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2010 DIGILAW 360 (JK)

State Of J&K v. Arjumand Shafi

2010-06-05

Hasnain Massodi

body2010
1. The Civil First Appeal is directed against judgment and decree, passed by Learned Additional District Judge Srinagar on 27th of September 2008, in a Civil Suit titled Arjumand Shafi v. State and others (24/COS), whereby Learned Trial Court decreed respondent’s Suit with costs, declared orders No.35 of 1998 dated 28th of May 1998 and No. 189 of 1998 dated 25th September 1998 null and void, and commanded appellants to allow respondent to join his duty and reimburse pay, allowance, and other benefits to the respondent. 2. The brief facts of the case are as under:- The respondent, vide order No.689 of 1996 dated 25th June 1996, was appointed as Warder in J&K Prisons Department in the pay scale of 950-1500 with effect from July 1st 1996. The respondent, in terms of his appointment order, was required to undergo prescribed training during his probation period of two years. It appears that the respondent, after joining as Warder, pursuant to appointment order, was relieved from Central Jail Srinagar on 12.2.1998 and asked to report to the Police Academy Udhampur for undergoing training. The respondent on 12.5.1998, reported at Police Academy Udhampur for undergoing prescribed training. The Director, Police Training Academy Udhampur, through a wireless message, informed Additional Director General, Prisons & Fire Services that as the training had commenced on 15.2.1998, the respondent was being "reverted back to his parent Jail" and advised Additional Director General Prisons & Fire Services to depute the respondent in the "next batch". The Additional Director General, Prisons & Fire Services, on receipt of wireless message from Director, Police Academy, Udhampur vide order No. 35 of 1998 dated 28th of May 1998 removed the respondent from the services. The aforementioned order recorded unauthorized absence of respondent and his failure to undergo the training, as reasons for removal of respondent from service. The respondent, thereafter, on 29th of June 1998, made a representation for revocation of the removal from service Order No.35 of 1998 dated 28.5.1998 and requested for his reinstatement. One such representation was addressed to Home Minister, Jammu and Kashmir Government, forwarded to Additional Director General, Prisons & Fire Services with a request to treat it as a review petition against the termination of services of the respondent. One such representation was addressed to Home Minister, Jammu and Kashmir Government, forwarded to Additional Director General, Prisons & Fire Services with a request to treat it as a review petition against the termination of services of the respondent. The representations did not find favour with the competent authority, leaving no option for the respondent but to file a civil suit in the Court of Principal District Judge Srinagar. The suit was transferred to 4th Additional District Judge Srinagar and on its retransfer finally landed in the court of Additional District Judge Srinagar. 3. The respondent edificed his suit on the grounds that immediately after the respondent was relieved from Central Jail Srinagar on 12.2.1998 to report to the Police Academy, the respondent was taken ill and due to his ailment could not report to Police Academy Udhampur in time; that once the respondent after undergoing medical treatment recovered, the respondent reported to Police Academy Udhampur but was asked to join back to the Central Jail Srinagar and report for training in the next session; that the respondent, as instructed by the Director Police Training Academy Udhampur, reported to Central Jail Srinagar and Superintendent Central Jail vide Order No Trg20 of 09/4154/PAU dated 12.5.1998, informed Additional Director General, Prisons & Fire Services, accordingly. The respondent pleaded that the appellant No.2 did not serve notice on the respondent before making the removal from service order in question nor was the respondent afforded an opportunity to explain the reasons for his not reporting to Police Training Academy and show cause against the proposed removal from service Order, impugned in the suit. The respondent on the aforesaid grounds assailed order No.35 of 1998 dated 28.5.1998 as illegal and liable to be set-aside. 