ZAHOOR AHMAD BHAT Vs. DIRECTOR GENERAL OF POLICE

JUDGEMENT

(1.) IN this writ petition filed under Article 226 of the constitution of India read with section 103 of the constitution of Jammu and Kashmir the petitioner is seeking a writ in the nature of certiorari for quashing order No: 1544/91 dated 6.12.1991 whereby the petitioner is also challenging order dated 11th October, 1994 whereby his representation against the order of discharge has been rejected by the Inspector General of Police, Armed J&K Srinagar.

(2.) THE petitioner was enrolled as a constable in Jammu and Kashmir Armed Police in October 1987. He applied for earned leave on 27th March, 1991 for a period of one month. the leave was sanctioned. However, after the expiry of the leave period, the petitioner did not join back. According to the petitioner, while he was on leave, he developed some serious mental problem. He firstly started treatment under the traditional Unani System of medicines and ultimately was admitted to Psychiatric Diseases Hospital, Srinagar, by his parents on 3rd July, 1991 and it was only in 1994 that he got recovered for which a certificate dated 22nd August, 1994 issued by the Medical Officer Psychiatric Diseases Hospital Srinagar to the effect that the petitioner was fit to attend his duties. Further according to the petitioner, when he reported for duty, he was told that he had been discharged from services on 6.12.1991 with effect from 23.3.199. The petitioner has averred that his mother made a representation to the Inspector General of Armed Police, Srinagar praying that, since her son had developed mental ailment and his absence from duty was due to circumstanced of his ill health he be taken in service. It is also averred that the contentions of the petitioner were got verified by Deputy Inspector General of Police through CID and local police who also corroborated the fact that the petitioner was suffering from mental ailment. Petitioner was also subjected to medical examination by the Police Medical Board, who reported that the petitioner is not having any disease now and is fit to join his services why he is not allowed to join his duties and in fact, his representation in this regard has been rejected by the Inspector General, Armed Police. The petitioner thus has prayed that the order dated 11th October, 1994 whereby his representation has been rejected by the Inspector General of Police, be quashed.

(3.) UPON notice, respondents in their counter, have stated that the petitioner proceeded on 15 days earned leave duly sanctioned in his favour with effect from 6th March 1991 and was due to report back for duty on 22nd March 1991 which he failed to do and, instead, continued to remain absent unauthorisedly. He was served with various notices ranging from 26th March 1991 ending with notice dated 10th Oct,1991 which were also noted and received by the petitioner, but he continued to remain absent. Respondents have further stated that the prolonged absence of petitioner, without any information to the Department, was alarming and indicated that the petitioner was not interested to serve the department any more nad the previous service record too was not quite satisfactory as the petitioner had earned four punishments for his unauthorised absence from the date of his engagement and so he was discharged from service. Respondents have further stated that there was no necessity to hold enquiry because it was not possible to conduct enquiry without associating the petitioner as the petitioner did not respond to the notice served upon him. Respondents thus have stated that the petitioner has rightly been discharged from services and his representation in this regard has been rejected legally. So both the orders do not Call for any interference by this court, deserves to be quashed on this ground alone. Learned counsel further submitted that clause (2) of Article 311 of the constitution of India which is equivalent to section 126 of the constitution of Jammu and Kashmir, read with Rule 359 of the Jammu and Kashmir Police Rules gives a constitutional mandate to the principles of natural justice by providing that a person employed in civil capacity shall not be dismissed from service or reduced in rank except after an inquiry, in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of the charges. Learned council contended that no enquiry, whatsoever, was held in regard to the misconduct alleged to have been committed by the petitioner nor any opportunity of hearing was afforded to him so as to give him a chance to explain his authorised absence from duty.