JUDGMENT : 1. Respondent no.8, in exercise of power under Rule 359 of the Police Rules, has discharged the petitioner from service vide Order No.689 of 2002 dated 24th Oct., 2002, of which petitioner is aggrieved. Counter to writ petition was filed by respondents and petitioner thereto has filed rejoinder. 2. As Constable, petitioner was appointed in the year 1994. He was posted in 4th Battalion of J&K Armed Police, after she completed her training. She was transferred to Security Headquarters, Srinagar, and relieved from 4th Bn JKAP, Jammu, on 20th Sept., 2000 vide DD Report No. 10, dated 20th Sept., 2000. 3. According to petitioner, she submitted a representation to Inspector General of Police, pleading her illness as she remained admitted in Police Hospital from 22nd September 2000. Discharge sheet, placed on record, shows that she was advised bed rest for one week by Gynecologist in Police Hospital, Jammu, at the time of her discharge from the Hospital on 25th September 2000. Her contention is that she solemnized inter-religious marriage out of her own freewill and immediately thereafter she started facing severe threat to her life and had to run form pillar to post to save her life. 4. Petitioner claims that because of aforesaid marriage, a communal tension was created and due to the communal frenzy, she was facing severe threat to her life and the police was not providing her any protection. As projected by the petitioner, since she was planning to marry out of her own freewill outside her religion, as such, she was attached with Inspector General of Police, Security, Srinagar, at the instance of her father as her father met respondent no.8 to stall the marriage. Petitioner contends that even her attachment was managed with Inspector General of Police (Security), to cause her harassment. It is further contention of petitioner that even the order, attaching her with Security Headquarters, Srinagar, was a single order, which was never communicated in writing to her but she was attached with Inspector General of Police (Security) only on telephonic instructions. As per the communication placed on record, petitioner had intimated Inspector General of Police (Security) about her illness vide her letter dated 23rd September 2000 and that after her marriage a false FIR was also registered, thus, involving her and her husband. As per the communication placed on record, petitioner had intimated Inspector General of Police (Security) about her illness vide her letter dated 23rd September 2000 and that after her marriage a false FIR was also registered, thus, involving her and her husband. The FIR in question, as per the judgment placed on record, was finally quashed by this Court on 20th September 2003 in a petition under section 561-A Cr. PC, filed by petitioner and her husband. 5. The submission of petitioner is that while she was on run along with her husband, she had also to move out of the State, so as to save her life and while on the run she became seriously ill also, for which, medical record has also been placed on record. 6. Respondents, on the other hand, in their counter affidavit, claim that petitioner was unauthorizedly absent from duty w.e.f. 20th Sept., 2000 to 21st October 2002, after she was relieved from 4th Bn JKAP (Security) on 20th September 2000. It is the insisted by respondents that petitioner's absence was willful and deliberate. Respondents, denying petitioner to have been admitted in Police Hospital, claim that the story of illness is also fabricated. Respondents however, do not refute the discharge of petitioner from Police Hospital on 25th September 2000 and aver that petitioner ought to have joined Battalion Headquarters after availing the rest as advised by the doctors. 7. Respondents avow that petitioner solemnized marriage within 10 days of her discharge from hospital and maintain that she should have joined back even after inter-religious marriage. Respondents claim to have flashed the wireless messages to secure the presence of petitioner apart from publication of notice in newspapers and according to them petitioner even, after aforesaid messages/notice, did not join. The registration of the FIR is not denied, but in para-3 of the counter affidavit respondents state that the petitioner had fled with one Balwant Singh and thereafter was unauthorizedly absent. It is further submitted in para-6 that she was purposely and willfully avoiding her arrest by local police as she had willfully eloped. 8. In the aforesaid circumstances respondents claim to have passed the discharge order of the petitioner. 9. Heard learned counsel for the parties and perused the record. 10. Petitioner was appointed as Constable in the year 1994 is not in dispute. Discharge order, according to respondent no. 8. In the aforesaid circumstances respondents claim to have passed the discharge order of the petitioner. 9. Heard learned counsel for the parties and perused the record. 10. Petitioner was appointed as Constable in the year 1994 is not in dispute. Discharge order, according to respondent no. 8, has been issued in exercise of powers conferred upon him under Rule 359 of the Police Rules. Discharge order, on plain glimpse, mentions that petitioner's retention in the department will definitely affect the discipline in the force. 11. The question that arises for consideration is that whether the petitioner could be discharged from the service in exercise of powers under Rule 359 of the Police Rules, without holding any inquiry. 