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Jammu & Kashmir High Court - Srinagar Bench

Bashir Ahmad Bhat vs State Of J&K; And Others on 13 September, 2017

Author: Mohammad Yaqoob Mir

Bench: Mohammad Yaqoob Mir

Serial No.23
Regular List

                          HIGH COURT OF JAMMU AND KASHMIR
                                    AT SRINAGAR

       SWP No.2535/2011
                                                            Date of decision: 13.09.2017

       Bashir Ahmad Bhat                  v.       state of J&K & ors.

       Coram:
               Hon'ble Mr Justice Mohammad Yaqoob Mir, Judge.

       Appearance:

       For the Petitioner(s):     Mr. M. Ayoub Bhat, Adv.
       For the Respondent(s): Mr. B. A. Dar, Sr. AAG.

       i)    Whether approved for reporting in                     Yes
              Law journals etc.:
       ii)     Whether approved for publication
               in press:                                           Yes/No

1. After a gap of one decade (ten years' time) petitioner has filed the instant petition on 25.11.2011, seeking quashment of the order of discharge from service bearing No.738 of 2001 dated 19.11.2001.

2. Petitioner, admittedly, was on the permanent establishment of the respondent department working as Selection Grade Constable No.496/PL. Being a habitual absentee, so far has been awarded 7 major and 4 minor punishments for his unauthorized absence and overstayal from leave. Once he had been discharged from service vide DPO order No.3/98 dated 0201.1998 w.e.f. 15.07.1997. Later on was reinstated vide order dated 01.07.1999. The period of absence from 15.07.1997 to 09.07.1999 was treated as dies-non. Even thereafter he did not mend his ways which fact is clear from the periods of absence i.e:

22.09.2000 to 21.12.2000 (90 days) 05.01.2001 to 09.01.2001 08.02.2001 to 15.02.2001 12 days 28.04.2001 to 18.07.2001 (82 days) 20.07.2001 to 23.07.2001 (4 days) 25.07.2001 to 08.08.2001 (15 days) 15.08.2001 to 07.09.2001 (23 days) 10.09.2001 till November, 2001

3. The departmental enquiries for the referred periods of absence were conducted by the Enquiry Officers i.e. Dy. SP(DAR) and Dy.SP Hqrs, Pulwama, who recommended as under:

(1) That annual increment of the Sg. Ct may be forfeited for a period of one year to serve him corrective in future and his period of absence of 12 days may be treated as on extra ordinary leave without pay and allowances.

(2) That unauthorized absence period of the Sg.ct with effect from 22-09-2000 to 21-12-2000 i.e 90 days may be treated as on Diesnon.

(3) The annual increment of the Sg.ct may be forfeited for a period of 3 years, his period of unauthorized absence with effect from 28-04-01 to 18-07-01, 20-07-01 to 23-07-01, 25-07-01 to 08-08-

01 and 15-08-01 to 07-09-01 i.e 124 days may be treated as on extraordinary leave without pay and allowance and his remaining period with effect from 19-07-01,24-07-01, 09-08-01 to 14-08- 01 and 08-09-01 to 09-09-01 i.e 9 days may be treated as on leave as he remained present during the period in DPL Pulwama.

4. The Disciplinary Authority after perusing the findings submitted by the Enquiry Officers has served a show cause notice to the delinquent (petitioner) on 28.09.2001 to which the petitioner submitted the reply claiming to have fallen ill and having been treated as Hepatitis patient.

5. After considering the reply, the Disciplinary Authority has observed that Hepatitis is a serious illness requiring day to day monitoring in the hospital but the delinquent (petitioner) has not been able to produce any admission/discharge SWP No.2535/2011 Page 2 of 5 certificate from any hospital, instead he has produced a hand written certificate which does not confirm with the illness mentioned. The Disciplinary Authority while partly disagreeing with the recommendations of the Enquiry Officers has observed that the delinquent official is not a good police official and his remaining in service will setup a bad example for others to follow.

6. After perusal of the character roll of the delinquent (petitioner), the Disciplinary Authority has observed that he being a habitual absentee, having been awarded 07 major and 04 minor punishments and also once discharged from service in the year 1997 and then reinstated, finally has ordered his discharge from service. The period of absence i.e. 226 days has been treated as on extraordinary leave without pay and allowances and the remaining period of 09 days has been treated as on duty having remained present in DPL Pulwama during the said period.

7. The star ground projected by the petitioner is that the Enquiry Officers as well as Disciplinary Authority have not followed the mandate of J&K Police Rules, 1960, more particularly the procedure prescribed under Rule 359.

8. In order to ascertain as to whether the procedure prescribed has been followed, learned Sr. AAG has produced the records perusal of which suggests that the procedure prescribed for departmental enquiry has been fully followed. Petitioner has been given ample opportunity, both by the Enquiry Officers as well as by the Disciplinary Authority. Records as produced clearly repel the submission as made by learned counsel for the petitioner to the effect that in violation of rules, enquiry has been conducted and order of discharge has been passed.

9. Perusal of the records reveal that the petitioner has been served a show cause notice, has been served summary of allegations and charge sheet has also SWP No.2535/2011 Page 3 of 5 been served upon him. Petitioner has filed his reply and it is only thereafter Enquiry Officers have recorded the findings and made recommendations.

10. Police being a disciplined force cannot afford to tolerate an officer/official who shall be a source of total indiscipline. Even indiscipline has its own limits. The petitioner has not reformed himself despite opportunities having been given to him. Firstly, in the year 1997, he had been discharge from service in view of his unauthorized absence and overstayal from leave but later on has been reinstated. That occasion was an enough warning to the petitioner to reform himself so as to become a good police official but he has repeated his approach of absenteeism from time to time forcing the respondent authorities to initiate three enquiries for different spells of absence. He has not been able to project any plausible cause for the period of absence which in turn would suggest that perhaps he was not interested in working in the Police Department. The respondent authorities have been kind enough to him from time to time but he has not responded in an appropriate manner instead has chosen to repeat the approach of absenteeism forcing the respondent authorities to discharge him from service. The approach of the petitioner by no means appears to be befitting to the disciplined force. Such type of casual approach by no means could be accepted by the respondent authorities.

11. The respondent authorities have properly appointed Enquiry Officer who has conducted the enquiry. Petitioner has been heard. Thereafter before awarding punishment, the Disciplinary Authority has given him the opportunity. The approach of the petitioner, in addition to what has happened during his service career, is again casual because now after ten years he has challenged the order of his discharge from service by medium of this writ petition. The latches sometimes can be ignored so as to advance the cause of justice but keeping in view the entire SWP No.2535/2011 Page 4 of 5 approach of the petitioner right from 1997 till he has been discharged from service, same shall be totally unacceptable to the disciplined force.

12. Learned counsel for the petitioner though tried to persuade the Court that delay and latches can be ignored but the approach of the petitioner relatable to the discharge of his duties, then his approach of absenteeism suggest that the order passed by the Disciplinary Authority, as impugned in this petition, is in conformity with the rules.

13. Viewed thus, petition being without merit is dismissed.

14. Record as produced by learned Sr. AAG be returned to him.

(Mohammad Yaqoob Mir) Judge Srinagar 13.09.2017 "Bhat Altaf, PS"