Decided on April 29,1986

Gh Nabi Teli Appellant
Superintendent Of Police Baramulla Respondents


- (1.) PETITIONER , as a senior Grade constable is discharged from service by an order No. 6,5 of i984 dated 16 -6 -1984. His discharge from service is to operate retrospectively. Petitioner challenges this order as being illegal and unconstitutional.
(2.) THE brief facts of the case are: petitioner was granted two days casual leave with effect from 10 -4 -1983 A, N. He was supposed to join his duties on 13 -4 -1983 He failed to Join on 13 -41983 and absented himself from duty. He is said to have requested by a telegram for seven days leave which was refused. Notices were served on the constable repeatedly to resume duties, otherwise departmental proceedings would be initiated against him. In reply to a signal dated 19 -7 -1983, the petitioner has shown his inability to join his ill health. Thereafter, many notices were again served on him to duty due to resume duty failing which enquiry would be initiated against him. Afterwards enquiry seems to have been entrusted to one Sham Lal S I., who is said to have conducted secret and open enquiry and reported that the petitioner was in fact engaged in trade of fruits There -fore, the Petitioners contention that he was ill was said to be false. On these basis the petitioner was discharged from service -
(3.) MR . Sadiq has submitted some important contentions while arguing the admission matter. He has submitted that under section 30 of the Jammu and Kashmir Police, Act, petitioner could be prosecuted before a Judicial Magistrate for his absence from duty. Sec. 30 provides that prosecution can be launched against a member of a force for many acts of indiscipline and misconduct, which includes absence without leave and if he was found guilty, he could be punished. Departmental enquiry could not be held against him. He next argued that the enquiry was not conducted in presence of the petitioner nor was any charge sheet framed against the petitioner. He was only asked to resume duties and he had shown his inability due to ill health. The department could not have treated him unauthorisedly absent from duty without holding enquiry which was to be conducted in accordance with section 126 (2) of the consideration of Jammu and Kashmir.;

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