Zahoor Ahmad vs State and Others

Muzaffar Hussain Attar, Judge

Order No. 37/2005 dated 10.02.2005 is called in question in this petition. Petitioner challenged the said order primarily on the ground that

enquiry under Rule 359 of J&K Police Rules has not been conducted, thus, valuable statutory right of the petitioner has been infringed.

In the reply affidavit it is stated that the departmental enquiry was conducted and rules of natural justice were sufficiently complied with. It is also

pleaded that several persons were examined and the petitioner was given ample opportunity to cross examine them.

The other ground taken by the petitioner is that the final show cause notice in terms of Sub Rule (2) of Rule 359 of J&K Police Rules has not

been issued, in as much as, the petitioner has not been given reasonable opportunity to show cause against the action which is to be taken against

him.

Heard learned counsel for the parties and considered the matter. Learned counsel for the parties have argued in tune with their respective

pleadings.

Perusal of the impugned order throws up a horrible situation in which a member of the disciplinary force has landed himself by his own conduct.

Petitioner, it appears, has remained absent for more period than he has served the department. Such a person may not be retained in a disciplinary

force. But for removing such a person from service the respondents are duty bound to comply with the mandate of rule 359 of J&K Police Rules.

Whatever the fact situation in a particular case is no exception can be carved out for justifying an action, though otherwise justifiable on the fact of

the case, in view of the mandate of the statutory rules. Respondents may be justified in passing an order but that order can be passed only after

complying with the statutory rules.

Perusal of the impugned order reveals that final show cause notice in terms of Sub Rule 2 of Rule 359 of J&K Police Rules has not been served

on the petitioner.This rule requires compliance from the respondents. The purpose of incorporating such a provision on the statute book is to afford

opportunity to delinquent official to either prove his innocence or to justify his action for which he is sought to be dismissed from the services or for

which action any other punishment permissible under law is to be inflicted on him. The said right under rule 359 is thus mandatory in nature and any

breach there of would render the action of respondents illegal.

This petition for the above stated reasons is allowed. By issuance of certiorari the impugned order is quashed. Respondents are directed to

proceed in the matter from the stage where they are required to issue show cause notice in terms of sub rule (2) of Rule 359 of Police Rules to the

petitioner. Petitioner after receipt of such notice will reply the same within a reasonable time and competent authority to take decision thereafter.