An order of discharge based on an act of misconduct or stigmatic in nature requires departmental inquiry and show cause notice against proposed discharge.

Janak Raj Kotwal, J.

1. In this writ petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir, petitioner, who was a Follower on probation in the Jammu and Kashmir Armed Police (JKAP) VI-Bn. has assailed Order No. 98 of 2008, dated 25.01.2008 whereby the Commandant of the Battalion has discharged him from service with effect from 03.11.2007. Heard learned counsel for the parties and perused the record.

2. The petitioner was appointed and enrolled in JKAP VI-Bn. vide Order No. 158 of 2005, dated 17.03.2005 and vas on probation for three years. The Commandant of the Battalion discharged the petitioner from service in exercise of his power under Rule 187 of the Jammu and Kashmir Police Rules, 1960 (for short, the Rules).

3. Point raised in this writ petition is that the sole cause of petitioner's discharge was his unauthorized absence from duty. Absence from duty is misconduct in service and discharge of the petitioner without holding departmental inquiry against him is illegal and violation of Article 311 of the Constitution of India (for short the Constitution) read with Section 126 of the Jammu and Kashmir Constitution (for short the State Constitution) and Rule 359 of the Rules. The order is vitiated for having been passed in violation of the principles of Natural Justice without holding regular departmental inquiry against the petitioner. Besides, the allegation of absence casts a stigma on the character of the petitioner and the order being stigmatic further necessitated the holding of inquiry.

4. It is contended by the petitioner that he had gone on one week's leave but was unable to report back due to ill hearth as he suffered severe jaundice and doctor had advised him complete bed rest. He, however, reported at the Battalion on receiving communication No. Estt/F-74/808-12, dated 10.01.2008 but was not allowed to resume his duties. Discharge of the petitioner from service is assailed on the ground that order of discharge has been issued in violation of the principles of Natural Justice inasmuch as neither any departmental inquiry has been conducted nor has he been issued show cause notice and heard before issuing the order. The order violates Rule 359(11)(2) of the Rules which provides that no police officer shall be dismissed or removed or reduced in rank until he has been given reasonable opportunity of showing a cause orally and in writing against the action proposed to be taken against him. It is also contended that the Commandant has failed to spell out any justified cause or reason as to why the petitioner is unlikely to prove a good officer.

5. Mr. R.S. Pathania, learned counsel appearing for the petitioner, argued that an order of discharge based on allegation of unauthorized absence from duty, even if passed during probation period in terms of Rule 187 of the Rules, must be preceded by a departmental inquiry affording the official opportunity to justify the absence and make out a case for sanction of leave in his favour for that period. Mr. Pathania submitted further that an order of discharge issued in terms of Rule 187 of the Rules stigmatizes the official and is vitiated if no departmental inquiry is held and the official is not informed of the charge against him and is not given opportunity of being heard. Mr. Pathania relied upon two judgments of co-ordinate Benches of this court in; Constable Bashir Ahmed and Anr. v. State of Jammu and Kashmir, 2005 (3) JEJ 167 [HC] : 2005 (1) SLJ 375 and Shabir Ahmad Bhat v. State of J & K & Ors., 2009 (II) SLJ 792 : 2009 (3) JKJ 157 [HC]. Mr. Pathania also relied upon a judgment of the Supreme Court in Registrar General, High Court of Gujrat and Anr. v. Jayshree Chamanlal Buddh Bhati dated 22.10.2013.

6. Respondents in their reply, while not denying the factual aspects of the case, have opposed the petition contending that petitioner remained unauthorizedly absent for 449 days during his service of less tha