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2002 DIGILAW 197 (JK)

Zahoor Ahmad Bhat v. Director General Of Police

2002-06-07

V.K.JHANJI

body2002
1. In this writ petition filed under Article 226 of the constitution of India read with section 103 of the constitution of Jammu and Kashmir the petitioner is seeking a writ in the nature of certiorari for quashing order No: 1544/91 dated 6.12.1991 whereby the petitioner is also challenging order dated 11th October, 1994 whereby his representation against the order of discharge has been rejected by the Inspector General of Police, Armed J&K Srinagar. 2. The petitioner was enrolled as a constable in Jammu and Kashmir Armed Police in October 1987. He applied for earned leave on 27th March, 1991 for a period of one month. the leave was sanctioned. However, after the expiry of the leave period, the petitioner did not join back. According to the petitioner, while he was on leave, he developed some serious mental problem. He firstly started treatment under the traditional Unani System of medicines and ultimately was admitted to Psychiatric Diseases Hospital, Srinagar, by his parents on 3rd July, 1991 and it was only in 1994 that he got recovered for which a certificate dated 22nd August, 1994 issued by the Medical Officer Psychiatric Diseases Hospital Srinagar to the effect that the petitioner was fit to attend his duties. Further according to the petitioner, when he reported for duty, he was told that he had been discharged from services on 6.12.1991 with effect from 23.3.199. The petitioner has averred that his mother made a representation to the Inspector General of Armed Police, Srinagar praying that, since her son had developed mental ailment and his absence from duty was due to circumstanced of his ill health he be taken in service. It is also averred that the contentions of the petitioner were got verified by Deputy Inspector General of Police through CID and local police who also corroborated the fact that the petitioner was suffering from mental ailment. Petitioner was also subjected to medical examination by the Police Medical Board, who reported that the petitioner is not having any disease now and is fit to join his services why he is not allowed to join his duties and in fact, his representation in this regard has been rejected by the Inspector General, Armed Police. The petitioner thus has prayed that the order dated 11th October, 1994 whereby his representation has been rejected by the Inspector General of Police, be quashed. 3. The petitioner thus has prayed that the order dated 11th October, 1994 whereby his representation has been rejected by the Inspector General of Police, be quashed. 3. Upon notice, respondents in their counter, have stated that the petitioner proceeded on 15 days earned leave duly sanctioned in his favour with effect from 6th March 1991 and was due to report back for duty on 22nd March 1991 which he failed to do and, instead, continued to remain absent unauthorisedly. He was served with various notices ranging from 26th March 1991 ending with notice dated 10th Oct,1991 which were also noted and received by the petitioner, but he continued to remain absent. Respondents have further stated that the prolonged absence of petitioner, without any information to the Department, was alarming and indicated that the petitioner was not interested to serve the department any more nad the previous service record too was not quite satisfactory as the petitioner had earned four punishments for his unauthorised absence from the date of his engagement and so he was discharged from service. Respondents have further stated that there was no necessity to hold enquiry because it was not possible to conduct enquiry without associating the petitioner as the petitioner did not respond to the notice served upon him. Respondents thus have stated that the petitioner has rightly been discharged from services and his representation in this regard has been rejected legally. So both the orders do not Call for any interference by this court, deserves to be quashed on this ground alone. Learned counsel further submitted that clause (2) of Article 311 of the constitution of India which is equivalent to section 126 of the constitution of Jammu and Kashmir, read with Rule 359 of the Jammu and Kashmir Police Rules gives a constitutional mandate to the principles of natural justice by providing that a person employed in civil capacity shall not be dismissed from service or reduced in rank except after an inquiry, in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of the charges. Learned council contended that no enquiry, whatsoever, was held in regard to the misconduct alleged to have been committed by the petitioner nor any opportunity of hearing was afforded to him so as to give him a chance to explain his authorised absence from duty. 4. Learned council contended that no enquiry, whatsoever, was held in regard to the misconduct alleged to have been committed by the petitioner nor any opportunity of hearing was afforded to him so as to give him a chance to explain his authorised absence from duty. 4. In answer to this, learned counsel appearing on behalf of the respondents, Mr. M.I Qadiri, Senior Additional Advocate General contended that no enquiry is required to be held where it is impracticable to do so in the circumstances brought out by the employee. He contended that the petitioner surrendered the employment as he did not join his place of posting after expiry of leave period and also failed to communicate with the Department in regard to his absence. 5. I have heard learned counsel for the parties at length and have carefully gone through the record of this case as also the judgments cited by the learned council for the parties. 