STATE OF J&K Vs. NAZIR AHMAD GOJRI

JUDGEMENT

(1.) THE respondent, who was working as Constable, was ordered to be dismissed from service by the Appellant No.5, vide order No. 1614 of 2005 dated 10-08-2005, on the ground that he had, unauthorisedly, absented himself from duty. The said order was called in question in SWP 1304/2006. The learned writ Court, vide its order and judgement dated 22-04-2011, allowed the writ petition and set aside the order of dismissal of the petitioner (respondent herein). The respondents (appellants herein), were directed to consider the matter afresh in the light of J&K Police Rules. Liberty was also given to them to initiate fresh enquiry against the respondent. It was also provided that the treatment, to be meted out to the period from the date of dismissal of the respondent from service to the date he resumed his duties, shall depend upon the outcome of enquiry. It was also provided that in case Appellants decided not to hold departmental enquiry, the aforesaid period shall be settled in accordance with the rules. The appellants, feeling aggrieved of the said judgement, have challenged the same in this Letters Patent Appeal.

(2.) LEARNED counsel for the Appellants submitted that the respondent had remained absent from duty for a period of 563 days. He also submitted that the respondent did not associate himself with the enquiry, which compelled the Enquiry Officer to proceed against him, ex parte, and after conclusion of the enquiry, made recommendation for dismissal of the respondent from service. Learned counsel also submitted that a Show Cause Notice was also issued to the respondent asking him as to why he shall not be dismissed from service, which even was not responded to by the respondent. Learned counsel further submitted that the impugned judgment, in these circumstances, deserves to be set aside.

(3.) THE respondent absented himself from duty with effect from 01-10-2000. He was placed under suspension with effect from 19-01-2001. He was permitted to resume his duties on 16-04-2002. These facts, which are recorded in the impugned judgement and which have not been disputed by the Appellants, would show that after remaining absent for a period of 563 days, the respondent was permitted to resume his duties on 16-04-2002. It is not brought on record as to how and for which reason, the respondent was permitted to resume his duties. After allowing him to resume his duties, the Appellants initiated departmental enquiry against him vide DPO Order No. 513/02 dated 01-05-2002. The respondent, at that point of time, in view of permitting him to resume his duties, was available with the Appellants. However, in which circumstances, the departmental enquiry proceeded, ex parte, against the respondent, is not brought on writ record. The learned writ Court, after perusing the record, has recorded a finding that the respondent was not summoned in terms of rule 359 (2) of the Police Rules. This finding recorded by the learned writ Court is not disputed by the Appellants. Learned counsel for the Appellants, while arguing the case, also did not join issue in respect of such finding recorded by the learned writ Court.