Shahid Ul Islam vs D/o Home Ut Of Jammu & Kashmir

// 1 // OA/495/2021

CENTRAL ADMINISTRATIVE TRIBUNAL
SRINAGAR BENCH
OA/495/2021
Reserved on : 10.08.2026
Pronounced on : 26.10.2026

C O R A M
HON’BLE MR. M.S. LATIF, MEMBER (JUDL.)
HON’BLE MR. PRASANT KUMAR, MEMBER (ADMN.)

Shahid Ul Islam, Belt No:566/S, Age 30 years, S/o Abdul Rashid Lone,
R/o Kapran Shopian, J&K.

……Applicant
Advocate : Mr. Hilal Ahmad Wani

VERSUS

1. Union Territory of J&K through Principal Secretary, Home
Department, Civil Secretariat, Jammu/Srinagar, 180001.
2. Director General of Police, Jammu/Srinagar, 180004
3. Inspector General of Police, Kashmir Srinagar, 190015.
4. Deputy Inspector General of Police, South Kashmir, Anantnag,
192101.
5. Sr. Superintendent of Police, District Srinagar, 191202.
6. Superintendent of Police, City East Zone, Srinagar, 191202.
…..Respondents
Advocate : Mr. Rais Ud Din Ganaie, Ld. DAG

O R D E R

Per Hon’ble Mr. M.S. Latif, Member (Judl.)

Through the medium of the instant OA, applicant seeks to
allow the OA by quashing the impugned order No.1626 of 2019 dated
07.12.2019 passed by the respondent and the applicant be re-instated in
Digitally signed by S K Sinha
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S K [email protected] Reason: I am the author of this
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service and allowed to continue in the respondent department with all
service benefits.
2. Alongside the main relief, the applicant also prays for interim
relief that till disposal of OA, respondents may be directed to take a

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decision on appeal submitted by the applicant on 20.12.2019, in
accordance to J&K Police Manual.
3. What emerges out of the pleadings in the OA is that the
applicant was appointed as Constable in the year 2012 vide order No.141
of 2012 dated 29.02.2012. According to the applicant, while he was
posted in Kargil and performing his duties, he was roped in false and
frivolous FIR bearing No.65/2018 dated 20.10.2018 under section 8/20
NDPS Act (Annexure-A2). The applicant was admitted to interim bail
upto 26.11.2018 by the Hon’ble Court of Session Judge, Kargil on
19.11.2018. During the pendency of the aforementioned case, the
applicant was transferred from Kargil to Srinagar vide RPHQ Srinagar
order No.411 of 2018 dated 18.09.2018 and subsequently relieved from
DPL Kargil on 11.10.2018 with the direction to report at new place of
posting, but the applicant was not able to report because he was in police
custody for more than 48 hours and subsequently vide order No.94 of
2019 dated 16.01.2019, the respondents placed him under suspension with
immediate effect and SP, East Zone, Srinagar was directed to hold
departmental enquiry for his absence from the duty and alleged
involvement in the aforementioned case. SP, East Zone, Srinagar issued
notice to the applicant on 19.06.2019 directing to report for duties within
7 days positively and face departmental enquiry, but the applicant could
not appear and remained absent from duty. Therefore, vide impugned
Digitally signed by S K Sinha
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order No.1626 of 2019 dated 07.12.2019, the respondent-SP, East Zone,
Srinagar removed the applicant from service w.e.f. 17.08.2019 on the
recommendations of the enquiry officer ( Annexure – A/7 ). Against the
removal order, applicant submitted an appeal to the Director General of

