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2009 DIGILAW 74 (JK)

Fayaz Ahmad Bhat v. State Of J. &K.

2009-02-20

MANSOOR AHMAD MIR

body2009
1. Petitioner has questioned order No. 473 of 2006 dated 3.8.2006 passed by Commandant, IR 8th Battalion, Humhama, whereby petitioner came to be removed from service, on the grounds taken in the petition. 2. Respondents have resisted the petition on the grounds stated in the counter/reply affidavit. 3. Petitioner has averred in the petition that the impugned order came to be passed without conducting an enquiry in terms of rules applicable and without hearing him. A show cause notice bearing No. Estt/IR-8th PF-336/8411-19 dated 25.07.2006 was issued to the petitioner asking him to submit his reply within seven days. Accordingly, petitioner replied the show cause notice, but the explanation tendered for his absence was rejected and consequently, without conducting an enquiry and providing him an opportunity of being heard, the impugned order came to be passed, which on the face of it is against the principles of natural justice. 4. Respondents in their reply have stated that the petitioner remained absent from duty with effect from 20.12.2001 and came to be placed under suspension. He was also transferred from IR 5th Bn. To 8th Battalion vide order dated 1.6.2005 and was asked to work with SOG, Budgam. He came to be relieved from 5th Bn. from 17.6.2005, but petitioner remained absent. Consequently, a show cause notice was served to him and he was asked to reply the same within seven days. Petitioner submitted his reply and pleaded that he was suffering from psychiatric problem and his absence from duty was beyond his control. Respondents have nowhere stated in the reply that any enquiry came to be conducted in terms of the rules applicable. It is apt to reproduce para 4 of the impugned order hereunder: - "Para 4 contain grounds, ground (I) replied as under: I. In response to ground (I), it is submitted that the impugned order stands issued strictly as per rules. It is submitted that though petitioner submitted his reply to the show cause notice pleading therein that he was confronted with the psychiatric problem, but no such certificate was produced by him. The petitioner was given sufficient opportunity to produce defence, but he failed to do so. His reply to the show cause notice was not found convincing. It is also submitted that petitioner remained for a prolonged period absent and did not report back to face the consequences. Ground is accordingly replied." 5. The petitioner was given sufficient opportunity to produce defence, but he failed to do so. His reply to the show cause notice was not found convincing. It is also submitted that petitioner remained for a prolonged period absent and did not report back to face the consequences. Ground is accordingly replied." 5. Respondent-Commandant IRP 8th Bn. has recorded in the impugned order that he was not satisfied with the reply tendered by the petitioner in response to the show cause notice and further observed that it was possible that petitioner would have been involved in doubtful activities. 6. After issuing show cause notice and reply by the petitioner, it was duty of the authority, if not satisfied with the reply, to conduct an enquiry in terms of Rule 359 of the Police Rules and to give an opportunity of being heard to the petitioner. Neither enquiry came to be conducted nor petitioner has been heard. The respondent No.2 has not also issued second show cause notice in terms of rule 359(2) of the Police Rules. It is also not forthcoming from the record why enquiry was not conducted right from 20.12.2001, when the petitioner was placed under suspension and why thereafter he was transferred in the year 2005 from 5th Battalion to 8th Battalion during suspension and how he was asked to perform duties, when he was under suspension and was asked to work with SOG Budgam. If petitioner has remained absent right from 20.12.2001, what was the need to issue notice after lapse of five years i.e. on 25.7.2006. In the given circumstances, I have no hesitation to hold that the order impugned is not only bad in law, but also against the principles of natural justice. 7. Viewing thus, the impugned order No. 473 of 2006 dated 5.8.2006 is 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 him. The intervening period from the date of absence till to-date shall be subject to the outcome of the enquiry, if conducted. The enquiry shall be conducted against the petitioner within a period of three months from the date, copy of the judgment is served by the petitioner on the respondents against proper receipt. The intervening period from the date of absence till to-date shall be subject to the outcome of the enquiry, if conducted. The enquiry shall be conducted against the petitioner within a period of three months from the date, copy of the judgment is served by the petitioner on the respondents against proper receipt. It is made clear that if the respondents fail to conduct enquiry within the time frame then in that eventuality the petitioner is not entitled to the salary for the said period but it shall qualify for other service benefits. Accordingly, the petition is allowed.