JUDGMENT : Janak Raj Kotwal, J. 1. In this writ petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir, petitioner, who was a Follower on probation in the Jammu and Kashmir Armed Police (JKAP) VI-Bn. has assailed Order No. 98 of 2008, dated 25.01.2008 whereby the Commandant of the Battalion has discharged him from service with effect from 03.11.2007. Heard learned counsel for the parties and perused the record. 2. The petitioner was appointed and enrolled in JKAP VI-Bn. vide Order No. 158 of 2005, dated 17.03.2005 and vas on probation for three years. The Commandant of the Battalion discharged the petitioner from service in exercise of his power under Rule 187 of the Jammu and Kashmir Police Rules, 1960 (for short, the Rules). 3. Point raised in this writ petition is that the sole cause of petitioner's discharge was his unauthorized absence from duty. Absence from duty is misconduct in service and discharge of the petitioner without holding departmental inquiry against him is illegal and violation of Article 311 of the Constitution of India (for short the Constitution) read with Section 126 of the Jammu and Kashmir Constitution (for short the State Constitution) and Rule 359 of the Rules. The order is vitiated for having been passed in violation of the principles of Natural Justice without holding regular departmental inquiry against the petitioner. Besides, the allegation of absence casts a stigma on the character of the petitioner and the order being stigmatic further necessitated the holding of inquiry. 4. It is contended by the petitioner that he had gone on one week's leave but was unable to report back due to ill hearth as he suffered severe jaundice and doctor had advised him complete bed rest. He, however, reported at the Battalion on receiving communication No. Estt/F-74/808-12, dated 10.01.2008 but was not allowed to resume his duties. Discharge of the petitioner from service is assailed on the ground that order of discharge has been issued in violation of the principles of Natural Justice inasmuch as neither any departmental inquiry has been conducted nor has he been issued show cause notice and heard before issuing the order. Discharge of the petitioner from service is assailed on the ground that order of discharge has been issued in violation of the principles of Natural Justice inasmuch as neither any departmental inquiry has been conducted nor has he been issued show cause notice and heard before issuing the order. The order violates Rule 359(11)(2) of the Rules which provides that no police officer shall be dismissed or removed or reduced in rank until he has been given reasonable opportunity of showing a cause orally and in writing against the action proposed to be taken against him. It is also contended that the Commandant has failed to spell out any justified cause or reason as to why the petitioner is unlikely to prove a good officer. 5. Mr. R.S. Pathania, learned counsel appearing for the petitioner, argued that an order of discharge based on allegation of unauthorized absence from duty, even if passed during probation period in terms of Rule 187 of the Rules, must be preceded by a departmental inquiry affording the official opportunity to justify the absence and make out a case for sanction of leave in his favour for that period. Mr. Pathania submitted further that an order of discharge issued in terms of Rule 187 of the Rules stigmatizes the official and is vitiated if no departmental inquiry is held and the official is not informed of the charge against him and is not given opportunity of being heard. Mr. Pathania relied upon two judgments of co-ordinate Benches of this court in; Constable Bashir Ahmed and Anr. v. State of Jammu and Kashmir, 2005 (3) JEJ 167 [HC] : 2005 (1) SLJ 375 and Shabir Ahmad Bhat v. State of J & K & Ors., 2009 (II) SLJ 792 : 2009 (3) JKJ 157 [HC]. Mr. Pathania also relied upon a judgment of the Supreme Court in Registrar General, High Court of Gujrat and Anr. v. Jayshree Chamanlal Buddh Bhati dated 22.10.2013. 6. Respondents in their reply, while not denying the factual aspects of the case, have opposed the petition contending that petitioner remained unauthorizedly absent for 449 days during his service of less than three years. He was a probationer and the Commandant discharged him in terms of Rule 187 of the Rules as he was satisfied that he was not likely to become good police officer. 7. Mr. He was a probationer and the Commandant discharged him in terms of Rule 187 of the Rules as he was satisfied that he was not likely to become good police officer. 7. Mr. Gagan Basotra, learned Senior AAG, would say that discharge of a probationer as contemplated under Rule 187 of the Rules cannot be equated with dismissal or removal from service as a measure of punishment under Rule 334 read with Rules 335 and 359 of the Rules and Article 311 of the Constitution read with Section 126 of the State Constitution is not attracted. An order of discharge under Rule 187 of the Rules is passed in respect of a probationer after subjective satisfaction of the superintendent of Police of the District/Commandant of the Battalion that the said probationer cannot prove to be an efficient police officer and does not require any departmental inquiry because such discharge from service is neither a punishment nor stigmatic. According to Mr. Basotra law in this regard is well settled and he relied upon Shamsher Singh v. State of Punjab, AIR 1974 SC 2192 , State of Punjab and Ors. v. Sukhvinder Singh, (2005) 5 SCC 569 and Suresh Kumar v. State of Jammu and Kashmir and Ors., 2007 (II) SLJ 806 : 2006 (2) JKJ 644 [HC]. 