zubair ahmad bhat vs HOME DEPARTMENT on 31 December 2025

O R D E R

Per Hon’ble Mr. M.S. Latif, Member (Judl.)

Through the medium of instant OA the applicant has prayed for following reliefs:- “(A) By issuance of appropriate orders, the Hon’ble Tribunal may be pleased to quash/set aside the impugned order bearing Order no.457 of 2019, dated 25/09/2019, issued by the respondents, whereunder the Applicant has been discharged from services and another Order No.27 of 2023 dated 01/02/2023, issued by the respondent department whereunder the appeal filed by the Applicant was rejected.

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(B) The respondents be directed to reinstate the Applicant on the post of Constable and treat his period of absence as on duty and release adequate salary in his favour. (C) The Hon’ble Tribunal be pleased to pass such other orders or reliefs as deemed fit and proper in the facts and circumstances of the case in favour of the Applicant and against the respondents.”

2. The case was admitted for hearing on 29.05.2024. After completion of pleadings, the case was taken up for final hearing on 04.11.2025 and reserved for orders on that date.

3. The facts of the case, as narrated by the applicant in the instant OA, are reproduced as under:-

(i) The applicant was appointed as Constable in J&K Executive Police vide DPO Srinagar Order No.1208 of 2011 dated 24.05.2011 in pursuance to PHQ J&K Jammu order No.614/2011 dated 21.02.2011.

(ii) According to the applicant that when he was posted in P/S Sumbal and performing his duties with all responsibilities without any intentional failure to confirm to assigned duties, but in the later part of the year 2018, due to inevitable, unavoidable and adverse outcomes, he was not in a position to attend the duties regularly, consistently, the applicant proceeded on earned leave in addition to emergent leave which were verbally and duly accepted, granted and considered by the immediate superiors under whom the applicant was working.

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(iii) The applicant has ailing, old aged, bed-ridden parents and the mother is also suffering from disc problem which was operated in the very period. In addition, the grandfather of the applicant was hospitalized during that period who expired on 21.12.2018 after long illness and due to this reason, applicant was marked absent from duties as there was no other male member in the family to look after his old aged ailing parents.

(iv) The applicant has pleaded in the OA that a video had gone viral in social media within his locality pertaining to an encounter site at Hajin Sonawari, District Bandipora, where the applicant was clearly seen in picture with the operating agencies while he was performing his part of duty. In the said video, it was clearly seen and heard that the applicant was giving information about the militants and their aides to the said agencies, following this specific viral video, the house of the applicant was time and again attacked by unknown persons and life threats were continuously extended not only to the applicant but to his family members also. Due to which, the applicant was forced to stay away from the duty so as to protect and safeguard his life as the applicant had become eyesore not only for the militants but for other miscreants as well.

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(v) The applicant further pleaded in the OA that he was under bonafide belief that his immediate seniors, who were well aware of these facts, will take a lenient view in the matter, but to the utter dismay and surprise, he received order of discharge from the respondents in the month of September, 2019. According to the applicant, he had reported back and resumed his duties in the month of September 2018, which is crystal clear from the earned leave sanctioned and granted in favour of applicant by the respondents. The applicant was never informed about any detrimental proceedings, notices, signals etc. which were initiated against him on the charge of unauthorized absence without even conducting enquiry or giving an opportunity of being heard to the applicant and a penalty of discharge from service was imposed which is alien to law and rules governing the subject.

(vi) Applicant further pleaded that impugned orders need to be quashed as no proper and reasonable enquiry has ever been held in the instant case as envisaged under law. The applicant is suffering from great hardships without any valid legal justification. Hence, the procedure adopted by the respondents is contrary to consideration of fair play and justice. It would be travesty of rule of law

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which is one of the basic structures of the constitution and hence the orders issued by the respondents are arbitrary in nature as it lacks procedural propriety.

(vii) The applicant is aggrieved of the orders as he was not accorded an opportunity of being heard, which constitutes the basic element of fair hearing or to appear in person by the respondents which is in violation of the cardinal principles of natural justice where he could have placed the relevant documents and data on record. Applicant had also approached the respondents with an application seeking reconsideration of order of discharge from service but to the utter dismay and surprise the respondents remained unmoved.

