J&K Police Constable’s Removal For Absence Quashed Over Rule 359 Breach; Fresh Inquiry Ordered

The applicant, a J&K Police constable appointed in 2012, was transferred from Kargil to Srinagar but did not report after being arrested in connection with an FIR under Sections 8/20 of the NDPS Act.

After his release, he was permitted on several occasions to resume duty under suspension, but the respondents alleged that he remained absent for 267 days and did not participate in the departmental inquiry.

The Senior Superintendent of Police, Srinagar, removed him from service by order dated 7 December 2019, retrospectively effective from 17 August 2019.

The applicant challenged the order, alleging non-compliance with Rule 359 of the J&K Police Rules and denial of the inquiry report and a proper opportunity to respond.

The respondents maintained that he had been repeatedly given opportunities to report and participate.

Rule 359 of the J&K Police Rules, 1960 prescribes the procedure for departmental inquiries, including notice of the alleged misconduct, an opportunity to contest the evidence and present a defence, and observance of the safeguards applicable to major penalties.

Article 311 of the Constitution, read with the corresponding protection referred to in Rule 359(11), requires a reasonable opportunity to show cause before dismissal or removal, subject to specified exceptions.

The principles of natural justice, particularly audi alteram partem, require adequate notice and a meaningful opportunity to respond before an adverse order with civil consequences is passed; the Tribunal relied on Canara Bank v. V.K. Awasthy.

Judicial review of disciplinary action examines, among other matters, compliance with natural justice and prescribed procedure, as stated in SBI v. Ajay Kumar Srivastava.

The Tribunal also relied on Satyendra Singh v. State of U.P. for the proposition that even in an ex parte inquiry, the department must establish the charge through evidence.

It further cited authorities for the proposition that mere registration of an FIR does not, by itself, justify termination.

The Tribunal considered that the respondents’ account showed repeated directions and opportunities to report, but concluded from the record that the applicant had not been afforded the requisite opportunity before the removal order was passed and that the inquiry did not satisfy Rule 359 and natural justice.

It also objected that the removal order was issued on 7 December 2019 but made effective from 17 August 2019.

The Tribunal treated the pending FIR as distinct from proof of misconduct warranting removal and noted that the applicant had not been convicted; it therefore held that the FIR could not independently sustain termination.

Although the respondents alleged prolonged absence, the Tribunal did not determine the merits of that charge and instead directed a fresh inquiry.

It directed the respondents to conduct a fresh inquiry in accordance with the applicable rules, provide the applicant an opportunity of hearing, and preferably complete the process within four months of service of the judgment.

The quashing did not entitle the applicant to salary for the period he was out of service; treatment of the intervening period was left to the respondents, based on the inquiry findings, for continuity of service and post-retiral benefits in accordance with the rules.

The inquiry officer was directed not to be influenced by observations in the judgment, and the parties were left to bear their own costs.