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2005 DIGILAW 70 (JK)

Bashir Ahmad (Constable) & Anr v. State Of J. &K.

2005-03-23

HAKIM IMTIYAZ HUSSAIN

body2005
1. Both the petitions titled above are disposed of by this common order as a common point arises for determination in these petitions. Petitioners, who were probationer police constables, have been terminated by the police authorities under Rule 187 of J&K Police Manual. 2. In SWP No. 270/96 titled Constable Bashir Ahmad v. State of J&K and others the petitioner was appointed as Constable in the police department. He has been terminated by means of order No. 1925 of 1992 dated 21.12.1992 for remaining on unauthorized absence. 3. In SWP No. 613/1999 titled Shabir Ahmad v. State of J&K and others the petitioner was appointed as Constable in J&K Police. He too has been terminated from service by means of order No. 389 of 1998 dated 3.9.1998 for remaining on unauthorized absence. 4. A common question which arises in these cases is as to whether the authorities could have terminated the services of the petitioners without holding any enquiry. Admittedly, the authorities have exercised their powers under Rule 187 of the J&K Police Manual and have terminated the services of the petitioners without holding any regular enquiry. The petitioners are aggrieved of the action of the authorities and have filed these writ petitions on the grounds that dispensing with the services of the petitioners without holding a proper enquiry is in violation of the service rules governing them as also violative of various provisions of the constitution of India and State constitution. 5. Respondents have vehemently opposed these petitions on the ground that in these cases the petitioners were still probationers and that under the provisions of Rule 187 a Superintendent of Police has got powers to discharge a probation from service without holding any enquiry if the authorities are of the view that such an official is not likely to become a good police officer. The powers, according to the State, have been exercised under Rule 187 and that the same are in accordance with rules and the provisions of the constitution. 6. Heard. I have considered the matter and have gone through the impugned orders. In Bashir Ahmads case (SWP 270 of 1996) the petitioner, a probationer, was deputed for basic R.T.C. to A.P.T.C Kathua vide office movement order No. Estt/III/op/23604-91 dated 18.11.1991. He allegedly absented from APTC with effect from 6.9.1992. The Principal struck off him from the rolls and reverted him back to his parent battalion. In Bashir Ahmads case (SWP 270 of 1996) the petitioner, a probationer, was deputed for basic R.T.C. to A.P.T.C Kathua vide office movement order No. Estt/III/op/23604-91 dated 18.11.1991. He allegedly absented from APTC with effect from 6.9.1992. The Principal struck off him from the rolls and reverted him back to his parent battalion. A notice was served upon him vide office Endt. No. Esstt/92/49/18 dated 4.11.1993 with a direction to report back to duty immediately but allegedly he neither reported back nor was anything heard from him. Commandant JKAP III Bn. Anantnag vide the impugned order ordered as under:- "Whereas the said Prob. Constable absented from APTC Kathua with effect from 6.9.92. The Principal APTC Kathua vide his order bearing end No. APTC/Estt/589 93K dt.26.1.92 struck off the said Const. from the rolls of APTC and reverted him back to this Bn. Accordingly his absentee was recorded in the Bn daily dairy Vide D.D report No. 28 dated 5.11.92 with effect from 16.9.92 and is still at large. Thereas a Notice was served upon the said prob. Const. at his home address vide his office Endt.No. Esstt/92/49/18 Dt. 4.11.93 with the direction to report back for duty immediately failing which action under rules will be taken against him. But neither the prob. Const. Bashir to report back for duty nor any thing was heard from his side. Thereas, the prob. Constable was again directed to report back for duty vide this office signal No. Estt/92/20586 Dt. 13.12.92 through SHOP/S Karnah. But nothing was heard from his side till date. Thereas, the service record of the prob. Constable was perused which reveals that he has been enroled in this Bn. On 1.12.1990 and during his short span of services he has absented for a period of 35 days from time to time which ahs been treated as dies-non. It is evident that the prob. Constable is not inclined to serve the department, thus keeping in view of the above mentioned fact that prob. Const. Bashir Ahmed No. 411/III is struck of from the roll of this Bn. Under rule 187 of J&K Police Manual with effect from date he absented from Training Centre i.e. 16.9.92." 7. The petitioner though admits that he remained absent from duty, has taken the plea that his absence was not deliberate but he could not join the duty due to his illness. Under rule 187 of J&K Police Manual with effect from date he absented from Training Centre i.e. 16.9.92." 7. The petitioner though admits that he remained absent from duty, has taken the plea that his absence was not deliberate but he could not join the duty due to his illness. He has in this behalf allegedly filed a representation to the Commandant against the order of discharge. 8. In the counter filed by the State to the petition, the Commandant has taken a stand that petitioner being a probationer, was not entitled to any hearing, as he has himself absented from duties. 