1. Petitioner vide order No. 176/2007 dated 7.8.2007 was appointed as Follower (Cook) in Indian Reserve Police (for short IRP) and allotted to 12th Bn. of IRP. He un-authorisedly absented himself from the Battalion Headquarters w.e.f 10.11.2007 and vide signal No. Estt/IR/07/535 dated 18.1.2008 and Estt/IR/08/710 dated 29.1.2008, was asked to resume his duty. A show cause notice vide No. Estt/IR/08/755-57 dated 30.1.2008 was served on him through Head Constable Mohammad Ramzan No. 65/IR. This was followed by Attendance notice No. Estt/1R/08/806-08 dated 12.2.2008 and final notice No. Est.IR/Notice/08/1330-31 dated 23.2.2008 published in a local daily of 26.2.2008. He was asked to resume duty within seven days from the date of publication of the notice. However, petitioner did not act upon the notice and failed to report to the regiment. The Commandant IRP 12th BN. on failure of the petitioner to resume his duty despite repeated requests and reminders, vide order No.76 of 2008 dated 17.3.2008 removed him from the rolls of the regiment w.e.f 10.11.2007 i.e the date he un-authorisedly absented himself from duty. 2. The removal order No.76 of 2008 dated 17.3.2008 is questioned in the writ petition on hand on the grounds that the order has been passed without a proper enquiry contemplated under law and in violation of rules and regulations govern ing the matter. 3. Petitioner in order to explain his unauthorised absence states that his mother was suddenly taken ill and had to be hospitalized, constraining the petitioner to leave his regiment to attend his ailing mother. It is stated that due to the shock suffered by the petitioner because of sudden ailment of his mother, he went into a spell of acute mental depression and was not able to resume his duty. It is insisted that the impugned order does not satisfy the requirements of Rule 359 Jammu & Kashmir Police Rules 1960 and section 126(2) Constitution of J&K where-under the order is stated to have been passed. 4. The respondents oppose the writ petition on the grounds that the petitioner at the time of his removal, was on probation and his service liable to be dismissed without inquiry.
4. The respondents oppose the writ petition on the grounds that the petitioner at the time of his removal, was on probation and his service liable to be dismissed without inquiry. It is pleaded that the respondents have complied with the legal and statutory requirements by serving four notices in a row on the petitioner, requesting him to resume his duty that have been served on the petitioner in presence of the witnesses and that the final notice was published in the local daily wherein the petitioner was informed that his further absence would result in his removal from service. 5. The respondents plead that the removal order is in conformity with law, satisfying all statutory and procedural safeguard available to the petitioner and that no interference is warranted in the matter. 6. Heard and considered Perused the record made available by Mr. Magray, Sr, AAG. 7. The petition must succeed for following reasons: (i) There is no denial of the fact that the petitioner was on probation on the date he un-authorisedly absented himself from duty as also on the date he was removed and Struck off from the rolls of the regiment. The respondents in the circumstances could fall back upon Rule 187, J&K Police Rules, 1960 and discharge the petitioner on the ground that he, in view of Commandant IRP 12th Bn., was not likely to become a good police Officer. Such an order would not require the competent authority to spell out the reasons for his discharge, except one provided in the rule 187 itself. Any remark or com ment on performances and conduct of the petitioner, would not be permis sible in absence of an enquiry, as such a remark would render a discharge stigma tic and subject to judicial review. (ii) In the case in hand the Commandant 12th Bn. - respondent No. 6 herein, for the reasons best known to him did not press into service, Rule 187 of J&K Police Rules 1960 to discharge the petitioner. He instead made use of Rule 359 of aforestated Rules. Rule 359 prescribes the procedure to be followed, while enquiring into complaint against a Police Officer. The mode and manner of a departmental enquiry contemplated under Rule 359 has been laid down in detail in Abdul Satar Lone v. State of J&K & ors 2011 (4) JKJ 587 (HC).
