1. By means of present petition, the petitioner has questioned order of his dismissal from service passed by respondent no. 4 in exercise of powers under rule 334, 335 of the j&k police manual and rule 128 of the jammu and kashmir civil service Regulations.

2. Facts in brief are that the petitioner came to be appointed as Guardsman in the year 1987 and subsequently was re-designated as a Constable in the year 1989. It is contended by the petitioner that while performing election duties in District Kupwara, because of hard duties for day and night, he fell ill on 29.04.2004, as such, he could not proceed for his duties at Anantnag. It is contended by the petitioner that he was not provided any medical facilities and it was only after his wife and daughter came to the Battalion Headquarters that he was taken to a Doctor where after he was advised complete rest. Consequent to his absence, the petitioner was placed under suspension vide order dated 10.05.2004. As no inquiry was conducted in the matter, the petitioner appears to have approached this Court through a writ petition whereby directions were sought to the respondents for concluding the enquiry against the petitioner, which petition was disposed of on 02.08.2005 with directions to the respondents to conclude the enquiry against the petitioner within a period of six months and convey the decision to the petitioner. It was also directed that meanwhile the subsistence allowance as per rules, be also paid to the petitioner.

3. It is stated by the petitioner that after receipt of the order of this court, no enquiry was conducted and order impugned was issued whereby the petitioner was dismissed form service. It is in these circumstances that petitioner has ap­proached this court through the medium of present writ petition.

4. Respondents have filed their reply wherein it has been stated that Show Cause Notice was issued to the petitioner but as he did not reply the same, as such, the respondents were left with no option but to issue the impugned order. It is further contended that petitioner was a habitual absentee and had been awarded punishments also on various occasions for remaining unauthorized absent.

5. I have heard learned counsel for the parties and perused the record.

6. The contention raised by the petitioner is that the absence from duty was not a willful act on his part but due to the circumstances beyond his control as he fell ill during the course of performing the election duty. He has placed on record the OPD Ticket of Health department Kashmir bearing No. 757722, issued on 30th of April'04. Another prescription issued by one Dr Khursheed Ahmad Wani, General Practitioner, District Hospital, Baramulla, dt. 30th of May'04, has also been placed on record as Annexure A, to show that the petitioner was under treatment and it was due to the said reason, he could not attend his duties. The respondents, however, have taken a stand that the said certificates/OPD slips are forged and the petitioner was not suffering from any disease for which he had to undergo the treatment.

7. The further stand taken by the respondents, as noticed above, is that after the petitioner failed to resume his duties, a final notice was issued to the petitioner and the same was published in the daily newspaper. The petitioner, through the medium of said notice was asked to explain his position within seven days of issue of this notice but he failed to do so. Under these circumstances, the respondents were left with no option but to pass the order impugned removing the petitioner from service.

8. A perusal of the record produced by the respondents, however, shows that the Commandant 1st Bn. Auxiliary Police, Srinagar, issued a final notice dt. 25th of July'05, whereby the petitioner was given seven days time after the receipt of the said notice to explain his position, failing which it was observed that order of discharge would be passed. The said notice was published in Srinagar Times on 28th of July'05. The petitioner has responded to the said notice and submitted his reply along with supporting documents on 2nd of Aug'05, which is well within the stipulated period as prescribed in the above notice. Therefore, the stand of respon­dents that the petitioner failed to file any reply to the final notice, is not based on the record and, thus, cannot be accepted.

9. It be further noticed that in ground (g) of the writ petition, the petitioner has specifically pleaded that he preferred an appeal before the Dy. Inspector General of Police, against the order impugned, which is still pending. It is further pleaded in the said paragraph that the Commandant concerned did not furnish the relevant record to the appellate authority pertaining to the enquiry. It has been stated that no enquiry was conducted in the matter. The respondents have not denied this assertion of the petitioner regarding pendency of his appeal before the appellate authority. It has only been stated that enquiry was conducted against the petitioner. Even the record produced by the respondents shows that the petitioner has filed an appeal before the appellate authority on 15th of Oct'05.

