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2004 DIGILAW 265 (JK)

Mohd. Farooq v. State Of J. &K.

2004-09-23

R.C.GANDHI, S.N.JHA

body2004
Per R.C. Gandhi, J. This Letters Patent Appeal has been directed against the judgement dated: August 31, 2000 delivered in SWP No. 1126/1999 by the learned Single Judge whereby he has dismissed the writ petition upholding the order of the Sr. Superintendent of Police, Jammu discharging the appellants/ writ petitioners from the role of the Police Department. 2. The appellants were recruited as constables in the J&K Police on probation for a period of three years on July 23, 1996 and October 31, 1997 respectively. The appellants married each other on December 28, 1998. The appellant No. 2 was recruited with her name as Paramjeet Kour. Before marriage she converted to Islam and kept her name as Anjum Farooq. She filed writ petition and the Letters Patent Appeal as Anjum Farooq whereas her name in record of the police Department is Paramjeet Kour. The inter-religion marriage generated not only unpleasant atmosphere in the Police Force but also some hostilities. Sensing trouble, appellants applied for leave on February 3, 1999. The leave was not sanctioned by the respondent and the appellants were called upon to resume the duties which they did not. The notice was published in the newspaper "Daily Excelsior" for their information that absence from duty amounts to desertion of the post and misconduct. They were called upon to resume the duty within ten days, in failure thereof, they will be discharged from service. The appellants did not report for duty though they have stated in the petition that they reported for duty but were not permitted to join. They were charge sheeted, the charge sheet was withdrawn and a fresh charge sheet was served. Preliminary inquiry was conducted by the Department and thereupon formed an opinion that the appellants are not likely to prove to be an efficient police officials. 3. The respondents in their counter affidavit have stated that the appellants have brought a bad name to the Police Force especially in woman Police Station where the appellant No. 2 was working. The appellant No. 1 was earlier placed under suspension on November 10, 1997 for disobedience and for disclosing top secret dak/parcel of the SHO P/S Majalta. He was placed under suspension twice for unauthorized absence and the said period of absence was treated as dais-non. He was placed under suspension vide order dated: 29.9.1997, 23.6.1998 and 20.6. The appellant No. 1 was earlier placed under suspension on November 10, 1997 for disobedience and for disclosing top secret dak/parcel of the SHO P/S Majalta. He was placed under suspension twice for unauthorized absence and the said period of absence was treated as dais-non. He was placed under suspension vide order dated: 29.9.1997, 23.6.1998 and 20.6. 1998 in District Udhampur The conduct of appellant No. 2 has remained shady and suspicious, His retention in the police department was not in the larger interest of the department. With regard to appellant No. 2 it is stated that she continues to be in the role of Police Department as Paramjeet Kour D/O Manohar Singh and the respondents have terminated the service of Paramjeet Kour and not of Amjum Farooq. She converted her religion, changed her name without the notice and knowledge the department. She also did not apply for correction of her name in her service record. She absented and contracted marriage. She was found leading an indecent private life which is riot expected from a police official which is a breach of the J&K Government Servants ( Conduct) Rules. The appellants as probationers have not proved as an efficient police officials, therefore, they have been discharged. 4. Learned Single Judge after hearing learned counsel for the parties and on perusal of the record has dismissed the writ petition order under appeal. Aggrieved of the order the appellants have challenged the order of the learned single Judge on the same facts, and the grounds which were set out in the writ petition. 5. We have heard the learned counsel for the parties and perused the record. 6. Learned counsel for the appellants has submitted that order of discharge of the appellants from service is stigmatic and punitive in nature; therefore, the action of the respondents discharging the appellants under the cover of probationer is not sustainable. The respondents could have held an inquiry into the alleged misconduct of the appellants instead of unilaterally forming an opinion that the appellants cannot prove to be in efficient police officials and that the order of discharge is passed in colorful exercise of power. 7. The respondents could have held an inquiry into the alleged misconduct of the appellants instead of unilaterally forming an opinion that the appellants cannot prove to be in efficient police officials and that the order of discharge is passed in colorful exercise of power. 7. Perusal of the record reveals that the appellants were recruited as probationers in the disciplined Police Force where they were expected to maintain discipline and protect honor, dignity and respect of the department, for the reason that the Police Force is meant to discipline the civil society as and when people go wrong or commit crime. They are expected to exhibit more character and discipline in the Society so that in the eyes of the public they may command respect, which factor works in the minds of the people and to obey the command of the law enforcing agency. 