8. Rule 187, which figures in Chapter VII under the heading "APPOINTMENT AND ENROLMENT" of the Rules, empowers the Superintendent of Police (Commandant of the Battalion) to discharge a probationer, if he finds that the said probationer is unlikely to prove an efficient police officer. This Rule reads: "187. Discharge of inefficient A constable who is found unlikely to prove an efficient police officer may be discharged by the Superintendent at any time within three years of enrolment." Chapter VII, however, does not provide for any departmental proceedings before issuing an order of discharge under Rule 187 of the Rules. 9. Contextually, I may also refer to Rule 334 of the Rules, which figures in Chapter XI under the heading 'PUNISHMENT" and inter alia includes dismissal, removal from service and reduction in rank as punishments that may be inflicted departmentally on police officers of and below the rank of inspector. Imposition of punishment under Chapter XI mandates holding of departmental inquiry in accordance with Rule 359 of the Rules. Sub-rule (10) of Rule 359, however, specifically excludes discharge of a probationer from departmental inquiry. Imposition of punishment under Chapter XI mandates holding of departmental inquiry in accordance with Rule 359 of the Rules. Sub-rule (10) of Rule 359, however, specifically excludes discharge of a probationer from departmental inquiry. It reads: "10. This rule shall also not apply where it is proposed to terminate the employment of a probationer whether during or at the end of the period of probation." 10. Exclusion in terms of sub-rule (10) of Rule 359 of the Rules notwithstanding, the question whether discharge of a probationer from service in terms of Rule 187 of the Rules should be preceded by a departmental inquiry, including show cause notice, has been frequently raised before this Court praised, I may in this regard refer to the three judgments of the co-ordinate Benches of this court, which have been relied upon by the learned counsel for the parties. 11. In Ct. Bashir Ahmad's case, 2005 (1) SLJ 375 : 2005 (3) JKJ 167 [HC] (supra), a learned Single judge, Hakim Imtiyaz Hussain, J. (His Lordship then was) of this Court has disposed of SWP No. 270/96 and SWP No. 613/99 by a common judgment. In both the cases, the petitioner was probationer, had absented from duty and was discharged terms of Rule 187 of the Rules. Learned Single judge before taking up the main question observed in para 12 the reporting: "(12) The question as to whether any enquiry is required to be conducted before discharging probationer police official under Rule 187 J & K Police Manual is not res integra. It is settled now by this Court that before invoking Rule 187, it is incumbent and obligatory upon the appointing authority to hold an enquiry into the matter to afford adequate opportunity of being heard to the concerned employee." 12. Learned Judge inter alia referred to an earlier judgment of this court in Suriya Khan v. State of J & K, 2002 (1) SLJ 210 : JKJ Soft JKJ/12423 in which Rule 187 of the Rules had come up for discussion and it has been held by a learned Single Judge, Vijay Kumar Jhanji, J. (as His Lordship then was) in para 6 of the reporting: "6. Reading of the Rule shows that during the period of probation of three years if on the performance of the Constable, the Superintendent forms an opinion that he/she would not prove to be an efficient police officer, then he/she may be discharged from service. The law in regard to probationer is well settled. The probationer has no right to the post held by him and under the terms of his appointment, he is required to be discharged at any time during the period of his probation under the rules governing such cases. Probationers are discharged generally because they are not found to be competent or suitable for the post they held. In other words, if the temporary servant or a probationer is found be to satisfactory in his work, efficient or otherwise, eligible, it is unlikely that his service would be terminated and so before discharging such employee the authority may have to examine the question about the suitability of the said servant to be continued and take action bona fide in that behalf. The authority may also give (sic) employee to explain, if any complaints are made against him or his competence or suitability is disputed on some grounds arising from the discharge of his work, then such an enquiry should be held only for the purpose of deciding whether he should be continued or not, there is no element of punitive proceedings in such an enquiry and if the authority comes to the conclusion that the incumbent is not suitable to be continued, it may simply