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Police and Inspector General of Police on 20.12.2019 via registered post,
but he has annexed only receipt of registered post and did not annex said
application.
4. In support of his case, the applicant has taken following
grounds:-
(i) The respondents have failed to adhere to the rules and
regulations to which the applicant is subjected to,
namely J&K Police Manual wherein a full-fledged
mechanism is prescribed for conducting and holding of
Departmental Enquiries and infliction of authorized
departmental punishment as specified in Rule 359 of
J&K Police Manual.
(ii) The respondents have failed to furnish the enquiry
report and the material relied upon by the respondents
including the statement of witnesses, which is clear
infringement of legal rights of applicant as guaranteed
under Constitution of India.
(iii) The respondents have conducted an eye wash exercise,
which is in violation of established principles. The
applicant has been removed from service on the charge
that the applicant seems to be habitual of absenteeism
which alludes to the point that he is not interested to
serve the department anymore. The conclusion of the
enquiry officer is based on mere figment of his
imagination and apprehension. The enquiry officer did
not take into consideration the general principles of
criminal jurisprudence and declared the applicant
Digitally signed by S K Sinha
DN: CN=S K Sinha, O=DoPT, OU= Central Administrative Tribunal, E=
S K [email protected] Reason: I am the author of this
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guilty in the aforementioned FIR, which is still
pending before the Hon’ble Court of Principal
Sessions Judge, Kargil.
5. Per contra , respondents have filed their objections wherein
they have submitted as under:-

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(i) The applicant, Ex-Ct. Shahid-Ul-Islam Lone
No.622/KL, PID No.EXK-126101 was transferred
from Kargil to Srinagar vide RPHQ, Srinagar order
No.411/2018 dated 18.09.2018 and was accordingly
relieved from DPL Kargil on 11.10.2018 (A/N) with
the directions to report new place of posting viz .
District Srinagar. The applicant failed to report in DPL
Srinagar well in time and, in the meanwhile, it was
communicated by SP Kargil vide his office letter
No.Estt/Misc/2018/25394-25400 dated 22.10.2018 that
said applicant along with other official of DPL, Kargil
were arrested by sleuths of P/S Kargil in view of their
involvement in case FIR No.65/2018 U/S 8/20 NDPS
Act of P/S Kargil and said applicant remained under
Police custody w.e.f. 22.10.2018 to 19.11.2018.
Lateron, the applicant submitted an application on
07.01.2019 for permitting him to resume duties.
(ii) Accordingly, in light of the above facts, the applicant
was placed under suspension vide office order
No.94/2019 dated 16.01.2019 and a Departmental
Enquiry was initiated against him which was entrusted
to SP, East Zone, Srinagar for its finalization. The
applicant was also permitted to resume his duties in
DPL, Srinagar (under suspension) with immediate
effect and belt No.566/S was also allotted to him from
this District. Despite of permitting the applicant to
resume his duties (under suspension), he again
remained absent w.e.f. 17.01.2019 and did not return
for duties. Accordingly, necessary entry was reflected
Digitally signed by S K Sinha
DN: CN=S K Sinha, O=DoPT, OU= Central Administrative Tribunal, E=
S K [email protected] Reason: I am the author of this
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in the Daily Dairy of DPL, Srinagar. Later-on, the
applicant submitted another application through Dy.
SP, DAR (DPL), Srinagar for resumption of duties and
this office accorded permission in favour of the
applicant to resume his duties in DPL, Srinagar (under
suspension) vide office order No.573/2019 dated

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09.04.2019 and an another departmental enquiry was
initiated in this behalf and that too was entrusted to SP,
East Zone, Srinagar for its finalization.
(iii) Despite the applicant was permitted second time to
resume his duties (under suspension), he failed to
report for duties physically in DPL, Srinagar and
continued to remain absent. The applicant submitted
application through DPL, Srinagar for accord of
permission to resume duties. Accordingly, permission
was granted in his favour to resume duties in DPL,
Srinagar (under suspension) vide office order
No.1030/2019 dated 26.07.2019 with immediate
effect.
(iv) The Enquiry Officer gave ample opportunity to the
applicant to resume his duties and to associate himself
with the proceedings of enquiry and in this behalf
several signals were flashed to his concerned Police
Station, but the applicant did not pay any heed and
remained absent. Subsequently, a notice bearing
No.Estt/SPE/Enq/19/7675 dated 19.06.2019 was
issued by Enquiry Officer, which also was published
in local dailies viz. "Roshni Srinagar" & “Srinagar
Times" on 21.06.2019 asking the applicant to resume
his duties within seven day positively. Besides, a copy
of said notice was also served to him at his native
place by Enquiry Officer in presence of some
witnesses on 20.06.2019.
(v) From the above conduct, it is manifest that applicant
was a habitual absentee, who despite given permission
Digitally signed by S K Sinha
DN: CN=S K Sinha, O=DoPT, OU= Central Administrative Tribunal, E=
S K [email protected] Reason: I am the author of this
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time and again remained absent and as many as 267
days he remained absent showing his lack of interest to
serve the department. The Enquiry Officer after
conducting the enquiry proceedings as per the mandate
of law observed that said applicant has previously also
remained absent for126 days and has also received one

