Mohd.Shafi Bhat vs State & Ors.

Petitioner has questioned the order No.1736/05 dated 22.08.2005 passed by Sr. Superintendent of Police, Srinagar, whereby petitioner came

to be removed from service. It is averred that petitioner came to be appointed as Constable and came to be promoted to the rank of Selection

Grade in the year 1998. He was nominated to undergo six months Lower Class Course at PTS, Manigam, but he could not attend his duties

because his wife, Mst. Shamima, was seriously ill, and without conducting enquiry and hearing the petitioner, he was removed from service.

Respondents have resisted the petition on the ground that enquiry was conducted and Deputy Superintendent of Police completed enquiry

within ten days and accordingly, petitioner came to be removed from service.

Respondents have failed to produce record. There is also nothing on the file suggesting the fact that show cause notice was issued, charge sheet

was framed and petitioner was heard in terms of Regulation 359 of J&K Police Regulations. It is apt to reproduce relevant portion of Regulation

359 of J&K Police Regulations herein:

PROCEDURE IN DEPARTMENTAL ENQUIRIES:

(2) The officer conducting the enquiry shall summon the accused police officer before him and shall record and read out to him a statement

summarizing the alleged misconduct in such a way as to give full notice of the circumstances in regard to which evidence is to be recorded.

(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 accusations 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 crossexamine 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.

(11)(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:

The absence from the duty is the basis for removal from service. Regular/fullfledged enquiry was to be conducted in terms of Regulation 359 of

J&K Police Regulations, which has not been done. The reply and the impugned order is contradictory on the face of it. It is apt to reproduce

operative part of the impugned order herein:

Now therefore the reasons mentioned above and in the exercise powers conferred upon me in terms of Section 126(2)(b) of J&K constitution

SG constable Mohd Shafi No.2417/S is removed from service with immediate effect. The period of absence w.e.f., 08.03.2005 to 26.04.2005 is

treated as ""Diesnon"" on the analogy of no work no pay. He is directed to deposit all the Government articles in the Stores of DPL, Srinagar.

It is crystal clear that petitioner has not been removed from service in terms of enquiry conducted in terms of Regulation 359 of J&K Police

Regulations but came to be removed in terms of Section 126B of State Constitution. No reason is assigned as to why the regular enquiry was not

conducted. The impugned order came to be passed by observing all the police regulations and rules in breach.

In the given circumstances, the writ petition is allowed, impugned order is quashed with liberty to the respondents to conduct fresh enquiry, if

they choose so, within three months from the date the copy of this order is served upon the respondents. The period from the date of absence till

today is kept subject to outcome of the writ petition. If enquiry is not conducted, the petitioner shall not be entitled to any salary for the said

period, however, the period shall qualify for other service benefits/pensionery benefits.

Writ petition disposed of along with all connected CMPs.