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2008 DIGILAW 46 (JK)

Javaid Hussain Bhat v. State Of J. &K.

2008-02-16

MANSOOR AHMAD MIR

body2008
1. Petitioner has called in question order No. 953 of 2002 dated 13.12.2002 passed by Senior Superintendent of Police, Baramulla, whereby petitioner came to be removed from service. It is averred in the petition that without hearing him, he came to be dismissed from service and order impugned is stigmatic. 2. Respondents have filed reply in which they have contended that the petitioner was a probationer and came to be removed from service in terms of Rule 187 of the J&K Police Rules. 3. Admittedly petitioner came to be removed from service and has not been discharged. The order contains two parts; firstly the petitioner came to be removed from service on the ground that he will not become a good official in view of his negative tendencies; and secondly the period from 14.08.2002 till 13.12.2002 came to be treated as Dies-non. It is profitable to reproduce the operative portion of the order hereunder: In view of the above facts, it is evident that he is not interested to serve the department and cannot become a good police official, because his existence on the department will cost dear on the indiscipline. Thus he cannot be retained in the department further more. Therefore, in exercise of powers conferred to me under rule 187 of the J&K Police Manual, I Dr. Showkat Ahmad Malik, KPS, Sr. Superintendent of Police, District Baramulla, do hereby REMOVE. R/CT Javaid Hussain Bhat, Belt 1462/B S/o Mohammad Abdullah Bhat R/o Sulganpora Kandi Kreeri, Tehsil and District Baramulla, from service with immediate effect, treating his period of absence w.e.f. 14.8.2002 till date as on Dies-non on the principle of NO WORK NO PAY. 4. Keeping in view the contents of the impugned order, I am of the considered view that in terms of Rule 187 of the J&K Police Rules, a Police Constable can be discharged but not removed from service. Order of removal from service can be passed only after conducting enquiry in terms of Rule 359 of the J&K Police Manual and after providing him an opportunity of being heard. On the fact of it, the order impugned is stigmatic. 5. The impugned order, so far it relates to treating of period of absence as dies-non, could have been passed only after hearing the petitioner, but came to be passed without hearing him. Viewing thus, the impugned order being bad in law, is accordingly quashed. On the fact of it, the order impugned is stigmatic. 5. The impugned order, so far it relates to treating of period of absence as dies-non, could have been passed only after hearing the petitioner, but came to be passed without hearing him. 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 writ petition is allowed.