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major punishment which makes the conduct of
applicant explicit. The Enquiry Officer: arriving at
conclusion submitted his findings to the respondent
vide letter No.Estt/SPE/DE/19/10838 dated
09.09.2019 with certain recommendations.
(vi) The respondents pondered upon the recommendations
of the Enquiry Officer and findings together with other
connected documents and it was found that Enquiry
has been concluded rightly and recommendations of
Enquiry Officer were agreed and the period of absence
of applicant i.e . 267 days were ordered to be treated as
Dies-non on the analogy of “no work no pay.”
However, period from 16.01.2019 (F/N) to 17.01.2019
(F/N) & 28.07.2019 (F/N) to 30.07.2019 (F/N) were
treated as on Earned Leave.
(vii) The applicant was removed from the services of
Department and to this effect order bearing No.1626 of
2019 dated 07.12.2019 was issued. The said order has
been issued in accordance with governing service rules
& regulations applying due diligence and application
of mind by the respondents.
(viii) The applicant was involved in a criminal case for no
fault of his employer, the respondents , and his
arrest/detention was a consequence of his involvement
in a FIR.
(ix) In light of above, all the assertions made in the instant
petition, to the extent, that there has been any exercise
of malafidies is denied by the respondents. The
applicant has employed different pleas as a subterfuge
Digitally signed by S K Sinha
DN: CN=S K Sinha, O=DoPT, OU= Central Administrative Tribunal, E=
S K [email protected] Reason: I am the author of this
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to cover his misconduct which has earned him removal
from services of the department. The conduct of the
applicant was inimical to the discipline to which police
force is bound to and if such delinquent individuals are
not dealt with sternly, a very negative effect is going to
be felt through the rank and file of the police force. In

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the premises, the instant application may kindly be
dismissed in the interest of justice and fair play with
heavy costs.
6. Learned counsel for the applicant filed rejoinder to the
objections filed by the respondents and submitted as under:-
(i) It is stated in the rejoinder that the respondent
department failed to initiate a proper departmental
inquiry as mandated under the rules governing the
field, particularly Rule 359 of the J&K Police Rules. It
is well established and settled position of law that
mere absence from duty doesn’t automatically warrant
dismissal or removal from services. Any such punitive
action must be preceded by a comprehensive and
detailed inquiry conducted by the respondent
department strictly in accordance with the procedural
safeguards and requirements laid down in the relevant
rules. In this regard Rule 359 of the J&K Police Rules ,
which outlines the procedure to be followed before
imposing major penalty , such as removal from service ,
is of particular relevance.
(ii) The applicant further submits that the Hon’ble
Supreme Court of India, in catena of judgments, has
held that any infraction of the rules before any
termination order issued against the Government
Official vitiates the entire proceedings. The applicant
submits that in case the enquiry is conducted by the
respondent department, after culmination of enquiry
proceedings it is settled principle of law that the
Digitally signed by S K Sinha
DN: CN=S K Sinha, O=DoPT, OU= Central Administrative Tribunal, E=
S K [email protected] Reason: I am the author of this
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delinquent officer must be served with the enquiry
report especially when the same contains any findings
adverse to him. Further, the disciplinary authority is
obligated to issue a show-cause notice to the
delinquent indicating the punishment proposed to be
imposed so that he / she can make a representation to

