Jammu & Kashmir High Court - Srinagar Bench
Mohammad Hussain Balti vs State Of J&K And Ors on 10 March, 2011
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP No. 176 of 2005 CMP No. 315 of 2005 Mohammad Hussain Balti Petitioners State of J&K and ors Respondents !Mr. B. A. Zarger, Advocate ^Mr. M. A. Chashoo, Advocate Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 10/03/2011 :J U D G M E N T:
Petitioner was Constable in the respondent-department and was discharged from service for allegedly remaining unauthorizedly absent from duty with effect from 26th September, 2003 by the Senior Superintendent of Police, District Anantnag, (respondent no. 3 herein) vide order no. 449/2004 dated 06.04.2004. It is this order which is called in question in this writ petition.
On notice issued, respondents have filed reply affidavit.
Rejoinder affidavit has also been filed by the petitioner.
Respondents were directed to produce the record. Despite opportunity, record has not been produced.
Heard learned counsel for the parties. Considered the matter. A serious allegation of misconduct is made against the petitioner in the impugned order inasmuch as, it is alleged that he has remained unauthorizedly absent from duty; that he showed arrogance, indiscipline and despite issuance of notice has not responded, which prevented the enquiry officer to proceed with the enquiry and resultantly, the impugned order was passed.
Learned counsel for petitioner submitted that the petitioner was taken ill and he was under medical treatment thus could not resume his duties. Learned counsel submitted that it has been specifically pleaded in the petition/rejoinder affidavit that notice which is alleged to have been issued has never been served on the petitioner. Learned counsel submitted that the impugned order on this count is illegal and deserves to be quashed. Mr. Chashoo, learned GA appearing for respondents submitted that petitioner has remained unauthorizedly absent from the duty and earlier on also suffered some punishments and despite issuance of notice, he did not appear before the enquiry officer. The competent authority was left with no option, but to discharge the petitioner from the service.
In the impugned order, it is alleged that petitioner has deserted the service. An employee can be said to have deserted the service, if he has taken job somewhere else without permission and without knowledge of his employer as also by irrefutable conduct. A reasonable person can reach to the conclusion that a person has deserted post, if it is shown that he has left the job with no intention to resume his duties. In this case enquiry was initiated, but same has been dropped mid way and thereafter order impugned has been passed. On the basis of available material and in view of the non production of record, it can be safely stated that petitioner had not deserted the post and had not thus severed his relationship with his employer. Petitioner though had allegedly remained unauthorizedly absent from the duty, but in view of the stand taken, he still continued to be in the employment of the respondents and he was to be dealt in accordance with the J&K Police Rules, 1960 (for short "Rules"). Chapter XI of Rules provide for punishment. Rule 334(1) provides that no police officer shall be departmentally punished, otherwise than as prescribed in these Rules. Sub Rule (2) of Rule 334 provides for authorized departmental punishments. Dismissal is one such punishment provided in the Rule 334 (2) of Rules. Though in the impugned order the expression "Discharged" is used, but petitioner could not have been discharged from service without following due procedure of law. Rule 187 of Rules provides for discharge. This Rule can be invoked by the competent authority at any time within three years of enrolment of official. This power has not been invoked within three years of the enrolment of the petitioner, so he could not be discharged from service. Since dismissal from service is punishment in terms of Rule 334(2) of Rules, this punishment could be inflicted on the petitioner only in accordance with the mandate prescribed in the Rules, as the same is mandate by Sub Rule (1) of Rule 334 of Rules. Rule 359 of Rules provides procedure for conducting departmental enquiries against delinquent official. On the basis of material available on the writ record, it appears that these Rules has been observed in breach.
For the above stated reasons, this petition is disposed of along with all connected CMPs in the following manner:
By issuance of writ of Certiorari, impugned order no. 449/2004 dated 06.04.2004 passed by respondent no. 3 is quashed. Respondents are given liberty to initiate enquiry against the petitioner. Petitioner is directed to appear before the respondent no.3 within two weeks and respondent no. 3 will proceed in the matter in accordance with law thereafter. It is further provided that in the event petitioner does not cooperate with the enquiry officer, then enquiry shall be conducted in ex-parte and orders, in accordance with law, be passed.
(Muzaffar Hussain Attar) Judge Srinagar 10.03.2011