Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2005 Supreme(J&K) 71

IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Hakim Imtiyaz Hussain, J.
Mohd. Majnoon Mir & Ors. - Appellant
Versus
State - Respondent
SWP No. 957/1996, SWP No. 344/2003, SWP No. 1117/1995 And SWP No. 1786/2003
Decided On : 23 March, 2005

Advocates Appeared:
Advocate For Appellant: N.A. Tabasum
Advocate For Appellant: M.Y. Bhat
Advocate For Appellant: S.T. Hussain
Advocate For Appellant: M.A. Qayoom
Advocate For Appellant: B.A. Rather
Advocate For Appellant: G.N. Shaheen
Advocate For Respondent: M.A. Rathore
Advocate For Appellant: Mir Manzoor
Advocate For Appellant: B.A. Misri
Advocate For Appellant: S.H. Thakur
Advocate For Appellant: M.I. Qadiri
Advocate For Appellant: H. Furrahi
Advocate For Appellant: Z.A. Shah

Strict compliance with the procedure laid down by Rule 359 of J&K Police Manual is necessary when taking disciplinary action against a police official. Any deviation from the prescribed procedure would render the penalty imposed as bad in law.

Headnote:
Termination of Services - Police Officials - Rule 359 of J&K Police Manual - The court held that absence from duty without proper permission or overstaying leave without valid reason is grave misconduct, justifying penalty up to dismissal. However, the concerned employee must be given an opportunity to be heard before any prejudicial action is taken. The court emphasized strict compliance with the procedure laid down by Rule 359, and any deviation would render the penalty imposed as bad in law.
Fact of the Case:

The petitioners, police constables in Jammu & Kashmir Police Department, were terminated from service due to unauthorised absence from duty. The petitioners alleged that the termination order was unconstitutional, illegal, and without any legal force as no formal enquiry was conducted as required by Rule 359 of J&K Police Manual.
Finding of the Court:

The court found that while absence from duty without proper permission or overstaying leave without valid reason is grave misconduct justifying penalty up to dismissal, the concerned employee must be given an opportunity to be heard before any prejudicial action is taken. The court emphasized strict compliance with the procedure laid down by Rule 359, and any deviation would render the penalty imposed as bad in law.
Issues: The main issue was whether the authorities can terminate the services of a police official without resorting to a regular enquiry on the ground that the official, being absent from duty, was not available for such enquiry.
Ratio Decidendi: The court held that while unauthorised absence from duty is grave misconduct justifying penalty up to dismissal, the concerned employee must be given an opportunity to be heard before any prejudicial action is taken. The court emphasized strict compliance with the procedure laid down by Rule 359, and any deviation would render the penalty imposed as bad in law.
Final Decision: The court quashed the impugned termination orders and directed the authorities to hold a regular enquiry in each case, strictly in accordance with the provisions of J&K Police Manual. The authorities were directed to initiate and complete any enquiry within a period of four months from the date of the court's order.

Judgement Key Points

Key Points: - Point 1 (!) - Point 2 (!) - Point 15 (!)

What is the required procedure under Rule 359 of the J&K Police Manual for disciplinary action against police officials?

What constitutes grave misconduct in the context of unauthorised absence or overstaying leave, and must a show-cause or hearing be provided prior to penalties up to dismissal?

Under what circumstances may an enquiry be dispensed with due to impracticability or absence, and how must such decisions be documented?

1. Since a common question for determination arises in all the above-referred writ petitions, all these petitions are being disposed of by this common judgment.

2. Facts are almost similar in all these cases. Petitioners were working as police constables in Jammu & Kashmir Police Department. They were holding substantive post. During the course of their service they absented themselves from duty. Some of them had gone on sanctioned leave but later overstayed leave without formal sanction or extension in leave while others absented themselves without any permission right from the beginning. Concerned Police Authorities allegedly issued notices to them to resume duty but the petitioners failed to report back to duty. Unauthorised absence of the petitioners from duty compelled the authorities to terminate their services/remove them. According termination orders followed which have been impugned in the present petitions.

3. Admittedly no enquiry has been conducted as envisaged by Rule 359 of J&K Police Manual by the concerned authorities while terminating the services of the petitioners.

In SWP No. 957/2000 Mohammad Majnoon Mir v. State & Ors the petitioner was appointed as a constable vide order No. 124/87 dated 16.2.1987. He proceeded on leave from Police Station Budgam but did not turn up on due date. His services were terminated vide order No. 849 of 1990 dated 1.11.1990.

In SWP No. 344/2003 Nazir Ahmed Baba v. State & Ors the petitioner was appointed as a constable. He proceeded on leave from Police Station Kulgam but did not turn up on due date. His services were terminated vide order No. 1522 of 1992 dated 19.11.1992.

In SWP No. 1117/2000 sick (1995) Bashir Ahmed Wani v. State & Ors the petitioner was appointed as constable in J&K Armed Police 4th Bn. Under No. Constable 112 dated 6.11.1991. He proceeded on leave but did not turn up on due date. His services were terminated vide order No. 1050 of 1992 dated 2.6.1992.

In SWP No. 1786/2003 Gulazr Ahmed Dar v. State & Ors the petitioner was appointed as a constable. He proceeded on leave from Police Station Duroo but did not turn up on due date. His services were terminated vide order No. 857 of 2003 dated 17.7.2003.

In SWP No. 3048/94 Dilshad Ahmed v. State & Ors. the petitioner was appointed as a Guard-man vide Govt. Order No. 226 of 1968 dated 6.6.1968. He proceeded on leave but did not turn up on due date. His services were terminated vide order No. 62 of 1983 dated 14.1.1983.

In SWP No. 2183/98 Ghulam Nabi Bhat v. State & Ors the petitioner was appointed as a constable vide order No. 988/87 dated 27.12.1987. He proceeded on leave but did not turn up on due date. His services were terminated vide order No. 288 of 1990 dated 30.4.1990.

In SWP No. 2227/98 Gh. Mohi-ud-din v. State & Ors. the petitioner was appointed as a constable in J&K Armed Police in the year 1988. He proceeded on leave but did not turn up on due date. His services were terminated vide order No. 863 of 1996 dated 12.9.1996.

In SWP No. 1379/99 Gh. Mohd. Teli v. State & Ors. the petitioner was appointed as a constable. He proceeded on leave from Police Station Kulgam but did not turn up on due date. His services were terminated vide order No. 317 of 199 dated 22.2.1999.

In SWP No. 2309/96 Saifullah Mugal v. State & Ors. the petitioner was appointed as a constable way back in the year 1979. He proceeded on leave from Police Station Nowhatta, Srinagar but did not turn up on due date. His services were terminated vide order No. 1934 of 1992 dated 3.9.1992.

In SWP No. 974 of 2003 Nasurullah Sheikh v. State & Ors the petitioner was appointed as a constable vide order No. 940 of 1998 dated 11.11.1998. He proceeded on leave from Police Station Awantipora but did not turn up on due date. His services were terminated vide order No. 70 of 2003 dated 22.3.2003.

In SWP No. 1675 of 1998 Ram Rattan v. State & Ors the petitioner was appointed as a constable in J&K Armed Police in Jan.1983. He proceeded on leave but did not turn up on d

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