(viii) The respondents have exercised the powers under Rule 334 of Police Rules, but at the same time they were duty bound by law to conduct an enquiry in terms of the police rules. Before passing of orders impugned, the respondents were also required to serve a show cause notice. The procedure prescribed under Rule 359 of Police Rules has been observed in breach and the appellate authority has also failed to appreciate that aspect of the matter. So, the orders impugned on that count alone deserves to be quashed and set aside. The respondents were

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required to conduct an ex-parte enquiry before passing the orders impugned but the respondents in the utter disregard to the constitutional guarantees, vis-à-vis to the Police Rules, have passed the orders impugned, as such the orders impugned are non-est in the eyes of law.

(ix) The applicant pleaded that the respondents have discharged the applicant from service on account of unauthorized absence which is stigmatic. The respondents were under obligation to conduct a detailed enquiry into the matter even if the respondents would have contemplated to discharge the service of the applicant in terms of section 187 of J&K Police Manual.

(x) In support of his case the applicant has relied on the judgment of the Hon’ble High Court of J&K in the case titled Mushtaq Ahmad Dar v/s State of J&K and Ors. (SWP No.2229 of 1991), decided on 24.07.1997 wherein the Hon’ble High Court held that Rule 187 of the Police Rules empowers a Superintendent of Police to discharge a constable from services if he is satisfied that he was unlikely to prove a good police officer during his probation for 3 years. Had it been a case of discharge of a probationer simplicitor under Rule 187, the matter would be different. There would be hardly scope for

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interference as held by the Hon’ble High Court in one of the judgment dated 04.07.1997 passed in SP 1081 of 1989, the reference of the said judgment has been made in case titled Constable Ahmed vs. State of Jammu and Kashmir and Ors. reported in 2005 SLJ (1) 375 and 2005 3 JKJ 167. As such, order of discharge passed is legally untenable and therefore liable to be quashed and set-aside.

4. The applicant has challenged the impugned orders on the following grounds –

(i) The impugned orders are unjust, unreasonable, arbitrary and violative of Article 14 and 21 of the Constitution of India. The impugned discharge order has been passed in a most callous and arbitrary manner as the respondent No.6 has no jurisdiction to pass such order because he is neither appointing authority nor transferring authority of the applicant. There has been a total non-application of mind while passing the impugned order as neither any cogent reason has been spelled out in the discharge order nor the applicant was given opportunity of hearing.

(ii) The appeal filed by the applicant was rejected without giving an opportunity of hearing to the applicant and without following the principles of natural justice. The respondents before discharging

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the applicant from services were required to conduct an enquiry into the matter.

(iii) Applicant had earlier filed OA No.1299/2020 before the CAT, Jammu Bench against the order dated 25.09.2019, which is also impugned in the instant OA, and vide order dated 07.04.2021 CAT, Jammu Bench disposed of the OA with the following directions:- “…We, therefore, dispose of the O.A. leaving it open to the Applicant to prefer an appeal against the order dated 25.09.2019 to the concerned authority. If it is preferred within four weeks from the date of receipt of a copy of the order, it shall be entertained by the Appellate Authority without raising any objection as to limitation; and shall be disposed of within three months thereafter. There shall be no order as to costs.”

(iv) In compliance of said order, the applicant preferred an appeal before the respondent No.4 which was rejected by the respondent No.4 vide order dated 01.02.2023.

(v) The applicant is being dragged from pillar to post by the respondents by passing the impugned orders that too when the applicant has served the department in most tragic and difficult times while fighting with militants. The legal and statutory rights of the applicant are infringed by the respondents by issuance of impugned orders.

5. The respondents have filed reply to the OA wherein they have pleaded as under:-

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(i) The applicant was appointed as constable in J&K Executive Police vide DPO Srinagar order No.1208/2011 dated 24.05.2011 in pursuance to PHQ J&K Jammu order No.614/2011 dated 21.02.2011 read with ZPHQ Kashmir letter No.4972-79 dated 01.03.2011 under belt No.2869/S and PID No. EXK-111830. The appellant was transferred from Range CKR Srinagar to NKR Baramulla vide ZPHQ Kashmir Order No.499/2012 dated 07.08.2012, in pursuance to RPHQ Baramulla order No.419/2012 dated 14.08.2012. The applicant joined in this District on 15.09.2012 and belt No. 961/Bpr was allotted to him from this District. The applicant, while his posting in P/S Sumbal, remained absent from his duties w.e.f. 03.09.2018 and was marked absent on daily diary.

