JUDGMENT : 1. By the medium of the instant writ petition, the petitioner has challenged the order of his discharge from service bearing No. 62 of 2015 dated 30th of September, 2015, whereby he has been discharged from service by the Respondent No.5, on the grounds, inter alia, that he was never given a chance of hearing while passing the impugned order; the order is violative of the rules of natural justice and the rules governing the service conditions of the petitioner; no show cause notice was issued to him and no enquiry, whatsoever, was conducted against him in accordance with the rules; the order is based on extraneous considerations and the past conduct in the service of the petitioner. The petitioner has further pleaded that it is also not indicated anywhere as to when the enquiry was conducted which culminated into the order aforesaid nor has the record of the enquiry been made available to the petitioner, which fact makes it amply clear that the impugned order of discharge is not the outcome of any enquiry conducted in terms of the rules. There is also no material on record in the shape of any public notice or notices requiring the petitioner to participate in the enquiry. 2. The facts as these emerge from the study of the file under consideration, briefly and as stated by the petitioner, are that the petitioner, after competing in the selection process initiated by the respondents, came to be appointed as a Constable in JKAP 14th BN vide order No. 95 of 1999 dated 17th of September, 1999. The petitioner was posted in JKAP 14th BN, JKAP 9th BN and in the traffic wing of the Kashmir Police upto 31st of January, 2015. Thereafter, the petitioner came to be adjusted in IRP 17th BN, Samba, where he joined his duties on 23rd of February, 2015. It is stated that due to some unavoidable circumstances as regards the ill health of his mother and the pregnancy issue of his wife, the petitioner, on 24th of February, 2015, proceeded on 5+1+2 days’ casual leave and was supposed to report back to his duties on 4th of March, 2015, but, as stated hereinabove, due to some unavoidable circumstances, the petitioner could not resume his duties on the due date. Resultantly, the respondents issued order No. 622 of 2015 dated 30th of September, 2015, that is impugned herein this petition, whereby and whereunder the petitioner stands discharged from his duties on account of his unauthorized absence. The petitioner, being aggrieved, knocked at the doors of the respondents by filing a representation for the redressal of his grievances, but fate had it for him that this representation, pursuant to various inter se communications between the respondents, was rejected by the respondent No.4 vide his order No. 29 of 2016 dated 2nd of March, 2016. On the above set of facts, the petitioner has craved the indulgence of this Court in granting him the following reliefs: “I) By issuance of Writ of Certiorari, the impugned order of discharge dated 30th of September, 2015 (Annexure P/2) issued by the respondent No.5 be quashed and set aside, and consequently (II) By issuance of Writ of Certiorari, the impugned order of rejection of petitioner’s representation by directing his removal from service dated 02.03.2016 (Annexure P/7) issued by the respondent No.4 be also quashed and set aside and (III) By issuance of Writ of Mandamus, respondents be directed to allow the petitioner to resume his services at his place of posting.” 3. In their objections, the respondents have resisted and controverted the claim of the petitioner by stating that no cause of action has arisen to the petitioner for maintaining the present writ petition. The petitioner has suppressed the material facts and has tried to mislead the Court. He has not approached the Court with clean hands, and is, therefore, not entitled to any relief. It has further been stated that the petitioner proceeded on 05 days’ casual leave from IRP-17th BN, Samba with permission to avail 01-day station permission and 02 days’ transit, thereby making this period, in all, 08 days, w.e.f. 24th of February, 2015. The petitioner was due to report back to duty on 4th of march, 2015, but, instead of joining his duty, the petitioner deputed his brother at Police Station, Chadoora, to convey the message to the Unit for extension of 07 days more as the wife of the petitioner had been hospitalized in connection with delivery case, which extension in leave, subsequently, vide order No. 98 of 2015 dated 4th of March, 2015, was granted in favour of the petitioner. After availing the extension in leave, the petitioner was due to join his duty on 11th of March, 2015, however, since the petitioner failed to do so, accordingly, the petitioner was, vide communications bearing Nos. P-File-IR-17th/2015/5639 dated 23rd of April, 2015 and 5923 dated 27th of April, 2015, informed through Station House Officer (SHO), Police Station concerned, to resume back his duties, but the petitioner did not bother to respond to these communications. Thereafter, an attendance notice No. Estt/IR-17th/2015/6629-30 dated 13th of May, 2015, was served on the petitioner against proper receipt in presence of two witnesses of his locality, namely, Ghulam Hassan and Manzoor Ahmad, with the directions to report back to duty at Battalion Headquarters within two days after receiving the said notice and explain his position, failing which, further action was intimidated to be taken against him in terms of the J&K Police Manual/Service Conduct rules. This notice too did not evoke any response from the petitioner as he did not join back his duties, constraining the respondents to place the petitioner under suspension vide order No. 284 of 2015 dated 22nd of May, 2015. Subsequently, as stated, the final show cause notice No. Estt/IR-17th/2015/12265-68 dated 10th of August, 2015, was got published through Dy. Director, Information, Jammu range, Jammu in the State Kashmir Times in its edition dated 15th of August, 2015, with the intimation to the petitioner to report at Battalions Headquarters within seven days after publication of this notice, failing which it shall be presumed that the petitioner is not interested to serve the department anymore and action shall be taken under rules. Since the petitioner did not report back to his duties inspite of giving sufficient time for the same, the respondents, as stated, had no other option but to pass the order No. 622 of 2015 dated 20th of September, 2015 read with addendum issued under endorsement No. Estt/IR-17th/ 2015/15885-86 dated 3rd of October, 2015. 