pass the Order of discharge by virtue of the powers conferred upon it by the contract or by the relevant rules and it would not be open to the concerned employee to invoke Article 311 of the Constitution of India or Section 126 of the Jammu and Kashmir Constitution, for the simple reason that the enquiry ultimately led to his discharge was held only for the purpose of deciding whether the power should be exercised in terms of the rules. But if a probationer is discharged on the ground of misconduct or inefficiency without a proper enquiry and without giving a reasonable opportunity of showing cause against the discharge in a given case it may amount to removal from service within the meaning of Article 311 of the Constitution of India and Section 126 of the Jammu & Kashmir Constitution." 13. Learned Single Judge in Ct. Bashir Ahmad's case thus concluded in paras 18 & 19 of the reporting, which read: "18. No doubt under Rule 187, a Superintendent of Police has got powers to discharge a probationer, within three years of enrolment, if he is of the view that such probationer is not likely to prove a good police official, but since the finding casts a stigma on the career of the constable and there is likelihood that the discharge or the ground for such discharge may act as an impediment for any future employment, provisions of Art. 311 are attracted and the discharge order should not be passed without affording an opportunity to the official of being heard and a show cause notice against the proposed penalty. 19. Since the order under Rule 187 is to be passed only when the competent authority comes to the conclusion that the official is not likely to prove a good police officer, such an order will, by its very nature and basis, always be a stigmatic. So in every case where power is exercised under this Rule, enquiry is required to be done before passing the order." (Emphasizes supplied) 14. In Shabir Ahmad Bhat, 2009 (II) SLJ 792 : 2009 (3) JKJ 187 [HC] (supra), again a probationer constable had absented unauthorizedly from duties and was discharged by the Senior Superintendent of Police, while exercising power under Article 126 (B) of J & K CSR read with Rule 187 of the Rules. A learned Single Judge of this Court (Mohammad Yaqoob Mir, J) took up the matter observing in para 2 of the judgment: "2. It is no more res integra that discharge simpliciter does not warrant enquiry before discharge but when the discharge is stigmatic then order of discharge cannot be passed unless adequate opportunity of being heard to the concerned employee is given same being in keeping with Article 311 of Constitution of India, Section 126 of J & K Constitution and Rule 359 of Police Rules." 15. Learned judge, while observing further that question of holding inquiry before discharge of a probationer has been set at rest by this court, referred to and quoted para 12 of the judgment in Ct. Bashir Ahmad's case (supra). Learned Judge after referring to other judgments including that in Suriya Khan (supra) concluded in para 8 of the reporting: "8. Learned judge, while observing further that question of holding inquiry before discharge of a probationer has been set at rest by this court, referred to and quoted para 12 of the judgment in Ct. Bashir Ahmad's case (supra). Learned Judge after referring to other judgments including that in Suriya Khan (supra) concluded in para 8 of the reporting: "8. The ratio laid down in the above referred judgments is that when the order of discharge is stigmatic then without enquiry order of discharge to cannot be passed even against the probationer by invoking powers under Section 187 of J & K Police Rules." 16. In Suresh Kumar, 2007 (II) SLJ 806 : 2006 (2) JKJ 644 [HC] (supra), again the probationer constable had absented unauthorizedly from duty, he was given personal hearing by the SSP, who, however, issued order of discharge observing that 'it is a case of bad material which has been recruited "and the unsuitability has come to fore now when he deserted the force after learning about his being sent for basic training.' The contention raised before this court in the writ petition filed by the petitioner was that discharge of the petitioner warranted regular inquiry under Rule 359 of the Police Rules. 17. Learned Single Judge of this Court, J.P. Singh, J. (as his Lordship then was), relied upon Sukhvinder Singh's case, (2005) 5 SCC 569 (supra) and after quoting paras 18 & 19 of the judgment of the Supreme Court held that 'there was no illegality in the order impugned in the writ petition, for the same is neither punitive nor stigmatic and action of the respondent was supported by Rule 187 of the Rules.' Learned Judge held in para 13: "13. Absence is not the basis of taking action against the petitioner. The action has been taken on the ground of his having been found to be a bad material on the basis of his act of refusal to undergo basic police training." 