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2013 DIGILAW 552 (JK)

State of J&K and Ors. v. Bilal Ahmad Parray

2013-09-17

DHIRAJ SINGH THAKUR, M.M.KUMAR

body2013
M.M. Kumar, C.J.;— 1. The instant appeal under Clause 12 of the Letters Patent is directed against judgment and order dated 03.03.2011 rendered by learned Single Judge of this Court, holding that order dated 19.12.2005 passed by the appellants, dismissing the writ petitioner-respondent from service as a Constable, is wholly unwarranted and would not be sustainable in the eyes of law. The order dated 19.12.2005 in extenso would read as under:-. Order No. 2797 of 2005 Dated 19.12.2005 01) Whereas, Constable Bilal Ahmad No. 2644/S S/o Abdul Rehman Parrey R/o Prangpalla Kangan District Srinagar, while his posting in DPL Srinagar absented himself unauthorisedly on 28.11.2004. 02) Whereas, the said Constable resumed his duties on 13.05.2005 after obtaining proper permission vide DPO order No. 578 of 2005 dated 10.05.2005. 03) Whereas, the said Constable resumed his duties after a long absence of 216 days. 04) Whereas, a departmental enquiry was conducted against the said Constable by DySP Dar DPL Srinagar in pursuance to DPO Order no. 578 of 2005 dated 10.05.2005. 05) Whereas, the enquiry officer in his findings submitted that the said constable has not cooperated with him, which prompted him to take ex parte decision into the matter and recommended that the period of absence of the aforesaid constable be treated as dies non on the analogy of no work no pay. 06) Whereas, the service records of the constable reveals that he is habitual absentee and a period of 65 days has been treated as dies non in his favour in the year 2005. 07) Whereas, the conduct of the official en-lights that he is not interested to work the police department keenly. 08) Whereas, behavior of the said official is undesired and his retention will adversely affect the discipline of the force. Having regard to the aforesaid enumerated facts, it is hereby ordered as under:- i) The Constable Bilal Ahmad No. 2644/S is removed from service with immediate effect. ii) The period of absence from 28.11.2004 to 13.05.2005 (in all 216 days) retreated as dies non on the analogy of no work no pay. Having regard to the aforesaid enumerated facts, it is hereby ordered as under:- i) The Constable Bilal Ahmad No. 2644/S is removed from service with immediate effect. ii) The period of absence from 28.11.2004 to 13.05.2005 (in all 216 days) retreated as dies non on the analogy of no work no pay. The learned Single Judge has held that once the Inquiry officer has recommended that the period of absence of the writ petitioner-respondent be treated as dies non on the analogy of no work no pay and has also exonerated him, then for taking any contrary view a show cause notice was required to be issued. No such notice was never served upon the writ petitioner-respondent. However, the appellants have been given opportunity to conduct the enquiry afresh in accordance with law, if so advised. It has come on record that the appellants did not file any objections and their right to file objections was forfeited. Then record was produced before the learned Writ Court. 2. We have heard the learned counsel for the parties and have examined the record minutely and are of the view that the opinion expressed by the learned Single Judge is unexceptionable and does not suffer from any legal infirmity warranting interference by this Court. 3. Once the Enquiry Officer did not find the writ petitioner-respondent guilty of any charge and made recommendations that the period of his absence be treated as dies non, then a right has come into existence in favour of the writ petitioner-respondent. The Senior Superintendent of Police concerned should have discussed the evidence, recorded a tentative opinion with regard to the charges levelled against the writ petitioner-respondent and then issued a show cause notice to the delinquent. It is well settled by a catena of judgments of Hon'ble the Supreme Court that the view expressed by the Enquiry Officer cannot be brushed aside by the appointing/punishing authority without recording a dissenting note, expressing tentative opinion in support of charges and then issuing a show cause notice to the delinquent employee. In that regard reliance may be placed on the judgment of Hon'ble the Supreme Court rendered in the case of the Punjab National Bank v. Kunj Behari Misra, AIR 1998 SC 2713 and State Bank of India v. K.P. Narayanan Kutty, AIR 2003 SC 1100 . The appeal does not warrant admission. In that regard reliance may be placed on the judgment of Hon'ble the Supreme Court rendered in the case of the Punjab National Bank v. Kunj Behari Misra, AIR 1998 SC 2713 and State Bank of India v. K.P. Narayanan Kutty, AIR 2003 SC 1100 . The appeal does not warrant admission. Accordingly we uphold the view taken by the learned Single Judge. As a sequel to the above discussion the appeal fails and is accordingly dismissed with one modification of deleting costs imposed by the learned Single Judge against the Senior Superintendent of Police concerned. Appeal disposed of.