State of J & K vs Abdul Karim Lone

Bhawani Singh, Chief Justice.

Through this appeal judgment of Single Judge dated February 24, 1998 has been challenged. Shortly stated, facts are as under:

Petitioner was Constable in 9th Bn. Armed Police of the State. He proceeded on sanctioned leave from 19.07.1991. He failed to resume his

duty on 24.07.1991 for which he submitted that his absence was due to severe illness which necessitated medical treatment. He informed the

Battalion about his illness and his inability to report for duty. Ultimately, petitioner reported for duty on 19.10.1991 and furnished Medical

certificate in support of his illness issued by the doctor who had treated him.

Commandant JKAP 9th Bn. Jammu issued order no. 1067 of 1991 on 01.10.1991 removing the petitioner from service from 24.07.1991 the

date from which he remained on unauthorised absence. Petitioner represented against this order on which, decision was not taken, with the result,

he filed writ petition no. 2361/92 and sought direction to Inspector General of Police to consider the representation of the petitioner within a

specified period. Accordingly, Inspector General of Police Passed order no. 72 of 1992 accepting petitioners plea. While doing so, the Inspector

General of Police recorded that petitioner had not wilfully absented from duty and consequently on reconsideration of the petitioner's

representation, the petitioner got reinstated w.e.f. 24.07.1991 the date from which he was discharged vide order no. 1067/1991 (Supra). The

period of absence was directed to be treated as ""diesnon"". Petitioner was thus reinstated and started performing his duties by order no. 72 of 1992

dated 17.02.1992. Then the Inspector General of police by order no.576 of 1992 dated 24.07.1992, cancelled the order of reinstatement ( 72 of

1992 ) and restored the order of removal from service that had been passed by the Commandant of the Battalian.

Petitioner challenged order no.576 of 1992 dated 24.07.1992 being unwarranted, unsupported by rules and in violation of principles of natural

justice, thereby seeking annulment and direction to respondents to allow him to join his duty in pursuance of order no. 72 of 1992 and treat him on

duty from the date he was reinstated. Before proceedings further, it would be appropriate to quote the impugned order here:

The case of constable Abdul Karim No. 272/9th Bn. has been reexamined in the light of rules and procedures and it has been found that there

are certain material deficiencies in the order issued vide this office order No. 72 of 1992 dated: 17.2.1992 and in view of the result of the

reexamined office order No.72 of 1992 dated 17.2.1992 reinstating the const. Abdul Karim no.272/9th in service is cancelled.

The order issued by the Comdt. vide his office order No. 1067 of 1991 dated: 1.10.1991 discharging the const. Abdul Karim No.272/9th will

remain intact"".

Single Judge came to the conclusion that removal from service is a major penality and cannot be inflicted on a Civil servant of the State except

after an enquiry in which he is informed about the charges against him and afforded reasonable opportunity of being heard in respect of these

charges and where it is proposed to impose on him any penality after such enquiry, he is given reasonable opportunity, of making representation on

the penalty proposed. Similar requirement is envisaged under rule 33 of the Jamniu and Kashmir Civil Services ( Classification, Control and

Appeal) Rules. Since requirement laid down by these provisions has not been met, the impugned order was liable to be quashed. Thereafter, when

the order passed by the Commandant was set aside for stated reasons to his satisfaction and petitioner had joined the services, impugned order

could not be passed without hearing the petitioner for want of justification to review the order earlier passed. Finally, as said the order was set

aside and respondents were directed to treat the petitioner as on duty from the date he was reinstated through order No.72/92 with all service

benefits.

We have considered the matter carefully with the assistance of learned counsel for both the parties. The kind of order passed by the

Commandant in this case has come before this court in number of cases and has been set aside being in violation of the service rules and in

violation of principles of natural justice. Present order suffers from the same deficiency, therefore, it is nonest. However, the legality property and

reasonableness of this order was challenged by the petitioner through representation which Inspector General of Police decided in his favour setting

aside his removal after duly recording reasons for coming to that conclusion. Having exercised that power, no further review of the same is there

under rules. We understand order of Commandant was reviewed by exercising power of review under rule 363 read with rule 374 of the Jammu

and Kashmir Police Rules and not in exercise of appellate power since, appeal can lie to next higher officer and not to Inspector General under rule

364.

Conjoint reading of the rules plainly demonstrate that after once exercising the power of review with respect to an order, no further review of the

same by that authority is possible. Therefore, impugned order has been rightly set aside by the Single Judge. Further, Inspector General of Police

has passed this order against the petitioner without hearing him thereby violating principles of natural justice which are to be read part of the rules

even if it is assured that they are not there in the rules as contended by the State.

Decision on which reliance was placed by Shri M.H.Attar, Additional Advocate General reported in AIR 1998 SLJ 351 titled Gh.Mohammad vs

State of Jammu and Kashmir has no application to the facts of this case.

No other point was urged.

The result, therefore, is that there is no merit in this appeal and the same is dismissed.