4. Heard the learned counsel for the parties, perused the record and considered the matter. 5. 4. Heard the learned counsel for the parties, perused the record and considered the matter. 5. Admittedly, the impugned order has been passed by the respondents while invoking the provisions of Rule 187 of the Jammu and Kashmir Police Rules, 1960 (hereinafter referred to as “the Rules of 1960”), which Rule provides as under: “Discharge of inefficients: - 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.” From the perusal of the impugned order coupled with the mandate of the provisions of the Rule 187 of the Rules of 1960, it is manifestly clear that the provisions of this rule can only be pressed into service by the Superintendent concerned against a constable/ police official who has not completed three years of service in the Department. In the present case, the petitioner had more than 15 years of service to his credit on the date order impugned was passed, therefore, Rule 187 of the Rules of 1960 could not have been invoked by the Commandant, IRP-17th Battalion, Samba/ Inspector General of Police, IRP Jammu zone, to get rid of the petitioner. In fact, it is Rule 359 of the Rules of 1960 which deals with the procedure to be followed before a punishment like discharge from service is inflicted on a police officer/official, who has more than three years of service. 6. Rule 359 of the Rules of 1960, running under the caption ‘Procedure in Departmental Enquiries’, provides as under: “359. Procedure in Departmental Enquiries - (1) The following procedure shall be followed in departmental enquiries: - (a) The enquiry shall, whenever, possible be conducted by a Gazetted Officer empowered to inflict a major punishment upon the accused officer. Any other gazette officer or an Inspector specially empowered by the Minister I/C Police Department, to hold departmental enquiries (Vide order No. 636-C dated 27-6-1945) may be deputed to hold an enquiry or may institute an enquiry on his own initiative against an accused police officer who is directly subordinate to him, except that in the case of a complaint against a constable the enquiry may be conducted by an Inspector. The final order, however, may be passed only by an officer empowered to inflict a major punishment upon the accused police officer. The final order, however, may be passed only by an officer empowered to inflict a major punishment upon the accused police officer. (2) The officer conducting the enquiry shall summon the accused police officer before him and shall record and read out to him a statement summarizing the alleged misconduct in such a way as to give notice of the circumstances in regard to which evidence is to be recorded. (3) If the accused police officer at this stage admits the misconduct alleged against him the officer conducting the enquiry may proceed forth with to record a final order if it is within his power to do so or a finding to be forwarded to an officer empowered to decide the case. Whenever a serious default is reported and the preliminary enquiry is necessary before a definite charge can be framed, this is usually best done on the spot and might be carried out by the Sub-Inspector of the particular Police Station in the case of head constables and constables serving under him or by the Inspector of the circle in the case of Sub-Inspectors within his charge. At the same time it must be left to Superintendent of Police to select the most suitable officers for the purpose or to do it themselves when such a course appears desirable. When the preliminary enquiry indicates a criminal offence, application for permission to prosecute should at once be made to the authority competent to dismiss the officer and permission should be promptly granted if that authority agrees that there is prima facie case for prosecution. (4) If the accused police officer does not admit that misconduct the officer conducting the enquiry shall proceed to record such evidence oral and documentary in proof of the accusation as is available and necessary to support the charge. Whenever possible witnesses shall be examined direct and in the presence of the accused who shall be given opportunity to cross-examine them. The officer conducting the enquiry is empowered, however, to bring on to the record the statement of any witness whose presence cannot in the opinion if such officer be produced without undue delay and expense or inconvenience if he considers such statement necessary and provided that it has been recorded and attested by a Magistrate and is signed by the person making it. The accused shall be bound to answer questions which the enquiring officer may see fit to put to him, with a view to elucidating the facts referred to in statements or documents brought on the record as herein provided. (5) When the evidence in support of the allegations has been recorded, the enquiring officer shall - (a) if he considers that such allegations are not substantiated either discharge the accused himself if he is empowered