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2009 DIGILAW 548 (JK)

Sameer Ahmad Bhat v. State Of J&K

2009-11-09

MUZAFFAR HUSSAIN ATTAR

body2009
1. Petitioner in his twenties, in the infancy of his service career suffered dismissal from service. Vide Order No. 16-AC dated 03.08.2005 petitioner was selected and appointed as Chowkidar by Principal District and Sessions Judge, Anantnag through a proper selection process and vide Order No. 17/AC dated 04.08.2005 the petitioner was ordered to be posted as Chowkidar in the court of learned Munsiff Dooru. Petitioner joined his services on 8th of August, 2005. Report was also obtained by the learned District and Sessions Judge, Anantnag about verification of character and antecedents of the petitioner from Sr. Superintendent of Police, Anantnag in September, 2005, which favoured the petitioner. The petitioner was discharged from service by learned Principal District and Sessions Judge, Anantnag vide Order No. 75/DC dated 30.08.2006. It is this order which is in challenge in this writ petition. It appears that some threatening calls were received by learned Munsiff, Dooru and on registration of case under FIR No. 56/2006 the petitioner was arrested by Police Dooru in connection with the said FIR and after investigation thereof was sent up for trial. 2. Learned counsel for the petitioner has placed on record copy of final order dated 28.04.2009 passed by learned Judicial Magistrate, Dooru as also certified copy of the statement of learned Munisff, Dooru, who had filed FIR No 56/2006, which was recorded during the trial of the case on 22.04.2008. In case FIR No. 56/2006 the petitioner has been acquitted of all the charges by the learned Judicial Magistrate after holding that the charges framed against the petitioner have not been proved. 3. The writ petition is primarily filed on the ground that the order of discharge is not discharge simplicitor but is founded on the allegations which are of serious nature and which are also stigmatic in character. It is also pleaded in the writ petition that the petitioner is an innocent person who was harpooned in a fabricated case. It is also pleaded that in view of the fact situation of the case, before passing of the impugned order, a duty was cast upon the competent authority to conduct an enquiry into the matter. In the objections filed by the respondents it is stated that since the petitioner was a probationer there was no requirement of conducting any enquiry. It is also pleaded that in view of the fact situation of the case, before passing of the impugned order, a duty was cast upon the competent authority to conduct an enquiry into the matter. In the objections filed by the respondents it is stated that since the petitioner was a probationer there was no requirement of conducting any enquiry. It is further pleaded that the order of discharge passed by respondent No. 1 does not cast any stigma on the petitioner, as such, there was no requirement of conducting any enquiry. 4. Heard learned counsel for the parties and considered the matter. Learned counsel for the parties have argued in tune with their respective pleadings. 5. On 25.07.2006 respondent No. 2 issued show cause notice to the petitioner wherein he was informed that he has remained on unauthorized absence from duty w.e.f 1.7.2006 till 24.07.2006 without any leave or information to the Presiding Officer concerned. He was also informed that he was arrested in connection with FIR No. 56/2006 for commission of the offence under Section 10 of Criminal Law Amendment Act read with Section 507 RPC. He was also informed in the show cause notice that his willful and unauthorized absence from duty shows indiscipline, misconduct and involvement of criminal offence which entails forfeiture of service, being an employee appointed on probation. The petitioner was, accordingly, asked to explain as to why his services may not be terminated for willful and unauthorized absence from duty. 6. Petitioner submitted his reply wherein he specifically denied the allegations contained in show cause notice. Petitioner detailed out the circumstances in which he was arrested and thus was prevented from discharging his duties. Petitioner also submitted that he has been discharging his duties with dedication, sincerely and punctually. It was brought to the notice of respondent No. 2 that the petitioner had not absented from duty willfully, voluntarily or deliberately. It was also brought to the notice of respondent No. 2 that as the petitioner was taken into police custody so it was beyond his control to remain present on duty for that period. The petitioner prayed for dropping of proceedings and for permitting him to resume his duties. The respondent No. 2 thereafter passed the order, which is impugned in this petition. 7. The petitioner prayed for dropping of proceedings and for permitting him to resume his duties. The respondent No. 2 thereafter passed the order, which is impugned in this petition. 7. True it is that probation can be terminated in accordance with the rules at any time during the period an employee is on probation, if the appointing authority reaches at the conclusion that he may not prove to be good official. Where the probation of a probationer is terminated on the basis of allegations of having committed gross misconduct and on the ground that because of the criminal activities, which are serious in nature and on account of dereliction of duty, it can be safely said that the order of discharge is not an order simplicitor but is order founded on alleged misconduct. The effect of such an order is infliction of punishment on the employee. 8. Looking back at the facts of this case a show cause notice was issued to the petitioner informing him that he had remained unauthorisedly absent for a particular period of time and that he was arrested in connection with an FIR. It was also informed in the show cause notice that this unauthorized absence from duty means indiscipline, misconduct and involvement of criminal offence, which would entail forfeiture of the service. The show cause notice was replied and all the allegations were denied and even an explanation was tendered. The bare perusal of the show cause notice, thus, shows that the action was initiated against the petitioner as allegedly he had shown indiscipline and committed misconduct and it is these allegations which have become foundation for passing the impugned discharge order as in the impugned order also same things have been reiterated. Relevant part of the impugned order reads as under: "Therefore, it can be safely said that having involved in gross misconduct and also in criminal charge, your services are liable to be terminated from the said date within the meaning of J&K Civil Services (Classification, Control and Appeal) Rules 1956." 9. The order thus is not an order of discharge simplicitor but has been issued as a measure of punishment without conducting any enquiry. The order thus is not an order of discharge simplicitor but has been issued as a measure of punishment without conducting any enquiry. Petitioner, who in such circumstances is protected by constitutional guarantees, as contained in Article 311(2) of the Constitution of India read with Section 126(2) of the Constitution of Jammu and Kashmir as also the statutory safe guards available to him in terms of J&K Service (Classification, Control and Appeal) Rules, 1956, has suffered infraction of all these safe guards by issuance of impugned order. 10. The fact that the petitioner has been acquitted from the charges by the criminal court and no appeal has been filed against the said acquittal order, the basis from the impugned termination order is knocked out. The criminal case was filed on definite allegations and on self same charges the petitioner was discharged from service. The criminal case is dismissed on contest. Even the learned Magistrate who filed FIR has said nothing adverse to petitioner in his statement recorded by trial court. 11. In these circumstances writ petition is allowed. Impugned order is quashed. However, liberty is given to the respondents that incase they so choose they may initiate enquiry against the petitioner. It is also directed that the period for which the petitioner has remained out of service shall not be counted as break in his service but he will not be entitled to receive any monetary benefits for the said period. This part of direction will be, however, subject to result of enquiry, if any conducted. Disposed of.