MAQBOOL HUSSAIN AND ANOTHER Vs. SUPERINTENDENT OF POLICE, KATHUA AND OTHERS

JUDGEMENT

(1.) These two petitions Nos. 168 and 169 of 1969 by Maqbool Hussain and Mohamad Salim, Head Constables, filed under S. 103 of the State Constitution challenge the validity of the orders of their dismissal passed by the Superintendents of Police, Kahua and Poonch, on 16th December, 1985 and 29th April, 1966, respectively. As these petitions raise identical points they shall be disposed of together by this judgment.

(2.) In petition No. 168 of 1969, the petitioner Maqbool Hussain who belongs to Dhani Dar Tehsil Rajouri and was employed as junior grade S.P.T. Head Constable at Kahua in October, 1965, proceeded on ten day's casual leave with effect from 10th October, 1965 to visit his family who, it is alleged, had suffered on account of the infiltrations of September, 1965. Instead of rejoining his duties after ten days on the 30th October, 1965, he made a telegraphic request for extension of his leave by thirty days. This leave was sanctioned in his favour but not without a certain amount of hesitation. Even after the expiry of this leave, the petitioner did not report himself for duty on the 30th November 1965. He was, therefore, placed under suspension and a show-cause notice was ordered to be issued to him calling upon him to show cause why in view of his wilful absence from duty suitable action be not taken against him. This notice was sent for service on him to the Station House Officer, Rajouri, who reported that the petitioner had crossed the Cease Fire Line and joined the enemy camp. The petitioner was thereupon dismissed from service by the Superintendent of Police, Kathua, vide his order No. O.H. 762, dated 16-12-1965. On reporting for duty on 25th December, 1965, the petitioner learnt that he had been dismissed from service. He, therefore, came back to his village, Dhani Dar, where it is alleged he was arrested by the Superintendent of Police, C.I.D., Rajouri and kept in custody up to the 4th of April, 1967. It is further alleged that he was rearrested on the 5th April, 1987 by the Police, Rajouri, under Rule 25-A of the Defence of India Rules for having crossed the cease-fire line without permission. His prosecution on the charge, however, proved abortive and he was acquitted by the Sub-Divisional Magistrate, Rajouri, on 12-8-1967. In the meantime, a complaint under S. 30 of the Police Act was lodged against him in the Court of the Additional District Magistrate, Kathua, by the Station House Officer, Kathua, but in that too he was discharged. Thereafter, pursuant to Government Order No. 18 PD of 1967. dated 31-8-1967, the petitioner's case was taken up along with certain other cases by the Inspector-General of Police, Jammu and Kashmir, who upheld the order of the Superintendent of Police, Kathua, dismissing the petitioner.

(3.) The petitioner has challenged the order of his dismissal on two principal grounds: Firstly, that his appointment having been made by the Deputy Inspector-General of Police, he could not have been dismissed by an officer subordinate to the Deputy Inspector-General of Police, and Secondly, that the order of dismissal without due enquiry as contemplated by Section 126 of the State Constitution and Rule 33 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules was illegal and ultra vires. The petitioner has also alleged that while acting under Government Order No. 18-PD of 1967 dated 31st August 1967, the Inspector- General of Police had discriminated against him.