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2010 DIGILAW 531 (JK)

Mohd. Ashraf Malik v. State

2010-10-18

MUZAFFAR HUSSAIN ATTAR

body2010
1. The writ petition is filed in the year 1991. The petitioner was working as Constable in the respondent department and on the allegations of unauthorized absence from duty was ordered to be removed from service. He was removed from service on the allegation of remaining unauthorizedly absent from duty vide order dated 17th May 1990. The said order has been challenged in SWP No. 2684/91. The said writ petition was dismissed for non prosecution on 3rd of Nov. 1999 and restored to its original number by order dated 09th Dec. 2009 passed in restoration No. 160/07. It appears that while first petition was dismissed for non prosecution, the petitioner filed another petition challenged same order in SWP No. 1178/06. The reply affidavit has been filed by the respondents in the said writ petition. In the first writ petition, the order of removal was not placed on record, for the reason that same was not provided to the petitioner. Subsequently, it appears that order of removal was provided to the petitioner, and that is why the same has been placed on record of the subsequent writ petition. The two writ petitions are thus clubbed together. 2. Admit. Mr. A.M. Magray, ld Sr. AAG appeared and submitted that he has instructions to accept the notice on behalf of respondents. Ld counsel also submitted that the reply affidavit filed in SWP No. 1178/06 be treated as counter affidavit. His statement is taken on record. Prayer is allowed. 3. In view of the controversy involved in this case, Mr. Magray ld Sr. AAG in his fairness submitted that he has no objection in taking up this case for final disposal. The case is accordingly taken up for final disposal. 4. The case of the petitioner as admitted by the respondents is that he was working as constable in the respondent department. The pleadings in both the petitions show that petitioner was suffering from some ailment and he was admitted in Government SMHS Hospital Srinagar into surgical unit under MRD No. 43256 from 6lh January, 1990 to 17th April, 1990. It is further case of the petitioner that he was advised to have complete bed rest up to 17th May, 1990. Petitioner further pleaded in the writ petition that he had informed the respondent department telegraphically and had requested for extension of leave. It is further case of the petitioner that he was advised to have complete bed rest up to 17th May, 1990. Petitioner further pleaded in the writ petition that he had informed the respondent department telegraphically and had requested for extension of leave. The petitioner on 20th May, 1990 went to resume his duties but Commandant 6th Bn. JKAP did not allow him to join and directed him to seek instructions from Director General of Police. The petitioner’s further case is that he was not permitted to join and was told that he had been dismissed from service. The petitioner requested for issuance of copy of dismissal order which was not given to him. The petitioner filed an application requesting therein for issuance of copy of dismissal order, but same was not still given to him and in these circumstances the petitioner could not place on record of SWP No. 2684/91 the copy of dismissal order. The said writ petition was dismissed for non prosecution. Thereafter the petitioner filed the subsequent writ petition. The petitioner has placed the order of dismissal issued by Commandant 6th Bn. JKAP Zewan dated 17th May 1990 on record of second writ petition. The perusal of the said order reveals that the petitioner along with other persons was ordered to be removed from service with effect from date he had remained unauthorizedly absent from duty i.e 6th January 1990. The grounds on which the order of removal has been challenged are summarized as under:- (a) The petitioner had not willfully and deliberately absented from duty but because of his ailment he was prevented from performing the duty. (b) The leave was sought but petitioner was not informed about its extension or rejection. (c) No enquiry as provided by J&K Police Rules was conducted and no notice was issued to the petitioner before ordering for his removal from services. 5. Mr. Magray, ld Sr. AAG, submitted that in the year 1990 the State of J&K, more particularly Valley of Kashmir, was ushered into abnormal circumstances and it was deemed necessary to have the police force available with the State authorities. The petitioner absented from duty. 5. Mr. Magray, ld Sr. AAG, submitted that in the year 1990 the State of J&K, more particularly Valley of Kashmir, was ushered into abnormal circumstances and it was deemed necessary to have the police force available with the State authorities. The petitioner absented from duty. Ld counsel submitted that though, from the impugned order it appears that enquiry has not been conducted but in the given circumstances conducting of enquiry in respect of a member of disciplinary force would have not served interest of the State, the ld counsel submitted that the petitioners dismissal is justified. 6. The philosophy of rule of law is that the relationship between Government and its subjects is to be determined by having reference to the law and rules occupying the field. A democratic society is always governed by rule of law and what is magical about it is that even in extreme adverse circumstances, the state has to be guided by rule of law in all its actions. The provisions of the Constitution and other laws have to be preserved and maintained even in extreme adverse conditions. The actions of authorities are to be governed by rule of law. 7. Section 126 of the Constitution of J&K read with section 311 of the Constitution of India affords protection to an employee. The Jammu and Kashmir Police Rules also provide the mode, method and procedure for dealing with the employees of the police force. Rule 334 (1) of the J&K Police Rules provide that no police officer shall be punished otherwise than as prescribed in these rules. Rule 334(2) (b) of J&K Police Rules provides that removal of employee is one of the authorized departmental punishment. Rule 359 of the Police Rules provide complete code for dealing with the person on whom punishment is intended to be inflicted. Admittedly the Rule 359 of the Police Rules has been observed in complete breach. No enquiry has been conducted, even show cause notice has not been issued before ordering removal of the petitioner from service. The ld counsel for respondents submitted that they be given liberty to initiate enquiry against the petitioner in accordance with the rules. Admittedly the Rule 359 of the Police Rules has been observed in complete breach. No enquiry has been conducted, even show cause notice has not been issued before ordering removal of the petitioner from service. The ld counsel for respondents submitted that they be given liberty to initiate enquiry against the petitioner in accordance with the rules. Ld counsel also submitted that the salary from the date of absence from duty till the date of passing of the judgment may not be ordered to be paid to the petitioner and same be kept subject to outcome of departmental enquiry. The submission made by ld counsel are justified in the fact situation of the case. 8. For the above stated reasons, this petition is allowed in the following terms: (a) By issuance of writ of certiorari the impugned order No. 369/90 dated 17th may, 1990 is quashed to the extent of petitioner. (b) The respondents are given liberty to initiate enquiry in accordance with the rules, if so advised. (c) Payments/salary of the petitioner from the date of his alleged unauthorized absence till today shall be determined by the authorities in accordance with the rules. Petitions disposed of.