6. Rule 187 of the J&K 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 enrollment. Sub section (1) and (2) of section 126 of the state constitution provides that no person, who is a member of civil service or holds a civil post under the state shall be dismissed or removed by an authority subordinate to that by which he was appointed and no such person, as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where, it is proposed after such inquiry to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed. Rule 359 of the J&K Police Rule provides that 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. Rule 359 also provides detailed procedure in regard to departmental enquiries. Rule 359 of the J&K Police Rule provides that 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. Rule 359 also provides detailed procedure in regard to departmental enquiries. It provides that in case of a constable the enquiry 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. It further provides that if the accuse police officer admits the misconduct the officer conducting the enquiry may proceed forthwith to record a final order if it within his power to do so, or a finding to be forwarded to an officer empowered to decide the case. If the accused police officer does not admit the misconduct , the officer conducting the enquiry shall proceed to record such evidence oral and documentary in proof of the accusations, as is available and necessary to support the charge. It provides for the framing of charge examining other witness by the prosecution to prove the charge and also giving an opportunity to the delinquent police officer to adduce evidence in defence. Rule 357 provides as to how the departmental enquiry files are to be arranged. It states that in all departmental cases in which the alleged offence is such as to merit major punishment, if proved a record shall be kept which shall contain (i) the charge (ii) defence of the accused officer (iv) the statements of the defence witness, if any (v) the finding of the officer conducting the case and (vi) the final order. 7. A combined reading of rules 187, 357, 359 of the Jammu and Kashmir Police Rules and Section 126(1) (2) of the State constitution makes it very clear that a police constable who is unlikely to prove an efficient police officer can be discharged by the Superintendent of Police at any time within three years of enrollment. In such a case no enquiry, whatsoever, is required. The only requirement is that the Superintendent of Police must be satisfied that the constable concerned is not likely to prove an efficient police officer. In such a case no enquiry, whatsoever, is required. The only requirement is that the Superintendent of Police must be satisfied that the constable concerned is not likely to prove an efficient police officer. After the expiry of the period of three years of enrollment a constable cannot be discharged from service, except on a charge of misconduct, if proved, against him by following the procedure of departmental enquiry provided under Rule 359 of the Police Rules. Admittedly in this case the order of discharge against the petitioner has been passed after three years of his enrollment, meaning thereby that his services have been dispensed with because of his unauthorised absence from duty. It is also the admitted case of the parties that no enquiry, as contemplated under Rule 359 of Police Rules, was held against the petitioner. In such a situation the question which arises for consideration is whether the order dispensing with the services of the petitioner without following the procedure laid down in Rule 359 of the police Rules is bad in law. In my view before such an order is set aside the court must be satisfied that because of non-holding of the enquiry a prejudice has been caused to the delinquent. 8. The holding of an enquiry, an envisaged under section 126 of the constitution of Jammu and Kashmir and Rule 359 of the J&K Police Rules may be necessary before the services of an employee are terminated for absence without leave or absence after leave, but this principle of law has no universal application. In cases where the facts disclose that the employee had absconded or where it is impossible to communicate with him, then the order, in my view does not suffer from any legal infirmity. In Maneka Gandhi Vs. Union of India, AIR 1978 SC 597 the supreme Court said that since the audi alteram partem rule is intended to inject justice into the law, it cannot be applied to defeat the ends of justice, or to make the law lifeless, absurd stultifying, self defeating or plainly contrary to the common sense of the situation. Bhagwati, J (as his lordship then was) in Maneka Gandhi™s case (supra) said, What opportunity may be regarded as reasonable would necessarily depend on the practical necessities of the situation. Bhagwati, J (as his lordship then was) in Maneka Gandhi™s case (supra) said, What opportunity may be regarded as reasonable would necessarily depend on the practical necessities of the situation. It may be a sophisticated full fledged hearing or it may be hearing which is very brief and minimal; it may be a hearing prior to the decision or it may even be post decisional remedial hearing. The audi alteram partem rule is sufficiently flexible to permit modifications and variations to suit the exigencies of myriad Kinds of situations which may arise�. The Supreme Court thus has settled that audi alteram partem rule thus is not cast in a rigid mould and that it may suffer situational modifications. 9. In this case the petitioner proceeded on 15 days earned leave duly sanctioned in his favour with effect from 6th March, 1991 and he was due to report back for duty on 22nd March 1991 which he failed to do. The petitioner was served a number of notices asking him to resume his duties. These notices were sent to him vide Nos. Estt- P- Case/2950/V dated 26th March 1991 No. 3675 dated 11th April 1991 No. 3843/V dated 23rd April,1991; No. 3922/V dated 25th April, 1991; registered notice No. 5752-53/V dated 4th June, 1991; No. 9137/V dated 26th July, 1991; No. 10393/v dated 19th August, 1991; No. 10686-87/V dated 23rd August, 1991; No. 13491/V dated 10th Oct, 1991; No. 14518/V dated 19th Nov,, 1991 and another registered notice NO. 15287-88/V dated 19th November, 1991. The notices issued under No. 5752-53/V dated 4th June, 1991 and No. 1349/V dated 10th Oct,,1991 were also received and noted by the petitioner on 27th June , 1991 and 24th November, 1991 respectively. Despite service of the various notices, the petitioner continued to remain absent. He did not inform the department in regard to his mental ailment, nor his mother, who later on submitted a representation on his behalf, informed the department about the inability of his son to resume his duties on account of his ailment. It has also come on record that previously also, the petitioner had earned four punishments for his unauthorised absence from duty during his short span of three years™ services from October, 1987 i.e the date of his enrollment. It has also come on record that previously also, the petitioner had earned four punishments for his unauthorised absence from duty during his short span of three years™ services from October, 1987 i.e the date of his enrollment. According to the respondents he remained absent for seven days with effect from 21st August 1988 to 29th August, 1988; to 12 days with effect from 10th October 1988 to 22nd October, 1988; 17 days with effect from 13th March 1989 to 31st March, 1989; 9 days with effect from 6th May, 1989 to 16th May 1989; twenty three days with effect from 4th February 1990 to 28th February, 1990; seven days from 30th April, 1990 to 7th May, 1990 and for seven days with effect from 3rd September, 1990 to 20th September, 1990. 