Research › Search › Judgment

J&K High Court · body

2001 DIGILAW 157 (JK)

Fayaz Ahmad Mir v. State Of J. &K.

2001-07-30

S.K.GUPTA

body2001
1. The petitioner, Fayaz Ahmad Mir, was a recruit constable in Jammu and Kashmir Police, appointed in District Police, Baramulla, to be on probation for a period of three years, vide Order No. 581 of 1991 dated: 11-07-1991. While undergoing basic training at Police Training College, Udhampur, petitioner allegedly absented himself unauthorisedly from 07-04-1992 and failed to report for duty till 01-10-1992. A regular enquiry was conducted against the petitioner and the impugned order dated: 06-11-1992 was passed discharging him from service. The discharge order came to be challenged by the petitioner on the ground that it was not a discharge simpliciter, but ex-facie stigmatic and punitive, which could not have been passed with out holding a regular enquiry and giving an opportunity of hearing to the petitioner. The regular enquiry though conducted in this case, but without following the procedure as envisaged under rule 359 of the Jammu and Kashmir Rules (hereafter refers to as Police rules). 2. Respondents in their counter pointed out that petitioner was appointed a recruit constable by order dated: 11-07-1991 in District Police, Baramulla and deputed to undergo training at PTC, Udhampur alongwith other recruits. But he absented himself from the training with effect from 7th April, 1992 and remained unauthorisedly absent continuously till 01-10-1992, resulting into passing of an order of discharge from service on 06-11-1992 because of unauthorised absence preceded by a departmental enquiry. 3. Mr. S.H. Thakur appearing for the petitioner submitted that the order of discharge on account of unauthorised absence cast stigma on the petitioner, which is a punishment as contemplated under rule 334 of the Police Rules, therefore, it could not be passed without holding an enquiry, in case it is held and afforded an opportunity of being heard, which though done in this case, but without following the procedure for a regular enquiry in case of a police officer provided in Rule 359 of the Police Rules and according to him, the order impugned is bad in law and deserves to be quashed. It is also contended by Mr. Thakur that respondent No. 3, before passing an order of discharge of the petitioner from service, was obliged to observed the principles of natural justice. 4. Mr. It is also contended by Mr. Thakur that respondent No. 3, before passing an order of discharge of the petitioner from service, was obliged to observed the principles of natural justice. 4. Mr. M.I. Qadiri, learned senior AAG appearing for the State, on the contrary submitted that the petitioner stood discharged from service during his probation on the basis of his unauthorised absence and which provided basis and induced for the view taken by respondent No. 3 that he would not likely to prove an efficient police office in the department. According to Mr. Qadiri, no enquiry was required to be conducted with regard to the unauthorised absence of the delinquent recruit constable in the light of Rule 359(10) of the Police Rules, but still a regular enquiry in following the procedure laid down in Rule 359 of the Police Rules was conducted resulting into discharge order of the petitioner penultimately on 06-11-1992. It was further admitted by Mr. Qadiri that the order does not amount to punishment and merely because of unauthorised absence of the petitioner prompted for passing the order of discharge. It is an order of discharge simpliciter passed during the probationary period. 5. Admitted case of the parties is that the petitioner was a recruit constable, who had neither completed training nor the probation prior to absenting himself unauthorisedly from duty. The petitioner, because of his continued unauthorised absence from duty, was discharged from service. 6. Law relating to termination of services of an employee on probation is well settled. If any order terminating services of a probation is an order of termination simpliciter without attaching any stigma to the employee and if the said order is not an order by way of punishment, the provisions of Article 311 can not be attracted. No enquiry, in such an event, is required to be held against a probationer employee whose services were terminated by an innocuous order without casting any stigma on him. So the first question for determination is whether the order of discharge impugned herein cast a stigma on the name of the petitioner with penal consequences other than termination of service. No enquiry, in such an event, is required to be held against a probationer employee whose services were terminated by an innocuous order without casting any stigma on him. So the first question for determination is whether the order of discharge impugned herein cast a stigma on the name of the petitioner with penal consequences other than termination of service. It is profitable to reproduce order of discharge formulated by respondent No. 3 in verbiage, which reads as under:- 1- Whereas, recruit constable Fayaz Ahmad No. 820/B of DPL Baramulla who deputed from DPL Baramulla to undergo eleventh CRTC training course at PTC Udhampur vide PHQ deputation order No. 1060/91 dated: 07-12-1991 commencing from 11 Nov., 1991 and relieved on 23-10-1991 alongwith other recruits vide above quoted order. 