GHULAM HASSAN SHAH Vs. STATE OF J&K

JUDGEMENT

(1.) By the medium of this writ petition, the petitioner has challenged the order bearing No. 102/2005 dated 9th February, 2005, whereby he has been discharged from service by the Respondent No.6, on the grounds, inter alia, that he was never given a chance of hearing while passing the impugned order; the order is violative of the rules of natural justice and the rules governing the service conditions of the petitioner; no show cause notice was issued to him and no enquiry, whatsoever, was conducted against him in accordance with the rules; the order is based on extraneous considerations and the past conduct in the service of the petitioner. The petitioner has further pleaded that it is also not indicated anywhere as to when the enquiry was conducted which culminated into the order aforesaid nor has the record of the enquiry been made available to the petitioner, which fact makes it amply clear that the Impugned order of discharge is not the outcome of any enquiry conducted in terms of the rules. There is also no material on record in the shape of any public notice or notices requiring the petitioner to participate in the enquiry as is discernible from the record. The petitioner further pleads that he took ill and had to undergo medical treatment in the SKIMS Medical College-Hospital, Bemina, and at other places to cure the disease with which he was suffering which had immobilised him for quite a long time as is brought to the fore from the prescriptions and the medical reports attached to the file as Annexure-C. The petitioner knocked the doors of the Respondents by filing a number of representations, but fate had it for him that these were never decided. In the premises, the petitioner has prayed that a writ of certiorari for quashing the order bearing No. 102/2005 dated 9th February, 2005, be issued or any other direction, which the Court deems just and proper under the circumstances of the case may be passed.

(2.) In their objections, the Respondents have resisted and controverted the claim of the petitioner by stating that no cause of action has arisen to the petitioner for maintaining the present writ petition. The petitioner has suppressed the material facts and has tried to mislead the Court. He has not approached the Court with clean hands, and is, therefore, not entitled to any relief. It has further been stated that the petitioner proceeded on 12 days leave from District Police Lines, Anantnag, and he absented himself from duties un authorisedly on 6th November, 2004, for which he was marked absent. The petitioner was repeatedly directed to resume his duties, which he failed and finally a final notice dated 29th December, 2004, was served upon him which was published in a local daily also. After his absence from duty from 6th November, 2004, a departmental enquiry was directed to be conducted against him for his absence from duty. The petitioner did not cooperate with the enquiry Officer. He did not resume his duties. He was served with show cause notice vide No. Estt/D-2/04/24743-45 dated 29th December, 2004, of Sr. Superintendent of Police, Anantnag, i.e. Respondent No.6 herein, whereby he was directed to resume his duties, but he failed to do so, as a consequence of which, he was discharged from service.

(3.) In his rejoinder affidavit, the petitioner has pleaded that it is factually incorrect to state that he had proceeded on 12 days casual leave from District Police Lines, Anantnag, and absented himself unauthorisedly from 6th November, 2004. He having proceeded on 10+2 days casual leave on 26th October, 2004, was not fit to resume his duties because of his ailing health, as a result whereof, he applied for 15 days earned leave and after the expiry of 15+12 =27 days, he approached the Deputy Superintendent for granting him permission to resume his duties, but he came to know that he has been marked absent from the duty in the daily dairy of District Police Lines, Anantnag on 6th November, 2004. He was not allowed to join his duties. Thereafter, he filed an application before the Deputy Superintendent of Police (DAR), explaining the reasons for his absence and seeking permission to join the duties, who in turn forwarded the same to Senior Superintendent of Police, Anantnag vide No. 7879/DPL/Ang dated 24th November, 2004, but this application of his was rejected on 29th December, 2004, without giving him an opportunity of being heard.