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2009 DIGILAW 283 (JK)

Pawan Kumar v. State

2009-06-02

J.P.SINGH

body2009
1. The petitioner, a constable in the 8th Bn of the Jammu and Kashmir Armed Police, was `removed from service by the Commandant JKAP-8th Bn Manigam, vide his Order No. 319 of 2000 dated 18-04-2000 for absence from duty w.e.f. November 19, 1999. 2. He has filed this writ petition seeking quashing of the Commandants order, inter alia, on the plea that the Commandants order was illegal being in violation of the 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. 3. Justifying petitioners removal from service, it has been 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. 4. I have considered the submissions made by learned counsel for the parties at the Bar. 5. 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. 6. 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. 7. Perusal of the records of the respondents support learned State Counsels stand that the Commandant had not held any enquiry before passing the order for petitioners 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. 8. Holding of enquiry and hearing the employee before proceeding against him, for disciplinary action, is a sine-qua-non for exercising power to remove him from service. 9. 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. 8. Holding of enquiry and hearing the employee before proceeding against him, for disciplinary action, is a sine-qua-non for exercising power to remove him from service. 9. The respondents have failed to follow the rules which govern petitioners service conditions and have removed him from service without holding enquiry in terms of the Service Rules. 10. Order no. 319 of 2000 dated 18-04-2000 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 petitioners service conditions. 11. This petition, therefore, succeeds and is, accordingly, allowed quashing Commandant JKAP- 8th Bns Order no. 319 of 2000 dated 18-04-2000, 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. 12. Quashing of the Commandants order will not, however, 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.