18. It may be noticed that question, as regards requirement of departmental inquiry before issuing an order of discharge in terms of Rule 187 has not been considered by this court in Suresh Kumar's case. It may be noticed that question, as regards requirement of departmental inquiry before issuing an order of discharge in terms of Rule 187 has not been considered by this court in Suresh Kumar's case. Learned judge rather was of the view that absence of the petitioner of that case was not the basis of taking action against him and the action was taken on the ground of his having been found to be a bad material on the basis of his act of refusal to undergo basic police training. What can be inferred from the view taken by learned judge in this case is that the departmental inquiry would not be required in case of an order of simpliciter discharge in terms of Rule 187 of the Rules. 19. The wider issue raised in the petition an hand, however, relates to the requirement of departmental inquiry before issuing order of discharge of a probationer under Rule 187 of the Rules and the specific question is whether departmental inquiry is necessary if the order of discharge is based on unauthorized absence from duty. 20. It may be reiterated, though at the cost of repetition, that under Rule 187 of the Rules the Superintendent of Police may discharge a probationer Police Constable whom he finds unlikely to prove an efficient police officer. Rule 334(2) provides for the departmental punishments, which can be imposed on a police officer of and below the rank of Inspector for a misconduct committed by him and among others include dismissal, removal from service and reduction in rank. Departmental punishments, however, can be imposed only after holding a departmental inquiry in a manner as prescribed under Rule 359. If after inquiry, punishment proposed to be inflicted is dismissal, removal from service or reduction in rank, in that case sub-rule (11)(2) of Rule 359 further requires that the delinquent officer is given opportunity of showing cause against the proposed punishment. Police Rules, however, do not contemplate any inquiry before issuing an order of discharge under Rule 187 and Sub-rule (10) of Rule 359 rather specifically excludes application of Rule 359 to termination of a probationer during or at the end of period of probation in terms of Rule 187. 21. Police Rules, however, do not contemplate any inquiry before issuing an order of discharge under Rule 187 and Sub-rule (10) of Rule 359 rather specifically excludes application of Rule 359 to termination of a probationer during or at the end of period of probation in terms of Rule 187. 21. It would, thus, admit, of no doubt that the Police Rules in keeping with Article 311 of the Constitution and Section 126 of the State Constitution prohibit dismissal, removal from service or reduction in rank on account of misconduct without holding departmental inquiry against the delinquent in the manner as prescribed under Rule 359 of the Rules and providing him reasonable opportunity of showing cause against the proposed punishment. No inquiry or opportunity of showing show cause, however, normally is necessary in case of an order of discharge/termination of a probationer in terms of Rule 187. 22. It is seen, however, that in Ct. Bashir Ahmad's case (supra) the co-ordinate Bench of this Court has clearly held that Article 311, of the Constitution is attracted even in a case of discharge of a probationer under Rule 187 of the Rules so the discharge order under Rule 187 should riot be issued without holding inquiry and issuing show cause notice against proposed penalty. This Court has, thus, favoured holding of departmental inquiry in accordance with Rule 359 of the Rules as also issue of the show cause notice against proposed punishment before ordering discharge under Rule 187. In taking this view, learned Single Judge has viewed further that discharge under Rule 187 is to be based upon a finding that the probationer is not likely to prove a good police officer and such an order will, by its very nature and basis, always be stigmatic and cause a stigma on the career of the Constable. 23. The view taken by this court in Shabir Ahmad Bhat's case (supra) by and large and in effect is in line with the view taken in Ct. Bashir Ahmad's case when judgments in both the cases are read together. 23. The view taken by this court in Shabir Ahmad Bhat's case (supra) by and large and in effect is in line with the view taken in Ct. Bashir Ahmad's case when judgments in both the cases are read together. The view taken by learned Single Judge in Shabir Ahmad Bhat's case though does not contemplate any inquiry in case of a simpliciter discharge under Rule 187 but favours holding of inquiry and opportunity of being heard, in keeping with Article 311 of the Constitution, Section 126 of the State Constitution and Rule 359 of the Rules, when the order of discharge is stigmatic. It is important to note that in Ct. Shabir Ahmad Bhat, learned Single Judge has placed reliance on Bashir Ahmad's case and the view taken in the latter is that every order of discharge issued under Rule 187 from its very nature is stigmatic. So the view ascendible collectively from Bashir Ahmad's case and Shabir Ahmad Bhat's case would be that every order of discharge issued under Rule 187 of the Rules is stigmatic and attracts requirement of departmental inquiry and show cause in accordance with Rule 359 in keeping with Article 311 of the constitution and Section 126 of the State Constitution. 