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2008 DIGILAW 44 (JK)

Mushtaq Ahmad Dar v. State Of J. &K.

2008-02-16

MANSOOR AHMAD MIR

body2008
1. Petitioner has questioned order No. 303 of 2005 passed by Superintendent of Police, Kupwara, whereby petitioner came to be discharged from service with effect from 7-12-2004. The main ground of challenge taken by the petitioner in the writ petition is that the order impugned came to be passed without conducting any enquiry and that he has not been provided an opportunity of being heard before passing the impugned order. 2. Respondents have filed reply in which they have contended that the petitioner was a probationer and as such, no enquiry was required to be conducted against a probationer before discharging him from service. 3. Perusal of the record reveals that the petitioner came to be appointed as Police Constable on 3-6-2000 vide order No. 373 of 2000 issued by Sr. Superintendent of Police, Srinagar. He was on probation for a period of three years, which came to an end on 2nd June 2003. The allegation against the petitioner was that he remained absent from duty and without conducting an enquiry as envisaged by Rule 359 of the J&K Police Rules, he came to be discharged from service. 4. Rule 187 of the J&K Police Rules reads as under: - "DISCHARGE OF INEFFICIENTS: - A constable who is found unlikely to prove an efficient police officer may be discharged by the Superintendent at any time within three years of enrolment." 5. While going through the rule supra, it is crystal clear that a probationer can be discharged from service in terms of Rule 187, without conducting an enquiry. 6. In the instant case, probation period of the petitioner came to an end on 2.6.2003 and the impugned order of discharge of petitioner from service came to be passed after 05 years. Thus Rule 187 of the J&K Police Rules was not applicable to the case of the petitioner. 7. There is nothing on record to suggest that an enquiry came to be conducted against the petitioner in which he was provided an opportunity of being heard. On this count also the impugned order cannot stand the judicial test. 8. Viewing thus, the impugned order being bad in law, is accordingly quashed. However, respondents are at liberty to conduct an enquiry, if advised against the petitioner and pass appropriate orders after providing full opportunity of being heard to the petitioner. On this count also the impugned order cannot stand the judicial test. 8. Viewing thus, the impugned order being bad in law, is accordingly quashed. However, respondents are at liberty to conduct an enquiry, if advised against the petitioner and pass appropriate orders after providing full opportunity of being heard to the petitioner. The intervening period from the date of discharge till to-date shall be subject to the out come of the enquiry, if conducted. The enquiry shall be conducted against the petitioner within a period of three months from the date copy of this judgment is served upon by the petitioner on the respondents against proper receipt. Accordingly the petition is allowed.