2- Whereas, constable Fayaz Ahmad No. 820/B attended PTC, Udhampur for the said training course and after some time he preceded on three days Casual leave + four days station leave from PTC Udhampur vide DD report No. 25 dated: 31 -03-1992 of PTC Udhampur and was due to the report back on 07-04-1992 (F.N) but the said trainee constable Fayaz Ahmad No. 820/B did not report at the said institution well in time and accordingly he was marked absent there vide DD report No. 37 dated: 07-04-1992 (F.N) of PTC Udhampur. Subsequently the said trainee constable Fayaz Ahmad No. 820/B did not bother to report at PTC and remained continuously absent till 15-04-1992. On this gross negligence the said constable was reverted back from PTC to his parent district vide Director PTC Udhampurs order No. 438 of 1992 dated: 15-04-1992 with immediate effect. 3- Whereas, recruit constable Fayaz Ahmad No. 820/B did not report in this district till 01 -10-1992, a signal was flashed to him vide office signal No. Estt/92-9635-36 dated: 01-10-1992 through S.H.O.P/S Boniyar to report in DPO Baramulla otherwise action under rules will be taken against him on receipt of the message recruit constable Fayaz Ahmad No. 820/B attended DPO Baramulla on 08-10-1992 with a request that he may be allowed to resume his duties in this behalf (sic) Dy. SP (Hqrs) Baramulla was directed to hold a departmental enquiry against him. 4- Whereas, Dy. SP (Hqrs) Baramulla held a departmental enquiry against the said recruit Constable Fayaz Ahmad No. 820/B and submitted his finding to the under signed for formal orders. SP (Hqrs) Baramulla was directed to hold a departmental enquiry against him. 4- Whereas, Dy. SP (Hqrs) Baramulla held a departmental enquiry against the said recruit Constable Fayaz Ahmad No. 820/B and submitted his finding to the under signed for formal orders. I perused the enquiry file and issued a show cause notice to the recruit Constable Fayaz Ahmad No. 820/B vide this office endstt. No. 10392/Estt dated: 29-10-1992 with the direction that why he should not be discharged from service. On the above mentioned charge. Reply submitted by the delinquent Constable could not substantiate allegations levelled against him. 5- Whereas, he was appointed as constable vide this office order No. 581/91 dated: 11-07-1991 with effect from 12-07-1991 and put on probation for a period of three years. Under rules the constable was bound to maintained proper discipline and to observe regularly and punctuality in the discharge of duties which in the instant instance he has filled to do so much so, did not bother to report his duties. Now therefore, I S.H. Sahai-IPS Superintendent of Police Baramulla after having gone through the case and applied my mind to the matter do not consider that the recruit constable will be likely to prove an efficient police officer in the department and do hereby discharge the recruit constable Fayaz Ahmad No. 820/B from services with immediate effect and period of absence w.e.f. 15-04-1992 (F.N)to 08-10-1992 treated as diesnon. However he is entitled to draw the emoluments for the period he remained present in DPO i.e. 08-10-1992 upto the date for finalization of departmental enquiry." 7. Whether any express words in the order of discharge are stigmatic or cast as persons against the conduct of employee, the entirety of circumstances preceding or attendant on the impugned order must be examined and over-riding test will always be whether misconduct is a mere motive or is the very foundation of the order. I find, if instead of making simple order of discharge of the probationer and branding him as a dishonest or incompetent officer, it would involve punishment and attract Article 311 (2). (Shamsher Singh Vs. State of Punjab, 1974 SC 2192). I find, if instead of making simple order of discharge of the probationer and branding him as a dishonest or incompetent officer, it would involve punishment and attract Article 311 (2). (Shamsher Singh Vs. State of Punjab, 1974 SC 2192). Adverting to the impugned order referred to supra, the question arises as to whether the express words that "after having gone through the case and applied my mind to the matter do not consider that the recruit constable will be likely to prove an efficient police officer" cast stigma or imputation on the conduct of the recruit constable. 