12. Petitioner, being a non-gazetted police constable, is governed and regulated by the J&K Police Rules, 1960, which have been framed under the Police Act. Rule 334, 334. (1) No police officer shall be departmentally punished otherwise than as prescribed in these rules. (2) Authorised departmental punishments. -- The following punishments may be inflicted departmentally on police officers of and below the rank of Inspector : -- (a) Dismissal (bar to re-employment in Government service). (b) Removal (not a bar to re-employment in Government service in another department). (c) Compulsory retirement before attainment of the age of superannuation. (d) Withholding of increments [x x x]. (e) Confinement to Quarters for a period not exceeding 15 days (for constables only). (f) Fine not exceeding one month's pay. (g) Reduction to a lower rank, grade or time scale or to a lower stage in the same time scale. (h) Punishment drill, extra guard or other duty not exceeding 15 days (for constables only) (i) Censure. (j) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of order. (k) Forfeiture of increment. (3) For the purpose of these rules the term "Major Punishment" shall be held to mean any authorised punishment of dismissal, removal, compulsory retirement, withholding of increments, fine, reduction, recovery from pay and forfeiture of increment. The term "Minor Punishment" shall mean all other authorised punishments. Explanation. (k) Forfeiture of increment. (3) For the purpose of these rules the term "Major Punishment" shall be held to mean any authorised punishment of dismissal, removal, compulsory retirement, withholding of increments, fine, reduction, recovery from pay and forfeiture of increment. The term "Minor Punishment" shall mean all other authorised punishments. Explanation. -- Stopping a police officer of and below the Rank of Inspector at an efficiency bar in the time scale of his pay on the ground of his unfitness to cross the bar does not amount to withholding of increment or promotion within the meaning of this rule of the Police Rules outlines parameters for imposing punishments on any police officer of or below the rank of Inspector. It further provides that no police officer shall be departmentally punished otherwise than as prescribed in these rules. 13. Rule 359 of the Police Rules envisions the procedure for conducting departmental inquiries. Rule 381 specifically provides that in case of conflict between the Police Rules and anything contained in other rules or orders, provisions of Police Rules shall prevail. The power of discharge is prescribed under Rule 187 of the Rules. As per Rule 187, 187. Discharge of in efficient. 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, discharge of police constable can be ordered within a period of three years of enrolment. In the present case petitioner had already completed the period of probation of three years and she could not have been discharged under Rule 187 on the date when the discharge order was issued. She had completed the aforesaid period even on the date she was discharged, as such, the discharge of the petitioner is not legally permissible under Rule 187. A perusal of the discharge order will show that respondent No. 8 has purportedly exercised the power under Rule 359 of the Rules to discharge petitioner from service and no inquiry conducted nor has inquiry been dispensed with. The discharge order, on the face of it, is a punishment order which has been passed without holding any inquiry. 14. A perusal of the discharge order will show that respondent No. 8 has purportedly exercised the power under Rule 359 of the Rules to discharge petitioner from service and no inquiry conducted nor has inquiry been dispensed with. The discharge order, on the face of it, is a punishment order which has been passed without holding any inquiry. 14. It is also clear that the respondents claim to have sent notices at the residence of the petitioner asking her to resume her duties but it appears that respondent no.8, who was issuing notices, knew very well that petitioner was not at her residence and the same fact is very well admitted by him in the counter at paragraph 13, which reads: "In reply to para-13 it is stated that petitioner was evading arrest by the local police as both the police and her parents were looking for her. It is only with a view to evade arrest, she did not report either at the Bn Hqrs or at home. The answering respondent left no stone unturned to secure her presence." 15. Once respondent no. 8 knew that the petitioner was on the run and she was not present even at her home, then there was no reason to flash messages or notices at the parental residence of petitioner. 16. During the course of the proceedings, an attempt was made on the part of respondents by referring to Article 128 of the J&K Civil Services Regulations. It is contended by respondents that in terms of Article 128 of J&K Civil Services Regulations, petitioner loses her appointment because of her unauthorized absence but counsel for petitioner has disputed the applicability of the Article 128 of the J&K Civil Services Regulations to exercise the power of discharge of an employee as the petitioner is governed by the Police Rules, wherein Rule 187 specifically deals with discharge. 17. It is further contended that the respondents cannot improve upon their case now, while the discharge order specifically mentions the exercise of power under Rule 359 of the Police Rules in order to discharge the petitioner. 18. It be seen that it is already settled position of law that there cannot be automatic discharge from service. 17. It is further contended that the respondents cannot improve upon their case now, while the discharge order specifically mentions the exercise of power under Rule 359 of the Police Rules in order to discharge the petitioner. 