1. By means of present petition, the petitioner has questioned order of his dismissal from service passed by respondent no. 4 in exercise of powers under Rule 334, 335 of the J&K Police Manual and Rule 128 of the Jammu and Kashmir Civil Service Regulations.

2. Facts in brief are that the petitioner came to be appointed as Guardsman in the year 1987 and subsequently was re-designated as a Constable in the year 1989. It is contended by the petitioner that while performing election duties in District Kupwara, because of hard duties for day and night, he fell ill on 29.04.2004, as such, he could not proceed for his duties at Anantnag. It is contended by the petitioner that he was not provided any medical facilities and it was only after his wife and daughter came to the Battalion Headquarters that he was taken to a Doctor where after he was advised complete rest. Consequent to his absence, the petitioner was placed under suspension vide order dated 10.05.2004. As no inquiry was conducted in the matter, the petitioner appears to have approached this Court through a writ petition whereby directions were sought to the respondents for concluding the enquiry against the petitioner, which petition was disposed of on 02.08.2005 with directions to the respondents to conclude the enquiry against the petitioner within a period of six months and convey the decision to the petitioner. It was also directed that meanwhile the subsistence allowance as per rules, be also paid to the petitioner.

3. It is stated by the petitioner that after receipt of the order of this court, no enquiry was conducted and order impugned was issued whereby the petitioner was dismissed form service. It is in these circumstances that petitioner has approached this court through the medium of present writ petition.

4. Respondents have filed their reply wherein it has been stated that Show Cause Notice was issued to the petitioner but as he did not reply the same, as such, the respondents were left with no option but to issue the impugned order. It is further contended that petitioner was a habitual absentee and had been awarded punishments also on various occasions for remaining unauthorized absent.

5. I have heard learned counsel for the parties and perused the record.

6. The contention raised by the petitioner is that the absence from duty was not a willful act on his part but due to the circumstances beyond his control as he fell ill during the course of performing the election duty. He has placed on record the OPD Ticket of Health department Kashmir bearing No. 757722, issued on 30th of April'04. Another prescription issued by one Dr Khursheed Ahmad Wani, General Practitioner, District Hospital, Baramulla, dt. 30th of May'04, has also been placed on record as Annexure A, to show that the petitioner was under treatment and it was due to the said reason, he could not attend his duties. The respondents, however, have taken a stand that the said certificates/OPD slips are forged and the petitioner was not suffering from any disease for which he had to undergo the treatment.

7. The further stand taken by the respondents, as noticed above, is that after the petitioner failed to resume his duties, a final notice was issued to the petitioner and the same was published in the daily newspaper. The petitioner, through the medium of said notice was asked to explain his position within seven days of issue of this notice but he failed to do so. Under these circumstances, the respondents were left with no option but to pass the order impugned removing the petitioner from service.

8. A perusal of the record produced by the respondents, however, shows that the Commandant 1st Bn. Auxiliary Police, Srinagar, issued a final notice dt. 25th of July'05, whereby the petitioner was given seven days time after the receipt of the said notice to explain his position, failing which it was observed that order of discharge would be passed. The said notice was published in Srinagar Times on 28th of July

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