24. View taken by this Court in Suriya Khan's case, however, is that Article 311 of the Constitution or Section 126 of the State Constitution are not attracted in an innocuous order of discharge under Rule 187 of the Rules but the same shall be attracted if the probationer is discharged on the ground of misconduct or inefficiency. Unlike the view taken by the learned Single Judge in Ct. Bashir Ahmad Khan's case, the view taken by learned Single Judge in Suriya Khan's case does not contemplate holding of departmental inquiry or issue of show cause notice in every case of discharge under Rule 187 of the Rules but such an inquiry and notice shall be imperative if discharge of the probationer is based upon an act of misconduct committed by him or inefficiency. 25. In Suresh Kumar (supra), as pointed out hereinabove, question as regards necessity of departmental inquiry before issuing order of discharge in terms of Rule 187 of the Rules has not been considered in context of the question because learned Single Judge had found that the order impugned in that case was neither stigmatic nor punitive. 25. In Suresh Kumar (supra), as pointed out hereinabove, question as regards necessity of departmental inquiry before issuing order of discharge in terms of Rule 187 of the Rules has not been considered in context of the question because learned Single Judge had found that the order impugned in that case was neither stigmatic nor punitive. By inference the view taken by the learned Single Judge, however, is in line with the view earlier taken in Suriya Khan's case. 26. In background of the view taken by this Court in the above referred judgments, I may now refer to some judgments of the Supreme Court on the subject. 27. General rule as stated by the Supreme Court in Purshotam Lal Dhingra v. Union of India, AIR 1958 SC 36 and referred to with approval in a seven-Judge Bench decision in Shamsher Singh v. State of Punjab, AIR 1974 SC 2192 , is that where a person is appointed to a permanent post in Government service on probation the termination of the service during or at the end of the period of probation will not ordinarily and by itself be a punishment because the Government servant so appointed has no right to continue to hold such a post any more than a servant employed on probation by a private employer is entitled to do so. Such a termination does not operate as a forfeiture of any right of a servant to hold the post, for he has no such right. Obviously such a termination cannot be a dismissal, removal or reduction in rank by way of punishment (para 62 of reporting) 28. While referring to above General rule, Supreme Court in Shamsher Singh's case (supra), has pointed out, firstly, that 'if a right exists under a contract or service Rules to terminate the service, the motive operating on the mind of the Government is wholly irrelevant' and secondly, that 'if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and violates Article 311 of the Constitution'. Contextually, Supreme Court has further stated that 'the reasoning why motive is said to be irrelevant is that it inheres in the state of mind which is not discernible. On the other hand, if termination is founded on misconduct it is objective and is manifest'. 29. Contextually, Supreme Court has further stated that 'the reasoning why motive is said to be irrelevant is that it inheres in the state of mind which is not discernible. On the other hand, if termination is founded on misconduct it is objective and is manifest'. 29. In para 63 of reporting in Shamsher Singh, Supreme Court has held: "63. No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311(2) of the Constitution." 30. In para 64 of the reporting, Supreme Court has pointed out two situations, firstly, where a probationer is discharged on the basis of overall assessment of his performance and secondly, where a probationer is discharged/terminated on the basis of an act of misconduct or inefficiency. Para 64 reads: "64. Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved, in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption and if his services are terminated without following the provisions of Art. 311(2) he can claim protection. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption and if his services are terminated without following the provisions of Art. 311(2) he can claim protection. In State of Bihar v. Gopi Kishore Prasad, AIR 1960 SC 689 it was said that if the Government proceeded against the probationer in the direct way without casting any aspersion on his honesty or competence, his discharge would not have the effect of removal by way of punishment. Instead of taking the easy course, the government chose the more difficult one of starting proceedings against him and branding him as a dishonest and incompetent officer." 31. In para 66 of the reporting Supreme Court has held: "If the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then a probationer is entitled to attract Article 311. The substance of the order and not the form would be decisive, (see K.H. Phadnis v. State of Maharashtra AIR 1971 SC 998 )". 