4. The respondent in his amended plaint filed on 14.6.1999, with the leave of the court, pleaded that after institution of the suit, the appellant No.1 made yet another order No.189 of 1998 dated 25.9.1998, whereby the "removal from service" was directed to be treated as "discharge from service" and the representation submitted by the respondent was dealt with as review petition and rejected on the ground that medical certificate produced by the respondent was from a Private Doctor and not acceptable. The respondent questioned legality of the order No. 189 of 1998 dated 25.9.1998 on the ground that the respondent was not afforded an opportunity to substantiate the case set up in the representation and denied an opportunity of being heard. The order was also assailed on the ground that such order could only be passed after departmental inquiry - the course not followed by the appellants. The respondent insisted that the respondent was removed from the services with "stigma" and thus the appellants were duty bound to hold a departmental inquiry and pass necessary order thereafter in accordance with law. It was also pleaded that the period of probation of the respondent as per terms and conditions of appointment order had come to an end on 30th June 1998 and that the order of discharge dated 25.9.1998 had been passed after the period of probation was over and thus could not he passed without holding departmental inquiry as envisaged under relevant service rules. 5. The appellants in their written statement pleaded that as the respondent had failed to undergo the training course "as prescribed in his appointment order" and remained unauthorizedly absent, the respondent was rightly removed/discharged from the service. The appellant No.2 denied to have received any wireless message from the appellant No.4 - Director Police Training Academy Udhampur. It was denied that the respondent was taken ill after getting relieved from Central Jail Srinagar. The appellants insisted that had the respondent been taken ill, the respondent would have approached the appellant No. 3, i.e., Superintendent Central Jail Srinagar with an application for medical leave. The appellant No.4 in his written statement, however, has claimed to have transmitted wireless message to the appellant No.2, informing appellant No.2 that the respondent had reported for training and was sent back with the direction to join next session. 6. The Trial Court on perusal of the pleadings, settled following issues:- 1. "Whether the plaintiff could not attend at Police Training Academy at Udhampur from 14.02.1998 on account of ailing health? OPP 2. Whether the plaintiff had forwarded application to the defendant No.4 stating therein his inability to attend the training course owing to ill health? OPP 3. Whether after recovering from his ill health the plaintiff immediately reported for training course at Police Training Academy Udhampur and he was not allowed to attend the training course? OPP 4. OPP 2. Whether the plaintiff had forwarded application to the defendant No.4 stating therein his inability to attend the training course owing to ill health? OPP 3. Whether after recovering from his ill health the plaintiff immediately reported for training course at Police Training Academy Udhampur and he was not allowed to attend the training course? OPP 4. Whether the order of removal of the plaintiff passed by the defendant No.2 vide No.35 of 1998 dated 28.5.1998 was passed without following due procedure of law? OPP 5. In case the issue No.4 is proved in affirmative whether order of removal No.35 of 1998 dated 28.05.1998 is void abinitio? OPP 6. Whether the defendant No.3 his communication No.TRG-20/98-5154/PAU dated 12.05.1998 that plaintiff was deputed back to Central Jail, Srinagar with the direction to defendant No.3 to send the petitioner for training to Police training academy Udhampur for next batch? OPP 7. Whether the plaintiff made representations to defendants for cancellation of the order of removal and the said representations were not decided by the defendants? OPP 8. Whether the impugned order of removal dated 28.05.1998 and the order of discharge dated 25.09.1998 have been served lo the plaintiff by the defendants? OPD 9. Whether the order of discharge dated 25.09.1998 being stigmatic is bad in law and liable to be declared null and void? OPP 10. If the issue No.9 is proved in affirmative, whether the defendants are bound to allow the plaintiff to join his duties against the said post he was holding prior to the order of removal and pay him all the consequential benefits retrospectively? OPP" 7. The parties were afforded an opportunity to lead evidence in support of their respective stands and to discharge the onus of proving issues, the burden whereof was placed on the parties respectively. Learned Trial Court after going through pleadings and evaluating evidence brought on the file, decided all issues except 2 and 8 in favour of the respondent and against appellants. The Trial court, in effect, held that respondent was unable to report to the Police Training Academy Udhampur after he was relieved on 12.2.1998 because of his illness and that the respondent immediately after he recovered from his illness reported to the Police Training Academy for undergoing training course. The Trial court, in effect, held that respondent was unable to report to the Police Training Academy Udhampur after he was relieved on 12.2.1998 because of his illness and that the respondent immediately after he recovered from his illness reported to the Police Training Academy for undergoing training course. The Trial Court