10. Absence of the petitioner for long period on previous occasion and also the fact that he did not inform the Department for nearly four year about his alleged ailment despite having received notices number of times shows that the petitioner was a habitual absentee and was not fit to service in the disciplined force. In the circumstances, no useful purpose would have been served by holding ex-parte as it had become impossible to communicate with the petitioner. Otherwise to, the services of the petitioner were dispensed with by order dated 6th December 1991, but, for the first time, the representation against the order was made by the mother of the petitioner only on 222nd June, 1994 i.e after a time gap of about three years of the passing of the order and after such a long time the order dispensing with his services cannot be interfered with because of delay and latches. 11. Now coming to order No. 522 of 1994 dated 11th October, 1994 passed by the Inspector General of police Armed Jammu and Kashmir, Srinagar, whereby, I find that it was rejected firstly on the ground that he was served with various notices, but he did not report for duty and also that two notices had been served upon him and got noted by him through Police Station Soura, and was given reasonable opportunity to resume his duties, but he failed to comply with the notices. The other ground taken is that if the petitioner was suffering from mental disease, it would not be proper to retain him in the police force. The other ground taken is that if the petitioner was suffering from mental disease, it would not be proper to retain him in the police force. That apart, his part service record carrying one major and three minor punishment to his discredit, has also been taken into account for rejecting his representation. 12. In regard to the rejection of the representation the petitioner has submitted that during the period of his leave he was diagnosed as a case of mental depression Ist episode by the Consultant, Psychiatric Diseases Hospital, Srinagar and a certificate of Dr. M. Aslam MD Registrar Psychiatric Diseases Hospital, Srinagar was submitted and on the representation made on his behalf by his mother, an enquiry was ordered to be conducted. The Dy. Inspector General of Police, Armed Range Kashmir, Srinagar enquired into the matter through CID and the local Police, who corroborated the facts as narrated in the representation. The Doctor, Who was treating the petitioner also certified that the petitioner is now fit to resume his duties. The petitioner was also referred to police Hospital, Srinagar for examination by a Board. On examining the petitioner the Board gave a report that the petitioner is now free from his mental ailment. The learned counsel has also made reference to the letter dated 28th July 1994 and 5th August, 199 writ written by Senior Superintendent of Police to the Dy. Inspector General of Police and Additional Director General of Police, CID respectively whereby it was reported that on enquiry nothing adverse was revealed against the petitioner. It was also said that besides his wife, the petitioner has two minor children to look after and that his domestic condition is pitiable. 13. The order rejecting the representation does not indicate that the documents referred to by the petitioner and annexed with this petition in regard to the report of the Sr. Suptd. of police the police Medical Board and also that of the Doctor, who had treated the petitioner for his mental ailment, were taken into account by the Inspector General of Police Armed Kashmir Srinagar and in my view the representation submitted by the mother of the petitioner requires reconsideration by the Inspector General of Police. 14. In view of the above, the order, whereby the services of the petitioner were dispensed with calls for no interference and is up-held. 14. In view of the above, the order, whereby the services of the petitioner were dispensed with calls for no interference and is up-held. However, the order dated 11th Oct, 194 whereby the representation of the petitioner was rejected, is quashed and the Inspector General of Police Armed Jammu and Kashmir Srinagar is directed to decide the representation of the petitioner afresh after taking into account the report of the Deputy Inspector General of Police Armed Range Kashmir Srinagar dated 13.9.1994 letter dated 28.7.1994 from senior Superintendent of Police Armed Range Kashmir Srinagar letter dated 5th Aug,1994 from Superintendent of Police SB Kashmir to the address of the Additional Director General of Police CID J&K Srinagar and the Medical reports both of the Doctors of Psychiatric Diseases Hospital, Srinagar and that of the Police Medical Board. It shall be open to the Inspector General of Police to consider whether dismissal of the petitioner from services is the only punishment which can be awarded to him or some lesser punishment would meet the ends of justice. In other words the Inspector General of Police will be free to alter, vary or modify the order of discharge, on consideration of the representation on its own merits uninfluenced by any observation made in this order. It is however made clear that in the event of any alterations, variation or modification in the order of discharge the petitioner shall not be entitled to any salary from the date he was due to report back on duty till the date of such order, if any passes. The writ petition stands disposed of in terms of the above.