NISSAR AHMAD SHAH Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioner was a Head Constable in the J&K Police Force. Vide order No. 1687/EL dated 20.12.1991 (annexure B) respondent No.3, by invoking sub -clause 2(b) of Section 126 of the Constitution of Jammu and Kashmir, removed him from the service. The order reads as under: - "DISTRICT POLICE HEADQUARTERS, SRINAGAR ORDER No. 1687/EL Dated: 20.12.1991 Whereas Head Constable Nissar Ahmad No. 1632/S has shown gross negligence in the performance of duty; and Whereas it is not possible to hold departmental enquiry against the said HC because of the disturbed conditions in the valley and non availability of witnesses. Now, therefore, I, A. L. Khan, IPS, SSP, Srinagar by virtue of powers vested in me under clause (8) (should read as 2 -b) of Article 126 of Jammu and Kashmir Constitution read with Article 311 of Indian Constitution hereby remove the above mentioned HC Nissar Ahmad No. 1632/S of District Srinagar w.e.f. 29.12.1990. Sd/ - (A. L. Khan) IPS Sr. Superindent of Police, Srinagar. N0.7144 -46/EL 01:20.12.1991."

(2.) ON 4.7.1998, the petitioner filed this petition with the prayer to issue writ in the nature of certiorari to quash the above stated order. He has also prayed that the respondents may be mandated to treate the petitioner in service as if no order of removal was ever made. All the consequential service benefits in the form of arrears of pay and seniority have also been claimed.

(3.) THE case of the petitioner, briefly stated, is that in the month of October, 1990, he was posted in the District Special Branch (D. S. B.) of the District of Srinagar and during this period he received threats to his life which forced him to proceed on 30 days leave with effect from 20.10.1990 which stood duly sanctioned by the S. D. P. O. After the expiry of the leave period, he could not join the duties because the threats continued. In order to save his life, he left the State of Jammu and Kashmir but was getting his leave extended. During his absence, the impugned order was passed. He was not given any opportunity of being heard as well as the order was not served upon him. On 26.12.1991, he came to know that such an order has been passed and on the same day, i.e. 26.12.1991, he made the representation (annexure C to respondent No.2. This representation was followed by another representation dated 8.7.1992 (annexure D). Third representation was submitted on 12.4.1993 (annexure D1) and the 4th is dated 24.5.1994 (annexure E). The 5th one is stated to have been made on 26.10.1995 (annexure F). The 6th representation contains the despatch date as 20.8.1996. Annexure ËœIâ„¢ does not bear any date, but it is a memorandum on the name of the Union Home Minister, New Delhi. Annexure J is a representation made by Mrs. Jameela Shah wife of the petitioner, dated