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J&K High Court · body

2001 DIGILAW 22 (JK)

Suriya Khan v. State Of J. &K.

2001-02-04

V.K.JHANJI

body2001
1. Petitioner by means of this petition filed under Article 226 of the Constitution of India, read with Section 103 of the Constitution of Jammu & Kashmir challenges the order No: 280 of 2000 dated: 22-02-2000, whereby the petitioner has been discharged from service with immediate effect. 2. In brief, the facts of the case are that vide order No: 1139 of 1999 dated: 05-06-1999 in pursuance of the approval recorded by the Police Headquarters vide order No: 1836 of 1999 dated: 27-03-1999, the petitioner was appointed as Constable. She was accordingly allotted Constabulary No. 829-D. After her appointment in Police Department as Constable, she was posted in District Police Lines, Doda. Vide order No: 280 of 2000 dated: 22-02-2000 the petitioner has been discharged from service on the ground that her retention in the Police Department would be highly prejudicial to the maintenance of discipline and integrity of the department. 3. The case of the petitioner is that the impugned order dated: 22-02-2000 passed against her is not an order simplicitor but has been passed on the basis of alleged misconduct on her part. Submission of the petitioner is that in such a situation, the competent authority was required to hold a regular enquiry under the provisions of the Jammu and Kashmir Police Manual and in absence thereof the order impugned in the petition cannot be sustained. 4. Upon notice of the petition, respondents in their objections have stated that the petitioner has been ordered to be discharged from service during the period when she was on probation. It is also stated that the petitioner has been discharged from service on the ground [hat she has contracted second marriage. It is further stated that order has been passed in exercise of powers vested under Section 126 of Jammu and Kashmir Constitution, read with Rule 187 of the Police Rules. 5. I have heard the learned counsel for the parties at length and gone through the record minutely. Rule 187 of the Police Rules provides that a constable who is found unlikely to prove an efficient police officer may be discharged by the Superintendent at any time within three years of enrolment. 6. 5. I have heard the learned counsel for the parties at length and gone through the record minutely. Rule 187 of the Police Rules provides that a constable who is found unlikely to prove an efficient police officer may be discharged by the Superintendent at any time within three years of enrolment. 6. Reading of the Rule shows that during the period of probation of three years if on the performance of the Constable, the Superintendent forms an opinion that he/she would not prove to be an efficient police officer, then he/she may be discharged from service. The law in regard to probationer is well settled. The probationer has no right to the post held by him and under the terms of his appointment, he is required to be discharged at any time during the period of his probation under the rules governing such cases. Probationers are discharged generally because they are not found ^to be competent or suitable for the post they held. In other words, if the temporary servant or a probationer is found to be satisfactory in his work, efficient or otherwise, eligible, it is unlikely that his service would be terminated and so before discharging such employee the authority may have to examine the question about the suitability of the said servant to be continued and take action bonafide in that behalf. The authority may also give(sic) employee to explain, if any complaints are made against him or his competence or suitability is disputed on some grounds arising from the discharge of his work, then such an enquiry should be held only for the purpose of deciding whether he should be continued or not, there is no element of pnitive proceedings in such an enquiry and if the authority comes to the conclusion that the incumbent is not suitable to be continued, it may simply pass the order of discharge by virtue of the powers conferred upon it by the contract or by the relevant rules and it would not be open to the concerned employee to invoke Article 311 of the Constitution of India or Section 126 of the Jammu and Kashmir Constitution, for the simple reason that the enquiry ultimately led to his discharge was held only for the purpose of deciding whether the power should be exercised in terms of the rules. But if a probationer is discharged on the ground of misconduct or inefficiency without a proper enquiry and without giving a reasonable opportunity of showing cause against the discharge in a given case it may amount to removal from service within the meaning of Article 311 of the Constitution of India and section 126 of the Jammu & Kashmir Constitution. 7. In State of Haryana Vs. Jagdish Chander, J.T. 1995 (2) SC 108, rule 12.21 of Police Rules which is in para meteria to Rule 187 of J&K Police Manual, came up for consideration before the Hon™ble Supreme Court. In the said case constable was discharged under rule 12.21 and in the order of discharge, the Superintendent of Police recorded that he is unlikely to prove an efficient police officer because he is habitual absentee, negligent to his duties and undisciplined. The Apex Court held that it is not an order of discharge but on the other hand, the Superintendent of Police considered the record and found him to be habitual absentee, negligent to his duty and undisciplined. The finding of habitual absentee and indiscipline necessarily cast stigma on his career and there would be an impediment for any future employment. The Apex Court further held that the principles of natural justice require that the delinquent should have been given an opportunity to explain the grounds on which the Superintendent of Police proposed to pass order of discharge. 8. The order in the present case, leaves no manner of doubt that the same was passed on the allegation that the petitioner has contracted a second marriage during the life time of her husband and also on the allegation that she is leading an immoral life and her retention in police department would be prejudicial to the maintenance of discipline and integrity of the department. The impugned order reads as under:- DISTRICT POLICE OFFICE DODA ORDER NO. 280 OF 2000 DATED: 22-02-2000 Recruit Lady Constable Suriya Khan No. 829/D was appointed vide this office order No. 1139 of 1999 dated: 08-06-1999 and is still on probation, presently posted in District Police Lines Doda. She is legally wedded wife of Mohd Shafi S/O Abdul Rehman R/O Rawalpora Srinagar and she has contracted a second marriage with Riaz Ahmad S/O Ghulam Hassan R/O Doda City during the life time of her previous husband without his consent and approval which is void abinitio. She is legally wedded wife of Mohd Shafi S/O Abdul Rehman R/O Rawalpora Srinagar and she has contracted a second marriage with Riaz Ahmad S/O Ghulam Hassan R/O Doda City during the life time of her previous husband without his consent and approval which is void abinitio. She is seen in the company of ill reputed persons many times and she was warned to mend herself. Admittedly she is leading an immoral life and her retention in the Police Department is considered highly prejudicial to the maintenance of discipline and integrity of the department. Her services as such are no longer required in the Police Department. Therefore, I Muneer Ahmad Khan, Senior Superintendent of Rolice, Doda, in exercise of powers vested in me under Article 126 of J&K Constitution read with Police Rule 187 hereby discharge lady constable Suriya Khan No. 829/D from service with immediate effect. Const. No. 829/D is treated as vacant. She will deposit her Govt. uniform articles in Distt. Police Stores, Doda and clear NOC from all concerned quarters.� 9. The afore-quoted order clearly has caused an expression against the character and integrity of the petitioner and it must be considered by way of punishment, no matter whether the petitioner was a probationer. The order impugned being stigmatic could have been passed only after holding regular enquiry and giving an opportunity to the petitioner to prove her defence. It is the conceded case that neither the memorandum of charges were served on the petitioner nor she was given opportunity to lead evidence in her defence. Impugned order dated: 22-02-2000 thus, cannot be sustained and accordingly it is quashed. Petitioner shall be reinstated in service, with all consequential benefits without any further delay. However, the competent authority shall be at liberty to pass order, after holding enquiry in accordance with law, as it thinks fit and proper. No costs.