8. To appreciate and consider the plea of the learned counsel for the appellants; it is to be seen as to whether the order of discharge can be said to be punitive and stigmatic. If the order is maintained as stigmatic or punitive, the probationer cannot be discharged from service and the alleged guilt or accusation leveled by the employer has to be proved before imposing penalty On the contrary, if the order is simplicitor order of discharge of a probationer the respondent-employer is within his right and power to pass such an order. 9. It is admitted position that after contracting the marriage appellant proceeded on leave on 3.2.1999 without its prior sanction. The leave was refused. They were notified through publication in newspaper "Daily Excelsior" to resume duty within ton clays failing which they shall be discharged from service. The appellants did not report for duty. They approached the High Court by means of OWP No. 150/1999 and obtained interim direction on 27.2.1999. On the strength of the court direction the appellants approached the respondentNo. 3 after eight days who directed them to report to District Police Lines, Jammu which was not complied with by the appellants for the reasons best known to them. The appellant have been appointed in the years 1996/1997 on probation. During the period of probation they have to pass through the furnace of becoming a good police official. During this period, the appellants have not proved to be efficient police officials. The appellant have been appointed in the years 1996/1997 on probation. During the period of probation they have to pass through the furnace of becoming a good police official. During this period, the appellants have not proved to be efficient police officials. The order of discharge nowhere mentions regard to the incident of the marriage. The respondents have taken into account, for passing the impugned discharged order, only the conduct of the appellants and their unauthorized absence. The appellants have to form an opinion, keeping in view the performance of the probationer, during the probation period to arrive at the conclusion as to whether a probationer is fit to be retained in service and can prove efficient police personnel. The respondents keeping in view, the performance of the appellants and their conduct have formed the opinion that the appellants are not likely to prove to be an efficient police officials. The respondents are within their right to form such an opinion and any order passed on such an opinion is an order of simplicitor discharge and cannot be said to be punitive or coupled with stigma. This proposition of law has been settled by the Supreme Court in case titled Oil and Natural Gas Commission v. Dr. S Iskandar Ali reported in (1980) 3 SCC 428 wherein probationer was discharged and the discharge order was challenged on the ground that it is punitive in nature, the Court held: "A temporary employee is appointed on probation for a particular period only in order to test whether his conduct is good and satisfactory so that he may be retained. In a case of the probationer or a temporary employee, who has no right to the post, termination of his service, finding him unsuitable for the post is valid and does not attract Article 311. In the present case the order impugned is prima facie an order if termination simplicitor without involving any stigma on the respondent probationer who had no right in the service. In the present case the order impugned is prima facie an order if termination simplicitor without involving any stigma on the respondent probationer who had no right in the service. Even if misconduct, negligence, inefficiency may be the motive or the including factor which influenced the employer to terminate the services of the employee, a power which the appellants undoubtedly possessed, as under the terms of the appointment such a power flowed from the contract of service it could be termed as penalty or punishment ..............If the appellant found that the respondent was not suitable for being retained in service that will not vitiate the order impugned. The order thus did not attract Article 311." 10. Similar proposition of law has been laid down in case titled H.F. Sangati v. Registrar General, High Court of Karnataka and others, reported in (2001) 3 SCC 117, where the Supreme Court was dealing with the termination of Munsiffs of the Karnataka Judicial Service. The order was challenged as stigmatic. The court held as under: "Admittedly, the two appellants have been discharged from service during the period of probation. Moreover, no order was passed declaring the period of probation having been successfully completed and confirming any of the two appellants in service. The impugned order does not cast any stigma on the appellants. All that has been said in the said impugned order is that the appellants were unsuitable to hold the post of Munsiff. The impugned order of discharge has been passed in strict compliance with the requirement of Rule 6. It does not cast any stigma on the appellant nor is it punitive. There was, thus, no requirement to comply with the principles of natural justice, muchless to hold any formal proceedings on inquiry before making the order". 