SHAMSHADA AKHTAR Vs. STATE OF JK & ORS

JUDGEMENT

(1.) By medium of this petition, filed under Art. 226 of the Constitution of India read with Sec. 103 of the State Constitution, the petitioner has assailed the validity of order No. 367 of 2013 dated 19th of Aug., 2013, insofar as it treats the period of his absence w.e.f. 9th of Jan., 2004 to 14th of Jan., 2004 (05 days) as well as period of his discharge w.e.f. 22nd of Jan., 2004 to 19th of Sept., 2011 as on 'DIESNON', on the principle of 'No Work no Pay'.

(2.) In order to appreciate the controversy involved in the matter, it shall be appropriate to give a brief account of the background facts leading to the filing of this petition.

(3.) The petitioner claims that he was appointed in the respondent Department as a Follower in District Kupwara vide DPO Kupwara's order No. 854/97 dated 10th of Sept., 1997. After joining on the said post, he was transferred to District Baramulla on 18th of June, 2003, where he was allotted Belt No. 43/F(b/a) and was posted in Police Station, Pattan. Thereafter, the petitioner joined on 26th of Aug., 2003 and discharged his duties with zeal, zest and utmost honesty. It is stated that the petitioner worked round the clock and his work and conduct was all along appreciated by his superiors. The petitioner further states that, unfortunately, he met with a serious accident, as a result whereof he got fractures in his left foot and that his leg was plastered. The petitioner contends that he could not inform his office regarding the said accident due to the fact that there is no elder male member in his family, but, still, he somehow or the other managed to apply for extension of leave, which he believed to have been extended. On 4th of Jan., 2004, the petitioner rejoined his duties with his plastered foot. It is pleaded that an explanation was sought from the petitioner on account of his absence of five days which was, accordingly, tendered by him alongwith relevant medical prescriptions. Thereafter, the petitioner was discharging his duties normally and up to the entire satisfaction of his superiors. However, on 22nd of Jan., 2004, the petitioner was served with order No. 86 of 2004 dated 22nd of Jan., 2004, purportedly issued by the respondent No. 4, whereby his services were disengaged w.e.f. 18th of Jan., 2004, without any enquiry or information to the petitioner. The petitioner, on receipt of the said order, as stated, got shocked and received a massive psychological stroke and remained unconscious in comma for many days. During this tarmac, it is stated that despite the petitioner receiving serious injuries in lower portion of abdomen and left hand, yet, the petitioner made several representations before the respondents, explaining his position and requesting for withdrawal of the said order, but of no use. Thereafter, the petitioner filed a revision petition and appeal before the respondent No. 3 against the order of his discharge strictly in accordance with the Police Rules, but both were rejected by the respondent No. 3. Aggrieved thereby, the petitioner filed a civil suit for declaration and mandatory injunction before the Court of competent jurisdiction. By judgment dated 10th of Oct., 2009, this suit of the petitioner came to be decided and decreed by the Court of learned Sub Judge, Judge Small Causes, Srinagar, operative portion whereof reads as under: "Keeping in view the detailed discussions made herein above the suit of the plaintiff is decreed in favour of the plaintiff and against the defendants. The order impugned i.e. order No. 86 MF 2004 dated 22-1-2004 passed by defendant No.4 is stated to be illegal, unjustified against the rules, regulations and norms governing the service conditions of the plaintiff, as such the same is said to be void and honest in eyes of law. As the order has been said to be void and honest in eyes of law, the defendants are directed to hold an enquiry in view of regulation 359 of J&K Police regulation, and pass an appropriate order after holding the enquiry. The plaintiff be also associated with the enquiry and be given an opportunity of being heard. The period from the date of absence from duty till today is kept, subject to the outcome of the enquiry. The enquiry should be completed with a period of 4 months from the date of receipt of this order by the defendants. The suit is accordingly decreed, there is no order as to cost. Let a decree sheet be prepared accordingly. File shall be consigned to record after its due completion."