Javaid Ahmad Bhat vs D/o Home Ut Of Jammu & Kashmir on 26 October 2026

O R D E R

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

The instant Transfer Application, having been filed initially before the High Court of Jammu & Kashmir at Srinagar as WP(C) No.366 of 2020), came to be transferred to the CAT, Jammu Bench vide order dated 16.09.2020 and accordingly numbered as T.A. No. 2920/2021. Thereafter when CAT Srinagar Bench was commissioned, the matter was transferred to this Bench.

2. Through the medium of this petition, the petitioner has prayed for quashing and setting aside the impugned order No.492 of 2015 dated 27.06.2015 (Annexure-I) by virtue of which he has been removed document Location:

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from services of the Police Department and further for a direction upon the respondents to take back the petitioner in service with all service benefits.

3. What emerges out of the pleadings in the TA is that the petitioner was appointed as Constable in the J&K Police, vide office order No.106 of 2011 dated 23.02.2011 under belt No.913/8 PID No.ARP- 115485. According to the petitioner, he fell ill and due to deterioration of his health, he rushed to home for treatment. Accordingly, he applied for leave and from time-to-time he applied for extension of leave as he remained under treatment for a considerable duration and had to be hospitalized several times. Similarly, his parents, who were in an advance stage and often remain bed-ridden also had to be hospitalized for treatment during the said period.

4. After recovering from ailment, the petitioner went to resume his duties in the month of September, 2015, but he was not allowed to do so (Annexure-III). Thereafter, the petitioner came to know that he had been terminated and, therefore, he filed an RTI application seeking termination order (Annexure-V). According to the petitioner, it was obligatory for the respondents to hear the petitioner before passing the termination order. The petitioner appealed against the said termination order before the Inspector General of Police under the rules in August 2019, stating his position, but there was no fruitful result. As such, he approached the Court.

5. The petitioner pleaded in the TA that the order dated 27.06.2015 is illegal, improper and unconstitutional, therefore, he challenged the same on the following grounds:- document Location:

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(i) Respondent No.4 has issued the impugned order dated 27.06.2015 without holding any inquiry or informing the petitioner. Neither any charge sheet nor any show cause notice has ever been issued to the petitioner before issuing the impugned order. However, the respondent No. 4 has falsely stated that notices had been issued to the petitioner through SHO P/S, Khanyar for resuming his duties.

(ii) It is submitted that the respondent No.4 did not bother to send any notice to the petitioner for causing his appearance before him either through post or through special messenger. He also did not send any police personnel to the residence of the petitioner to see his health condition as he was suffering from various ailments and was hospitalized several times. His parents, who are in advance age and often ill, as a result, required him to apply for leave. Since he was not informed by the respondents regarding the sanction of his leave, he was under the bonafide belief that his leave had been sanctioned and after the recovery of his parents, the petitioner approached respondent no.4 for joining his duties. Since no enquiry has been conducted into the conduct of the petitioner by the respondents, therefore, the order impugned dated 27.06.2015 being bad in law and against the J&K Police Rules, is liable to be set aside.

(iii) The respondent No.4 passed the order impugned on the ground that the petitioner had not responded to the messages sent to him through the concerned Police Station, in which he was asked to explain his position. The respondent No.04 falsely stated in the order impugned that the petitioner is not interested in serving the department and absented himself without any information, which is highly objectionable on his part and tantamount to discharge from service. The document Location:

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impugned order on this count, is also illegal, improper and unconstitutional and is liable to be set aside.

(iv) The respondent No.04 has passed the order impugned in violation of the principles of natural justice inasmuch as the petitioner was not provided an opportunity to be heard. Even the copy of the order impugned has not been supplied to the petitioner which has caused serious prejudice to him in making proper representation against the impugned order. As such, the same is not sustainable in the eyes of law, rendering it liable to be set aside.

(v) Absence from duty will not result in automatic cessation of employment in absence of any full- fledged enquiry. It is against the law as laid down by the Hon’ble Court of J&K in the case reported as 2004 SLJ 445. The petitioner has not abstained from attending his duties deliberately and intentionally, but it was due to compelling reasons related to the petitioner and his parents’ health conditions that he could not attend his duties after applying for leave. Hence, dismissal from service by respondent No.4 without following the mandate of law as well as the J&K Police Rules is unjust. The order impugned dated 27.06.2015 is thus colourable in nature and has been issued by Respondent No. 4 in a malafide exercise of power, rendering it liable to be quashed.

