The central legal point established in the judgment is that unauthorized absence must be proved willful to impose major punishment, especially in the case of a probationer.

N. Paul Vasantha Kumar, J.

1. This L.P. appeal is preferred by the State of Jammu and Kashmir and its Officers against the order made in SWP No. 64/2003 dated 13.10.2011, allowing the writ petition of the writ petitioner-respondent, seeking quashing of order of removal from service dated 09.10.2001. The case of the respondent before the Writ Court was that by order dated 09.10.2001, he was appointed as Constable and allotted No. 3488/J in the J. & K. Police and was deputed for undergoing basic recruit training course at Police Training School, Kathua on 19.04.2000. As per the respondent, he fell ill on 06.06.2000 and after informing his seniors he proceeded on leave. He was removed from service by order dated 09.10.2001 w.e.f. 21.06.2001 which order was challenged by the respondent by filing a statutory appeal, the appeal having not been decided, writ petition was filed before this Court.

2. The appellants filed their objections to the writ petition, stating that the respondent deserted the training centre on 06.06.2000 and after unauthorised absence of 53 days, he resumed his duty on 29.07.2000, though the Principal PTS Kathua had already discharged him from PTS Kathua by order dated 09.10.2001 w.e.f. 21.06.2001. Thereafter enquiry was ordered. Respondent having failed to submit the reply to the charge memo, the enquiry officer recommended his removal and thereafter order dated 19.03.2002 was issued removing the respondent from service.

3. The learned single Judge, taking note of the fact that discharge of the respondent was not a discharge simpliciter but based on the allegations of unauthorized absence, held that without application of mind as well as following the due procedure as contained in Regulation 359 of the J. & K. Police Manual the order has been passed. The learned single Judge quashed both the orders of discharge and removal by giving liberty to the appellants to conduct enquiry within a period of three months. It was also clarified that period from passing of the first discharge order till the date of judgment shall remain dependent upon the outcome of the enquiry to be conducted and in case enquiry is not held the respondent would not be entitled to salary from the date of his absence till the date of judgment however that period shall qualify for all other service benefits.

4. The said order is challenged by the appellants in this appeal by contending that respondent being a probationer, holding of enquiry was not required for passing the order of discharge/removal.

5. The learned counsel appearing for the respondent on the other hand submitted that no charge memo was served on the respondent and the enquiry was conducted at the back of the respondent and he having suffered major illness, the fact of his illness and reason for absence was not willful and beyond his control which has not been taken into consideration.

6. We have considered the rival submissions of the learned counsels for the parties.

7. The issue as to whether a probationer can be terminated or his services can be dispensed with without conducting enquiry due to allegation was considered by Hon'ble the Supreme Court in the decision reported in AIR 1974 SC 2192 (7 Judges Bench) (Shamsher Singh v. State of Punjab and Anr.) wherein it is held that the decisive factor in the context of discharge of a probationer from service is the substance of the order and not the form in determining whether the order of discharge is stigmatic or not or whether the same formed the motive for or foundation of the order. The same view was reiterated by Hon'ble the Supreme Court in the decision, reported in (1999) 2 SCC 21: (AIR 1999 SC 609) (Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. and Anr.), (2008) 2 SCC 479 : (2008 Lab IC 2022 (SC)) (Nehru Yuva Kendra Sangathan v. Mehbub Alam Laskar) and (2010) 8 SCC 220. Union of India and Ors. v. Mahaveer C. Singhvi). In the decision reported in (2010) 8 SCC 220 : (2010 Lab IC 3913 (SC) (Union of I