1. Late Parvaiz Ahmad, admittedly, appointed as Constable Driver in J&K Police in the year 1996, had remained absent with effect from 20.1.2008 to 07.07.2008 but had resumed duty on 08.07.2008. Departmental enquiry was initiated against him for unauthorized absence. SDPO, Kulgam (Enquiry Officer) submitted the report to the respondent SSP to the effect that the delinquent Driver Constable did not cooperate, therefore, enquiry was completed in ex-parte. The report submitted by him would provide that the period of absence i.e. 20.1.2008 to 7.7.2008 (in all 167 days) be treated as dies-non. The report was not accepted by Senior Superintendent of Police, Kulgam, and de novo enquiry was ordered vide order No.617/2009 dated 16.12.2009 to be conducted by Additional Superintendent of Police, Kulgam. 2. Additional Superintendent of Police, Kulgam is stated to have made numerous correspondences but could not procure the presence of delinquent Constable. Even a Constable of DPL, Kulgam was deputed to inform the delinquent to report the office of the enquiry officer. The delinquent Constable even after acknowledging the information did not bother to appear before the enquiry officer. After providing all opportunities to the delinquent Constable, the enquiry officer found no option but to complete the enquiry in ex-parte and submitted his recommendations on 24.8.2010 for discharge of the delinquent Driver Constable. 3. On receipt of the enquiry report of the Additional SP (Enquiry Officer), the Disciplinary Authority-SSP, Kulgam, has issued a show cause notice vide No.Estt/Enq/2010-18124-32 dated 01.09.2010 to the effect as to why action warranted under rules be not taken against him. The said show cause notice is stated to have been duly served upon the delinquent Constable Driver in presence of the witnesses but again he failed to respond and continuously remained absent again with effect from 11.01.2009. The Disciplinary Authority-SSP, Kulgam noticing that the delinquent Constable Driver is a burden upon the department shall not become a good police officer, has agreed with the recommendation of the enquiry officer and then in exercise of powers vested in him under Rule 335 of J&K Police Manual, has dismissed the delinquent Constable Driver with effect from 11.01.2009. The period of absence with effect from 20.01.2008 to 07.07.2008 has been treated as dies-non on the analogy of no pay for no work. 4. The period of absence with effect from 20.01.2008 to 07.07.2008 has been treated as dies-non on the analogy of no pay for no work. 4. Against the order of Disciplinary Authority dated 03.12.2010, the delinquent Constable Driver (now deceased) filed an appeal on 28.01.2011 in accordance with Rule 364 of the Police Rules which remained pending. During pendency of said appeal before Director General of Police-respondent No.2, the Constable Driver Parvaiz Ahmad died on 21.10.2011 leaving behind the petitioner No.1 (widow) and petitioners No.2 and S(daughters). The petitioners on 26.4.2011 have filed one more appeal before respondent Director General of Police. 5. In the said appeal filed by the petitioners, it has been highlighted that Late Parvaiz Ahmad Constable while performing duties got injured in a militant attack and received bullet injuries in the neck. Prior thereto his only son, namely, An-ayatullah also expired but braving all these circumstances Late Parvaiz Ahmad was discharging his duties with dedication, therefore, order of dismissal should not have been passed which now operates harshly as against the petitioners. The appeal (representation) has not been responded constraining the petitioners to file the instant petition. 6. In the petition it is prayed that the respondents may be directed to take a decision on the representation filed by the petitioners with regard to release of monetary/pensionery benefits after setting aside order of dismissal dated 03.12.2010, late Parvaiz Ahmad maybe declared to have died in harness, consequent thereupon, one of the family member may be directed to be appointed on compassionate grounds. 7. Heard learned counsel for the parties. 8. As against the order of dismissal, an appeal was preferred by Parvaiz Ahmad Constable Driver (now deceased). The said appeal was required to be decided by the competent authority within a period of 90 days as ordained by Rule 376 of the J&K Police Rules. Admittedly appeal has not been decided so has remained pending. 9. The first question as to whether instant petition is maintainable, has to be answered in affirmative because in case order of dismissal is set aside, then there is no fresh scope for further enquiry, automatic effect would be that the petitioners shall be entitled to retiral as well as pensionery benefits being dependents of the deceased. In this view, I am fortified by the judgment rendered in case Narinder Kaur Vs. In this view, I am fortified by the judgment rendered in case Narinder Kaur Vs. Punjab State & another, 1996 (5) SLR 422, wherein it has been concluded "once Court comes to the conclusion that the order is illegal necessarily it is to be inferred that the same is non-existent and so for all intents and purposes the plaintiff shusb and would be deemed to be in service till his death". It is further held "the right to the post which was personal right to him becomes non-existent on his death, accordingly no such right survives to the dependent as held by the court below, plaintiff being a dependent/legal representative of course is entitled to the pensioner benefits according to rules". 10. In the judgment captioned Amrit Kour & Ors Vs. Union of India & ors, 1993 SLJ 321, it has been held "if we apply the principle underlying the above referred provisions of law we find that after the death of the deceased-petitioner, appellants are entitled to recover the amount of salary and other pecuniary benefits besides the benefit of family pension in case the petition succeeds". 11. In the judgment Mohammad Sadiq Fani v. Deputy Commissioner, Doda & Ors, SLJ 1988 (J&K) 44 it has been held "right as regards monetary benefits would survive to legal representatives if the monetary benefits are deprived illegally in violation of rules. Death of the claimant would not be sufficient to put an end to such a claim because such a right is heritable, because monetary benefits as also the pensionary benefits will be property in the hands of the petitioner, which will be heritable after his death". 