Mr. Mohammad Yaqoob Mir, J. - Petitioner was appointed as constable in Police Department in the month of Feb., 1995 and was allotted No.
230/J in District Jammu. While undergoing training at PTC Talwara, Reasi, in October, 1998 he suffered brief illness and was diagnosed a patient
of Hepatitis Jaundice, so was admitted in the Hospital. Thereafter was discharged from GMC Jammu on 24.04.1999. Allegedly, he had remained
absent in the District Doda on different spells in total for a period of 60 days.
2. Noticing such type of absence unacceptable, SSP (Disciplinary Authority) initiated the enquiry himself. On conclusion of the enquiry, has passed
the order dated 30.11.1999 where under petitioner has been removed from service with immediate effect, as his services were: noticed no more
required in the department. The period of his absence has been treated as 'Dies-non' on the principle of 'no work no wages'. As against the said
order, the petitioner filed appeal before the Inspector General of Police unsuccessful, as the appeal has been dismissed vide Order No. 486 of
2000, dated 21.10.2000. Again a revision petition has been filed before the Director General of Police which met the same fate as same has been
dismissed vide Order No. 177 of 2003, dated 14.01.2003. Hence the instant petition.
3. The star ground projected is that the order passed by SSP and upheld by the IGP as well as DGP is in contravention to the Rule 359 of the
Police Rules.
4. According to the learned counsel for the petitioner, before imposing penalty of removal from service, the disciplinary authority was required to
provide reasonable opportunity of showing cause as against the proposed penalty, which has not been, therefore, the order of removal is bad in
law. In support of this submission has relied upon the judgment rendered by this Court in the case of Ali Mohd. Lone v. State & Ors. 2012 (4)
JKJ 96 [HC].
5. The contention of the learned counsel for the petitioner could not be controverted by learned AAG, Mr. Basotra. Rightly so, records do not
suggest that the petitioner has been given any opportunity of showing cause against the proposed penalty.
6. Rule 359 of the Police Rules prescribes procedure to be followed in departmental enquiries. Sub rule 11 provides that no officer shall be
dismissed or removed by an authority until the delinquent has been given reasonable opportunity of showing cause orally or in writing against the
action proposed to be taken. This Rule is controlled by the proviso hut the action of the respondents does not fall within the scope of the proviso.
It being so, there could be no substitute for not serving show-cause notice and for giving reasonable opportunity to the petitioner to explain his
position vis-a-vis proposed punishment.
7. The judgment rendered in the case of Ali Mohd. Lone v. State & Ors while deciding LPA No. 402/2006 reported in 2012 (4) JKJ 96
[HC] squarely covers the case of the petitioner.
8. Petition as such allowed.
9. The three orders one passed by SSP dated 30.11.1999, another passed by IGP dated 2,1.10.2000 with appeal and third passed by DGP
dated 14.01.2003 in revision are quashed.
10. The Disciplinary Authority (SSP) shall, if so chooses, proceed against the petitioner afresh by affording him an opportunity to show-cause
against the proposed punishment of removal from service. But before doing so, the disciplinary authority is required to take into account the later
development i.e. the petitioner in the year 2003 is stated to have suffered an ailment, as a result whereof, he is bed-ridden, being a case of
Paraplegia.
11. The appropriate orders as shall be warranted which may include consequential service benefits, shall be passed preferably within a period of
two months from the date copy of the order is served upon the respondent-SSP.
12. Meanwhile, within the confines of the law, the respondents authorities shall order re-instatement of the petitioner.
13. Petition accordingly disposed of.
