involved which

had infringed his right and same was available to be enforced by having recourse to the writ jurisdiction of this Court. In other words the acts of the

Petitioner in pursuing the matter by no standards can be said to be indolent which indolence could stand in his way in seeking the relief. It is true

that during the pendency of the suit writ petition has been filed but said fact has not been concealed. Same has been made mention of in the memo

of the petition. The contents of the withdrawal application as filed before the Court of Munsiff, available m the record, would indicate that the

Petitioner in view of the prolonged delay, on right advice, has withdrawn the suit. The same position cannot be said to be with any ulterior motive

so as to blame the conduct of the Petitioner. The petition as such cannot be termed to be hit by latches.

Now the important question which is to be determined is as to, ""whether the order impugned can survive?"" The answer has to be in negative.

The order impugned has been passed in absolute haste. Neither any show cause notice has been issued nor any enquiry has been conducted as is

clear from the undisputed communications dated 13.9.1995 and 5.4.1996 as referred to hereinabove.

The removal of the Constable from service is permissible but for such removal the procedure as is prescribed has to be followed. Rule 359(H)

(2) of the J&K Police Manual provides that no police officer shall be dismissed, removed or reduced in rank until he has been given a reasonable

opportunity of showing cause against the action proposed lo be taken in regard to him excepting certain situations as mentioned in Clause (a), (b)

and (c) to Sub-rule 2 of Rule 11 of Rule 359 which does not apply to the Petitioner.

Admittedly no show cause notice has been issued to the Petitioner, resultantly the order impugned is bad, so same is liable to be quashed, as

such, is quashed.

The Respondents shall be at liberty, if they so choose, to initiate enquiry against the Petitioner after following due procedure and law

applicable, pass such order as shall be warranted but urease they do not choose to initiate any enquiry, then the period for which Petitioner has

remained out of service shall only count as service for pensionary purposes. No wages for such period shall be allowed, the Petitioner as such shall

be taken back in the regular service.

Petition accordingly succeeds.