(vi) Some other persons along with the petitioner also absented from service and in their cases, they were taken back into service, but the petitioner has been discriminated. This fact was also brought to the notice of the respondents, but they paid no heed to this submission, which also renders the order impugned liable to be set aside.

(vii) The impugned order having been issued by the respondent No.4 illegally, improperly and in clear document Location:

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violation of the legal, fundamental and constitutional rights guaranteed to the petitioner, is therefore rightly challenged for seeking setting aside of the order impugned through the medium of instant petition.

6. Per contra, respondents have filed their objections wherein they have submitted as under:-

(i) The respondents submit that the order impugned No.492 of 2015 dated 27.06.2015 was issued after exhausting all possible means of communication to ensure the presence of petitioner for facing departmental enquiry. The petitioner was informed through the concerned Police Station vide signal No's. E/8/2014/193 dated 09.04.2014, Est/8th/absent/2014/5163 dated 24.04.2014, E/8th/2014/227 dated 03.05.2014 and E/8th/2014/320 dated 05.06.2014 (Annexure-B). A final notice was served to the petitioner at his home through Ct. Zulufkar Ahmad, which he received on 09.03.2015 against proper signatures, with the direction to report back for duties within 07 days (Annexure-C). A Show Cause notice was issued to him vide Endst No.Estt/PF- 913/8th/15/4318-21 dated 23.03.2015 which was published in "Srinagar Times" Urdu edition on 25.03.2015. The notice was also served to the petitioner at his home through Ct. Zulufkar Ahmad, which was received by the petitioner’s father against proper signatures (Annexure-D). However, the petitioner has shown total disregard to the aforementioned communications over time to ensure his presence for his personal hearing/facing departmental proceedings.

(ii) It is submitted that the petitioner proceeded on (05+02) days of casual leave w.e.f. 25.02.2014 and was supposed to report back for duties on 05.03.2014 F/N, which he failed to do so, resulting in his being marked absent.

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Additionally, the petitioner did not bother to inform the department regarding his whereabouts or illness.

(iii) The petitioner neither reported at the battalion headquarters nor any application has been received by post related to the resumption of his duties as per available records. However, an application for grant of two months leave was received by this office on 10.07.2014 through registered post, but no extension was granted in favour of the petitioner as the leave applied for was not due as per his leave records. This was communicated to the petitioner through P/S, Khanyar vide office signal No. Estt/8th/leave/2014/9211 dated 15.07.2014 (Annexure-E).

(iv) A copy of discharge order was issued to the petitioner through SHO, P/S. Khanyar and also through RTI application vide No.Adj/8th/RTI/2017/102 dated 08.05.2017.

7. Learned counsel for the petitioner has filed written arguments with case law in support of his case wherein he has submitted as under:-

(i) The Supreme Court in case titled as Canara Bank vs. V.K. Awasthy, reported in AIR 2005 SC and in the case titled as Canara Bank and other Vs. Debasis Das and others, reported in (2003)SCC 557 has held as under:- "10. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what commonly known as audi alter am par tem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate SO as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated.

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Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta". The classic exposition of Sir Edward Coke of natural justice requires to "vacate interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of Works, [1963) 413 ER 414, the principle was thus stated: Even GOD did not pass a sentence upon Adam, before he was called upon to make his defence. "Adam " says God. "where art thou has thou not eaten of the tree whereof I commanded thee that though should not eat".

(ii) The Hon'ble High Court of J&K in case titled as 'Jehangir Ahmad Mir v. State of J&K', reported in '1998 SLJ 134', has examined the range, limits and the scope of Rules 337 and 359 of the Jammu and Kashmir Police Rules read with Section 126 of the Constitution of Jammu and Kashmir and Article 311 of the Indian Constitution has held as under: "It is a matter of common knowledge by now that no member of a State service or a person holding post under the State can be removed from service save otherwise in accordance with the requirements of Section 126(2) of the State Constitution read with Article 311 of the Indian Constitution which contemplates conveying the specific charges to the delinquent and providing him a reasonable and adequate opportunity of being heard and then his removal from service after an enquiry. Section 126(2) of the State Constitution provides for an additional safeguard of a second show cause notice regarding the proposed punishment to be imposed.”

