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2002 DIGILAW 411 (JK)

Mohd Ramzan Tantrey v. State of J&K

2002-12-28

SYED BASHIR-UD-DIN

body2002
JUDGEMENT 1. Petitioners were appointed and joined their duties as Constables in January 1986 on due selection. However, on 30-07-1986, they along with two other constables were discharged during probation period on expressed premise that they were not to become good constables. However, petitioner filed Writ petition 867/ 86. The Writ Court while allowing the writ quashed the order of discharge. In October 1987, respondents with intention not to allow the things to rest there interpreted the order of the learned Single Judge to mean that holding of Regular Department enquiry is not debarred and therefore, enquiry was launched by the then Commandant against these Constables. The Departmental Enquiry Committee headed by a DSP with two GOs and one Inspector as member was constituted. The Committee examined these removed constables and took their physical measurement again. Committee formed report and reported it to the Commandant, who acting on the report held that the three petitioners- Constables were under height by 1" (5'-5" instead of 5'-6") they were discharged on this count as they were not found fit to be retained in the force. This discharge order dated 29-10-1988 is under challenge in this petition on following grounds:- 2. Once the earlier order of discharge which was a camouflage to remove the petitioners, was quashed by the court another enquiry could not have been held. More so, when the respondents had themselves found the petitioners conforming to prescribed physical standards. Once they were taken in the force after the Board/Selection Committee found them fit and of required height, it was not open to respondents to over again open the question and to start fresh enquiry to determine the physical standards. The other constable who was figuring with petitioners as under height was not terminated. No enquiry was conducted. Petitioners were not informed of any enquiry except that they were served with the charge sheet. The Board of officers did no follow the procedure prescribed under law. The order of discharge has been passed at the back of the petitioners in violation of principles of natural justice in a high handed hush-hush manner. 3. Respondent no.2 has filed counter. While contesting the petitioners claim, it is stated that the petitioners have manipulated their appointment by impersonation and resorting to unfair mean at the time of recruitment. Petitioner were under height by 1", therefore, they had to be discharged. 3. Respondent no.2 has filed counter. While contesting the petitioners claim, it is stated that the petitioners have manipulated their appointment by impersonation and resorting to unfair mean at the time of recruitment. Petitioner were under height by 1", therefore, they had to be discharged. The earlier order of their discharge was during the period they were no probation and the order as such was 'simplicitor discharge'. Even though, this order of discharge was set aside by the High Court vide its judgment dated 1610-1987 in SWP no. 867/86, but as the regular enquiry was not barred, therefore, enquiry was held and on the recommendation of the Enquiry Officer, the three constables have been discharged. 4. It may be noted that the petitioners were earlier discharged on the ground that they were likely not to become good constables. Even though this order was passed during probation, the court came to the conclusion that it was not a 'discharge simplicitor', rather it is a case of punishment, therefore, the requirement to adhere to the legal mandate of section 126 (2) of Jammu and Kashmir State constitution and Article 311 (2) of the Constitution of India. However in the counter to this petition, it is stated that the petitioners were dismissed even earlier on the ground apart from the words used in the discharge order on the premise that they were under size and had forcibly and unfairly manipulated to get entry in the force. 5. In such circumstances, the question is that if the court has set aside the order holding it bad for non-compliance with the mandate of law, can a second enquiry be lodged on self same facts, when rules do not provide for such enquiry. There is no material much less convincing material to show that petitioners at any stage where instrumental in or did manipulate their entry in force or that they resorted to any fraudulent practice or impersonation to get the job. The appointment orders of petitioners dating back to December, 1985 and January 1986, show that these candidates were declared medically fit by the Medical Officer, attached with the JKAP IV Bn.Zeewan, and there was also subsequent verification. All this happened at the instance, supervision and control of the police department. The appointment orders of petitioners dating back to December, 1985 and January 1986, show that these candidates were declared medically fit by the Medical Officer, attached with the JKAP IV Bn.Zeewan, and there was also subsequent verification. All this happened at the instance, supervision and control of the police department. How can a self serving inquiry be conducted to negate and circumvent a verdict against respondents who are far from estopped to tinker with and dilute their own orders and actions taken officially at the time or recruitment and place an embargo on operation of court verdict, no matter under what pretex. In such circumstances deputing Cy. S.P.'s and one Inspector to take physical measurement of the petitioners, appears not proper and seems to be an exercise to dish out some semblance of a cause against petitioners to show them the door. 6. There is no denying of the fact that from Ladakh, kargil and some other regions of the State, there are constables in force, who are even 5'.4". There are many constables who were recruited, notwithstanding their height as 5'-4". As observed in state of Assam and another Vs. J.N. Roy Biswass, (AIR 1975 SC 2277), the basics of the rule of law cannot be breached without legal provision or other vitiating factor(s) invalidating the earlier enquiry and once a disciplinary case is closed and the official reinstated, a chagrined Government cannot re-start the exercise in the absence of specific power to review of review, vested by rules. 