32. Besides an order of discharge based upon an act of misconduct, inefficiency or a similar reason, an order which is stigmatic in nature has also been held to attract Article 311 of the Constitution/Section 126 of the State Constitution. This view is discernible from the two--Judge Bench decision of the Supreme Court in Dipti Parkash Banerjee v. Satyendra Nath Bose National Centre for basic sciences, Calcutta and others, (1999) 3 SCC 60 . In this context, I may refer to and quote para 25 of the reporting: "25. In the matter of "stigma", this Court has held that the effect which an order of termination may have on a person's future prospects of employment is a matter of relevant consideration. In the seven-Judge Bench decision in Samsher Singh v. State of Punjab Ray, C.J. observed that if a simple order of termination was passed, that would enable the officer to "make good in other walks of life without a stigma". It was also stated in Bishan Lal Gupta v. State of Haryana that if the order contained a stigma, the termination would be bad for "the individual concerned must suffer a substantial loss of reputation which may affect his future prospects." 33. It was also stated in Bishan Lal Gupta v. State of Haryana that if the order contained a stigma, the termination would be bad for "the individual concerned must suffer a substantial loss of reputation which may affect his future prospects." 33. On the basis of the law laid down by the Supreme Court, the question, whether discharge/termination of a probationer in general and that of a probationer under Rule 187 of the Rules in particular, during or at the end of the probation period, would require departmental inquiry and show cause notice against the proposed discharge/termination, is no more res integra as far as this court is concerned. 34. During the period of probation, the competent officer (the Superintendent of Police in case of a police constable) is under obligation and gets sufficient opportunity to make overall assessment about the behavior, conduct and level of efficiency, dedication, aptitude, and commitment towards job of a probationer and above all his capability for the post he has been appointed to. On the basis of such overall assessment, the competent officer may arrive at a finding that a probationer is not fit for the post he is appointed to or, as in this case, that he is not likely to become an efficient police officer. In such a case, if the competent officer discharges the probationer by passing an innocuous order of discharge without mentioning any specific reason or incident, such discharge would not amount to punishment and Article 311 of the Constitution (Section 126 of the State Constitution) shall not be attracted. Neither departmental inquiry nor show cause notice would be required before issuing order of discharge in that case. Such an order when issued under Rule 187 of the Rules, as a matter of fact, is specifically excluded from necessity of departmental inquiry and show cause notice in terms of sub-rule 10 of Rule 359. 35. If, however, an order of discharge of a probationer is founded on an act of misconduct, inefficiency or a like reason, which is stated in or evident from the order, the discharge would amount to punishment and the order will attract Article 311 of the Constitution and would be illegal if it has been issued without holding departmental inquiry and issuing show cause notice against proposed punishment. The same would be the position, if the order of discharge is stigmatic. 36. The same would be the position, if the order of discharge is stigmatic. 36. The legal position, thus, would be that an innocuous order of discharge of a probationer issued under Rule 187 of the Jammu and Kashmir Police Rules ordinarily and by its own cannot be said to have been issued as a matter of punishment for some misconduct nor such order can be called stigmatic. Such order of discharge would not attract Article 311 of the Constitution read with Article 126 of the State Constitution. If, however, an order of discharge of a probationer is founded on an act of misconduct or is stigmatic in nature, the same shall attract Article 311 of the Constitution read, with Section 126 of the State Constitution and, if issued without holding the departmental inquiry in prescribed manner and without issuing show cause notice against proposed discharge, shall be illegal. Whether an order of discharge attracts Article 311 of the Constitution read with Section 126 of the State Constitution would, however, depend upon the facts of a case and may differ from case to case. 37. In order to apply the above legal position to the case on hand it is important to read the impugned order whereby the petitioner has been discharged. Substance of the order of discharge reads: "Whereas Sh. Rakesh Kumar No. F-74 S/o. Kuldeep Kumar R/o. Dudu Tehsil Ramnagar Distt. Udhampur of this unit was appointed as S/w. in this battalion vide order No. 158 of 2005, dated. 