Ghulam Mohd., Constable vs State of J&K through Director General of Police at Srinagar

Petitioner was appointed constable in the Police Department with effect from April 04, 1983. He was posted at Kupwara at the relevant time

when he was asked to proceed on leave because of the sudden passing away of his son on December 14,1989. He asserts that he thereafter fell ill

and could not resume his duty with effect from December 20, 1989 to May 20, 1990. He obtained a certificate of his fitness form Medical Officer

Anantnag and when he tried to join his duty, he was informed that he stood discharged from service by order No. 419 of 1990 dated April 07,

1990 passed by respondent No. 3 He assails this order only on the ground that he was ousted from service arbitrarily and without any inquiry and

in violation of the principles of natural justice. It is also pointed out by him that respondent No.2 had reinstated some of his colleagues, particulars

whereof are given in para No. 8 of the writ petition who were similarly situated with him.

In their reply filed by the respondent, it is admitted that the petitioner was asked to proceed on leave upon the death of his son. It is alleged that

the petitioner has failed to return on his duty thereafter despite notices having been served upon him to resume his duty and he had remained absent

for about five months. It is explained that it was not possible for the Police Department to retain any of the absentee police personnel on the rolls in

view of the disturbed conditions in the valley and resultantly the petitioner was discharged from service taking in regard his absence from duty and

disregard to the Police Rules and discipline in the Police force. However, it is not indicated that any inquiry was held in the matter to afford an

opportunity to the petitioner to explain the circumstances which prevented him to perform his duty.

It transpires that the petitioner had put in more than seven years service and, therefore, he could not be ousted from service on a mere ipsidixi

but only after holding an inquiry into the charge of unauthorised absence from duty. He was not only entitled to be informed of the charge against

him, but also was required to be afforded a reasonable opportunity of justifying his absence form duty and above all he was entitled to a notice

proposing punishment of dismissal from service in terms of section 126(2) of the State Constitution.

Giving regard to the position that admittedly respondents had failed to hold an inquiry into the petitioner's unauthorised absence and had neither

observed the procedure prescribed under the J&K police Rules, nor requirements ladia down in section 126(2) of the State Constitution, the

impugned action becomes grossly and patently illegal and, therefore, it cannot sustain.

It is no good to say that an absentee Police personnel could not be retained in Police Service in view of the disturbed conditions in the valley.

After all services of members of the police force are governed by the provisions of the Constitution and the relevant recruitment rules and,

therefore, the departmental action is required to be taken under the parameters of the said previsions of law. No alibi attributing dismissal or

removal from service to the disturbed conditions in the Kashmir Valley cannot justify giving a goby to the provisions of the Constitution and the

Rules.

Above all, the petitioners was required to be given the same treatment as was given to his other colleagues who were allegedly similarly

circumstanced like Constable Des Raj No: 7, Payare Lal No. 538, Bhushan Lal No. 542 and Avtar Krishan No. 647. If these constable were

reinstated in service, there is no reason why the petitioner should be treated differently in identical facts and circumstances.

In the result, this petition succeeds and the order impugned No. 419 of 1990 dated 7.4.1990 passed by respondent No.3 is hereby quashed

and respondents are directed to reinstate the petitioner in service. They shall be however, at liberty to hold an inquiry against him for his alleged

absence and for taking appropraite action in accordance with rules. In case it is desired to hold an inquiry against him, it shall be completed within

four months from the date of receipt of this order but if the report of such inquiry goes in his favour he shall be entitled to all past service benefits

from the date of his discharge till the date of his reinstatement in service.