Pawan Kumar vs State & Ors.

The petitioner, a constable in the 8th Bn of the Jammu and Kashmir Armed Police, was bCommandant JKAP8th Bn Manigam, vide his Order

No. 319 of 2000 dated 18042000 for absence from duty w.e.f. November 19, 1999.

He has filed this writ petition seeking quashing of the Commandant Commandant/principles of natural justice, in that, neither any enquiry into the

allegations on the basis whereof he was removed from service, was held by the respondent nor was he heard by him before passing the order

impugned in the writ petition.

Justifying petitioner submitted by the respondents in their response to the writ petition that the past conduct of the petitioner for which he was

punished several times and his refusal to join service, despite issuance of several notices to him in this behalf, warranted his removal on account of

his failure to improve his conduct of being a habitual absentee from duty. The removal of the petitioner has been justified additionally on the ground

that the continued absence of the petitioner was affecting the morale and discipline in the force, and the petitioner did not appear to be interested in

service.

I have considered the submissions made by learned counsel for the parties at the Bar.

An employer may remove its employee for his misconduct including his unauthorized absence but before doing that, it is required to apprise

him/her of the misconduct on the basis whereof disciplinary action was proposed against him.

After going through the records of the respondents, learned State counsel Mr. S. C. Gupta submitted that the respondents had not held any

enquiry, as required by the police rules before removing the petitioner from service.

Perusal of the records of the respondents support learned State Counsel held any enquiry before passing the order for petitioner removal from

service. The records further bear testimony to the fact that the petitioner had not been apprised about the misconduct for which he had been

removed from service.

Holding of enquiry and hearing the employee before proceeding against him, for disciplinary action, is a sinequa non for exercising power to

remove him from service.

The respondents have failed to follow the rules which govern petitioner from service without holding enquiry in terms of the Service Rules.

Order no. 319 of 2000 dated 18042000 passed by the Commandant JKAP 8th Bn, thus, becomes unsustainable being in violation of the

principles of natural justice and against the Service Rules governing the petitioner This petition, therefore, succeeds and is, accordingly, allowed

quashing Commandant JKAP 8th Bn of 2000 dated 18042000, leaving the respondents, however, free to proceed against the petitioner, in case

he is found to have committed any misconduct; but before doing that they are required to comply with the requirements of the Rules governing his

service conditions and hear him before passing any adverse order.

Quashing of the Commandant entitle the petitioner to wages, grant or refusal whereof would depend on the result of the enquiry that may be

held against him, by the respondents.