8. An identical matter came up for consideration before this court in Abdul Rehman Mir Vs. State, 1997 SLJ 350 and in deriving support from the Supreme Court judgment in State of Haryana Vs. Jagdish Chander, 1995 (2) SCC 567, it was held as under:- "7. In the present case respondent No. 3 had admittedly discharged the petitioner under rule 187 and had further stated in the order that he was "unlikely to become a good police officer." This by itself attaches a stigma to him. An absence from duty need not necessarily render a police official unfit for the service in all events and circumstances. Such absence can be explained away also in certain causes and yet the official may be found fit for service. But, where an unauthorised absence is taken as basis to determine the likelihood or unlikelihood of the police official, to become good official or a bad official it certainly attaches a stigma where the official is discharged specifically on the ground that he was not likely to become a good police official." 9. In V.P Ahuja Vs. State of Punjab and others, AIR 2000 SC 1080, it was found as under: "A probation, or a temporary servant, is also entitled to certain protection and his service cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principles of natural justice." 10. In the like manner, unauthorised absence of the petitioner may be considered to be the motive or the influencing factor for passing an order of discharge, but it can never be held to an order of punishment. Mr. In the like manner, unauthorised absence of the petitioner may be considered to be the motive or the influencing factor for passing an order of discharge, but it can never be held to an order of punishment. Mr. Qadiri in support of his arguments that no enquiry was required as petitioner was a probationer and undergoing probation period and his order of discharge from service was a termination order simpliciter without any stigma of punishment attached to it, relied upon a judgment of the Division Bench of this Court in Ali Mohd Vs. Chairman N.A.C., Udhampur, 1979 J&K LR(10) 51, wherein it was held that: "14. Turning now to the case of petitioner Mulkh Raj, he was removed from service on the grounds of absence from duty, as well as, unsuitability for service. We are not inclined to accede to proposition, that unsuitability for service constitutes a stigma to attract the provisions of subsection 2 of th Section 126 of the State Constitution. We are fortified in taking this view by a Supreme Court in Dr. R.C.M. Pillai Vs. Indian Institute of Technology, (1971 S.L.R. 679), wherein it was held: "It is well settled that a probationer or a temporary servant can be discharged if it is found that he is not suitable for the post which he is holding. This can be done without complying with the provisions of Article 311 (2) unless the services are terminated by way of punishment, suitability does not depend merely on the excellence or proficiency in work. There are many factors which enter into consideration or confirming a person who is on probation. A particular attitude or tendency displayed by an employee can well influence the decision of the confirming authority while judging his suitability or fitness for confirmation." No fault can, therefore, be found with termination of service of this petitioner as well." 11. Mr. Qadiri to further support his contention referred to a case Ganganagar Zila Dugdh Utpadak Sahkari Sangh Ltd. and another Vs. Priyanaka Joshi and another, AIR 1999 SC 2363, wherein it was held that: "In our opinion, the Division Bench of the High Court was not correct in the conclusion which it arrived at. It is not in dispute that when the order dated: 30th November, 1994 was passed, the respondent was still on probation. Priyanaka Joshi and another, AIR 1999 SC 2363, wherein it was held that: "In our opinion, the Division Bench of the High Court was not correct in the conclusion which it arrived at. It is not in dispute that when the order dated: 30th November, 1994 was passed, the respondent was still on probation. The reason for passing of said order appears to be the absence of the respondent from duty. In the order of appointment, it was clearly stipulated that the respondents services could be terminated during the probationary period if the services were unsatisfactory. When judging the performance of a person if the services are terminated during the period of probation, obviously there has to be a reason for such termination. If the services are terminated during the probationary period without any reason whatsoever, it is possible that such an order may be impugned on the ground that it has been passed arbitrarily. On the other hand, when there is a reason for terminating the services during the probationary period and the order terminating services is worded in an innocuous manner, we do not see any force in the contention that such an order has to be regarded as by way of punishment." 