11. In case titled Parvendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and others: reported in AIR 2002 SC 23, the proposition before the Apex Court was that the petitioner/probationer therein was terminated from service on the ground that his work and conduct was not found satisfactory and the order was punitive and stigmatic. The Supreme Court held: "The language used in the order of termination is that the probationer appellants work and conduct has not been found to be satisfactory." These fall within the class of non-stigmatic orders of termination. The Supreme Court held: "The language used in the order of termination is that the probationer appellants work and conduct has not been found to be satisfactory." These fall within the class of non-stigmatic orders of termination. It is therefore safe to conclude that the impugned order is not exfacie stigmatic. It also cannot be held that the enquiry held prior to order of termination turned this otherwise innocuous order into one of punishment. The reason being an employer is entitled to satisfy itself as to the contents of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee." A charge-sheet merely details the allegations so that the employee may deal with them effectively. The enquiry report in this case found nothing more against the appellant than an inability to meet the requirements for the post. Therefore, the termination was not in substance punitive." 12. In case titled Dhananjay v. Chief Executive Officer, Zilla Parashid Jalna: reported in (2003) 2 SCC 387 the Supreme Court was dealing with the termination order of temporary government employees against whom the accusation was that he paid Rs. 18,000/- instead of Rs. 8,000/- to the contractor spent towards repairs. He was placed under suspension and terminated from service. Order was challenged as stigmatic, the Court held: "Merely because the appellant was kept under suspension that, by itself is not indicative that the respondent has intended from the beginning to get rid of services of the appellant by holding an enquiry. That the appellant was acquitted in the criminal case launched against him on the basis of complaint made by the respondent is also not a factor to indicate that the respondent wanted to remove the appellant from service. Mere acquittal of government employee does not automatically entitle the government servant to reinstate him. It would be open to the appropriate competent authority to take a decision whether enquiry into conduct is required to be done before directing reinstatement or appropriate action should be taken as per law, if otherwise, available. Mere acquittal of government employee does not automatically entitle the government servant to reinstate him. It would be open to the appropriate competent authority to take a decision whether enquiry into conduct is required to be done before directing reinstatement or appropriate action should be taken as per law, if otherwise, available. Since the appellant is only in temporary government service, the power being available under Rule 5(l) of the Rules, it is always open to the competent authority to invoke the said power and terminate the services of the employee instead of conducting the enquiry or to continue in service a government servant accused of defalcation of public money. 13. In case titled Mathew P. Thomas v. Kerala State Civil Supply Corporation Ltd. and others, reported in (2003) 3 SCC 263, the charge against the petitioner was of misconduct and repeated dereliction of duty tantamounting of to unsatisfactory performance. His services were terminated. The termination order was challenged as punitive. The Supreme Court held. "It is now settled that whether an order of termination is simplicitor or punitive as ultimately to be decided having due regard to the facts and circumstances of each case. Many a time the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorize or classify strictly orders of termination simplicitor falling in one or the other category, based on misconduct as foundation for passing the order of termination simplicitor or on motive on the ground of unsuitability to continue in service. Sometimes the facade of the termination order may be simplicitor but the real face behind it is to get rid of a service of a probationer on the basis of misconduct. In Such case it becomes necessary to travel beyond the order of termination simplicitor to find out what in reality is the background and what weighed with the employer to terminate the services of the probationer. In that process it also becomes necessary whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his misconduct. In the present case, even on earlier occasions when the appellant failed to perform his duties properly during probation period he was warned to improve and continued in the service. In the present case, even on earlier occasions when the appellant failed to perform his duties properly during probation period he was warned to improve and continued in the service. If he was to be removed from service on the allegations of misconduct, at that time itself the respondents could have removed him from service. This is also a circumstance to indicate that his order of termination was simplicitor." 14. Applying the aforesaid test of law on the facts of the case of the appellants, no other conclusion can be drawn except that the order of discharge of the appellants is neither punitive nor stigmatic but an order of simplicitor discharge. 15. For the aforesaid reasons, we are of the considered view that the order of the learned Single Judge does not suffer from any illegality warranting interference. The order under appeal is maintained. Consequently the appeal is dismissed being devoid of merit. No order as to costs.