to punish him, or recommend his discharge to the Superintendent or other officer who may be so empowered, or (b) proceed to frame a formal charge or charges in writing, explain them to the accused officer and call upon him to answer them. (6) The accused officer shall be required to state the defence witnesses whom he wishes to call and may be given time in no case exceeding 48 hours to prepare a list of such witnesses together with a summary of the facts as to which they will testify. The enquiring officer shall be empowered to refuse to hear any witnesses whose evidence he considers will be irrelevant or unnecessary in regard to the specified charge framed in which case he shall record the reason for his refusal. He shall record the statements of those defence witnesses whom he decides to admit in the presence of the accused, who shall be allowed to address questions to them the answers to which shall be recorded, provided that the enquiring officer may cause to be recorded by any other officer not below the rank of Inspector the statement of any such witness whose presence cannot be secured without undue delay or inconvenience and may bring such statement on to the record. The accused may file documentary evidence and may for this purpose be allowed access to such files and papers except such as form part of the record of the confidential office of the Superintendent of Police as the enquiring offices. The supply of copies of documents to the accused shall be subject to the ordinary rules regarding copying fees. (7) At the conclusion of the defence evidence or if the enquiring officer so directs at any earlier stage, following the framing of a charge the accused shall be required to state his own answer to the charge. The supply of copies of documents to the accused shall be subject to the ordinary rules regarding copying fees. (7) At the conclusion of the defence evidence or if the enquiring officer so directs at any earlier stage, following the framing of a charge the accused shall be required to state his own answer to the charge. He may be permitted to file a written statement and may be given time not exceeding one week for its preparation but shall be bound to make an oral statement in answer to all questions which the enquiring officer may see fit to put to him arising out of the charge, the recorded evidence or his own written statement. (8) The enquiring officer shall then proceed to pass orders of acquittal or punishment if empowered to do so or to forward the case with his finding and recommendations to an officer having the necessary powers. (9) Nothing in the foregoing rules shall debar a Superintendent of Police from making a causing to be made a preliminary investigation into the conduct of a suspected officer. Such an enquiry is not infrequently necessary to ascertain the nature and degree of misconduct which is to be formally enquired into. The suspected police officer may or may not be present at such preliminary enquiry as ordered by the Superintendent of Police or other gazette officer initiating the investigation but shall not cross-examine witnesses. The file of such a preliminary investigation shall form no part of the formal departmental record but may be used for the purposes of sub-rule (4) above. (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. (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. (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 to dismiss or remove such officer to reduce him in rank, as the case may be, shall be final.” What comes to the fore from the above Rule is that the procedure for imposing the major penalty, i.e. the order of discharge here in this case, involves: i. The delivery of a charge sheet; ii. Appointment of an enquiry officer; iii. Providing opportunity to the delinquent official to submit his defence and to be heard; iv. The enquiry where oral and documentary evidence is produced by both sides; v. The preparation of a report after the conclusion of the enquiry and forwarding of the same to the disciplinary authority (where the disciplinary authority is not itself the enquiring Authority); vi. Action on the enquiry report by the Disciplinary Authority; vii. Notice to the delinquent official to show cause on the penalty proposed; viii. Meaning of the order imposing penalty; and ix. Communication of the orders. In the case on hand, no enquiry, whatsoever, as provided under the rules governing the field, appears to have been conducted in the matter. Action on the enquiry report by the Disciplinary Authority; vii. Notice to the delinquent official to show cause on the penalty proposed; viii. Meaning of the order imposing penalty; and ix. Communication of the orders. In the case on hand, no enquiry, whatsoever, as provided under the rules governing the field, appears to have been conducted in the matter. The petitioner has been thrown out by an order of discharge without following the due procedure of law, with a premeditated design to divest him of his right to participate in the enquiry. An opportunity of being heard is the ‘sine-qua-non’ of every enquiry and in case of any discharge, reasons justifying so have to be spelt out. The principles of natural justice appear to have been violated with impunity in this case. The defense of the petitioner has been shut by deception and the conduct of a full dressed enquiry has been given a complete go by. The order impugned 7. Justice is not only law and its administration, but is, in most cases, above law and is done to safeguard an individual from whatever he/she seeks protection. Our country generally and our State in particular aims at the goal of achieving a welfare State where everyone is/ has to be, as far as possible, looked after. The principles of natural justice are imbibed from the Constitution itself. These are of paramount importance and nobody can be condemned unheard. 