18. It be seen that it is already settled position of law that there cannot be automatic discharge from service. Otherwise also keeping in view the facts and circumstances of the present case it is clear that the petitioner was on the run in order to save her life and it is admitted by the respondents in their counter affidavit also that petitioner was required to be arrested by the local police. There is no denying to the fact that FIR, registered against the petitioner, has been quashed by this Court vide judgment dated 20th September 2003 in a petition under section 561-A Cr.PC. 19. Petitioner has further placed on record the medical history, which shows her illness even outside the State while she was on run. The telegrams were also sent by the petitioner for extension of her leave from time to time and receipts whereof have also been placed on record, as such, it cannot be said that petitioner had voluntarily absented herself from duty or abandoned her services. 20. The issue involved in the present petition is squarely covered by the various judgments passed by this Court as well as the Supreme Court. 21. Hon'ble Supreme Court while dealing with the issue has held that discharge from service on the ground of absence from service after over-staying the leave amounts to removal without opportunity of being heard and is not proper. Reference in this regard is made to Jai Shankar v. State of Rajasthan 1966 AIR (SC) 492. Similarly, the Division Bench of this Court while dealing with the similar issue in State v. S. Qamar Ali, 1996 (1) SCT 115 has held : "It is an established principle of law that a government servant enjoys the protection of his service, as contained in Article 311 of the Constitution of India, corresponding to Section 126 of the Constitution of J&K. The Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956, provide the procedure which is to be followed by a competent authority, as a mandate of law, while imposing a punishment on any government servant for any misconduct. The absence of a government servant without leave or after the end of leave, which involves loss of appointment cannot be deviated from the definition of misconduct in the broader terminology of the Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956, and thus the procedure as laid down in the Appeal Rules mentioned above, was to be followed by the competent authority, before taking action against the respondent within the purview of Article 128 of the aforesaid Regulations, by virtue of which a government servant loses his appointment if found absent without leave or after the end of the leave." 22. The Division Bench of this Court again in case Kh. Mushtaq Ahmad Khan v. State of J&K and Ors. 2004 (3) JKJ 10 [HC] (DB), has taken similar view by holding that absence for five years or more cannot result in automatic cessation of employment and the delinquent has to be given an opportunity of being heard. 23. This Court has dealt with similar issue in Mohd. Majnoon Mir v. State 2005 (3) JKJ 189 [HC], by holding that unauthorized absence amounts to misconduct, necessitating holding of an enquiry particularly in the case of a member of a disciplined force. Where there is overstaying of leave and absence from duty without justification it would be misconduct, justifying penalty even upto the extent of dismissal but the concerned employee must be given an opportunity of being heard before any prejudicial action is taken. 24. Again it has been held by the court that even if the authorities felt that it was not practicable to hold an enquiry due to the absence, non-cooperation or hostile attitude of the official, they should have exercised their powers under Rule 359 (11) (2) (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. which empowers the authorities to dispense with the enquiry on the ground of impracticability. In such a case the authority must record in writing the reason as also the satisfaction that it was not reasonably practicable to hold the enquiry. If this is not done the enquiry and the penalty would be void and unconstitutional. which empowers the authorities to dispense with the enquiry on the ground of impracticability. In such a case the authority must record in writing the reason as also the satisfaction that it was not reasonably practicable to hold the enquiry. If this is not done the enquiry and the penalty would be void and unconstitutional. Similar views have been expressed by this Court in various decisions viz. 2011 (3) JKJ 436 [HC] Suresh Kumar v. State of J&K & Ors., 2011 (2) JKJ 645 [HC] Gh. Mohi-ud-Din Rather v. State & Ors., 2011 (2) JKJ 657 [HC] Mohd. Hussain Balti v. State of J&K & Ors., 2011 (1) JKJ 52 [HC] Irshad Ahmad Dar v. State & Ors., 2015 (3) JKJ 638 [HC] Rakesh Kumar v. State & Ors. 25. In view of the aforesaid settled legal position, it is clear that discharge order is by way of punishment and has been passed without holding any enquiry against the petitioner, same is, as such, in violation of Rule 359 of the Police Rules as also Section 126 of the Constitution of Jammu and Kashmir. The impugned discharge order, i.e., Order No.689 of 2002 dated 24th Oct., 2002 passed by respondent No.8 whereby the petitioner was discharged from service, is quashed, with a further direction to the respondents to reinstate the petitioner into service. 26. The quashment of the impugned order, however, will not prevent competent authority to hold a Departmental Enquiry against petitioner for her unauthorized absence and in case any such decision is taken by the competent authority, all consequential benefits because of the reinstatement of the petitioner w.e.f. the date of discharge till her reinstatement shall depend upon the outcome of such enquiry. 27. Disposed of as above along with connected MPs.