7. The departmental punishment and procedure in this case is as provided by Rules 334/356 of the Jammu and Kashmir Police Rules 1960. The Rules make it abundantly clear that no Police Officer can be removed from service, unless a full dressed enquiry is conducted against him pursuant to Rule 359 of the Jammu and Kashmir Police Rules, which provides method and manner of an enquiry against a non gazetted police officer. However, it is to be noted that the enquiry is in no way different from the one conducted under Jammu and Kashmir Civil Services (Classification, control and Appeal) Rules 1956. 8. As a first the enquiry officer is to summon the delinquent Police official only to record and read out to him summary of allegations of misconduct. If the official admits the misconduct, the final order may be recorded. 8. As a first the enquiry officer is to summon the delinquent Police official only to record and read out to him summary of allegations of misconduct. If the official admits the misconduct, the final order may be recorded. However, in case of non admittance of misconduct the evidence is to be recorded in support of the accusation. The delinquent is to be given an opportunity to cross-examine the witness(s) followed by recording of answers to question (s) put to the delinquent. Once this is done, then the Enquiry Officer has to inter alia frame a formal charge to be explained to the delinquent and to call him to answer them. At this stage the delinquent has to state the defence witnesses as allowed to be examined by the Enquiry Officer, the delinquent is also free to lead documentary evidence, if not directed earlier, that the charge is to be framed and the delinquent to be asked to answer the charge. Then and only the Enquiry Officer is to record a finding and make recommendations followed by Empowered Officer in jurisdiction and powers to pass orders of acquittal or punishment. 9. It is obvious that the enquiry has to be detailed strictly on terms and conditions of the rules. There are no short custs. In this case after the Dy. S.P. adjutant was detailed out as Enquiry Officer and a Board of officers comprising of two gazetted officers and one Inspector was directed to take physical measurements of the constables, the petitioners were alleged served the allegations and allegedly even with the formal charges, though denied by petitioners on affidavit. In absence of any response from petitioners to show cause Notice, a notice was served on them to show why they be not discharged to which they replied and rebutted the allegations. Obviously, if they rebut the allegations, it is incumbent on the Enquiry Officer to give them an opportunity to put their version of the case and explain their conduct and lead evidence, if any this is more so because in terms of the impugned order, it is stated that the officer commandant discharging the petitioners believed that they had secured their appointment by unfair means. If petitioners, as alleged in the counter, as also in the impugned order, have allegedly "manipulated their appointment by impersonation and by unfair means" then all the same the requirement to provide them an opportunity to lead their evidence and participate in the enquiry which is not the case here. Mere conceptional attitude and opinion, not manifestly based on facts and record, would not do. This is more so when it is recorded in their appointment order and service record that they were declared medically fit by Principal Medical Officer at JKAP IV Bn. Zewan Sri nagar. Obviously, if at the time of selection while conducting the medical examination and taking prescribed physical tests, respondents were satisfied that the petitioner height conformed to physical standards, then how come it that Dy. S.Ps (two Gazetted Officers) and one Inspector say that the petitioners are not of required height. This circumstance appears to have been left out from consideration by the Enquiry Officer and the appointing authority, only because they were apprehensively belabouring under a baseless suspicion. The enquiry appears all the more a sham enquiry, in as much as, neither minutes nor memo of enquiry is maintained and the record is not produced in Court to show that the Enquiry has been in conformance of the statutory rules and the mandatory constitutional provisions. The enquiry partakes the characteristic of infringing principles of natural justice. 10. It hardly appears just that the petitioners recruited and selected as Constable in December - January 1985-86 are shown the door at such a distant point of time when they have been continuously working and discharging their duties for last about 16 years and some of the petitioners have been even awarded commendation certificates and even reportedly promoted. It is not the fault of the petitioner or any thing attributable to them that they have been taken in the service. In fact their physical parameters were taken and certified by the official Medical Officer attached to the JKAP IV Bn.At Zeewan Srinagar under instructions, supervision and control of respondents. There is nothing on record to show that they have either manipulated their height or by fraud or trickery made themselves to be recruited in the service. Mere assertion thereto unsupported by any material what-so-ever, by respondent no.2, will not in the facts and circumstances of the case 'suffice'. There is nothing on record to show that they have either manipulated their height or by fraud or trickery made themselves to be recruited in the service. Mere assertion thereto unsupported by any material what-so-ever, by respondent no.2, will not in the facts and circumstances of the case 'suffice'. In such circumstances, respondents cannot turn around after considerable period say year or two to assert that the petitioners were under height and got themselves selected by unfair means. After all respondents can be said to have waived the objections if any, on this count, other conditions of eligibility applying. It is not denied by the Government Advocate they many constables are on the rolls of the police and even in JKAP, who too are under height (recruits of Ladakh and kargil division). In such circumstances, it is quite unjust to single out the petitioner for the treatment given to them of the loss of employment. 11. In result, for the aforesaid view of the matter, Writ petition is allowed. Order no. 1028 of 1988 dated 29-10-1986 (Annexure-F) is quashed and the petitioners shall be treated as members of the force JKAP IV BN. having been duly appointed as Constables under their respective order of appointment. Disposed of.