(ii) The applicant was informed vide office signal No. Estt/E-40/2019/9484 dated 20.03.2019, Estt/E- 40/2019/11101 dated 02.04.2019 followed by signal No.Estt/E-40/2019/12406 dated 15.04.2019 through SHO P/S Parimpora to resume his duties, but the applicant remained at large.

(iii) The applicant was placed under suspension vide office order No.199/2019 dated 24.04.2019 and a departmental enquiry was entrusted to the then SDPO Sumbal Shri. Saqib Ghani.

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(iv) The applicant was informed through numerous signals, notices and newspapers to resume his duties, details of which are given below: “01. Attendance Notice No.15502-04 dated 08.05.2019 (Published in daily newspaper Mashrik dated 10-05-2019 also served through SHO P/S Parimpora).

02. Attendance Notice 1st No.18219-21 dated 29.05.2019 (Published in daily newspaper Mashrik dated 30.05.2019 also served through SHO P/S Parimpora).

03. Attendance Notice 2nd No.20593-95 dated 19.06.2019 (Published in daily newspaper Mashrik dated 21-06-2019).

04. Attendance Notice 3rd No.21962-64 dated 29.06.2019 (Published in daily newspaper Mashrik dated 29-06-2019).

05. Final Notice No.28095-97 dated 10.07.2019 (Published in daily newspaper Mashrik dated 12-07-2019 also served through SHO P/S Parimpora).

06. Signal No.9484 dated 23.03.2019 through SHOP/S Parimpora.

07. Signal No.11101 dated 02.04.2019 through SHO P/S Parimpora.

08. Signal No.12406 dated 15.04.2019 through SHO P/S Parimpora.

09. SDPO Sumbal Signal No.2689 dated 03.05.2019 through SHO P/S Parimpora.

10. SDPO Sumbal Signal No.3322 dated 30.05.2019 through SHO P/S Parimpora.

11. SDPO Sumbal Signal No.5808 dated 03.08.2019 through SHO P/S Parimpora.

12. SDPO Sumbal Signal No.5913 dated 09.08.2019 through SHO P/S Parimpora.

13. SDPO Sumbal Signal No.3322 dated 30.05.2019 through SHO P/S Parimpora.” (Annexure A3)

(v) Despite of above notices and signals served to the applicant, he didn't resume his duties. The continuous absence of the applicant clearly indicates that he was not interested to continue his job in this department. Therefore SDPO Sumbal (Enquiry Officer) submitted his enquiry findings vide letter No.SDPOS/Enq-122/2019/6101 dated 29.08.2019

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with the recommendations that the applicant may be discharged from his services.

(vi) The then SSP Bandipora went through all allied documents available in his file and he found the applicant absent w.e.f. 03.09.2018 and the applicant was given ample chances to resume his duties, but he never bothered to resume his duties. This clearly indicates that the applicant was not interested in serving this department and, as such, in light of powers vested to SSP Bandipora under rule 128 J&K CSR VOL 1 read with rule 334 of J&K Police Mannual Vol 2, applicant namely Zubair Ahmad Bhat No. 961/Bpr EXK-111830 S/O Gh Ahmad R/O Gulshanpora Maloora Srinagar was discharged from his services and was struck off from the rolls of District Bandipora vide order No.457/2019 Dated 25.09.2019 issued under endorsement No.Estt/Discharge/2019/35120-25 dated 25.09.2019. Period of un-authorized absence w.e.f 03.09.2018 till 25.09.2019 was treated as Dies-non on the analogy of Principle "No Work No Pay."

(vii) The applicant earlier approached before the Central Administrative Tribunal, Jammu Bench through O.A. No.1299/2020 which was disposed of by the Tribunal vide order dated 07.04.2021 leaving it open to the applicant to prefer an appeal against the

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order dated 25.09.2019 before the concerned authority.