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the disciplinary authority before the final order is
issued. In the instant case, nowhere such mention has
been made that such type of process has been adhered
to by the respondents and required procedure has been
followed in letter and spirit. Thus the impugned order
in this petition deserves to be quashed and set aside.
(iii) The respondents have passed the order of dismissal
without conducting an enquiry whatsoever. It is settled
position of law that, in accordance with the applicable
rules including Rule 359 of J&K Police Rules, any
Police personnel facing removal of service or
reduction in rank must be given prior notice and afford
a reasonable opportunity to defend himself against the
charges leveled against him. It is submitted that the
satisfaction contemplated under an exception clause
cannot be presumed or implied; it must be explicitly
recorded, and the reasons must withstand judicial
scrutiny. In the absence of such a record, the dismissal
of the applicant without holding an inquiry violates not
only the statutory safeguards provided under the J&K
Police Rules but also offends the principle of natural
justice. Furthermore, it is constitutional obligation
upon to ensure that fair and proper disciplinary
authority is held before imposing any major penalty,
reduction, removal or termination in rank, thus
requirement is not only statutory but also obligatory in
nature. Since the process of inquiry is a vital means of
ascertaining the real and relevant facts behind the
alleged misconduct and without it, any punishment
Digitally signed by S K Sinha
DN: CN=S K Sinha, O=DoPT, OU= Central Administrative Tribunal, E=
S K [email protected] Reason: I am the author of this
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imposed lacks legal procedural sanctity in the
impugned order. Procedure, as established under the
act, is missing in the instant case, as such, the
impugned penalty imposed upon the applicant is
violative of Constitutional Guarantees and deserves to
be quashed and set aside.

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(iv) The applicant submits that the contention of the
respondents raised in the objections is totally incorrect
and untenable. The applicant has demonstrated in his
application, as well as hereinabove, the violation of
constitutional provisions and Rules, which violate his
fundamental rights vis -à- vis the right to equality
before the law, coupled with lack of a fair and
transparent inquiry in terms of Articles 14 and 16 of
the Constitution of India, the right to continue with his
service profession/occupation under Article 19, and
the right to receive salary and other service benefits in
terms of Article 21 of the Constitution of India. As
such, the impugned order passed by the respondents is
totally in disregard of and in violation of the aforesaid
legal position.
7. A written submission with case law has been filed by the
learned counsel for the applicant in support of his case. The learned
counsel has submitted that since a Government servant is involved in any
criminal charge, he cannot be dismissed from service on the ground of
pendency of FIR; the authority must consider that a person is innocent in
law until such time as the court of competent jurisdiction have not passed
a judgment. The Hon’ble Supreme Court held that when a government
servant is convicted, he cannot be dismissed on the ground of conviction
and the removal/termination order cannot be passed in a mechanical way.
Thus, the applicant is entitled to reliefs, as prayed for in the application
alongwith all consequential benefits. The Hon’ble Supreme Court in
Digitally signed by S K Sinha
DN: CN=S K Sinha, O=DoPT, OU= Central Administrative Tribunal, E=
S K [email protected] Reason: I am the author of this
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various judgments, has held that even upon the conviction of an employee
for a criminal charge, the order of punishment cannot be passed unless the
conduct that has led to his conviction, is also considered. It was further
held that even after an employee's conviction, conduct leading to that

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conviction must be considered before any dismissal or removal from
service. The respondents have failed to consider the conduct of the
applicant, which has led to his involvement in criminal charge before
imposing punishment of removal by means of impugned order. The
pendency of FIR does not automatically result in dismissal or termination
from service. A mere accusation or investigation does not constitute proof
of guilt and legal principles require that an employee is considered
innocent until proven guilty by a competent court. In support of his case,
learned counsel for the applicant has relied upon the following
judgments:-
(i) Manohar Lal vs. Commissioner of Police &Ors. 2026
LiveLaw (SC) 236;
(ii) Ajit Singh vs. State of J&K and Others (SWP No.1559/2016
decided on 25.10.2017);
(iii) Supreme Court judgment in the case titled as State of UP
through Principal Secretary, Department of Panchayati
Raj, Lucknow vs. Ram Prakash Singh (Civil Appeal
No.14724/2024; and
(iv) Judgment of High Court of Allahabad in the case titled as
Kamlesh Kumar vs. State of U.P. and Another decided on
23.07.2025.