He instead made use of Rule 359 of aforestated Rules. Rule 359 prescribes the procedure to be followed, while enquiring into complaint against a Police Officer. The mode and manner of a departmental enquiry contemplated under Rule 359 has been laid down in detail in Abdul Satar Lone v. State of J&K & ors 2011 (4) JKJ 587 (HC). It would be advantageous to reproduce herein para-15 of the judgment: "15. Rule 359 of the Police Rules 1960 lays down the procedure to be followed in departmental enquiries. It would be advantageous to summa rize the mode and manner in which the enquiry is to be conducted step by step, without going to the text of Rule 359; a. Whenever a definite complaint of misconduct is received against Police Officer, the officer teceiving the complaint is to immediately record statements, if any, in support of the complaint and through usual channels forward the complaint with the statements, if any, to the Superintendent of Police or other gazetted officer under whose immediate control the officer receiving the complaint, is serving. The police or other officer if satisfied that a prima facie case for enquiry is made out is to entrust the enquiry as far as possible to a Gazetted Officer empowered to inflict a major punishment upon the delinquent officer. b. The officer conducting the enquiry is to summon the delinquent police officer, read out to him the statements summarising the alleging misconduct so as to give notice to such police officer of the circumstance in regard to which evidence is to be recorded. In case the delinquent police officer admits the misconduct alleged against him, the officer conducting enquiry may then and there record a final order if it is within his power to do so or forward the matter to an officer empowered to pass a final order. c. If the delinquent police officer does not admit the alleged misconduct, the enquiry officer is required to record such evidence oral and documentary in proof of accusation as is available and necessary to support the charge. Whenever possible, witnesses are to be examined in presence of the delinquent police officer and such officer given opportunity to examine the witnesses unless he is of the opinion that the presence of the witness cannot be secured without -undue delay and expense or inconvenience.
Whenever possible, witnesses are to be examined in presence of the delinquent police officer and such officer given opportunity to examine the witnesses unless he is of the opinion that the presence of the witness cannot be secured without -undue delay and expense or inconvenience. In later case the statement of the witness recorded and attested by Magistrate, may be considered though not recorded in presence of the delinquent officer and without opportunity to cross examine the witness to such officer. d. When the evidence is recorded and it is found not to substantiate the accusation, the officer is to recommend his discharge to the Superintendent of Police or other officer so empowered. However, if the evidence collected substantiates the accusation of misconduct, the officer is to frame a formal charge/charges in writing explain the charges to the delinquent police officer and call upon him to answer the charge. e. The Inquiry officer after the charge/charges are famed in writing is to explain it to the delinquent officer, and ask the delinquent police officer to furnish list of the defence witnesses whom he wishes to call along with summary of the facts as to which such witnesses are to testify. The Inquiry officer thereafter has to record the statement of the defence witnesses whom he decides to admit, in presence of the delinquent police officer, who is also to he allowed address/put questions to the witnesses as he may deem fit. The delinquent police officer is also to be given opportunity to file documentary evidence and in this regard to have access to official files and papers except such as form part of the confidential record. f. The Inquiry Officer, after the defence is concluded, is to allow the delinquent police officer to make a statement in reply to the charge and if he so chooses to file his written statement. The Inquiry officer independent of the option exercised by the delinquent police official to file a written statement, would be competent to put all such questions to him which he may see fit to be put arising out of the charge.
The Inquiry officer independent of the option exercised by the delinquent police official to file a written statement, would be competent to put all such questions to him which he may see fit to be put arising out of the charge. g. The Inquiry officer after the delinquent police officer closes his case files his written statement and answers questions, if any, put to him, is to pass order as may be warranted under facts and circumstances of the case or forward the case with his recommendations to an officer empowered to pass such order. However, no officer is to he dismissed or removed by an authority subordinate to that by which he was appointed. h. The punishment of dismissal, removal or reduction in rank is not to be imposed unless delinquent police officer is given a reasonable opportunity of showing cause orally and also in writing against the action proposed to be taken against him. However, such right may be denied if the delinquent officer is dismissed, removed or reduced in rank on his conviction on a criminal charge or the authority is of the opinion that it is not reasonably practicable to give the delinquent police officer an opportunity of showing cause or where the Governor is satisfied that in the interest of the security of the State it is not expedient to give that officer such an opportunity, i. The authority competent to order dismissal, removal or reduction in rank, is not merely to give an opportunity to the delinquent police officer to show cause against the proposed action but provide the officer copy of the enquiry report and the record, so as to enable the delinquent police officer to exercise his right to show cause against the proposed action in a meaningful manner." (iii) In the present case, as a bare look on the order impugned would reveal, the petitioner has been removed from service on the ground of misconduct and indiscipline without any enquiry, let alone adhering to the various steps laid down in Rule 359 of J&K Police Rules 1960. It was necessary for Respondent No.6 to adhere to the procedure laid down under Rule 359 J&K Police Rules, once he decided to exercise the powers under the Rule.