12. Applying the ration of the judgment in Abdul Rehman Mirs case (supra), which on all fours covers the issue involved in this case, there is no escape in reaching a conclusion that the words expressed in the order of discharge that do not consider that the recruit constable will be likely to prove an efficient police officer attach a stigma and imputation on the conduct of the recruit and is an order of punishment. In such a case, provisions of Article 311 of the Constitution corresponding to Section 126 of the State Constitution are attracted warranting a regular enquiry under Rules and giving an opportunity of hearing to the petitioner in compliance to the principles of natural justice. 13. Where the employer chooses to hold an enquiry, in case of discharge a probationer from service, into his alleged misconduct, or inefficiency or termination of services is by way of punishment, the employee is entitled to protection of Article 311 (2) of the Constitution. In the instant case, the order of discharge of recruit constable is preceded by a regular enquiry held under Rule 359 of the Police Rules. In the instant case, the order of discharge of recruit constable is preceded by a regular enquiry held under Rule 359 of the Police Rules. Rule 359 lays down the procedure for conducting enquiries. 14. Mr. S.H. Thakur, petitioners advocate, vehemently urged that the order of discharge on account of unauthorised absence attaching a stigma on the petitioner, which is a punishment within the meaning of Rule 359 of the Police Rules necessitates the holding of an enquiry into his conduct and giving an opportunity of being heard. His further contention is that the enquiry held in this case was not in compliance to the procedure laid down under Rule 359 of the Police Rules as neither an opportunity of hearing was given to the petitioner nor petitioner associated with any such enquiry and as a consequence, the order of discharge of the recruit constable from service is liable to be quashed. 15. Rule 359 of the Jammu and Kashmir Police Rules provides that following procedure to be followed in departmental enquiries: "359. PROCEDURE IN DEPARTMENTAL ENQUIRIES :- (1) The following procedure shall be followed in departmental enquiries:- (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 inquiry 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 inquiry 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 inquiry 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. (2) The officer conducting the inquiry 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 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 proof of the accusations 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 or 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 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 recommended his 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 a summary of the facts as to which they will testify. The enquiry 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. 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 following 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 inquiry 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 not 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. (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 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 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 in rank, as the case may be shall be final." 16-;- The enquiry, as is manifested from the record, was conducted by Dy. SP (Hqrs) Baramulla (Respondent No. 4). The first step to be taken by the Enquiring Officer provided under Rule 359 is that he shall give a summary of allegations to the accused police officer in respect of which evidence is to be recorded. In case the accused officer admits the alleged misconduct, the Enquiring Officer may forthwith record a final order in case it is within his competence or forward a finding to an officer empowered to decide the case. Where the police officer does not plead guilty to the Accusation, the enquiry officer shall proceed but record such evidence orally or documentary in proof of the accusations as essential to support the charge. The witnesses shall be examined in presence of the accused police officer associated with the enquiry. Where the police officer does not plead guilty to the Accusation, the enquiry officer shall proceed but record such evidence orally or documentary in proof of the accusations as essential to support the charge. The witnesses shall be examined in presence of the accused police officer associated with the enquiry. After recording the evidence to support the accusations, the Enquiring Officer, if considers that the allegations