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2013 DIGILAW 557 (JK)

Safaya Akhtar v. State

2013-09-17

Mansoor Ahmad Mir

body2013
1. The subject matter of this writ petition is Order No.793/2003 dated 05.07.2003 issued by the Senior Superintendent of Police, District Anantnag (annexure `D' to the writ petition), whereby and whereunder the petitioner came to be discharged from service with effect from 21.06.2003. 2. It has specifically been averred in the writ petition that in the month of June 2003 when the petitioner was holding the post of Selection Grade Constable she got ill, as a result of which she could not attend her duties. When she recovered from the ailment, she reported for her duty, but was not allowed to join, instead the respondents vide the impugned order discharged her from service. Aggrieved by the same she made various representations to the respondents for allowing her to join, but all in vain. She has also annexed with the writ petition copy of representation dated 23.10.2008. It would be appropriate to reproduce paragraph 2 of the representation herein. "Due to unknown reasons I have not been allowed to join my duties and in this regard I have made number of representations for the reasons here and above which your subordinate officers are not allowing me to resume my duties." 3. Respondents have not denied the said fact, rather they have admitted that the petitioner made representations from time to time. It would be appropriate to produce paragraph 6 of the reply herein. "In reply to para-6, it is respectfully submitted that it is fact that the petitioner filed representation before the answering respondent but they were time barred, devoid of merit and does not bear any weight as the representations have been filed in the year 2008 while as the petitioner was discharged from services in the year 2003. The petitioner has not filed representation well in time for seeking any efficacious remedy." 4. Thus, the respondents have admitted that the petitioner made representations from time to time assigning the reasons of her absence. Respondents have also not taken the plea of delay and laches, thus are caught by law of waiver. The pleadings of the parties have important role to play in determining the rights of the parties. The respondents have to either specifically admit or deny the averments/pleadings. If any evasive denial is made that would amount to admission. 5. Respondents have also not taken the plea of delay and laches, thus are caught by law of waiver. The pleadings of the parties have important role to play in determining the rights of the parties. The respondents have to either specifically admit or deny the averments/pleadings. If any evasive denial is made that would amount to admission. 5. As discussed hereinabove, the respondents have not taken all legal grounds as a weapon which were available in their armoury and have also not denied the fact that the petitioner had not made representations from time to time. Thus, only on this count the writ petition merits to be allowed. My view is fortified by the judgment of Apex Court in Asha v. Pt. B.D. Sharma University of Health Sciences, (2012) 7 SCC 389 . It would be appropriate to reproduce paragraphs 17, 18 & 19 herein. "17. It is a settled principle of law of pleadings that an averment made by the appellant is expected to be specifically denied by the replying party. If there is no specific denial, then such averment is deemed to have been admitted by the respondent. In the present case, it is evident that the above-noted averments in the writ petition were relevant and material to the case. In fact, the entire case of the appellant hinged on these three paragraphs of the writ petition. It was thus, expected of the respondents to reply these averments specifically, in fact to make a proper reference to the records relevant to these paragraphs. In view of the omission on part of the respondents to refer to any relevant records and failure to specifically deny the averments made by the appellant, we are of the considered view that the appellant has been able to make out a case for interference. 18. Not only this, if the averments made in paragraph 9 of the writ petition are correct and the appellant had instantaneously raised her claim before the respondents, followed by making of the representation, we see no reason why the claim of the appellant could not be settled at that time or in any case in the subsequent counseling held on 30th September, 2011, where the appellant was admittedly present. The attendance sheet produced before us shows that the appellant was present on all the three days. The attendance sheet produced before us shows that the appellant was present on all the three days. Even the records produced by the respondents before the Court support the case of the appellant. 19. The appellant filed the writ petition before the High Court without any undue delay and on 4th November, 2011, the judgment by the court was passed in her favour. The cumulative effect of the above factual matrix, the pleadings of the parties and the expeditious manner in which the appellant had taken action before the authorities and then before the court and pursued her remedies, persuade the Court to believe that the case of the appellant is truthful. The cases of the present kind are not required to be tested by us on the touchstone of stringent principles of burden of proof applicable to criminal jurisprudence. As already mentioned, it was the obligation of the respondents to specifically deny the averments made by the appellant and to produce the relevant records to show that the stand taken by them is worthy of credence. Having failed to do so, they cannot shift the burden upon the appellant and expect this Court to believe that a student of the same college would disappear at the relevant time of counseling after having marked her presence at the counseling." 6. Admittedly, the petitioner was a Selection Grade Constable. The discharge order could not have been passed by invoking Regulation 187 of J&K Police Manual. In terms of the mandate of said regulation, a probationer Police Constable can be discharged from service within three years from the date of appointment., thus, is suggestive of the fact that the order is illegal. 7. A perusal of the impugned order reveals that the respondents had not conducted any inquiry. It is positive case of the respondents that the petitioner absented herself from attending the duty, therefore, they were under legal obligation to conduct inquiry in terms of Regulation 359 of Police Manual, which has not been done in the instant case. Thus, the petitioner has been condemned unheard and even the respondents have not followed the due procedure. 8. Having said so, the impugned order is bad in law, therefore merits to be quashed. Accordingly, the writ petition is allowed and the impugned order is quashed. However, the respondents are at liberty to conduct inquiry into the matter. Thus, the petitioner has been condemned unheard and even the respondents have not followed the due procedure. 8. Having said so, the impugned order is bad in law, therefore merits to be quashed. Accordingly, the writ petition is allowed and the impugned order is quashed. However, the respondents are at liberty to conduct inquiry into the matter. The period of absence of petitioner shall be subject to the outcome of such inquiry. It is made clear that if the inquiry is not conduced within a period of three months from the date a copy of the order is served upon the respondents, in that eventuality the petitioner would not be entitled to salary for the date she was absent till today but the said period shall qualify for all other service benefits. 9. Disposed of along with connected CMP.