(viii) In pursuance to the order of the Tribunal, the applicant filed an appeal before the Additional Director General of Police, Kashmir Zone, Srinagar for re-engagement which was forwarded to the Deputy Inspector General of Police NKR, Baramulla for consideration and further orders.

(ix) The Deputy Inspector General of Police NKR, Baramulla disposed of the application filed by the applicant. The operative paras of the order is given as under:- "After going through the contents of appeal preferred by the appellant, reports submitted by SSP Bandipora & the papers available on file, it has been noticed that the appellant in his appeal has tried to pose himself as victim of terrorism. But, in fact he has forgotten, that he was a member of brave J&K Police force, having legacy of bravery and sacrifices and instead of sharing his problems/requirements with his senior Police Officers, he choose cowardice attitude and fled away to remain in hide out of fear and cowardice instinct, which speaks he is not only unfit to be a member of any brave and disciplined force, but also speaks his irresponsible behavior towards his Nation/legitimate duties.

In view of the facts, I am of the opinion that the steps taken by SSP Bandipora in the instant case are genuine and justified. Besides there is no any substantial material available in support of the appeal and the appellant is trying to play victim game only. As such, the appeal preferred by Ex- Constable Zubair Ahmad Bhat No. 961/Bpr EXK- 111830 is hereby REJECTED" (Annexure - A6).

(x) In the aforesaid scenario, respondents have prayed that the instant case may kindly be dismissed on merits in the interest of justice and equity with

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exemplary costs in light of circular issued by the Government.

4. The applicant filed rejoinder in reply/objection of the respondents and vehemently denied the contents of the objection. In the rejoinder, the applicant has submitted as under:-

(i) Rule 187 of the Police Rules empowers the Superintendent of Police to discharge a constable only if they are unlikely to prove a good police officer during their probationary period. The applicant’s absence stemmed from compelling family circumstances, including the ailment and subsequent demise of elder family member. Rule 187 must be interpreted in light of humanitarian considerations, acknowledging situations beyond the control of the applicant.

(ii) The applicant performed his duties with exemplary commitment and dedication and it is noteworthy that during the challenging times of the COVID-19 pandemic, the applicant continued to discharge his responsibilities diligently, despite his age. The respondent department has recognized and commended the applicant's contributions to his duties on several occasions. This commendation stands as a testament to the applicant's unwavering dedication to his obligations as a constable within the J&K Police.

(iii) The respondent's failure to acknowledge the extenuating circumstances surrounding the applicant's absence is disheartening. Rule 359 of the Police Rules mandates a fair and impartial inquiry before imposing penalties such as discharge. The

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applicant's situation warranted empathy and understanding, yet the respondent's actions lacked compassion and due process.

(iv) The respondent's assertion of serving multiple notices and signals to the applicant is disputed. Rule 334 of the Police Rules underscores the importance of procedural fairness and adherence to due process. The applicant was deprived of the opportunity to present his case and to challenge the allegations levelled against him.

(v) The respondent's characterization of the applicant's actions as cowardice and lacking patriotism is unfounded and prejudiced, as Rule 128 of J&K CSR VOL 1 mandates such characterization i.e. based on objective evidence and impartial assessment. The respondent's biased conclusions reflect a disregard for the applicant's rights and a failure to uphold the principles of fairness and impartiality.

(vi) The respondents purportedly discharged the applicant without due consideration of Rule 187 of the Police Rules, which empowers the Superintendent of Police to discharge a constable if they are unlikely to prove a good police officer during their probationary period. However, the respondents failed to demonstrate how the applicant fell short of meeting the standards set forth in this rule. There has been no indication that the applicant's conduct during the probationary period warranted discharge under Rule 187. Rule 359 of the Police Rules mandates a fair and impartial inquiry before imposing penalties such as discharge. The respondents, by their own admission, failed to conduct any inquiry into the circumstances

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surrounding the applicant's absence. The absence of an inquiry is a clear violation of Rule 359, which safeguards the rights of individuals facing disciplinary action within the police force. Rule 334 of the Police Rules underscores the importance of procedural fairness and adherence to due process.

