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2018 DIGILAW 83 (JK)

Showkat Ahmad Dar v. State of J&K

2018-02-15

ALOK ARADHE

body2018
JUDGMENT : Alok Aradhe, J. 1. The petition is admitted to hearing and with the consent of the learned counsel for the parties the same is heard finally. 2. In this writ petition, the petitioner inter alia has assailed the validity of the order dated 16.11.2015 by which the petitioner has been discharged from service by purported exercise of power under Article 128 J&K Civil Service Regulations read with Rule 187 of J&K Police Manual. The petitioner has also prayed for a writ of mandamus commanding the respondents to reinstate the petitioner into services with effect from 28.03.2015 and to accord all consequential benefits to him. In order to appreciate the petitioner's grievance, the true facts are stated here-in-below: 3. The petitioner was appointed as constable in J&K Police (Executive) vide order dated 30.08.2012. The petitioner after his selection joined the duties and was discharging the duties with utmost sincerity. It is the case of the petitioner that unfortunately his brother and grandfather fell ill and the petitioner rushed to attend them as there was nobody else to take care of them. The petitioner, therefore, remained absent from duties from 28.03.2015. After improvement in the health of petitioner's brother and grandfather, the petitioner reported to his service at District Police Lines, Pulwama and made a request to the respondents to allow him to join the duties. However, the petitioner was not permitted to join his duties. Thereupon the petitioner filed a writ petition bearing SWP No. 28/2017 in which a direction was sought to the respondents to allow the petitioner to resume his duties. The aforesaid writ petition was disposed of with liberty to the petitioner to approach the competent authority. In pursuance of the aforesaid liberty, the petitioner submitted representations to the respondents. However, Such representations failed to evoke any response. 4. In the aforesaid backdrop, the petitioner has approached this court with the instant writ petition. 5. Learned counsel for the petitioner submitted that the impugned order dated 16.11.2015 which is punitive in nature could not have been passed without holding an inquiry against the petitioner. It is further submitted that neither any inquiry was held nor any opportunity of hearing was afforded to the petitioner before passing the impugned order. It is stated that the respondents were under an obligation to hold a regular departmental inquiry under Rule 359 of the J&K Police Rules, 1960. It is further submitted that neither any inquiry was held nor any opportunity of hearing was afforded to the petitioner before passing the impugned order. It is stated that the respondents were under an obligation to hold a regular departmental inquiry under Rule 359 of the J&K Police Rules, 1960. It is further submitted that the respondents were under an obligation to record a finding that the petitioner is unlikely to prove an efficient police officer and without recording such a finding, the power under Article 187 of J&K Police Rules, 1960 could not have been invoked. 6. In support of his contention, learned counsel for the petitioner places reliance on three cases viz. Constable Bashir Ahmad and Another vs. State of J&K and Others, 2005 (3) JKJ 167 , Mohd. Aslam vs. State and Others, 2004 (3) JKJ 462 and Syed Qamar Ali vs. State and Others, SWP No. 1570/1992 decided on 19.11.1993. 7. On the other hand, learned Sr. AAG appearing for the respondents while inviting the attention of this court to paragraph 5 of the objections filed on behalf of respondents 2 to 4, submitted that the petitioner was on probation when he proceeded on leave and the petitioner was repeatedly informed through SHO Police Station Soura to join his duties. However, he did not join his duties. The learned Sr. AAG stated that thereafter a notice was published in daily Srinagar Times on 21.10.2015 for resumption of duties, yet the petitioner did not approach the respondents for joining the duties and since the petitioner was on probation, therefore, he has rightly been discharged in exercise of powers under Rule 187 of J&K Police Rules, 1960, read with Article 128 of J&K Civil Service Regulations. 8. I have considered the submissions made by the learned counsel for the parties and have perused the record. Before proceeding further, it is apposite to take note of the statutory provisions. Rule 187 of J&K Police Rules 1960 reads as under: 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. Thus from the perusal of Rule 187, it is evident that the power under Rule 187 of J&K Police Rules, 1960, can be invoked only when the candidate is unlikely to prove an efficient police officer. Thus from the perusal of Rule 187, it is evident that the power under Rule 187 of J&K Police Rules, 1960, can be invoked only when the candidate is unlikely to prove an efficient police officer. The aforesaid finding is a sine quo non for invoking Rule 187 of the J&K Police Rules. The Article 128, General Conditions, J&K Civil Service Regulations, 1956 reads as under: 128. Overstaying leave - Absence without leave or after the end of leave involves loss of appointment, except as provided in Article 203(b) or when due to ill-health in which case the absentee must produce the certificate of Medical Officer. 9. A bench of this court in the case of Ilyas Ali vs. State and Others, 2010 (1) JKJ 157 , has held that in case of unauthorized absence an employee cannot be discharged by stigmatic order until and unless a finding is recorded on the basis of inquiry conducted in accordance with law that the delinquent officer is not ready to serve the department. 10. In the above said backdrop and in view of the settled legal position and the facts and circumstances of the case, the relevant extract of the impugned order reads as under: "........therefore, I Tejinder Singh-IPS Superintendent of Police District Pulwama in exercise of powers vested to me in terms of article 128 of J&K CSR read with rule 187 J&K Police Manual hereby ordered that: 1. Const. Showkat Ahmad No. 1364/PL S/o. Ali Mohammad Dar R/o. Ahmadnagar Soura Srinagar is hereby discharged from services and is struck off from the rolls of Police Department w.e.f. 28.03.2015 i.e. the day when he absented himself from unauthorizedly. 11. Thus from the perusal of the aforesaid order it is evident that sine qua non for invoking the Rule 187 of Rules has not been fulfilled by the respondents inasmuch as no finding is recorded that the petitioner is unlikely to prove an efficient police officer. Therefore, the power to discharge could not have been exercised without holding any departmental inquiry. Besides, the order of discharge is punitive in nature and is stigmatic; therefore the same could not have been inflicted on the petitioner without holding a departmental inquiry. Therefore, the power to discharge could not have been exercised without holding any departmental inquiry. Besides, the order of discharge is punitive in nature and is stigmatic; therefore the same could not have been inflicted on the petitioner without holding a departmental inquiry. Even assuming the submissions made on behalf of the respondents to be correct that the service of the petitioner could have been dispensed with as he was on probation, the same is of no assistance to the respondents as the respondents could not have passed the order of discharge without satisfying the conditions mentioned therein for exercise of power under Rule 187 of the Rules which is sine quo non. 12. In view of the proceeding analysis, the impugned order dated 16.11.2015 is hereby quashed. Respondents are directed to permit the petitioner to join the duties and to pay salary to the petitioner from the date of his joining. Needless to state that the respondents shall be at liberty to proceed against the petitioner if so advised. 13. With the aforesaid the petition stands disposed. 14. In view of the order passed today in SWP No. 1559/2017, no separate order is required to be passed in SWP No. 28/2017. The SWP No. 28/2017 is disposed of on same terms and with similar directions.