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Judgment
The Letters Patent Appeal has been directed against order-dated 10.05.2005 passed by learned Single Judge in SWP No. 1286/01 whereby,
the writ petition of the respondent has been allowed and consequent, thereto the impugned order-dated 15.05.2001 of termination of services of
the respondent by appellant No. 3 herein has been quashed.
Respondent was posted PSO with the protected person namely Mohd. Sidiq Parray who had his affiliation with a political party known as
Awami League. The respondent absented from duty on 13.05.2001 without prior permission either from the protected person with whom he was
posted or the concerned superior Police officer. During his absence Mohd. Sidiq Parray was filed upon and killed by unknown militants on
13.05.2005. The appellants came to be conclusion that it the absence of the respondent which has provided occasion to the militants to attack and
kill the protected person. The appellant No. 3 terminated the services of respondent on 15.05.2005 invoking powers u/s 126(2)(b) of the Jammu
& Kashmir Constitution, without holding enquiry on the ground that it is not reasonably practicably to hold enquiry.
The respondent challenged the impugned order on the ground that the appellants arbitrarily exercised the power to terminate the services of the
respondent, coining an excuse that it was not practicable to hold enquiry. The learned Single Judge after hearing the rival contentions of learned
Counsel for the parties has allowed the writ petition on the ground that in such circumstances, it was practicable to hold the enquiry with regard to
the unauthorized absence of the respondent.
The order under appeal has been challenged on the ground as set out in the writ petition and also as submitted at the Bar by learned Counsel for
the appellant that even if, the reasons for dispensing with the enquiry are not mentioned in the impugned order, these have been explained in the
Counter Affidavit, therefore, the order under appeal deserve to be set aside.
We have heard learned Counsel for the parties and perused the record.
Mr. M.A. Rathore, learned AAG has submitted that judgment of the learned Single Judge cannot be maintained as the appellant has disclosed
the reasons for exercise of powers u/s 126-2(b) of the Constitution of Jammu & Kashmir as it was because of the absence of witnesses, the
enquiry regarding the absence of the respondent, who was posted with the protected person, could not be conducted as being impracticable. The
constitutional power can be exercised by the competent authority for dispensing with the enquiry, if it is not reasonably practicable to hold enquiry
which means in the present case that the witnesses who could prove the misconduct of the respondent either are not available or could not be
made available. The reasons of absence by the respondent could be ascertained if he is heard. The absence could be, for example, of his being
kidnapping or he may not be feeling well or there might have been other reasons beyond his control to attend the duty for which enquiry should
have been initiated. The incident took place on 13.05.2005 and the services of the respondent were terminated on 15.05.2005. The appellant has
not initiated any enquiry and came to the conclusion to terminate the services of the respondent as the respondent on the basis that his absence has
provided a chance to the militants to attack an kill the protected person. Such an approach of the respondents to arrive at the conclusion without
supporting evidence is neither justified nor acceptable. Enquiry could have been conducted with regard to the absence of the respondent under
such circumstances, the action of respondent No. 3 is an arbitrary exercise of powers.
A public servant has certain guarantees and safeguards provided u/s 126 of the Constitution of Jammu & Kashmir which corresponds to Article
311 of the Constitution of India. The services of public servant can be terminated only after holding enquiry and providing opportunity to him to
explain the reasons for alleged misconduct. The power of dispensing with the enquiry can be exercised by the competent authority if it is
impracticable to hold enquiry with regard to the absence from duty. The reasons of absence could have been explained by the respondent it is
show cause notice had been issued to him. Under such circumstances, termination of the services of the respondent in exercise of powers u/s
126(2)(b) of the Constitution of Jammu & Kashmir on the ground that it is not reasonably practicable to hold enquiry, is arbitrary.
For the aforesaid reasons, the judgment of learned Single Judge under appeal does not warrant any interference. The Letters Patent Appeal
being devoid of merit is accordingly dismissed.