8. Heard the learned counsel for the parties at length, perused
the contents of the OAs and annexures on file, reply filed by the
respondents and also the written arguments filed by the applicant.
9. The case of the applicant is that the impugned order has been
issued in total breach of the Rule 359 of the J&K Police Manual for
conducting departmental enquiries, read with Article 311 of the
Digitally signed by S K Sinha
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Constitution of India.
10. It would be apposite to see Rule 359 of the Police Rules,
1960 and the same is reproduced herein below:
“359. Procedure in departmental enquiries –
(1) The following procedure shall be followed in departmental
enquiries:-

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(a) The enquiry shall, whenever, possible be conducted by a
gazetted officer empowered to inflict a major punishment
upon the accused officer. Any other gazetted officer or an
Inspector specially empowered by the Minister I/C Police
Department, to hold departmental enquiries (vide Order No.
636-C, dated 27.06.1945) may be deputed to hold an
enquiry or may institute an enquiry on his own initiative
against an accused police officer who is directly
subordinate to him, except that in the case of a complaint
against a constable the enquiry may be conducted by an
Inspector. The final order, however, may be passed only by
an officer empowered to inflict a major punishment upon
the accused police officer.
(2) The officer conducting the enquiry shall summon the accused
police officer before him and shall record and read out to him a
statement summarising the alleged misconduct in such a way as
to give full notice of the circumstances in regard to which
evidence is to be recorded.
(3) If the accused police officer at this stage admits the misconduct
alleged against him the officer conducting the enquiry may
proceed forthwith to record a final order if it is within his
power to do so or a finding to be forwarded to an officer
empowered to decide the case.
Whenever a serious default is reported and the preliminary
enquiry is necessary before a definite charge can be framed, this is
usually best done on the spot and might be carried out by the Sub-
Inspector of the particular Police Station in the case of head constables
and constables serving under him or by the Inspector of the Circle in
the case of Sub-Inspectors within his charge. At the same time it must
be left to Superintendent of Police to select the most suitable officers
for the purpose or to do it themselves when such a course appears
desirable.
When the preliminary enquiry indicates a criminal offence,
application for permission to prosecute should at once be made to the
authority competent to dismiss the officer and permission should be
promptly granted if that authority agrees that there is prima facie case
for prosecution.
(4) If the accused police officer does not admit that misconduct the
officer conducting the enquiry shall proceed to record such
evidence oral and documentary in proof of the accusation as is
available and necessary to support the charge. Whenever
possible witnesses shall be examined direct and in the presence
of the accused who shall be given opportunity to cross-examine
them. The officer conducting the enquiry is empowered however
to bring on to the record the statement of any witness whose
presence cannot in the opinion of such officer be produced
without undue delay and expense or inconvenience if he
considers such statement necessary and provided that it has
been recorded and attested by a police officer not below the
rank of Inspector or by a Magistrate and is signed by the person
making it. The accused shall be bound to answer questions
which the enquiring officer may see fit to put to him, with a view
to elucidating the facts referred to in statements or documents
brought on the record as herein provided.
(5) When the evidence in support of the allegations has been
recorded, the enquiring officer shall –
(a) If he considers that such allegations are not
substantiated either discharge the accused himself if he
is empowered to punish him, or recommend his
Digitally signed by S K Sinha
DN: CN=S K Sinha, O=DoPT, OU= Central Administrative Tribunal, E=
S K [email protected] Reason: I am the author of this
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discharge to the Superintendent or other officer who
may be so empowered, or
(b) Proceed to frame a formal charge or charges in writing,
explain them to the accused officer and call upon him to
answer them.
(6) The accused officer shall be required to state the defence
witnesses whom he wishes to call and may be given time in no
case exceeding 48 hours to prepare a list of such witnesses
together with a summary of the facts as to which they will
testify. The enquiring officer shall be empowered to refuse to
hear any witnesses whose evidence he considers will be
irrelevant or unnecessary in regard to the specified charge
framed in which case he shall record the reason for his refusal.
He shall record the statements of those defence witnesses whom
he decides to admit in the presence of the accused, who shall be
allowed to address questions to them the answers to which shall
be recorded, provided that the enquiring officer may cause to be
recorded by any other officer not below the rank of Inspector
the statement of any such witness whose presence cannot be
secured without undue delay or inconvenience and may bring
such statement on to the record. The accused may file
documentary evidence and may for this purpose be allowed
access to such files and papers except such as form part of the
record of the confidential office of the Superintendent of Police
as the enquiring officer deems fit. The supply of copies of
documents to the accused shall be subject to the ordinary rules
regarding copying fees.
(7) At the conclusion of the defence evidence or if the enquiring
officer so directs at any earlier stage, following the framing of a
charge the accused shall be required to state his own answer to
the charge. He may be permitted to file a written statement and
may be given time not exceeding one week for its preparation
but shall be bound to make an oral statement in answer to all
questions which the enquiring officer may see fit to put to him
arising out of the charge, the recorded evidence or his own
written statement.
(8) The enquiring officer shall then proceed to pass orders of
acquittal or punishment if empowered to do so or to forward the
case with his finding and recommendations to an officer having
the necessary powers.
(9) Nothing in the foregoing rules shall debar a Superintendent of
Police from making or causing to be made a preliminary
investigation into the conduct of a suspected officer. Such an
enquiry is not infrequently necessary to ascertain the nature
and degree of misconduct which is to be formally enquired into.
The suspected police officer may or may not be present at such
preliminary enquiry as ordered by the Superintendent of Police
or other gazetted officer initiating the investigation but shall not
cross-examine witnesses. The file of such a preliminary
investigation shall form no part of the formal departmental
record but may be used for the purposes of sub-rule 4 above.
(10) This rule shall also not apply where it is proposed to terminate
the employment of a probationer whether during or at the end
of the period of probation.
(11) (1) As laid down in Section 126 of the Constitution of
Jammu and Kashmir, no officer shall be dismissed or removed
by an authority subordinate to that by which he was appointed.
(2) No police officer shall be dismissed or removed or
reduced in rank until he has been given a reasonable
opportunity of showing cause orally and also in writing against
Digitally signed by S K Sinha
DN: CN=S K Sinha, O=DoPT, OU= Central Administrative Tribunal, E=
S K [email protected] Reason: I am the author of this
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the action proposed to be taken in regard to him, provided that
this clause shall not apply:-
(a) where a person is dismissed or removed or
reduced in rank on the ground of conduct which led to
his conviction on a criminal charge;
(b) where an authority empowered to dismiss or
remove an officer or to reduce him in rank is satisfied
that for some reason to be recorded by that authority in
writing it is not reasonably practicable to give to that
person an opportunity of showing cause; or
(c) where the Sadar-i-Riyasat is satisfied that in the
interest of the security of the state it is not expedient to
give to that officer such an opportunity.
(3) If any question arises whether it is reasonably
practicable to give to any officer an opportunity of showing
cause under clause (2) above, the decision thereon of the
authority empowered to dismiss or remove such officer or to
reduce him rank, as the case may be, shall be final.”