12. The right of the deceased to reinstatement as against the post and continuance thereof is a personal right, which, with his death has ceased to exist but now in case order of dismissal does not survive, then dependent legal heirs of the deceased (petitioners herein) shall have a right to claim pensionary and other retiral benefits. 13. Now an important issue is as to whether the order of dismissal impugned is in consonance with law. The enquiry officer has submitted his report recommending therein discharge of the delinquent Driver Constable (Late Parvaiz Ahmad) vide his report dated 24.08.2010. 13. Now an important issue is as to whether the order of dismissal impugned is in consonance with law. The enquiry officer has submitted his report recommending therein discharge of the delinquent Driver Constable (Late Parvaiz Ahmad) vide his report dated 24.08.2010. On receipt of such report, what was required to be done is what is contained in Rule 359 of the J&K Police Rules. Rule 359(11) is relevant to be quoted: "(11)(1) As laid down in section 126 of the Constitution of Jammu and Kashmir, no officer shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No police officer shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause orally and also in writing against the action proposed to be taken in regard to him, provided that this clause shall not apply:— a) where a person is dismissed or removed or reduced in rank on the ground of conduct which led to his conviction on a criminal charge; b) where an authority empowered to dismiss or remove an officer or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing it is not reasonably practicable to give to that person an opportunity of showing cause; or c) where the Sadar-i-Riyasat is satisfied that in the interest of the security of the State it is not expedient to give to that officer such an opportunity. (3) If any question arises whether it is reasonably practicable to give to any officer an opportunity of showing cause under clause (2) above, the decision thereon of the authority empowered or dismiss or remove such officer or to reduce him in rank, as the case may be, shall be final". 14. Plain language of the Rule provides that dismissal or removal or reduction in rank is permissible only after affording the delinquent reasonable opportunity of shown cause, orally and also in writing, against the action proposed to be taken. 15. The Disciplinary Authority (SSP, Kulgam) is shown to have issued the cause notice on 01.09.2010 which reads as under:- "SHOW CAUSE NOTICE I Keshav Churasia, IPS Superintendent of Police, Kulgam issue this show cause notice to you Dvr Constable Parveez Ahmad No.440/Kgm (EXK962600) S/O Gh. 15. The Disciplinary Authority (SSP, Kulgam) is shown to have issued the cause notice on 01.09.2010 which reads as under:- "SHOW CAUSE NOTICE I Keshav Churasia, IPS Superintendent of Police, Kulgam issue this show cause notice to you Dvr Constable Parveez Ahmad No.440/Kgm (EXK962600) S/O Gh. Nabi Bhat R/O TangporaBatmaloo District Srinagar on the following counts: 1- Whereas, you absented un-authorizedly from duty w.e.f. 20-01-2008 to 08-07-2008 i.e. for a period of 167 days. 2- Whereas, accordingly a departmental enquiry was initiated against you vide this office order endorsement No.Estt/Enq/2009/15513-17 dated 16-12-2009 and entrusted to ASP Kulgam with the directions to furnish specific recommendation to the undersigned at the earliest. 3- Whereas, the enquiry officer (ASP) submitted his findings vide his office No.ASP(K)/E,-l/10-1156 dated 24.08.2010 with the recommendations that you may be discharged from services because you absented again from duties w.e.f. 11-01-2009 and not reported back inspite of reported directions. Before proceeding further into the matter you are directed to show cause that why not proceedings as warrant under rules may be initiated against you. Your reply should reach to this office within week's time after the reception of this notice". 16. Contents of the show cause notice would suggest that the Disciplinary Authority has asked the delinquent to show cause as to why proceedings as warranted under rules be not initiated against him. This show cause notice is shown to have been served upon the deceased but without the copy of the report of the enquiry officer, which is in violation to the right to receive the same, which in turn amounts to denial of reasonable opportunity. In my view, I am fortified by the judgment reported in (1993) 4 SCC 727 . 17. Secondly what was required to be done by the Disciplinary Authority, in terms of Rule 359(11)(2), was to serve another notice proposing the punishment to be imposed, which has not been done, instead order of dismissal impugned has been passed. For want of second notice proposing punishment in terms of Rule 359(11) (2), the order is rendered illegal. After 42nd amendment, right to show cause against penalty has been taken away but the said amendment so far has not been applied to the State of J&K. 18. For want of second notice proposing punishment in terms of Rule 359(11) (2), the order is rendered illegal. After 42nd amendment, right to show cause against penalty has been taken away but the said amendment so far has not been applied to the State of J&K. 18. Since the order of dismissal is held to be illegal, resultantly set aside, now there is no scope to issue fresh requisite notice proposing punishment because of death of the delinquent, as a result thereof, he is to be deemed to be in service until death but shall not be entitled to any monetary benefits for the said period. Case for pensionary benefits and for grant of retiral benefits, to which petitioners are entitled, has to be processed. Let the same process be initiated and completed at an earliest, preferably within eight weeks from the date copy of the judgment is served upon the respondents. 19. In the given circumstances, the respondents shall also consider case of the petitioners for compassionate appointment in accordance with rules. 20. The record, as produced, be returned to the learned counsel for the respondents.