Second notice mandatory for punitive action: HC

‘42nd Amendment Not Applicable To JK’


Srinagar, Jan 11: Jammu and Kashmir High Court has termed the order of the disciplinary authority, terminating the services of the police constable as illegal. The court has censured the police department for not sending second notice to the delinquent constable driver.
 Court of Justice Muhammad Yaqoob Mir while disposing of a petition challenging the termination order of constable Parvaiz Ahmad whose services were terminated by the SSP Kulgam under Rule 335 of Jammu and Kashmir Police Manual, ruled that it was mandatory for the disciplinary authority to issue second notice to the said constable.
 “For want of second notice proposing punishment in terms of Rule 3599(11)(2), the termination order is illegal” the Court held.
 Underlining the reasons for justification of illegality of the termination order, the court said, “After 42nd amendment, right to show cause against penalty has been taken away but the amendment has not been so far applied to the state of Jammu and Kashmir”.
 Setting aside the dismissal order of the constable, the court said there was no scope to issue a fresh notice as the constable was already dead.
 However, the court said; “the deceased constable is to be deemed in service until death but shall not be entitled to any monetary benefits for the same period”.
 The court granted eight weeks to the government for processing the case of petitioner for pensionary benefits.
 Parvaiz was working as constable driver with Jammu and Kashmir Police at Kulgam and had remained absent from January 20, 2008 to July 7, 2008 and had resumed duty on July 8, 2008. Afterwards he absented again from duty.
 Additional Superintendent of Police Kulgam after failing to secure presence of the constable submitted recommendation for his dismissal from services.
 The disciplinary authority SSP Kulgam subsequently issued a show-cause notice to the delinquent constable stating why action could not be initiated against him. But the constable did not respond.
 The SSP Kulgam as disciplinary authority dismissed the delinquent police officer for continuously remaining absent from January 11, 2009.
 Following the action of SSP Kulgam, the family of deceased had filed representation seeking pensionary benefits. However, no decision was taken on the representation by the concerned police authority.

Lastupdate on : Fri, 11 Jan 2013 21:30:00 Makkah time
Lastupdate on : Fri, 11 Jan 2013 18:30:00 GMT
Lastupdate on : Sat, 12 Jan 2013 00:00:00 IST

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