9. Had it been a discharge simpliciter, there would have been no need of any enquiry but since the discharge is a stigmatic discharge and definitely punitive in nature, being passed on the ground that due to the frequent absence the petitioner was not likely to prove a good police officer, it was mandatory to hold an enquiry giving opportunity to the petitioner to show cause. Needless to mention that enquiry in such case was required to be held in accordance with the provisions of Rule 359 of J&K Police Manual. 10. In Shabir Ahmads case (SWP No. 613 of 1999), the petitioner was deputed for basic training to PTS, Kathua wherefrom he was reverted back on 2.1.1998 as he had developed some mental problem. He was reverted back and one months home rest was sanctioned in his favour. He was afterwards allowed to resume duty in DPL, Pulwama and was again deputed for BRTC to PTC, Kathua w.e.f. 16.8.1998. It is alleged that when he came to know about it he absconded from duty. Superintendent of Police, Pulwama by means of the impugned order ordered as under:- "The act of rect. Constable to abscond from DPL, Pulwama on hearing that he has been again selected for Basic Rect. Training Course at PTS, Kathua. To again avoid the said mandatory training shows his flagrant attitude towards discipline, and disregard for duty. If allowed to continue in service, it would put up a bad example for the other freshly appointed constables in the District. Therefore, Rect. Constable Shabir Ahmad No. 901/PL is hereby discharged from service in terms of rule 187 J&K Police Manual w.e.f. the date he absconded from DPL Pulwama i.e. 16.08.98, since he can nto prove to be a good police official in future." 11. Therefore, Rect. Constable Shabir Ahmad No. 901/PL is hereby discharged from service in terms of rule 187 J&K Police Manual w.e.f. the date he absconded from DPL Pulwama i.e. 16.08.98, since he can nto prove to be a good police official in future." 11. The observation of the Superintendent of Police that the petitioner has shown `flagrant attitude towards discipline and disregard for duty clearly show that the order is stigmatic and not a simpliciter order of discharge. It is now well settled that even in cases falling under Rule 187 J&K Police Manual the authorities have to, before terminating a police official on the ground that he is not likely to become a good police officer from service, conduct a formal enquiry into the charges against the petitioner. 12. The question as to whether any enquiry is required to be conducted before discharging a probationer police official under Rule 187 J&K Police Manual is not res integra. It is settled now by this Court that before invoking rule 187, it is incumbent and obligatory upon the appointing authority to hold an enquiry into the matter to afford adequate opportunity of being heard to the concerned employee. 13. In Chaman Lal v. State of J&K SWP No. 1009/88 decided on 23.8.1989 Sethi J (as his lordship then was) discussed the scope and ambit of rule 187 and the consequences of not observing the rule. It was held:- "A perusal of the rule would make it clear that before discharging a constable the Superintendent concerned has to ascertain that such constable was unlikely to prove an efficient officer. The word `found used in the Rule is significant and categoric in terms. It is not possible to `find a person unlikely to prove an efficient officer, without holding some sort of inquiry after giving such constable an opportunity of being heard and basing the finding of such conclusion on the basis of material placed before the Superintendent of Police. It is not the more subjective satisfaction of the police officer which is relevant for the purposes of deciding as to whether he has rightly held a constable to be unlikely to prove an efficient police official. To find the concerned as in-efficient the authority has to decide on the basis of the record the likelihood of the retention of a police officer as otherwise. To find the concerned as in-efficient the authority has to decide on the basis of the record the likelihood of the retention of a police officer as otherwise. The finding must be based upon a conscious decision arrived at after proper application of mind hypothecally or more upon conjectures or suspicion. According to Websters English Dictionary the word `find means, amongst other things, `to arrive at a conclusion, come to a finding, determine and declare as a verdict in a judicial proceedings, agree or settle upon or deliver the finding regarding innocence or quilt of a person. Such a finding arrived at by the concerned authority may not be open to challenge in the court of law, but if the record shows that the finding was based upon no material that the same was arrived at mechanically or that the aggrieved were not offered reasonable opportunity of being heard before passing the order impugned, this court would immediately come to the rescue of such civil servant and grant him appropriate relief." 14. This authority was followed with approval by V.K.Gupta, J (as his lordship then was) in Ghulam Mohd. Puswal v. State and others, SWP No. 1273/89 decided on 13.09.1993 and it was held that there is a mandatory requirement of holding an enquiry into the matter, affording adequate and effective opportunities of being heard to the employee as also of affording an opportunity to him of showing cause as to why he should not be discharged from service. 