STATE Vs. ABDUL MAJEED BHAT

JUDGEMENT

(1.) IN the appeal at hand, the State has questioned the judgement/order of the learned Single Judge dated 23rd of March, 2005 rendered in SWP No. 56 of 2000, whereby quashing the order No. 831 of 1992 dated 16 -4 -1992 passed by appellant No. 3, removing respondent -writ petitioner (for short 'petitioner') from the rolls of JKAP 3rd Bn (Anantnag) on the ground of unauthorized absence w.e.f 03 -11 -1991 till the passing of the order of removal.

(2.) THE petitioner was selected as Constable vide DIG AP(K) Letter No. 243 -45/PA/ARCK dated 29 -8 -1991. He joined his duties on 24 -9 -1991 as probationer and absented himself unauthorizedly w.e.f 3 -11 -1991. An entry was made in this regard in the daily diary report No. 19 on 03 -11 -1991. The department waited for his return upto 16 -4 -1992. As he failed to resume duties, it was presumed that he was not willing to serve the department, as such removed from the rolls of the department vide order dated 16 -4 -1992. He challenged the said order of removal through the medium of SWP No. 56 of 2000 mainly on the ground that his services were terminated without holding an enquiry as envisaged under the rules governing the field, inasmuch as no opportunity of being heard was provided to him. The learned Writ Court allowed the writ petition along with bunch of other writ petitions of the similar nature by quashing the order of removal holding that it was passed without an enquiry. It was further held that in case the authority concerned felt that it was not practicable to hold an enquiry due to the absence, non -cooperation or hostile attitude of the petitioner, they should have exercised their powers under rule 359(ii)(2)(b) of J&K Police Manual (for short 'Police Rules'), which empowers the authority to dispense with the enquiry on the ground of impracticability. Aggrieved of the said judgment, State is before us through the present Letters Patent Appeal.

(3.) MR . Magray contended before us that despite the appellants have specifically raised a preliminary objection before the writ court, questioning the abnormal delay of more than seven years in filing the writ petition, the impugned judgement has been passed without dealing with the said issue at all, more so, when no explanation has been put forth by the petitioner for this huge delay and this flaw by itself is sufficient to uphold the order of his removal from service.