ASSADULLAH BHAT Vs. STATE OF JK & ORS

JUDGEMENT

(1.) The petitioner, by the medium of this writ petition, seeks a writ of Certiorari for quashing the order bearing No. 1732/90 dated 12th of December, 990, passed by respondent No.3 - Senior Superintendent of Police (SSP), Srinagar. A writ of mandamus is also sought for commanding the respondents to reinstate the petitioner on the post of Constable from the date of his termination and pay him all consequential benefits.

(2.) The facts that are essential for arriving at a just conclusion in this matter are that the petitioner was initially appointed as a Constable in the J & K Police vide order dated 16th of June, 198 It is stated by the petitioner that while rendering the service to the absolute satisfaction of the immediate authorities, he came to be arrested by the Security Forces on 8th of February, 1990, on false and frivolous charges and was kept in illegal custody of the respondent - State for more than 5 years, without disclosing the whereabouts during the entire period of his illegal custody. It is further stated that the petitioner was subjected to repeated interrogations in different interrogation centers during the period of his disappearance and ultimately, on the intervention of various Human Rights Organizations and International Red Cross Committee, his whereabouts were disclosed by the respondents. It is further stated that the respondents revealed that the petitioner was booked in F.I.R Nos. 29/97 & 11/95 and was detained, subsequently, under the provisions of the Public Safety Act (PSA), 1978. In the year 2005, the petitioner was released from the preventive custody. Immediately thereafter the petitioner approached to the respondent No.3 for joining his duties but he was not allowed to join his services and instead he was informed that his services stand already terminated. It is stated further that when repeated requests, for providing the copy of the order of termination to the petitioner, did not yield any result, he was compelled to approach this Court by medium of writ petition (SWP 238/2005), seeking a direction to the respondents to command them to provide the copy of the order of termination to the petitioner. the Hon'ble Court was pleased to allow the prayer of the petitioner vide its order dated 30th of March, 2005 and the respondents were directed to furnish a copy of the order of termination to the petitioner. It is further stated that due to the continuous detention of the petitioner coupled with the delay on the part the respondents to provide the copy of termination order to the petitioner, he could not approach the Court in time to assail the order of termination of his service impugned herein. The petitioner has stated that the delay caused in challenging the said order is neither deliberate nor intentional but it happened due the unavoidable circumstances which were beyond his control.

(3.) The order of termination is challenged, inter alia, on the grounds that it is illegal, unlawful and unconstitutional as the same has been passed under art. 126(2)(b) of the J & K Constitution on the plea of gross misconduct. The allegation of gross misconduct, being a serious allegation, requires to be determined by conducting a proper enquiry ordained by law. The order of termination having been passed without holding proper enquiry in the matter, is violative of the principal of natural justice and the mandate of article 311 of the Constitution of India. It is further stated that dispensing with the requirement of holding an enquiry on the ground that the prevailing conditions in the State of J & K, more particularly, in the valley of Kashmir, do not warrant to exhaust such a necessary option, is totally unjustified and uncalled for as the fact remains that anyone, who was terminated by the respondent department on the ground of misconduct right from 1990 till date, was given an opportunity of being heard by holding proper enquiry into the respective allegations levelled against them. However, the petitioner has been deprived of the benefit of the procedure established by law and has been singled out with mala fide designs by the respondent No. It is reiterated by the petitioner in the petition that his conduct from the time of his inception into the service till date has remained flawless and quite satisfactory and nothing incriminating has ever been found against him. This aspect of the matter, in the case of the petitioner, has been given a complete go bye, which amounts to violation of the mandate of article 14 of the Constitution of India and, therefore, the impugned order of termination is patently illegal and deserves to be quashed. It is further stated that the rights and interests of the petitioner have been put to prejudice as there was no material available before the respondents to reach to the harsh conclusion of terminating his services. It is further stated that barring the allegation of being absent from duties from February, 1990, on account of his arrest, there was no other charge, at all, against the petitioner.