(vii) The respondents' failure to afford the applicant an opportunity to be heard, present evidence, and respond to the allegations against him represents a blatant disregard for Rule 334. Procedural fairness is a cornerstone of justice, and its absence in this case undermines the integrity of the disciplinary process. Rule 128 of J&K CSR VOL I mandates decisions based on objective evidence and impartial assessment. The respondents' decision to discharge the applicant appears to be based on conjecture and unsubstantiated claims rather than concrete evidence. The absence of a thorough and impartial assessment of the applicant's conduct violates the spirit of Rule 128 and calls into question the validity of the respondents' actions.

5. In support of his case, the applicant has placed reliance on the following judgments:-

(i) Judgment passed by the Hon’ble High Court of Jammu & Kashmir and Ladakh in case titled Nazir Ahmad Gujri vs. State of Jammu & Kashmir & Others, 2011(2) JKJ 913 on 22.04.2011, wherein Hon’ble High Court observed as under:- “11. The disciplinary authority after the inquiry was concluded and the Petitioner proposed to be visited that penalty of dismissal from service, was required give reasonable opportunity of show cause oral and also in written against the action proposed to be taken against the

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Petitioner. In other words the Petitioner was to be asked to show cause against the dismissal from service on account of misconduct proved against the Petitioner. It is well settled that the disciplinary authority, while giving reasonable opportunity to show cause to the delinquent official against the proposed action, is duty bound to provide copy of the inquiry report to the delinquent official so that he can make meaningful use of the opportunity and try to convince the inquiry Officer, identifying the loopholes, if any, in the inquiry report that the punishment proposed was too harsh and severe, or there were any extenuating/mitigating circumstances in his favour. The duty to furnish a copy of the inquiry report to the delinquent officer is to be more strictly observed when the inquiry, as in the present case is conducted in ex-parte, on the back of the delinquent officer. In the present case, the record does not reveal that a copy of the inquiry report was provided to the Petitioner that the show cause notice claimed to have been served on the Petitioner. The Petitioner, in this circumstance has been deprived of an opportunity to show cause against the proposed punishment.” …..

13. In the present case, the disciplinary authority appears to have paid almost no attention to the mandate of Rules 336 and 337 while awarding punishment of dismissal from service against the Petitioner. The disciplinary Authority has failed to notice that not only were the punishment awarded disproportionate to the lapse attributed to the Petitioner but that the misconduct alleged against the Petitioner was not of the kind envisaged by Rule 337 Police Rules.

(ii) Judgment passed by Hon’ble Supreme Court in case titled State of Uttar Pradesh & Others vs. Saroj Kumar Sinha, Civil Appeal No.254 of 2008 passed on 02.02.2010 whereby Hon’ble Supreme Court denied to interfere with the judgment passed by the Hon’ble High Court wherein Court held that:- "After hearing the rival submission of learned counsel for the parties as well as the averments made in the affidavits, we are of the view that the inquiry officer has not afforded opportunities to the petitioner insofar as he fails to supply the documents to the petitioner which he has relied while framing the charges and further the petitioner was not afforded opportunity to lead the evidence and also denied the opportunities to cross-examination of the person. The inquiry officer has also failed to prove the charges during the inquiry proceedings by the recording any evidence. Thus, the inquiry is vitiated and is violation of principle of natural justice."

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(iii) The applicant has also placed reliance on the judgment passed by the Hon’ble Supreme Court in case titled Satyendra Singh vs. State of Uttar Pradesh & Anr on 18.11.2024.

(iv) In regard to service of notice to the applicant, the Hon’ble Supreme Court in the case of Union of India & Ors. Vs. Dinanath Shantaram Karekar & Ors (Civil Appeal No.1477 of 1993), has clearly stated as under:- “…So far as the service of show-cause notice is concerned, it also cannot be treated to have been served. Service of this notice was sought to be effected on the respondent by publication in a newspaper without making any earlier effort to serve him personally by tendering the show-cause notice either through the office peon or by registered post. There is nothing on record to indicate that the newspaper in which the show cause notice was published was a popular newspaper which was expected to be read by the public in general or that it had a wide circulation in the area or locality where the respondent lived. The show-cause notice cannot, therefore, in these circumstances, be held to have been served on the respondent. In any case, since the very initiation of the disciplinary proceedings was bad for the reason that the charge-sheet was not served, all subsequent steps and stages, including the issuance of the show-cause notice would be bad.”