17.03.2005 and was on probation for a period of three years. The follower joined his duty on 17.03.05, F.N. Whereas the follower proceeded to avail 07 days casual leave on 26.10.07 from B-Coy of this unit & was due to report back for duty on 03.11.07, FN which he failed to do so and his absence was recorded in the D.D. of B-Coy. Whereas the S/W was informed through concerned police station by Coy Commander B-Coy vide his signal Nos. Misc/B/486, dated 05.11.07, Misc/487/B dated. 10.11.07 and Misc/B/536, dated. 15.12.07, to report back for duties but he failed to rejoin the duties and continued to be absent from duty. Whereas a final attendance notice was got published in daily "Kashmir Times" dated. Whereas the S/W was informed through concerned police station by Coy Commander B-Coy vide his signal Nos. Misc/B/486, dated 05.11.07, Misc/487/B dated. 10.11.07 and Misc/B/536, dated. 15.12.07, to report back for duties but he failed to rejoin the duties and continued to be absent from duty. Whereas a final attendance notice was got published in daily "Kashmir Times" dated. 30.12.07, and 01.01.2008, where under the follower was directed to report for duties within 07 days from the date of publication of this notice in news paper failing which action under rules will be taken against him but the follower has failed to report for duty and continued to be absent. Whereas a final show cause notice was got published in Daily Kashmir Times dated. 14.01.08, where under the follower was directed to show cause as to why he should not be removed from the service for his willful absence from duty. He was directed to submit the report to show cause notice along with defence if any which should reach this office within 07 days positively from the date of publication of show cause notice in news paper failing which it will be presumed that he has nothing to say in his defence and he is not interested to serve the department anymore and proceedings for his removal from service will be initiated. But till date the follower neither submitted the reply to show cause notice nor reported for duty at the battalion headquarters. Whereas it clearly shows that the follower is not interested to serve the department anymore and his retention on the rolls of this battalion is not desirable. Whereas from the perusal of service records of the follower it has been observed that the follower is a habitual absentee and during his below three years of service, 449 days absence from duty has been treated as Dies non on various occasions. Whereas the follower was provided sufficient opportunity to resume his duty but all in vain. He has never bothered to inform the battalion regarding the problems if any faced by him. Whereas Article 128 of J & K CSR envisages that unauthorized absence from duty or overstaying from leave involves the loss of appointment. Whereas the follower was provided sufficient opportunity to resume his duty but all in vain. He has never bothered to inform the battalion regarding the problems if any faced by him. Whereas Article 128 of J & K CSR envisages that unauthorized absence from duty or overstaying from leave involves the loss of appointment. The intermittent habit of absence of the follower and non response to the notices issued by this office from time to time speaks that he is not willing to serve the department any more. The follower has developed incorrigible habit of remaining away from duty for prolonged period and the department is left with no option except to remove the follower from service. The follower is still on probation [as he has not completed 03 years of service]. He is not likely to become a good police official. Keeping in view the facts discussed above, I Mohammad Yousuf Shah [SP] Commandant JKAP-VI-Battalion in exercise of powers vested in me under Rule 187 of J & K Police Manual Vol. I order that S/w. Rakesh Inar No. F-74/6th PID No. 055456 S/o. Kuldeep Kumar R/o. Dadu Tehsil Ramnagar Distt. Udhampur is discharged from the service W.E.F:-03-11-07 FN i.e., the date from which the follower continues to be absent from duty. The name of the follower is struck off from the rolls of this unit with immediate effect. Sd/- Commandant JKAP-VI-Battalion Zewan, Srinagar." 38. A plain look to the impugned order would show that it is not an innocuous order of discharge even though the Commandant has set out the same to have been issued in exercise of power vested in him under Rule 187 of the Rules. Basis of the order was the petitioner's failure to resume duty after having left the Battalion on seven days' casual leave with effect from 26.10.2007 till the issue of order of discharge. Not only that, order says further that the petitioner was habitual absentee and during the period of three years of his service he remained absent for 449 days. The Commandant had also taken the view that Article 128 of J & K CSR envisages that unauthorized absence from duty or over staying from leave involves loss of service. Not only that, order says further that the petitioner was habitual absentee and during the period of three years of his service he remained absent for 449 days. The Commandant had also taken the view that Article 128 of J & K CSR envisages that unauthorized absence from duty or over staying from leave involves loss of service. It would, thus, admit of no doubt that the basis of the petitioner's discharge was his unauthorized absence from duty and the discharge was not an outcome of overall assessment of the petitioner made by the Commandant during his probation period. Unauthorized absence from duty, it is well settled, is an act of misconduct. Even if, unauthorized absence involves the loss of appointment, it is well settled that an order of discharge/termination of service on that basis can be issued only after holding departmental inquiry in prescribed manner and issue of show cause notice against proposed discharge/termination. 