(iii) In the case titled as 'Ghulam Ahmad & Ors. v. Sr. Superintendent of Police', reported in 1988 JKLR 1367, the Hon’ble High Court held that although a departmental enquiry was conducted into the alleged callousness in duty on the part of the petitioners, who were Police Constables, yet the Court came to the conclusion that the provisions of Rule 359 of the Jammu and Kashmir Police Manual had not been complied with while conducting the enquiry and, therefore, the Court document Location:

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opined that the impugned order imposing penalty of dismissal upon the petitioners was unconstitutional, illegal and bad in law.

(iv) In the case titled as Syed Hussain v. State of J&K &ors. reported in 1988 JKL 1047, where a Head Constable had been removed from services after conducting an enquiry, but without issuing the show cause notice to him against the proposed punishment, the Court came to the following conclusion: "10. From the reading of this rule petitioner was to given an opportunity of showing cause against the proposed action against him. This course can be dispensed with if he was found guilty on a criminal charge which led to his conviction or the officer competent to punish him could have recorded in writing that it was not reasonable to give the person an opportunity of showing cause or when it is not practicable for the security and interest of the state.

11. In the instant case petitioner was not convicted by a criminal court nor had the punishing authority recorded his reasons as to why he did not give show cause notice against the proposed punishment nor was it mentioned that it is not in the interest and the security of the state. Therefore, he was entitled to be given a show cause notice against the proposed punishment under Rule 359

(11) (2) of the J&K Police Manual Vol. II that has not been given. As such order of dismissal suffers from serious infirmity and cannot be sustained in the present form."

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

9. The main thrust of arguments of the petitioner is that the order of removal from service was passed without following the prescribed procedure as per law and without conducting an inquiry and even if the petitioner was absent, the respondents had to conduct an ex- parte inquiry and formulate a charge sheet as per rule 359 of J&K Police Rules.

10. Rule 359 of the J&K Police Rules 1960 is quoted herein below for ready reference:- document Location:

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“359. Procedure in departmental enquiries –

(1) 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.

(2) 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.

(3) 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.

(4) 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 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.

(5) 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 document Location:

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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.

(6) 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.

(7) 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.

(8) 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.

(9) Nothing in the foregoing rules shall debar a Superintendent of Police from making or causing to be made a preliminary 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.

(10) 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.

(11) (1) 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.

(2) 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:- document Location:

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(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.

(3) 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.”

11. Perusal of Reply / Objections reveals that for issuing the removal from service orders, the respondents have nowhere revealed that any ex parte inquiry was conducted. In the absence of specific mentions in the reply about the same one is compelled to agree to the assertions made by the petitioner that the respondents did not adhere to the safeguards provided to the petitioner under Rule 359 of J&K Police Rules, 1960.

12. The police force is a disciplined force. It shoulders the great responsibility of maintaining law and order and public order in the society. People repose great faith and confidence in it and the force must be worthy of that confidence.

13. We belong to the largest democracy of the world, which is governed by the mighty Constitution and nobody is above the law whosoever, be it high or low, and we do not belong to any colonial regime. There is equality before the law which has to be maintained as we are bound by the Constitution of India. Behaving like monarch is against the basic ethos of our constitution.

14. In view of the above, coupled with the settled legal position on conduct of an enquiry, we are of the considered view that the document Location:

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impugned order No.492 of 2015 dated 27.06.2015, by virtue of which the punishment of removal from service has been imposed on the petitioner, cannot sustain the test of law as the punishment has been imposed without following the due procedure as prescribed under law and hence the order impugned dated 27.06.2015 is hereby quashed and set aside and the instant TA No.2920 of 2020 is allowed subject to following –

a. The respondents are directed to conduct a de novo enquiry in accordance with law following the principles of natural justice and by providing ample opportunity to the petitioner during the course of inquiry. The respondents shall complete the inquiry within four months from the date a copy of this order is served upon them.

b. The quashment of the impugned order shall not entitle the petitioner to the back-wages for the period he has remained out of service.

c. The decision on period of absence of the applicant from duty shall be subject to outcome of the enquiry, as ordered by this Tribunal, including on the inclusion or otherwise of the period of absence for grant of pension and pensionary benefits, in accordance with law.

15. The TA No.2920 of 2020 is accordingly disposed of with no orders as to costs. Misc. Application, if any, also stands disposed of.

Sd/- Sd/-

(PRASANT KUMAR) (M.S. LATIF)

MEMBER (A) MEMBER (J) sks/-

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