11. It is also to be seen whether principles of natural justice, Rule
359 of J&K Police Rules 1960 have been followed or not in the instant
case as this Rule envisages that the delinquent official must be given an
opportunity to meet the charges levelled against him and also against the
proposed penalty. An opportunity of being heard is ‘sine qua non’ of
every order/decision involving termination of services of Government
employees, besides, reasons justifying so. From Perusal of the pleadings
on record, it appears that opportunity of being heard was not provided to
the applicant before issuing the impugned order. Our Country aims at the
goal of achieving a Welfare State where everyone has to be, as far as
possible looked after. The principles of natural justice are imbibed from
the Constitution itself. These are of paramount importance and nobody
can be condemned unheard. In AIR 2005 SC 2020; Canara Bank v. V.
Digitally signed by S K Sinha
DN: CN=S K Sinha, O=DoPT, OU= Central Administrative Tribunal, E=
S K [email protected] Reason: I am the author of this
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K. Awasthy , the Hon’ble Apex Court held as under:
"10. The adherence to principles of natural justice as recognized by
all civilized States is of supreme importance when a quasi-judicial body
embarks on determining disputes between the parties, or any
administrative action involving civil consequences is in issue. These
principles are well settled. The first and foremost principle is what
commonly known as audi alteram partem rule. It says that no one
should be condemned unheard. Notice is the first limb of this principle.
It must be precise and unambiguous. It should appraise the party

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determinatively the case he has to meet. Time given for the purpose
should be adequate so as to enable him to make his representation. In
the absence of a notice of the kind and such reasonable opportunity, the
order passed becomes whole vitiated. Thus, it is but essential that a
party should be put on notice of the case before any adverse order is
passed against him. This is one of the most important principles of
natural justice. It is after all an approved rule of fair play. The concept
has gained significance and shades with time. When the historic
document was made at Runnymede in 1215, the first statutory
recognition of this principle found its way into the 'Magna Carta. The
classic exposition of Sir Edward coke of natural justice requires to
'vacate interrogate and adjudicate". In the celebrated case of Cooper v.
Wandsworth Board of Works, [1963] 413 ER 414, the principle was
thus stated:
"Even God did not pass a sentence upon Adam, before he was
called upon to make his defence.
"Adam", says God, "Where art thou has thou not eaten of the
tree whereof I commanded thee that though should not eat".
Since then the principle has been chiseled, honed and refined,
enriching its content. Judicial treatment has added light and
luminosity to the concept, like polishing of a diamond."