6. Heard Ld. Counsel for the Parties, perused the records and the case laws placed before us.

7. Learned counsel for the petitioner Mr. Ruaani Ahmad Baba submits that impugned orders deserve to be quashed on the sole ground that the same has been issued in total breach of the rules as envisaged in J&K Police Manual. He further submits that the observations of Rule 359 of the J&K Police Manual read with Article 311 of the Constitution of India is applicable in the case and not Rule 187 of the Police Manual, as the petitioner is not a probationer. He

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submits that Rule 359 of the Police Manual being mandatory and the impugned order having been passed in total violation of Rule 359, as such the order impugned cannot withstand the test of law. He further submits that the order impugned is not only stigmatic but is also punitive in nature. Rule 359 of the Police Rules, 1960 is reproduced herein below:- “359. Procedure in departmental enquiries –

The following procedure shall be followed in departmental enquiries:- (a) The enquiry shall, whenever, possible be conducted by a gazetted officer empowered to inflict a major punishment upon the accused officer. Any other gazetted officer or an Inspector specially empowered by the Minister I/C Police Department, to hold departmental enquiries (vide Order No. 636-C, dated 27.06.1945) may be deputed to hold an enquiry or may institute an enquiry on his own initiative against an accused police officer who is directly subordinate to him, except that in the case of a complaint against a constable the enquiry may be conducted by an Inspector. The final order, however, may be passed only by an officer empowered to inflict a major punishment upon the accused police officer.

The officer conducting the enquiry shall summon the accused police officer before him and shall record and read out to him a statement summarising the alleged misconduct in such a way as to give full notice of the circumstances in regard to which evidence is to be recorded.

If the accused police officer at this stage admits the misconduct alleged against him the officer conducting the enquiry may proceed forthwith to record a final order if it is within his power to do so or a finding to be forwarded to an officer empowered to decide the case.

Whenever a serious default is reported and the preliminary enquiry is necessary before a definite charge can be framed, this is usually best done on the spot and might be carried out by the Sub-Inspector of the particular Police Station in the case of head constables and constables serving under him or by the Inspector of the Circle in the case of Sub-Inspectors within his charge. At the same time it must be left to Superintendent of Police to select the most suitable officers for the purpose or to do it themselves when such a course appears desirable.

When the preliminary enquiry indicates a criminal offence, application for permission to prosecute should at once be made to the authority competent to dismiss the officer and permission should be promptly granted if that authority agrees that there is prima facie case for prosecution.

If the accused police officer does not admit that misconduct the officer conducting the enquiry shall proceed to record such evidence oral and documentary in proof of the accusation as is available and necessary to support the charge. Whenever possible witnesses shall be examined Digitally signed by SHAILESH SINHA

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direct and in the presence of the accused who shall be given opportunity to cross-examine them. The officer conducting the enquiry is empowered however to bring on to the record the statement of any witness whose presence cannot in the opinion of such officer be produced without undue delay and expense or inconvenience if he considers such statement necessary and provided that it has been recorded and attested by a police officer not below the rank of Inspector or by a Magistrate and is signed by the person making it. The accused shall be bound to answer questions which the enquiring officer may see fit to put to him, with a view to elucidating the facts referred to in statements or documents brought on the record as herein provided.

When the evidence in support of the allegations has been recorded, the enquiring officer shall –

(a) If he considers that such allegations are not substantiated either discharge the accused himself if he is empowered to punish him, or recommend his discharge to the Superintendent or other officer who may be so empowered, or (b) Proceed to frame a formal charge or charges in writing, explain them to the accused officer and call upon him to answer them.