are not substantiated, may discharge himself if empowered or recommended his discharge to the Superintendent of Police or other empowered officer and in case otherwise proceed to frame a charge, explain to the accused officer requiring him to reply and also state the defence witnesses whom he proposes to examine, may be given time upto 48 hours to make a list of witnesses alongwith summary facts to be deposed by them. The Enquiring Officer shall record the statement of the defence witnesses in presence of the accused and also receive the documentary evidence that may be filed by the accused police officer. The Enquiring Officer shall then pass an order of punishment or acquittal, if empowered to do so, or recommend that same with his finding to the officer having the requisite power. A reasonable opportunity of showing cause orally and also in writing against the action proposed to be taken in regard to him shall be given to the accused police officer, as contemplated by the Rule. 17. Now the question arises whether the Enquiring Officer adhered to the procedure envisaged in Rule 359 of the Police Rules in conducting enquiries, which are mandatory in character. While going through the annexure appended with the writ petition by the petitioner, it is indisputably gatherable from the reply to the charge sheet dated: 14-10-1992 (annexure-PB appended to the writ petition) by the recruit constable, Fayaz Ahmad Mir, submitted to the Enquiring Officer that the summary of allegations was given to the petitioner to which he pleaded not guilty, the first steps in enquiry to be taken by the Enquiring Officer. It is further borne out from paras 6, 7 and 8 of the reply to show cause furnished by the petitioner on 30-10-1992 (annexure-P 10 appended with the writ petition), with regard to the proposed action to be taken in regard to him, that after the charge sheet was given, he replied in details with full proof and evidence, besides unfolding active association in the enquiry proceedings. The relevant paras from the reply to show cause notice dated: 30-10-1992 read as under:- "6. That till the date of receipt of charge sheet from Dy. SP H/Q, 1 was regularly enquiring from the D.P.O./D.P.L. regarding the receipt of my papers from PTC Udhampur and remained present either in DPL or DPO Baramulla. But I was once ever allowed to mark my presence in DD/ DPL Baramulla or any other place. 7. That accordingly I was given summary of allegations to which I pleaded as not guilty. 8. That then a charge sheet was given to me by Dy. SP H/Q which I replied in detail with full proof and evidence." 18. The stand taken by the petitioner that procedure laid down in Rule 359 of the Police Rules for holding a regular enquiry against the accused police officer has not been followed by Enquiring Officer is totally belied by his own reply firstly to the charge sheet and thereafter to the action proposed to be taken in regard to the petitioner. There has been a full dressed enquiry conducted by the Enquiring Officer into the misconduct of the recruit constable on account of his unauthorised absence, which is strictly in accordance with the procedure provided under Rule 359 of the Police Rules. It is also found from the record that the recruit constable participated in the enquiry and was given full opportunity of hearing in observance of principles of natural justice. The contention raised by the petitioners advocate, Mr. Thakur, about the deviation from the mandatory procedure by the Enquiring Officer does not merit acceptance being ipsi-dixit of the petitioner and nothing on the record to show. It may not be out of place to mention that the result of enquiry cannot be challenged by way of a writ petition for which the remedy is available under Police Rules by way of appeal and revision. 19. It may not be out of place to mention that the result of enquiry cannot be challenged by way of a writ petition for which the remedy is available under Police Rules by way of appeal and revision. 19. The pith and substance of enquiry is that the delinquent officer must be given a reasonable opportunity of being heard and the order is justified. The Court is concerned to determine whether the enquiry held by an authority competent in that behalf is according to the procedure prescribe in that behalf and whether the principles of natural justice are not violated. 20. Taking conspectus of overall consideration, I do not find any infirmity in the order of discharge, dated: 06-11-1992, of the recruit constable from service passed by respondent No. 3 after full dressed enquiry as contemplated by Rule 359 of the Police Rules in compliance to the mandatory procedure laid down therein and observance of principles of natural justice so as to warrant interference of this Court. This petition is, therefore, dismissed without any order as to costs.