8. In ‘ AIR 2005 SC 2090 ’; Canara Bank v. V. K. Awasthy, the Hon’ble Apex Court, while dealing with the extent and scope of the principles of natural justice, held as under: “10. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what commonly known as audi alter am par tem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the “Magna Carta”. The classic exposition of Sir Edward Coke of natural justice requires to “vacate interrogate and adjudicate”. In the celebrated case of Cooper v. Wandsworth Board of Works, [1963] 413 ER 414, the principle was thus stated: “Even God did not pass a sentence upon Adam, before he was called upon to make his defence. “Adam”, says God, “where art thou has thou not eaten of the tree whereof I commanded thee that though should not eat”. Since then the principle has been chiseled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.” 9. In the case titled ‘Jehangir Ahmad Mir v. State of J&K’, reported in ‘1998 SLJ 134’, this Court had the occasion to examine the range, limits and the scope of Rules 337 and 359 of the Jammu and Kashmir Police Rules read with Section 126 of the Constitution of Jammu and Kashmir and Article 311 of the Indian Constitution and it held as under: “It is a matter of common knowledge by now that no member of a State service or a person holding post under the State can be removed from service save otherwise in accordance with the requirements of Section 126(2) of the State Constitution read with Article 311 of the Indian Constitution which contemplates conveying the specific charges to the delinquent and providing him a reasonable and adequate opportunity of being heard and then his removal from service after an enquiry. Section 126(2) of the State Constitution provides for an additional safeguard of a second show cause notice regarding the proposed punishment to be imposed. This position is supplemented by the police Rules, Rule 359 whereof prescribes procedure for conducting departmental enquiry against police personnel. Similarly Rule 336 lays emphasis on the suitability of punishment and cautions the Authority to be careful by taking in regard the character of the delinquent and his past service. Similarly Rule 337 places a constraint on the exercise of the power of dismissal and illustrates the cases though not exhaustively wherein this power was exercised, regard being had to the length of service of the offender and his claim to pension. All this pointed to the checks imposed by law for exercise of the power of dismissal against a delinquent police employee. Under Rule 359, the enquiry officer is required to summon the delinquent officer before him and read out a statement summarizing his alleged mis-conduct in such a way as to give him full notice of the circumstances in regard to which evidence was required to be recorded in the matter. Thereafter depending upon the denial if any made by the delinquent, the enquiry officer was required to proceed to record such evidence as would be available and necessary to support the charge. The witnesses were required to be examined in presence of the delinquent and after this he was granted an opportunity to lead his defence evidence or to file his documentary evidence and to state his own answer to the charge. The enquiry officer was then to submit the recommendations or topics order of acquittal or punishment, if he was competent to do so.” 10. An almost the same view has been repeated and reiterated by this Court in the case of ‘Ghulam Mohammad v. State of J&K’, reported in ‘1998 SLJ 273’, the relevant excerpts of which are reproduced below, verbatim et literatim: “Rule 359 of Police Rules postulates two-fold stages of the enquiry, one preliminary and another after framing the charge. As regards preliminary enquiry, the Enquiry Officer is required to follow the procedure as laid down under sub-rules (1) to (5) of Rule 359 of Police Rules. As regards preliminary enquiry, the Enquiry Officer is required to follow the procedure as laid down under sub-rules (1) to (5) of Rule 359 of Police Rules. Perusal of the chargesheet does not depict the names of the witnesses who have been examined during the preliminary enquiry, so much so it does not even depict as to whether he was ever summoned, recording and reading out a statement of summary of allegations, is therefore, ruled-out. The chargesheet depicts that a communication was sent to the petitioner and was provided an opportunity to question the witnesses which he did not but it does not indicate that the basic requirement was observed which makes it obligatory upon the enquiry officer to summon the petitioner and read out the statement of summary of allegations to him and after observing the said requirement question, of recording evidence would arise. Having failed to follow the mandate of rule, the preliminary enquiry vitiates, for, same has not been in accordance with the mandate of Rule 359 of Police Rules and on this count the impugned order is liable to be set aside. The procedure which the Enquiry Officer has to follow after framing the charge is envisaged in sub-rules 6 and 7 of Rule 359 of Police Rules. Sub rule 6 makes it obligatory upon the enquiry officer to provide an opportunity to the accused official to give a list of such witnesses whom he would like to produce in defence and record their statements. It further provides that the statements of such witnesses can be recorded even at the places of their availability, of course, for the reasons detailed in the sub-rules. The said sub-rule further provides that even access to the files, excepting the confidential record, can also be permitted and the object is to allow sufficient opportunity of defence to the delinquent official/ officer. After receiving the evidence, oral and documentary, yet another opportunity is to be made available to the delinquent official at conclusion of the defence evidence under sub-rule 7 to make a statement in reply for the charge, so much so the delinquent official can seek permission to file a written statement in his defence after the conclusion of the evidence in defence.” 