15. In Suriya Khan v. State of J&K 2002(1) SLJ 210 again Rule 187 came to be discussed and it was held that 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 and Kashmir Constitution. The Court held: (at para 5&6) "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. The Court held: (at para 5&6) "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 had only for the purpose of deciding whether he should be continued or not, there is no element of punitive 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." 16. In Mushtaq Ahmad Dar v. State and others, SWP No. 2229 of 1991 decided on 24.7.1997, it was held by Khan J that: "Rule 187 of the Police Rules empowers a Superintendent of Police to discharge a constable from service if he was satisfied that he was unlikely to prove a good police officer during his probation for three years. Had it been a case of discharge of a probationer simpliciter and not exercise of power under rule 187, there would be hardly scope for interference as held by me in my judgment dated July 4th, 1997 passed in SWP No. 1081/89 wherein it was rule that a probationer constable could be discharged from service without any inquiry in terms of rule 359 (10) of the Police Rules, where his discharge did not amount to punishment and caused no stigma to him. What makes this case different is that petitioner was discharged by respondent No. 3 in exercise of power under rule 178 and since this court had consistently taken a view that a Superintendent of Police could not discharge a constable on probation under this rule without any notice to him and without any material which would lead to his satisfaction that he was unlikely to become a good police officer, it becomes difficult to take a contrary view. Accordingly, I dispose of this petition by quashing order of discharge passed by respondent No. 3 as also order No. 269 of 1991 dated 26.7.1991 passed by respondent No. 2 it would be open for the respondents to temporarily reinstate the petitioner in service and to place him under suspension with a view to subject him to an inquiry into his unauthorized absence or the likelihood or otherwise of his becoming a prospecting good police officer and then to proceed to pass appropriate order under rules." 17. The petitioners in the present cases have been discharged for their unauthorized absence from duty. The authorities have, come to the conclusion that the petitioners can not prove good police officials. The petitioners in the present cases have been discharged for their unauthorized absence from duty. The authorities have, come to the conclusion that the petitioners can not prove good police officials. A Similar point was involved in State of Haryana v. Jagdish Chander AIR 1995 SC 984. Rule 12.21 of Police Rules which is in para meteria to Rule 187 came up for consideration. A constable had been discharged by the Superintendent of Police on the ground of habitual absence and negligence in duties. The authority had recorded that he was unlikely to prove an efficient police officer but no enquiry had been conducted. The Apex Court held that the finding cast stigma on the career of the constable and there would be an impediment for any future employment. The 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. The Honble Court held: (para 3) "It would thus be clear from the order of discharge that it is not an order of discharge simpliciter. On the other hand, the S.P. considered the record and found him to be habitual absentee, negligent to his duty and indisciplined. The findings of habitual absence and indiscipline would be an impediment for any of future employment elsewhere. Under those circumstances, the principles of natural justice do require that he should be given an opportunity to explain the grounds on which the S.P. proposes to pass an order of discharge and then to consider the explanation submitted by the Police Officer. Then the S.P. is competent to pass appropriate orders according to the rules. Since this part of the procedure had not been adopted, the order of discharge is vitiated by manifest error of law." 18. Then the S.P. is competent to pass appropriate orders according to the rules. Since this part of the procedure had not been adopted, the order of discharge is vitiated by manifest error of law." 18. No doubt under Rule 187, a Superintendent of Police has got powers to discharge a probationer, within three years of enrolment, if he is of the view that such probationer is not likely to prove a good police official, but since the finding casts a stigma on the career of the constable and there is likelihood that the discharge order or the ground for such discharge may act as an impediment for any future employment, provisions of Art. 311 are attracted and the discharge order should not be passed without affording an opportunity to the official of being heard and a show cause notice against the proposed penalty. 19. Since the order under Rule 187 is to be passed only when the competent authority comes to the conclusion that the official is not likely to prove a good police officer, such an order will, by its very nature and basis, always be a stigmatic. So in every case where power is exercised under this Rule, enquiry is required to be done before passing the order. 20. Since no enquiry has been conducted in the present cases in accordance with the rules the orders impugned cannot stand and the same are hereby quashed. However, the quashment of the orders impugned shall not prevent the authorities from conducting any fresh enquiry against the delinquent petitioners. Disposed of accordingly.