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2009 DIGILAW 65 (JK)

Syed Alam v. State Of J. &K.

2009-02-18

MANSOOR AHMAD MIR

body2009
1. Petitioner has called in question No.792 of 2003 dated 05-07-2003 passed by Senior Superintendent of Police, Anantnag, whereby petitioner came to be discharged from service with effect from the date of his absence i.e. 07-06-2003. The main ground of challenge taken by the petitioner in the writ petition is that the order impugned came to be passed without conducting an enquiry and that he had 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 remained absent from duty unauthorizedly and despite notices issued to him to resume his duties, he failed to turn up and was accordingly discharged from service. It is nowhere stated in the reply that any enquiry was conducted against him. 3. Perusal of the record reveals that the petitioner came to be appointed as Police Constable and was subsequently promoted as Selection Grade Constable. He came to be discharged from service vide order No.792/2003 dated 5-7-2003 issued by Sr. Superintendent of Police, Anantnag. The allegation against the petitioner is that he remained absent from duty and is unlikely to prove himself an efficient police officer and without conducting an enquiry as envisaged by Rule 359 of the J&K Police Rules, he came to be discharged from service. 4. It is a beaten law of the land that a constable who is on probation can be discharged from services in terms of Rule 187 of the J&K Police Rules provided order is not stigmatic. A Selection Grade Constable, who is not on probation, cannot be discharged from service in terms of Rule 187, and an enquiry is to be conducted in terms of Rule 359 of J&K Police Rule. The words used in the impugned are that "he is unlikely to prove himself an efficient police officer" are stigmatic, as such enquiry was required to be conducted in the matter. 5. 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 alone, the impugned order cannot stand the judicial test. 6. Viewing thus, the impugned order being bad in law, is accordingly quashed. 5. 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 alone, the impugned order cannot stand the judicial test. 6. 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 by the petitioner on the respondents against proper receipt. Accordingly the petition is allowed.