The accused officer shall be required to state the defence witnesses whom he wishes to call and may be given time in no case exceeding 48 hours to prepare a list of such witnesses together with a summary of the facts as to which they will testify. The enquiring officer shall be empowered to refuse to hear any witnesses whose evidence he considers will be irrelevant or unnecessary in regard to the specified charge framed in which case he shall record the reason for his refusal. He shall record the statements of those defence witnesses whom he decides to admit in the presence of the accused, who shall be allowed to address questions to them the answers to which shall be recorded, provided that the enquiring officer may cause to be recorded by any other officer not below the rank of Inspector the statement of any such witness whose presence cannot be secured without undue delay or inconvenience and may bring such statement on to the record. The accused may file documentary evidence and may for this purpose be allowed access to such files and papers except such as form part of the record of the confidential office of the Superintendent of Police as the enquiring officer deems fit. The supply of copies of documents to the accused shall be subject to the ordinary rules regarding copying fees.

At the conclusion of the defence evidence or if the enquiring officer so directs at any earlier stage, following the framing of a charge the accused shall be required to state his own answer to the charge. He may be permitted to file a written statement and may be given time not exceeding one week for its preparation but shall be bound to make an oral statement in answer to all questions which the enquiring officer may see fit to put to him arising out of the charge, the recorded evidence or his own written statement.

The enquiring officer shall then proceed to pass orders of acquittal or punishment if empowered to do so or to forward the case with his finding and recommendations to an officer having the necessary powers.

Nothing in the foregoing rules shall debar a Superintendent of Police from making or causing to be made a preliminary Digitally signed by SHAILESH SINHA

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investigation into the conduct of a suspected officer. Such an enquiry is not infrequently necessary to ascertain the nature and degree of misconduct which is to be formally enquired into. The suspected police officer may or may not be present at such preliminary enquiry as ordered by the Superintendent of Police or other gazetted officer initiating the investigation but shall not cross-examine witnesses. The file of such a preliminary investigation shall form no part of the formal departmental record but may be used for the purposes of sub-rule 4 above.

This rule shall also not apply where it is proposed to terminate the employment of a probationer whether during or at the end of the period of probation.

As laid down in Section 126 of the Constitution of Jammu and Kashmir, no officer shall be dismissed or removed by an authority subordinate to that by which he was appointed.

No police officer shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause orally and also in writing against the action proposed to be taken in regard to him, provided that this clause shall not apply:- (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which led to his conviction on a criminal charge; (b) where an authority empowered to dismiss or remove an officer or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing it is not reasonably practicable to give to that person an opportunity of showing cause; or

(c) where the Sadar-i-Riyasat is satisfied that in the interest of the security of the state it is not expedient to give to that officer such an opportunity.

If any question arises whether it is reasonably practicable to give to any officer an opportunity of showing cause under clause (2) above, the decision thereon of the authority empowered to dismiss or remove such officer or to reduce him rank, as the case may be, shall be final.”

8. Learned counsel for the applicant further submits that the orders impugned have been issued on false and frivolous facts which have no substance under law as the applicant was neither ever served any signal by the concerned police station nor was any enquiry conducted in the matter. In order to further buttress his arguments, he submits that even if it is assumed, for the sake of arguments, that the competent authority, while invoking Rule 187 of the Police Rules, has issued the order, still the same could have been done after affording the applicant an opportunity to justify the absence.

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9. Per contra Mr. Rais Ud Din Ganaie, learned DAG representing the respondents submits that there is no dispute that absence from duty without a proper permission or even staying on leave without any justified reason is the gravest type of misconduct particularly for a member of disciplined force from whom the adherence of rules is expected and submits that thus unauthorized absence amounts to misconduct as such justifies the issuance of the orders impugned. He further submits that absence of the applicant was without any authority of law. He further submits that departmental enquiry was conducted as per the procedure and the impugned orders were passed strictly in accordance with the rules as such submits that the OA be dismissed with costs.

