1. While posted as Constable under Belt No. 421/PL, in the District Police Lines, Pulwama, the petitioner proceeded on two days casual leave with effect from 2-4-1994. He did not report to resume his duty and was consequently presumed to be on unauthorised absence.

2. Despite issuance of the so-called notices to report for duty the constable/ petitioner continued to remain away from the post. The concerned Senior Superintendent of Police thus interred that the petitioner was not interested to serve and accordingly he passed the order which reads as under: 3. Being aggrieved of the order whereby his services as such constable have been terminated, the petitioner has come to challenge its validity inter-alia on the grounds

1) That the protection available under section 126 of the State Constitution, corresponding to Article 311 of the Constitution of India, has been wantonly denied to him;

2) that the punishment awarded is disproportionate to the allege misconduct:

3) that the ground on which the enquiry envisaged by sub-section (2) of Section 126 of the Constitution has been dispensed is no way related to the scenario projected as the reason to resort to the proviso b) of sub-section (2) of the said section;

4) that the dispensation of enquiry as contemplated by Rule 33 of the J&K Civil Services (Classification, Control and Appeal) Rules and by the J&K Police Rules has been resorted to for no valid and intelligible reasons.

4. The relief in the nature of writ of certiorari for quashing the impugned order of discharge is sought with the further direction commanding the respondents to allow the petitioner to join his duties as such countable with all the monetary benefits that have become available to him.

5. The petition is resisted on the ground that as the order of discharge from the service does not constitute any punishment so the necessity to hold the departmental enquiry in respect of the unauthorised absence from duty was not warranted by the facts as it was reasonably felt that holding of the enquiry was not practicable in the circumstances. The SSPs action under Section 126(2) (b) of the Constitution is defended through the counter on the ground that having joined the forces of law breakers the petitioner wilfully omitted to resume his duty after over stay of leave notwithstanding that he was repeatedly notified to report back on duty. Non-resumption of duty is labelled as conscious abandonment of the employment, disentitling the delinquent public servant to the statutory/ constitutional protection of pre-termination/ pre-discharge enquiry.

6. It is elementary that not only the constitution but even the service rules applicable extend certain guarantees and safeguards to an employee of the State, who is a member of a Civil Service or holds a civil post under the State. Such an employee cannot be dismissed or removed from service or reduced in rank without any enquiry in which he is to be informed of the charge(s) against him and is to be afforded reasonable opportunity of being heard in respect of such charge(s). These are the safeguards provided by Section 126 of the State Constitution corresponding to Article 311 of the Federal Constitution. Section 126 provides the further safeguard of a second notice to the delinquent employee informing him of the punishment proposed to be imposed for the mis-conduct attributed to him.

7. Certain exceptions to the Constitutional requirement of holding enquiry are contained in clause (a), (b) and (c) of Section 126(2). Under these exceptions the enquiry required to be held under Sub-section (2) of Section 126 can be dispensed with. Clause (b) of the proviso of sub-section (2) permits the dispensation of the enquiry where it is impracticable to hold it but while resorting to this exception the competent authority is required to record reasons as to how was it not practicable in the facts and circumstances of the case to hold the enquiry about the alleged mis-conduct of the civil servant.

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