1. The short question which arises for consideration of this Court in the instant Letters Patent Appeal is whether wilful absence from duty is a misconduct which would require a regular departmental enquiry before imposition of any major penalty like dismissal or removal from service.

2. The aforesaid issue is no longer res integra and has been settled by a catena of judgments of the Supreme Court. The leading judgment of a Constitutional Bench was rendered by Hon'ble Supreme Court in Jai Shankar v. State of Rajasthan, AIR 1966 SC 492. Unauthorised or wilful absence from duty is a misconduct which necessitate holding of a disciplinary enquiry. The view of their Lordship is discern#31;ible from the following extracts:-

"It is true that the Government may visit the punishment of discharge or removal from service on a person who has absented himself by overstaying his leave, but we do not think that Government can order a person to be discharged from service without at least telling him that they propose to remove him and giving him an opportunity of showing cause why he should not be removed. If this is done the incumbent will be entitled to move against the punishment for, if his plea succeeds, he will not be removed and no question of reinstatement will arise. It may be convenient to describe him as seeking reinstatement but this is not tantamount to saying that because the person will only be reinstated by an appropriate authority, that the removal is automatic and outside the protection of Art. 311. A removal is removal and if it is punishment for overstaying one's leave an opportunity must be given to the person against whom such an order is proposed, no matter how the Regulation describes it. To give no opportunity is to go against Art. 311 and this is what has happened here."

3. The aforesaid view has been repeatedly followed and applied by Hon'ble Supreme Court in subsequent pronouncements, including Prithipal Singh v. State of Punjab (2002) 10 SCC 133 and State of Punjab v. Bakhshish Singh 1997 (4) SLR 590.

4. We have prefaced this order to state the position of law in regard to the question which arises for determination in this appeal.

5. Facts have not been disputed. On 08.08.2005 the writ petitioner-respondent was dismissed from service by passing order No. 1567 of 2005. The aforesaid order highlighted that the writ petitioner-respondent was appointed as Driver-Constable in District Srinagar vide order dated 28.07.1999 and was allotted Belt No. 4028/S. He absented himself unauthorized on 01.04.2005 which was reflected in DD of DPL Srinagar vide DDR No. 35 dated 01.04.2005. He was then placed under suspension on 25.07.2005 for his continuance absence. He was informed through a notice issued on 25.07.2005 through the concerned Police Station which was pub#31;lished in the Local Dailies of Kashmir Valley, asking him to resume duty within seven days. However, all in vain. His service record would reveal that his annual increment was stopped for a period of one year for his unauthorised absence for 53 days. It was thus concluded that the writ petitioner-respondent was not interested to serve the department. In the concluding para of the impugned order, the holding of regular departmental enquiry was found reasonably impracticable and dis#31;pensed with in terms of Rule 359 (11) 92 (b) of Police Manual read with Section 126 (2) of the Jammu and Kashmir Constitution.

6. The learned Single Judge, after quoting two paragraphs from the petition, has held that the allegation of absence from duty from 01.04.2005 till 08.08.2005 were false and in fact the writ petitioner-respondent had discharged duly during that period. The aforesaid averments were not controverted by filing counter affidavit. It is in the aforesaid factual backdrop that the learned Single Judge set aside impugned order dated 08.08.2005 dismissing the writ petitioner- respondent from service. The view of the learned Single Judge is discernible from the last two parag

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