10. The present case attracts applicability of failure of principles of natural justice and violation of Rule 359 of Police Rules, 1960. Law is settled that when an enquiry has not been conducted in the matter as prescribed under Rule 359 of the J&K Police Rules, the order does not survive in the eyes of law as has been held in the case titled as Mukhtar Ali Lone v. State of J&K and ors. reported in 2015 (4) JKJ 183 as also the law laid down by the Division Bench of the Hon’ble High Court of Jammu and Kashmir reported in 2012 (3) JKJ 566, State of J&K v. Asger Khan (Constable) as also in 2011 (1) JKJ 31 and Malook Khan v. State of J&K and ors. as also in 2008

(3) JKJ 439. In this view, we are also fortified by the judgment of the Hon’ble Apex Court in case titled as Satwati Deswal Vs. State of Haryana reported in 2009 (7) Supreme 229 wherein their lordships have held that where termination is in violation of procedure

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prescribed, the High Court has the discretionary power to interfere under the Writ Jurisdiction.

11. On perusal of the entire material on record and the pleadings of the parties coupled with the submissions made at Bar, we are of the opinion that the impugned order, having been passed in breach of the statutory rule i.e. Rule 359 of the Police Rules, 1960 as also in violation of natural justice, cannot withstand the test of law as mentioned in the case titled as SBI v. Ajay Kumar Srivastava 2021

(2) SCC 612, relevant paragraphs whereof are extracted as under: “24. It is thus settled that the power of judicial review, of the constitutional courts, is an evaluation of the decision making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the Disciplinary Authority is based on no evidence. If the conclusion or the finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the Disciplinary Authority or perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact. 25. When the disciplinary enquiry is conducted for the alleged misconduct against the public servant, the court is to examine and determine: (i) whether the enquiry was held by the competent authority ; (ii) whether rules of natural justice are complied with ;

(iii) whether the findings or conclusions are based on same evidence and authority has power and jurisdiction to reach finding of fact or conclusion.”

12. We are also fortified by the judgment of the Hon’ble Apex Court titled as State of Mysore v. M.H. Bellary AIR 1965 SC 868, State of U.P. vs. Babu Ram Upadhya AIR 1961 SC 75, Suraj Prasad vs. Northern Railway AIR 1967 Allahabad 457. The Hon’ble Supreme Court also in the case titled Union of India & Ors. vs. Dinanath Shantaram Karekar & Ors. 1998 Legal Eagle (SC) 686 has held as under:-

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“The service of the notice was sought to be served by publication in a newspaper without making effort to serve him personally. There was nothing on the record to show that the newspaper was a popular one which was expected to be read by the public or that it had wide circulation in the locality. Therefore, show cause notice could not be said to have been served on the respondent. It was contended that it was the communication of the charge-sheet and the show cause notice which was material and not its actual service upon the delinquent, not accepted.”

13. After having heard learned counsel for the parties at length, undoubtedly, the petitioner was a member of the disciplined force and any sort of willful absence necessitated proceedings as warranted under the law but what was incumbent upon the respondents was to have strictly adhered to the rules of natural justice and the mandate of the Constitution in letter and spirit, so as to leave no chance or occasion for the delinquent employee to make a complaint with respect of infraction of the Constitutional mandate before the Court. Viewed in the context as above, the order impugned being contrary to law and reason cannot be upheld. As the corollary, the O.A. is allowed in the below mentioned terms:- The impugned orders bearing No.457 of 2019 dated 25.09.2019 and Order No.27 of 2023 dated 01.02.2023 issued by the respondents are set aside and quashed. The respondents are directed to conduct an enquiry afresh in accordance with the rules and regulations occupying the field after affording ample opportunity of hearing to the petitioner. The process should be completed preferably within a period of four months from the date a copy of this judgment is served upon the respondents. It is made clear that the quashment of the impugned order shall not entitle the petitioner to claim any salary/remuneration for the

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period he was out of service. However, it is directed that the intervening period shall be decided by the respondents on the basis of findings of the inquiry, if held, only for continuity of service for the said period and same would be counted for his post retiral benefits in accordance with rules. Before parting we would also like to add that the Enquiry Officer while conducting the enquiry shall not be influenced by any observation made in this judgment.

14. This O.A.278/2023 is, accordingly, disposed of. Record, if any, shall be returned to the learned counsel for the respondents. Parties to bear their own costs.

Sd/- Sd/-

(PRASANT KUMAR) (M.S. LATIF)

MEMBER (A) MEMBER (J) sks/-

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