SANJAY SINGH Vs. STATE OF J&K AND ORS

JUDGEMENT

(1.) By the medium of this petition, the petitioner is seeking quashment of Order No. 639 of 1998, dated 16.11.1998 issued by the Commandant, IR-2nd Battalion, Respondent No. 4 herein, whereby the petitioner has been discharged from service with effect from 02.04.1998. The petitioner is also seeking quashing of Order No. 1323 of 2011, dated 06.04.2011 issued by the Director General of Police, J & K, Respondent No. 2 herein, whereby the statutory appeal filed by him has been rejected. The facts-in-brief as averred in the writ petition are that vide Order No. 779 of 1995, dated 12.07.1995 the petitioner was appointed as a Constable in IR-2nd Bn. and deputed to undergo nine months Basic Training Course at Armed Police Training College, Kathua. It is averred that due to severe health ailments the petitioner could not continue his service and Respondent No. 4 vide Order No. 907 of 1995, dated 11.08.1995 discharged the petitioner from service with effect from 15.07.1995. The petitioner preferred a representation before the Additional Director General of Police, who vide Order No. 79/1997, dated 14.01.1997 reinstated the petitioner into service. Thus, it is averred, the petitioner resumed his Basic Training Recruitment Course at APTC Kathua. Further, it is averred that since the wife of petitioner was not well and he was not getting leave, the same resulted into his absence from service. He joined his duties in March 1997 and the period of his absence was treated as dies non. Further, it is averred that again the petitioner suffered with serious ailment and he could not continue his service. It is averred that after recovering from illness when he went to join his duties, instead of allowing him to join, Respondent No. 4 issued Order No. 639 of 1998, dated 16.11.1998, impugned herein, whereby he has been discharged from service with effect from 02.04.1998. It is stated that thereafter the petitioner made a statutory appeal in terms of J & K Police Manual and also submitted number of representations seeking his reinstatement. It is stated that when the respondents did nothing, he filed SWP No. 1879/2010, before this Court, which came to be disposed of on 06.08.2010 at its threshold with a direction to the respondents to consider the representation of petitioner within a period of three months after affording him an opportunity of being heard. It is stated that Respondent No. 2 in terms of the order of this Court issued Order No. 1323 of 2011, dated 06.04.2011 rejecting the statutory appeal of petitioner holding that he being the probationer was rightly discharged from service on account of his repeated unauthorized absence from the training centre despite his reinstatement into the service in the year 1997. Hence, the present writ petition.

(2.) The contention of learned counsel for petitioner is that Rule 359 of the J & K Police Rules, 1960 envisages that the delinquent official must be given an opportunity to meet the charges levelled against him. It is contended the respondents without conducting any inquiry or following the procedure as required under the Police Manual or affording him an opportunity of being heard have discharged the petitioner from service. Thus, it is pleaded that the petitioner has been condemned unheard. Learned counsel also contended that the order discharging the petitioner from service, that too without affording him an opportunity of hearing to explain his absence, is not only stigmatic in nature, but is highly disproportionate and too excessive in so far as the alleged charges against the petitioner are concerned.

(3.) Objections have been filed on behalf of respondents. It is averred that the petitioner was a habitual absentee, even before passing the impugned order, earlier also he was discharged from service vide order dated 11.08.1995. Further, it is averred that the impugned order came to be passed in November, 1998, whereas after more than 11 years the petitioner for the first time approached this Court in the year 2010 challenging the impugned order. It is averred that the impugned orders are well reasoned and have been passed in accordance with the Police Rules.