MOHD BASHIR Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioner by means of this petition is seeking relief for issuance of a writ of certiorari quashing Order No. 31 of 1988 dated 3.2.1988 passed by the respondent No.2, Senior Superintendent of Police, Crime and Railways, Jammu, whereby the services of the petitioner has been struck off in terms of Article 128 of the J&K Civil Services Regulations.

(2.) THE petitioner has stated in the petition that the petitioner was recruited as constable in the Police Force in the year 1970 and while posted at Jammu under the Respondent No.2 was removed from services under the impugned order with immediate effect. Respondent No.2 has observed in the impugned order that the petitioner remained absent from 3.12.1985 to 30.9.1986, while he was posted in Police Station, Darhal, (Rajouri District). He again absented unauthorisedly from 26.5.1987 to December, 1987 from the Headquarters of the Crime Branch and Railways. The departmental inquiry was instituted against him, but he again absented unauthorisedly from 1.1.1988 to 20.1.1988 and 20.1.1988 till 3.2.1988. The petitioner has averred that the observations are totally baseless and unfounded as the petitioner remained present on duty regularly from 1.1.1988 to 20.1.1988, which fact is evident from the Daily Attendance Register maintained by the respondent No.2. The petitioner has assailed the impugned order disputing the fact of his absence and on the ground that the petitioner has been condemned unheard. Neither any inquiry has been held against the conduct of the petitioner nor any show cause notice was issued. The petitioner has been removed from service arbitrarily and illegally. The respondent No.2 has not initiated any departmental inquiry and also not provided any chance to the petitioner to explain his alleged absence from duty. No summary of allegation was served upon the petitioner with regard to the absence of the petitioner. The petitionerâ„¢s wife was operated upon for overictomy about three years ago. The operation could not be successful and she further developed serious ailment. Since the last one year, she remained bed -ridden struggling for life. During her such ailment, she developed tuberculosis and reached to an incurable stage. Except the petitioner, there was none to look after his ailing wife and seven minor children. The petitioner remained busy with the treatment and nourishment of his wife day in and day out till she breathed her lost, about a month ago. The petitioner has further averred that in addition to the ailment of his wife, the petitioner also fell seriously ill, and his absence was also due to serious ailment of the petitioner and remained admitted in the Hospital. The respondent No.2 was informed about this fact through applications for sanction of leave well within time. The petitioner proceeded on leave, but he could not report back on duty, he fell seriously ill and was admitted in District Hospital, Rajouri on 28.5.1987 to 26.11.1987. The record of the applications of the petitioner is available in the office of the respondent No: 2. The Petitioner has been removed from service as measure of penalty for unauthorised absence. The service of the petitioner could not have been terminated without any enquiry or show cause notice. The impugned order is in contravention of Article 311 of the Constitution of India.

(3.) THE respondent has filed the counter -affidavit stating therein that the petitioner remained absent from duty and departmental enquiries were initiated against the petitioner. Notice were issued to the petitioner from time to time, which could not be served as the petitioner was not found at his residence. Registered notices were served upon the petitioner, which was received back undeliveried. Notice was published in the Police Gazette for resumption of duty by the petitioner within a week from the date of publication of the notice and in failure whereof, action warranted under Article 128 of the J&K Civil Service -Regulations shall be taken against the petitioner. After considering a thorough enquiry, the petitioner was directed to be struck off from the roll of the police department under Article 128 of the J&K C.S.R.