1. Petitioner vide order no. 558/13/6/2000 has been appointed as constable by SSP Srinagar. Within the probationary period of three years was nominated, and deputed for undergoing Basic Recruitment Training Course (BRTC). In the month of January 2001, petitioner reported there at STC Talwara but allegedly remained absent with effect from 12/3/2001, resultantly respondent no. 4 vide his order no. 53/2001 dated 31.3.2001 reverted him back, thereafter, SSP vide his order no. 334/01 dated 27.4.2001 while exercising powers under Article 126(B) of J&K CSR read with Article 187 of J&K Police Manual, discharged the petitioner from the service w.e.f. 12/3/2001 i.e., the day the petitioner absented himself from STC Talwara. In the order it is added that the petitioner (constable) has not himself proved a good police official and has also recorded that absence of the constable clearly depicts that he is not likely to become a good police official.

2. It is no more res integra that discharge simpliciter does not warrant enquiry before discharge but when the discharge is stigmatic then order of discharge cannot be passed unless adequate opportunity of being heard to the concerned employee is given same being in keeping with Article 311 of Constitution of India, Section 126 of J&K Constitution and Rule 359 of Police Rules.

3. Admittedly in the instant case, petitioner has been appointed as constable, was on probation, within the period of probation has absented from the STC Talwara w.e.f 12/3/2001.

4. Petitioner admits his absence but contended that he had left with the permission of respondent no. 4. Further adds that earlier he had completed three months training course in Police Training Centre Zewan, thereafter was deputed for undergoing training at PTS Talwara where he remained for six months with satisfactory performance but unfortunately his younger sister fell ill, was taken to All India Institute of Medical Sciences New Delhi, who was suffering from serious disease vis Bone Tumor (Cancer). There was no one to look after, bringing the said fact to the notice of respondent no. 4 was permitted to attend his sister but on return found order of discharge passed against him, thereafter moved a detailed representation before SSP, copy of which is on the file, same is admitted to have been made but rejected by the SSP vide his order no. 1262/2003 dated 29.10.2003.

5. It is admitted position that enquiry at all has not been conducted nor petitioner has been given opportunity of being heard before passing of order impugned. Same position is admitted in the counter affidavit wherein it is recorded that the question of conducting or holding of enquiry in the matter of a constable who was still on probation did not arise. In the order of discharge impugned it is recorded that the petitioner is not likely to become a good police official and is also recorded that the petitioner has not himself proved a good police official which on the face of it is stigmatic so as to prejudice the future prospectus of getting employment when without conducting enquiry such order is passed same cannot sustain in the eye of law as the same violates the guaranteed rights.

6. The question of holding enquiry before discharge that too of a probationer without enquiry has been catching attention but finally has been set at rest by this Court. In this connection it is quite relevant to quote para 12 of the judgment reported in 2005(1) SLJ page 375, which reads as under:

"The question as to whether any enquiry is required to be conducted before discharging a probationer police official under Rule 187 J&K Police Manual is not res intergra. It is settled now by this Court that before invoking rule 187, it is incumbent and obligatory upon the appointing authority to hold an enquiry into the matter to afford adequate opportunity of being heard to the concerned employee.

In Chaman Lal v. State of J&K SWP no. 1009/88 decided on 23.8.1989 Sethi J (as his lordship then was) discussed

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