10. Absence from duty is not a per se misconduct and would not amount to an automatic dismissal from service. In case, an employee against whom.there is an allegation of having remained unauthorized absence, shows a cause for his/her absence, the employer has to provide him/her a proper opportunity to show that the cause shown by the said employee is based on some facts. In case, this is not done and some punitive action is taken by the employer, the said act on its part would be violative of principles of natural justice. Before taking action, the em­ployer has to reach to a conclusion that the act of the employee is a voluntary act on his/her part to abandon the service. It is only under these circumstances, the relationship between the employer and employee would come to an end. The failure to perform the duty on the part of an employee must be with actual or imputed intention on his part. Temporary absence is not ordinarily sufficient to constitute an abandonment of office. Reliance in this regard can be placed on the judgment of the Apex Court reported as G.T. Lad v. Chemical & Fibres of India Ltd, AIR 1979 SC 582. What has been observed in this regard may be noticed as under:-

".....According to Black's Law Dictionary 'abandonment' when used in relation to an office means 'voluntary relinquishment'. It must be total and under such circumstances as clearly to indicate an absolute relinquishment. The failure to perform the duties pertaining to the office must be with actual or imputed intention.., on the part of the officer to abandon and relinquish the office. The intention may be inferred from the acts and conduct of the party, and is a question of fact. Temporary absence is not ordinarily sufficient to constitute as 'abandonment of office'.

11. In the present case also, a perusal of the pleadings as also the record produced by the respondents shows that the act of the petitioner cannot be termed to be such which would fall within the definition of term 'abandonment of service'. This is clear from the fact that when the petitioner after his placement under suspension was not allowed the subsistence allowance and no enquiry was being conducted against him, he moved this court and filed a writ petition seeking release of subsistence allowance and conclusion of enquiry, if any, by the respondents.

Petitioner even had represented before the respondent No. 4 and submitted his explanation that he remained absent from duty due to the reason that he fell ill and was under treatment. Along with the representations submitted by him, he had also annexed the certificates issued by the doctors concerned. The petitioner had even responded to the final notice well within the prescribed period. Taking into consideration all these facts, inference of abandonment of service cannot be drawn against the petitioner.

12. The further fact which already stands indicated above is that the petitioner has already filed an appeal before the competent authority against the order impugned, which has still not been decided. This as per the petitioner is due to the fact that no proper enquiry was conducted against him and the record of the same was not submitted-to the appellate authority. Taking note of all these facts, the plea of the petitioner that no proper enquiry was conducted against him and he has been condemned unheard has to be accepted. Even the findings recorded by the enquiry officer which have been placed on the record file produced by the respondents nowhere show that the petitioner was given any opportunity to lead evidence in defence or to cross-examine any witness. The respondents while Baking action against the petitioner and passing the order impugned has merely relied upon the past conduct of the petitioner. The action of respondents, under these circum­stances, cannot be only termed as arbitrary, unreasonable but an absolute negation of the principles of natural justice as the said action has been taken without affording any opportunity of hearing to the petitioner and without holding any proper enquiry against him.

13. For the reasons mentioned above, order impugned is quashed and the petition is disposed of with the direction that the respondents shall hold a fresh enquiry into the matter and pass appropriate orders in accordance with the law after affording proper opportunity of hearing to the petitioner. This would be done within a period of two months from the date, a copy of this order is made available to respondent authorities by the petitioner. The petitioner's status during the said period would remain as it was before passing of the order impugned dt. 18th of Aug' 05. The entitlement of the petitioner for reinstatement along with other consequential benefits minus monetary benefits would depend upon the outcome of enquiry and appropriate orders to be passed by the respondent authorities.

14. The record viz. service book and file of the petitioner be returned.

Disposed of accordingly.