12. In this regard, we are also fortified by a judgment of the
Division Bench of Hon’ble High Court of J&K at Srinagar, titled as
Showkat Ahmad Mir v. Union of India and ors. LPA no. 122/2018
decided on 22.09.2020.
13. Perusal of the order impugned reveals that the applicant has
been removed from service with effect from 17.08.2019 due to absence
from duty. The order of removal is undoubtedly retrospective in nature
which again is bad in law. To this effect, we are fortified by the judgment
passed by the Jharkhand High Court in case titled as Union of India
through East Central Railways v. Central Administrative Tribunal
and anr.,ShyamBabu Kumar v. State of Bihar and ors.
14. Law is also no more res integra as has been held by the
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Hon’ble Supreme Court in the judgment tiled as Satyendra Singh v.
State of U.P. and anr. Passed in SLP no. 29758/2018 on 18.11.2024
wherein their lordships have held that “even in an ex-parte enquiry it is
the duty of the enquiry officer to examine the evidence presented by the
department to find out whether the unrebutted evidence is sufficient to

// 15 // OA/495/2021

inflict major punishment.” Their lordships further held that “an
enquiry officer acting in a quasi-judicial manner is in the position of an
independent adjudicator. He is not supposed to be a representative of
the department/disciplinary authority/Government.” The Hon’ble Apex
Court further held that “even in an ex-parte enquiry, it is sine qua non to
record the evidence of the witnesses for proving the charges as such
relating on the law cited above we are of the firm view that enquiry
proceedings conducted against the appellant pertaining to the charges
punishable with the major penalty as inflicted upon the petitioner are
totally vitiated and non estt in the eyes of law since no oral evidence
whatsoever was recorded by the department in support of the charges”.
15. The present case attracts applicability of principles of natural
justice and violation of Rule 359 of Police Rules, 1960. Law is settled that
when an enquiry has not been done in the matter as prescribed under Rule
359 of the J&K Police Rules, the order does not survive in the eyes of law
as has been held in the case titled as Mukhtar Ali Lone v. State of J&K
and ors. reported in 2015 (4) JKJ 183 as also the law laid down by the
Division Bench of the Hon’ble High Court of Jammu and Kashmir
reported in 2012 (3) JKJ 566, State of J&K v. Asger Khan (Constable)
as also in 2011 (1) JKJ 31 and Malook Khan v. State of J&K and ors.
as also in 2008 (3) JKJ 439. In this view, we are also fortified by the
judgment of the Hon’ble Apex Court in case titled as Satwati Deswal Vs.
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State of Haryana reported in 2009 (7) Supreme 229 wherein their
lordships have held that where termination is in violation of procedure
prescribed, the High Court has the discretionary power to interfere under
the Writ Jurisdiction.

// 16 // OA/495/2021

16. On perusal of the entire material on record and the pleadings
of the parties coupled with the submissions made at Bar, we are of the
opinion that the impugned order, having been passed in breach of the
statutory rule i.e. Rule 359 of the Police Rules, 1960 as also in violation
of principle of natural justice, cannot withstand the test of law as
mentioned in the case titled as SBI v. Ajay Kumar Srivastava 2021 (2)
SCC 612, relevant paragraphs whereof are extracted as under:
“24. It is thus settled that the power of judicial review, of the
constitutional courts, is an evaluation of the decision making process
and not the merits of the decision itself. It is to ensure fairness in
treatment and not to ensure fairness of conclusion. The
court/tribunal may interfere in the proceedings held against the
delinquent if it is, in any manner, inconsistent with the rules of
natural justice or in violation of the statutory rules prescribing the
mode of enquiry or where the conclusion or finding reached by the
Disciplinary Authority is based on no evidence. If the conclusion or
the finding be such as no reasonable person would have ever reached
or where the conclusions upon consideration of the evidence reached
by the Disciplinary Authority or perverse or suffer from patent error
on the face of record or based on no evidence at all, a writ of
certiorari could be issued. To sum up, the scope of judicial review
cannot be extended to the examination of correctness or
reasonableness of a decision of authority as a matter of fact.
25. When the disciplinary enquiry is conducted for the alleged
misconduct against the public servant, the court is to examine and
determine:
(i) whether the enquiry was held by the competent authority;
(ii) whether rules of natural justice are complied with;
(i) whether the findings or conclusions are based on same
evidence and authority has power and jurisdiction to reach
finding of fact or conclusion.”

