Research › Search › Judgment

J&K High Court · body

2005 DIGILAW 299 (JK)

State Of J. &K. v. Manzoor Ahmad Wagay

2005-11-15

MANSOOR AHMAD MIR, R.C.GANDHI

body2005
1. The Letters Patent Appeal has been directed against order-dated 10.05.2005 passed by learned Single Judge in SWP No. 1286/01 whereby, the writ petition of the respondent has been allowed and consequent, thereto the impugned order-dated 15.05.2001 of termination of services of the respondent by appellant No.3 herein has been quashed. 2. Respondent was posted PSO with the protected person namely Mohd. Sidiq Parray who had his affiliation with a political party known as Awami League. The respondent absented from duty on 13.05.2001 without prior permission either from the protected person with whom he was posted or the concerned superior Police officer. During his absence Mohd. Sidiq Parray was filed upon and killed by unknown militants on 13.05.2005. The appellants came to be conclusion that it the absence of the respondent which has provided occasion to the militants to attack and kill the protected person. The appellant No.3 terminated the services of respondent on 15.05.2005 invoking powers under Section 126 (2) (b) of the Jammu & Kashmir Constitution, without holding enquiry on the ground that it is not reasonably practicably to hold enquiry. 3. The respondent challenged the impugned order on the ground that the appellants arbitrarily exercised the power to terminate the services of the respondent, coining an excuse that it was not practicable to hold enquiry. The learned Single Judge after hearing the rival contentions of learned counsel for the parties has allowed the writ petition on the ground that in such circumstances, it was practicable to hold the enquiry with regard to the unauthorized absence of the respondent. 4. The order under appeal has been challenged on the ground as set out in the writ petition and also as submitted at the Bar by learned counsel for the appellant that even if, the reasons for dispensing with the enquiry are not mentioned in the impugned order, these have been explained in the Counter Affidavit, therefore, the order under appeal deserve to be set aside. 5. We have heard learned counsel for the parties and perused the record. 6. Mr. 5. We have heard learned counsel for the parties and perused the record. 6. Mr. M.A. Rathore, learned AAG has submitted that judgment of the learned Single Judge cannot be maintained as the appellant has disclosed the reasons for exercise of powers under Section 126- 2(b) of the Constitution of Jammu & Kashmir as it was because of the absence of witnesses, the enquiry regarding the absence of the respondent, who was posted with the protected person, could not be conducted as being impracticable. The constitutional power can be exercised by the competent authority for dispensing with the enquiry, if it is not reasonably practicable to hold enquiry which means in the present case that the witnesses who could prove the misconduct of the respondent either are not available or could not be made available. The reasons of absence by the respondent could be ascertained if he is heard. The absence could be, for example, of his being kidnapping or he may not be feeling well or there might have been other reasons beyond his control to attend the duty for which enquiry should have been initiated. The incident took place on 13.05.2005 and the services of the respondent were terminated on 15.05.2005. The appellant has not initiated any enquiry and came to the conclusion to terminate the services of the respondent as the respondent on the basis that his absence has provided a chance to the militants to attack an kill the protected person. Such an approach of the respondents to arrive at the conclusion without supporting evidence is neither justified nor acceptable. Enquiry could have been conducted with regard to the absence of the respondent under such circumstances, the action of respondent No.3 is an arbitrary exercise of powers. 7. A public servant has certain guarantees and safeguards provided under Section 126 of the Constitution of Jammu & Kashmir which corresponds to Article 311 of the Constitution of India. The services of public servant can be terminated only after holding enquiry and providing opportunity to him to explain the reasons for alleged misconduct. The power of dispensing with the enquiry can be exercised by the competent authority if it is impracticable to hold enquiry with regard to the absence from duty. The reasons of absence could have been explained by the respondent it is show cause notice had been issued to him. The power of dispensing with the enquiry can be exercised by the competent authority if it is impracticable to hold enquiry with regard to the absence from duty. The reasons of absence could have been explained by the respondent it is show cause notice had been issued to him. Under such circumstances, termination of the services of the respondent in exercise of powers under Section 126(2)(b) of the Constitution of Jammu & Kashmir on the ground that it is not reasonably practicable to hold enquiry, is arbitrary. 8. For the aforesaid reasons, the judgment of learned Single Judge under appeal does not warrant any interference. The Letters Patent Appeal being devoid of merit is accordingly dismissed.