STATE OF J&K Vs. LATIF AHMAD GANAI

JUDGEMENT

(1.) The instant appeal under Clause 12 of the Letters Patent is directed against judgment and order dated 24.10.2011 rendered by the learned Single Judge of this Court in SWP No. 859/2009 holding that the order of discharge was stigmatic which required the Senior Superintendent of Police to hold a regular departmental enquiry under Rule 359 of the Jammu and Kashmir Police Rules, 1960 (for brevity 'the Police Rules ) which may allow him to explain his absence from duty. The learned Single Judge has also set aside the order of discharge on the ground that the Senior Superintendent of Police had failed to apply his mind because he has invoked power from non-existing provision namely, Article 126(B) Jammu and Kashmir Civil Service Rules read with Article 187 of the Jammu and Kashmir Police Manual. According to the learned Single Judge, there is no such provision and Article 126 has nothing to do with the discharge of Police Constable. Likewise, there is no Article 187. The order of discharge has been condemned being mechanical, casual and cursory. Accordingly, order dated 27.04.2001 discharging the writ petitioner-respondent from service was set aside and the writ petitioner has been allowed to join duty giving liberty to the appellant to take action against him as per law either by initiating enquiry or by initiating any other action. Facts are not in dispute. The writ petitioner-respondent was approved for appointment as Constable during on spot recruitment drive by the Director General of Police-respondent No. 2 during his visit to the city of Srinagar on 03.06.2000. Accordingly, he was appointed by the Senior Superintendent of Police vide order No. 544 of 2000 dated 13.06.2000 as Constable. He was allotted Regimental No. 2072/S. In the order of appointment, it was clarified that he was to remain on probation for a period of three years. During the course of employment, the writ petitioner-respondent was nominated to undergo basic induction training course (BRTF) at STC Talwara with effect from 09.02.2001. He absented with effect from 12.03.2001. As he did not report back to the Principal STC, Talwara, the writ petitioner-respondent was repatriated to the police lines vide order dated 31.03.2001. Despite his order of repatriation, he did not report for duties till 27.04.2001. Having awaited for the writ petitioner- respondent to join, the Senior Superintendent of Police appellant No. 4 on 27.04.2001 passed an order with the observation that the writ petitioner-respondent was not likely to prove as a good police official and discharged him from service with effect from the date he absented himself from STC Talwara i.e. 12.03.2001.

(2.) The order of discharge was challenged through the medium of SWP No. 859/2009 relatable to this appeal before the writ Court on various grounds including that the discharge order was passed by an Authority subordinate to the Appointing Authority, the order is stigmatic, no hearing was provided, the order is violative of principles of natural justice, the order reflects non-application of mind, the Senior Superintendent of Police had misused his power etc.

(3.) In the detailed reply filed by the appellant, the averments made by the writ petitioner-respondent were controverted. It was highlighted that the writ petition was hit by delay and laches. Moreover, the writ petitioner- respondent was put on probation for a period of three years and during the very first year he absented by deserting the Force without permission and as such cannot prove himself to be a good police official. It was in the aforesaid factual background that the Senior Superintendent of Police invoked power under Rule 187 of the Police Rules and issued a discharge order being his Appointing Authority. It is claimed that the order is simply an order of discharge not that of termination, dismissal or removal (Anenxure-2). The writ petition having been allowed and the order of discharge dated 27.04.2001 having been set aside by the learned Single Judge, the appellant feeling aggrieved has filed the instant appeal.