1. In terms of order No.2095 of 2005 dated 22.09.2005, petitioner has been removed from service. Aggrieved thereof, instant petition has been filed. Vide order dated 15.01.2005, order impugned has been directed to remain in abeyance.

2. Petitioner has been appointed as Constable in District Baramulla on 19.9.2000 under belt No.1733/B and transferred to DPL, Srinagar on 4.8.2003 with belt No.2502. While remaining posted at Srinagar was discharging duties in Sector No.3 of P/S Shaheed Gunj. He had hired a room in the house of one Mohammad Shafi Shegan S/O Habibullah R/O Bazar Batamaloo. On 06.09.2004, he had brought a lady to his rented room allegedly with the intention to commit sexual intercourse. The house owner Mohammad Shafi Shegan noticing presence of the lady in the rented room informed the police and a case was registered as FIR No.97/2004 for commission of offence punishable under Section 376/511 RPC P/S Batamaloo.

3. Petitioner was placed under suspension by SDPO, Shaheed Gunj vide order dated 04.09.2004. The departmental enquiry was entrusted to SDPO, Sadder. The enquiry report was prepared on 28th of April, 2005 where-under it was recommended: The official shall be awarded punishment as a corrective measure i.e. stoppage of annual increment for a period of two years and was recommended to be reinstated into service with immediate effect and the period of suspension with effect from 11.9.2004 till the date of completion of enquiry was recommended to be treated as on duty in view of he having remained present for the said period.

4. The said recommendation was not accepted by the competent authority, therefore, a show cause notice was issued on 09.08.2005 where-under petitioner was directed to show cause within seven days as to why he should not be removed from service.

5. Petitioner in his reply had made it clear that in fact house owner had asked him to vacate the premises earlier, so with the ill motive the house owner Mohammad Shafi Shegan lodged the report with the object of evicting him from the rented room. The girl in fact was sister of his close friend and was equivalent to his sister. One of the brother of the said girl was insane so was missing for quite long time. The said girl had information that her brother is in the mental hospital, so she had come to meet him, she could not get the transport facility to go back to her village, opted to stay for the particular night with the petitioner. He(petitioner) claimed to have treated her as his own sister and gave her brotherly treatment. In addition had divulged that the regular trial is pending regarding the occurrence before the Court of 3rd Additional Sessions Judge, Srinagar where both complainant and his wife have been examined. They have not deposed anything adverse against him and have also stated that the girl had stayed with the petitioner as a guest and nothing wrong had happened. Still the competent authority was not convinced, as a result thereof, order of removal of petitioner from service dated 22.09.2005 has been issued which is impugned.

6. The first contention of the learned counsel for the petitioner is that when a criminal case is registered, until result is known at the trial, departmental enquiry could not be held on the charges for which criminal case was registered. In support whereof, placed reliance on the judgment rendered by this Court in case Ghulam Mohi-ud-din Vs. State of J&K & ors, reported in JKLR 1984 546, wherein similar question arose for consideration. While referring to Rule 338(4) of J&K Police Manual, it has been opined that the departmental enquiry can be initiated against a police officer when a criminal charge fails against him solely on technical reasons or when the police officer has been given benefit of doubt or when the prosecution witnesses have resiled against the prosecution at the trial through the exercise of influence upon them or when an acquittal is ordered on the main charge or facts are brought to light in the

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