17. We are also fortified by the judgment of the Hon’ble Apex
Court titled as State of Mysore v. M.H. Bellary AIR 1965 SC 868, State
of U.P. vs. Babu Ram Upadhya AIR 1961 SC 75, Suraj Prasad vs.
Northern Railway AIR 1967 Allahabad 457.
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18. As far as an FIR against the applicant is concerned, we are
also fortified by the judgments in the case titled as Anuj Kumar vs. State
of Rajasthan &Ors., reported in 2025:RJ-JD:48337 and in the case
titled as Lokendra Singh Kushwah vs. the State of Madhya Pradesh,

// 17 // OA/495/2021

reported in 2026 MPHC GWL:160043 wherein, the Hon’ble Court held
that mere registration of an FIR cannot be a ground for termination
of service; rather, the services could only have been terminated if the
competent Court had convicted the petitioner in the criminal case.
19. Undoubtedly, the police force is a disciplined force and it
shoulders the great responsibility of maintaining law and order and public
order in the society. People repose great faith and confidence in the police
force and the force must be worthy of that confidence.
20. Director General of Police to sensitize the officials on the
procedure to be followed in a departmental enquiry and on deciding the
matter, especially of removal/termination/discharge from service after
holding of enquiry.
21. We belong to the largest democracy of the world, which is
governed by the mighty Constitution and nobody is above the law
whosoever, be it high or low, and we do not belong to any colonial
regime. There is equality before the law which has to be maintained as we
are bound by the Constitution of India. Behaving like monarch is against
the basic ethos of our constitution.
22. It is not in dispute that the applicant was a member of the
disciplined force and any sort of willful absence necessitated proceedings
as warranted under the law but what was incumbent upon the respondents
was to have strictly adhered to the rules of natural justice and the mandate
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of the Constitution in letter and spirit, and the Police Manual so as to
leave no chance or occasion for the delinquent employee to make a
complaint with respect to infraction of the Constitutional mandate before
the Court. Viewed in the context as above, the order impugned being

// 18 // OA/495/2021

contrary to law and reason cannot be upheld. As the corollary, the O.A. is
allowed in the below mentioned terms –
a. The impugned order bearing No.1626 of 2019 dated
07.12.2019 is set aside and quashed.
b. The respondents are directed to conduct an enquiry
afresh in accordance with the rules and regulations
occupying the field after affording ample opportunity
of hearing to the applicant. The process should be
completed preferably within a period of four months
from the date a copy of this judgment is served upon
the respondents.
c. It is made clear that the quashment of the impugned
order shall not entitle the applicant to claim any
salary/remuneration for the period he was out of
service.
d. However, it is directed that the intervening period of
absence from service shall be decided by the
respondents on the basis of findings of the inquiry, if
held, only for continuity of service for the said period
and the same would be counted only for his post-retiral
benefits in accordance with rules.
23. Before parting we would also like to add that the Enquiry
Officer while conducting the enquiry shall not be influenced by any
observation made in this judgment.
24. This OA No.495/2021 is, accordingly, disposed of. Record, if any,
shall be returned to the learned counsel for the respondents. Parties to bear
their own costs. Interim directions, if any, shall stand vacated.
Digitally signed by S K Sinha
DN: CN=S K Sinha, O=DoPT, OU= Central Administrative Tribunal, E=
S K [email protected] Reason: I am the author of this
document Location:
Date: 2026.10.27 10:51:00+05'30' Foxit PDF Reader Version: 2025.3.0
Sinha
Sd/- Sd/-
(PRASANT KUMAR) (M.S. LATIF)
MEMBER (A) MEMBER (J)
sks/-