39. Besides having been based on an act of misconduct, impugned termination order from its very nature is stigmatic too. It is stigmatic because the Commandant, while issuing this order, has gone to the extent of observing that "the follower has developed incredible habit of remaining away from duty for prolonged period. At one place, it is said in the order that "the follower is a habitual absentee." 40. Use of such terms in the impugned order, in my considered view, are stigmatic in nature, as they may close doors for the petitioner in other walks of life. On that score also the impugned, order cannot be taken as an innocuous order of discharge in terms of Rule 187 of the Rules and necessitated departmental inquiry and show cause notice before issuing the same. 41. The last, but not the least, question for determination thus is, whether departmental inquiry had been held in accordance with Rule 359 and show cause notice issued to the petitioner before issuing the impugned order of discharge. Proceedings undertaken prior to issue of the order are stated in detail in the impugned order and have been similarly restated in brief in reply of the respondents. To this extent, there is no denial from or on behalf of the petitioner. Petitioner while assailing the impugned order did not deny its contents nor has any rejoinder to the brief statement given in the respondents' reply been filed. 42. To this extent, there is no denial from or on behalf of the petitioner. Petitioner while assailing the impugned order did not deny its contents nor has any rejoinder to the brief statement given in the respondents' reply been filed. 42. As per the impugned order and the reply of the respondents, petitioner was supposed to report back to his duty on 03.11.2007 after availing seven days casual leave. He did not join. He was called upon through signals dated 05.11.2007, 10.11.2007 and 15.12.2007 to report back. He did not. Final attendance notice was published in a daily newspaper namely "Kashmir Times" dated 30.12.2007 and 01.01.2008 directing him to join within seven days from the date of publication informing him further that in case of his failure action under rules will be taken against him. A final show cause notice was issued and got published in the same newspaper on 04.01.2008 whereby he was asked to show cause as to why he should not be removed from the service for his willful absence from duty. He was directed to submit the reply to the show cause notice within seven days from the date of publication informing him that in case of his failure, it will be presumed that he has nothing to say-in his defence and he is not interested to serve the department anymore and proceedings for his removal from service will be initiated. Petitioner neither reported back nor responded to the notice and thus came the order of discharge dated 25.01.2008. 43. Procedure for holding departmental inquiry is provided under Rule 359 of the Rules. It inter alia provides for framing of charges against the delinquent, recording of evidence and giving opportunity to the delinquent to produce evidence. It also provides for issuing show cause against proposed punishment. But for issuing the show cause notice, no inquiry has been conducted in this case. No doubt the petitioner was given ample time to report back and was also issued show cause as to why he should not be removed from service for his willful absence from duty' but the show cause was not preceded by inquiry in prescribed manner in which it could have been ascertained whether the absence was willful or not. 44. No doubt the petitioner was given ample time to report back and was also issued show cause as to why he should not be removed from service for his willful absence from duty' but the show cause was not preceded by inquiry in prescribed manner in which it could have been ascertained whether the absence was willful or not. 44. The impugned order of discharge, therefore, attracts Article 311 of the Constitution read with Section 126 of the State Constitution for having been issued without inquiry as prescribed under Rule 359 of the Rules. The order, therefore, is illegal and does not sustain and is hereby quashed by issue of a writ of certiorari. 45. The quashment of the impugned order, however, will not prevent the competent authority to hold departmental inquiry against the petitioner for his unauthorized absence from duty in the prescribed manner and pass appropriate order afresh. Disposed of.