MOHD ASLAM Vs. STATE

JUDGEMENT

(1.) The petitioner was recruited as a Constable in J & K Armed Police in the year 1993. The petitioner after serving for 4 to 5 years was confirmed on his post. He absented from his duty on 12th of July, 1999 and did not report back so his services were brought to an end by order No. 215 of 2000 dated 23.3.2000 issued by the Commandant JKAP XIII BN Draba Poonch. Admittedly the respondents have conducted no enquiry into the cause of his absence before passing the order of termination of his services. In the order of termination it has been stated that notices were issued to the petitioner through SHO Police Station, Rajouri for directing the petitioner to resume his duty immediately, failing which a legal action under rules will be taken against the petitioner, but nothing has been heard from SHO concerned meaning thereby that these notices were not served upon the petitioner. It has further been mentioned in the order that final attendance notice was served upon the petitioner on 4th of January, 2000 and copy of the same was received by the petitioner on 5th of January, 2000 at his home in presence of the two witnesses. Still the petitioner did not report back to join duty. Another show cause notice was got published in Daily Excelsior newspaper of its issue dated 9th of February, 2000. Despite the publication of such notice the petitioner did not report back for duty, so taking note of the long period of unauthorized absence of the petitioner and presuming thereby that petitioner was not interested in serving the department petitioner was removed from service w.e.f. the date of his unauthorized absence from duty i.e. 12.7.1999.

(2.) The petitioner has challenged the aforesaid order dated 23rd of March, 2000 of his removal from service passed by respondents through the present writ petition. The case projected by the petitioner is that in the month of June-July 1999, he went in severe depression and as a result of which he lost control on his mind. He suffered from severe psychiatric disorder and remained wandering from one place to another Ultimately he received treatment under the supervision and guidance of Dr. J.P. Goswamy, Assistant Surgeon, J & K Health Services posted in Psychiatric Hospital, Amphalla and remained under his treatment from 15.7.1999 to 11.7.2000. It has further been pleaded by the petitioner that during all this period, he was not under control of his senses and was not even aware of the fact of his being posted as a constable. That he regained control of his senses in the month of July 2000 and thereafter he went to his Unit where he was informed that he stands removed from service. Mr. Pant, learned Counsel for the petitioner has argued that absence from duty is not a misconduct and, therefore, it is only wilful absence from duty amounts to misconduct and under Article 311 of the Constitution of J & K read with Section 126 of the Constitution of J & K and Rule 359 of J & K Police Manual, enquiry before passing the order of removal is a must. According to Mr. Pant, in the present case no enquiry was conducted by the respondents to determine as to whether the absence of the petitioner was wilful or was for the reasons pleaded by him in the writ petition. He further contends that notices issued by the respondents to the petitioner being issued during the period of his suffering from severe psychiatric disorder cannot be deemed to be the proper notices because of the reason that petitioner was not in a fit stand of mind to understand the implications of the notices or of what was being contemplated thereby. In view of his mental disability he was not in a position to receive notice from the respondents and, therefore, service of any such notice during the period cannot be said to be a valid service. He further submits that the order of removal of the petitioner from service having been passed without holding any enquiry is bad in law and merits to be set aside. In support of his contentions he relied upon a decision of this Court reported in State of J & K v. Mohammad Khalil Hajam, 2003(1) Srin LJ 95, in which it has been held that if services of an employee who has remained absent is to be brought to an end, an enquiry is to be held with a view to determine as to whether act of absence is wilful or not. He also relied upon a Division Bench judgment of this Court reported in Mohd. Ishaq Bhat v. State, 2000 KLJ 274, in which it was held that:

(3.) Mr. Salathia, learned Counsel for the respondents does not dispute the proposition of law that for passing the order of termination or removal from service on the ground of absence from duty an enquiry is required to be held for determining the question as to whether the absence of the employee was wilful. He however contends that this rule is not of a general application. He argues that in a case where notice is given to the absentee employee to appear before the Competent Authority for assuming duty and despite such notice if the absentee employee does not care to resume duty it can be presumed that he is not interested in the employment and in such circumstances enquiry can be dispensed with. He argues that in the present case also as the petitioner had not joined his duty despite being served with a notice personally and through publication in the newspaper, therefore, his removal from service without holding the enquiry was justified. In support of his contention he relies upon a judgment of this Court rendered in case Mohd. Iqbal v. State, SWP 1434/ 2000, decided on 2.4.2004, in which it has been held :