It was necessary for Respondent No.6 to adhere to the procedure laid down under Rule 359 J&K Police Rules, once he decided to exercise the powers under the Rule. Failure on the part of the respondent No. 6 to adhere to the procedure prescribed under rules, vitiates the proceedings against the petitioner and renders the order impugned liable to be set aside. (iv) The respondent No.6 while making the order impugned in the petition, claims to have exercised powers available to him under section 126 (2) of the Constitution of J&K. It would be apt to reproduce hereunder said Constitutional provision, It reads: "126. Dismissal, reduction or removal or persons employed in civil capac ities under the State (1).......... (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry: Provided that this sub section shall not apply- (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge. (b) Where the authority empowered to dismiss or remove a person 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 hold such inquiry; or (c) Where the Governor is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry." (v) Section 126 of the Constitution of J&K, ordains that a member of civil service of the State or one who holds a civil post in the State, shall not be dismissed or removed or reduced except after enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. In case, after such enquiry, it is proposed to impose on such person penalty of removal, he is to be given a further opportunity of making a representation against the penalty pro posed.
In case, after such enquiry, it is proposed to impose on such person penalty of removal, he is to be given a further opportunity of making a representation against the penalty pro posed. Proviso to section 126 (2) carves out exceptions to the general rule and leaves room for dismissal/removal or reduction in rank of a member of civil service of the State or a person holding civil post in the State even in absence of enquiry. In the present case, admittedly no enquiry was conducted. The petitioner admittedly was not informed of the charges against him, afforded an opportunity of being heard in respect of such charges nor given an opportunity to make a representation against his removal from service. Petitioner's case does not fall within the purview of proviso to section 126(2). Petitioner's removal from service therefore of fends section 126(2) Constitution of J&K — a provision claimed to have been pressed into service by the Respondent No.6 while removing the petitioner from service. (vi) Perusal of record available on file reveals that DIG, Armed Police Kashmir Range vide No. AROK/ESTT/APPL/2010/6812 dated 18.9.2010 asked Sr. Suptd. of Police District Budgam to verify the activities of the petitioner during the period of his un authorised absence from duty and also whether the petitioner was suffering from any disability during the said period. Sr. Suptd. of Police vide No. VS/Pol/10/90/1195 dated 28.12.2010 reported that the petitioner was not involved in any subversive or criminal activities from 10.11.2007 till 28.12.2010 and that petitioner was during the period suffering from chronic mental depression and was under constant treatment. Sr. Resident General Medicine SKIMS vide No. SIMS: 1280090 2009-40011 dated 23.9.2009 also certified that the petitioner's mother Mst. Rahti was suffering from multiple ailment and was under medical treatment at SKIMS. The above enquiry made by the respondents may not, by itself, render the impugned order illegal, yet it undoubtedly may require reconsideration of the matter. 8. For the reasons discussed, the petition is allowed. Order No. 76 of 2008 dated 17.3.2008 is set aside. The petitioner is directed to be allowed to resume his duty.
The above enquiry made by the respondents may not, by itself, render the impugned order illegal, yet it undoubtedly may require reconsideration of the matter. 8. For the reasons discussed, the petition is allowed. Order No. 76 of 2008 dated 17.3.2008 is set aside. The petitioner is directed to be allowed to resume his duty. Respondents may, at their option, hold an enquiry into the unauthorised absence of the petitioner in accordance with the rules and take a decision as regards the period of his absence i.e 10.11.2007 till the date he resumes duty, in light of the outcome of the enquiry and the rules governing the field. Disposed of