11. In view of the aforesaid enunciations of law, the condition precedent for initiating a disciplinary action against a police officer/ official is not only the conduct of an enquiry, but it should also appear that due adherence and strict compliance to the manner and procedure as laid down under Rules 337 and 359 has been followed in its letter and spirit and any deviation thereof will render the order imposing penalty bad and liable to be set aside. 12. In ‘Ghulam Ahmad & Ors. v. Sr. Superintendent of Police’, reported in ‘ 1988 JKLR 1367 ’, although a departmental enquiry was conducted into the alleged callousness in duty on the part of the petitioners, who were Police Constables, yet the Court came to the conclusion that the provisions of Rule 359 of the Rules of 1960 had not been complied with while conducting the enquiry and, therefore, the Court opined that the impugned order imposing penalty of dismissal upon the petitioners was unconstitutional, illegal and bad in law. 13. In ‘Bashir Ahmad Dar v. State of & Ors.’, reported in ‘2013 (4) JKH 264(HC)’, where a Constable, having 8 years of service to his credit, had been discharged from services in pursuance of Rule 187 of the Rules of 1960 without conducting any enquiry, the Court came to the following conclusion: “12. Perusal of record would reveal that procedure laid down in the aforementioned Rule has been observed in breach. The record does not indicate that an enquiry was directed into the matter. The officer, if any, asked to conduct enquiry, summon the petitioner, read to him the statements summarizing the alleged misconduct, record oral and documentary evidence in proof of the accusation, allow the petitioner to cross-examine the witnesses or to examine witness and produce documents in his defense. The record also does not indicate that any formal charge was framed against the petitioner and the petitioner given an opportunity to furnish the list of defense witnesses or examine such witnesses, or allowed to file written statement. The petitioner has not been given an opportunity to show cause orally and in writing against the action proposed to be taken against him. The petitioner has not been given an opportunity to show cause orally and in writing against the action proposed to be taken against him. It is pertinent to point out that the petitioner was not removed on his conviction of a criminal charge nor was satisfaction recorded by the respondents that giving him an opportunity to show cause against the proposed action would not be reasonably practicable. 13. In the circumstances the procedure mandatorily to be followed before making the impugned order, was not followed by the Competent Authority. The impugned order, therefore, has been passed in a violation of mandate of Rules of 1960 and in particular Rule 359 of the Rules of 1960. The order thus cannot stand legal scrutiny.” 14. The pleadings placed before this Court does not provide even an inkling of how and in what manner the enquiry was conducted into the matter of the unauthorized absence of the petitioner. There is no evidence on record to state and show that the statement summarizing the alleged misconduct on the part of the petitioner was read over and explained to him. Not even a murmur has been made to state that any evidence was recorded in the case. The procedure laid down for conducting the enquiry as laid down in the rules cited above does not appear to have been followed at any stage, as a consequence of which, the order of discharge cannot survive and sustain in the eyes of law. 15. Viewed in the above context, the penalty imposed upon the petitioner, being contrary to the law and reason, cannot be upheld, as a corollary to which, the petition of the petitioner is allowed in the following terms: I. The impugned orders bearing Nos. 62 of 2015 dated 30th of September, 2015, issued by the respondent No.5 and 29 of 2016 dated 2nd of March, 2016, issued by the respondent No.4, are quashed; II. The respondents are directed to allow the petitioner to resume his duty forthwith; III. The respondents shall, however, be free to hold a regular enquiry against the petitioner for his unauthorized absence from duty strictly in accordance with the provisions of the relevant Rules of 1960; IV. The respondents are directed to allow the petitioner to resume his duty forthwith; III. The respondents shall, however, be free to hold a regular enquiry against the petitioner for his unauthorized absence from duty strictly in accordance with the provisions of the relevant Rules of 1960; IV. However, since a lot of water has flown down the Jehlum from the date of passing of the order of the discharge of the petitioner, therefore, if the respondents decide to hold any enquiry, the same shall be initiated and brought to its logical conclusion, as far as practical, within a period of two months from the date the certified copy of this order is served on them; V. The quashment of the impugned orders, as above, shall not entitle the petitioner to claim any salary/ remuneration/wages during the period he was out of service. The respondents shall deal with this issue after the final report of enquiry is received by them and shall decide the same in view of the conclusions drawn by the enquiry Officer in accordance with the rules governing the field. 16. Writ petition, alongwith connected MPs, disposed of as above.