after discussing attending facts and circumstances held Order No.35 of 1998 dated 28th May 1998 to have been passed without following due procedure of law and thus to be void ab initio. The Trial Court on scanning the file held that the appellant No.4 had through a wireless message dated 12.5.1998 informed the appellant No.2 that the respondent on 12.5.1998 reported to the Police Training Academy. Learned Trial Court held the order of removal from service dated 28.5.1998 to be stigmatic and the appellants under duty to allow the respondent to join/ resume his duty. 8. The judgment and decree dated 27.9.2008 are assailed on the grounds that the judgment is erroneous and against law; that the Trial Court has not appreciated the evidence in right perspective and completely glossed over case set up by the appellants. The appellants are also sour for the Trial court having held the respondent entitled to back wages and other service benefits. It is pleaded that the respondent was not able to carve out a case justifying non issuance of notice under section 80 CPC. The appellants claim that having regard to probationary status of the respondent and the fact that respondent’s discharge from service was not in any manner stigmatic, there was no obligation on the part of appellants to hold a departmental inquiry. 9. I have gone through the memorandum of appeal as also the Trial court record and heard learned counsel for the parties. 10. 9. I have gone through the memorandum of appeal as also the Trial court record and heard learned counsel for the parties. 10. There is no dispute between the parties as regards the following aspects of the case:- (1) that the respondent worked on daily wage basis in Central Jail Srinagar much before the respondent was regularized; (2) that the respondent vide order No.689 of 1996 dated 25.6.1996 was appointed as Warder in J&K Prisons in the pay scale of 950-1500 with effect from 1.7.1996; (3) that the respondent was required to undergo prescribed training during probation period i.e., 1.7.1996 to 30.6.1998; (4) that the period of probation, by the appointing authority, was fixed as two years; (5) that the appointing authority or any other competent officer did not relieve the respondent for undergoing prescribed training on respondent’s joining services on 1.7.1996 and thereafter till 12.2.1998; (6) that the respondent was relieved on 12.2.1998, so as to enable him to report to Police Training Academy Udhampur for undergoing prescribed training; (7) that the respondent reported, after getting relieved on 12.2.1998, to the Police Training Academy on 12.5.1998 i.e, after delay of three months; (8) that the respondent was asked by Director, Police Training Academy, Udhampur to report back to his place of posting i.e., Central Jail, Srinagar and to attend the next batch; (9) that the respondent as Instructed by Director, Police Training Academy Udhampur, reported back to Central Jail Srinagar; (10) that the respondent was removed from services vide order No.35 of 1998 dated 28.5.1998 with effect from 14.2.1998; (11) that the respondent made a representation to the Minister of State, Home Deportment, J&K Government as also to the appellant No.2, and the appellant No.2, as directed by Home Department, treated representation as review but declined to accept it on the ground that the medical certificate was Issued by a Private Doctor and the respondent No. 2 further changed the order of "removal from services" into "discharge from service". 11. The only area of disagreement is regarding entitlement of respondent to show cause against the proposed disciplinary action against the respondent and explain the reasons for his absence from duty from 12.2.1998 to 12.5.1998 and his failure to undergo the training programme and duty of the appellants to hold departmental inquiry before making an order of removal from service or discharge from service. 12. 12. The case set up by the appellants is that as the respondent was still on probation on the date order of removal from service was made, neither were the appellants under any duty to hold departmental inquiry before making the order of removal from service/discharge from service, nor had the respondent any right to be heard before such order was made. 13. The respondent’s case is that as the order of discharge from service was made beyond probation period and that the order was stigmatic in nature, the respondent was to be heard before the order was made. 14. Let us assume for a while that the respondent was on probation on the date the order of removal from service/discharge from service was made and proceed to see whether even in case of a probationer the competent authority is under obligation to afford an opportunity of being heard to the probationer against whom disciplinary action is proposed to be taken, and if so, under what circumstances. 15. In Dipti Prakash Banerjee v. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta, 1999, AIR SCW 605, the Supreme Court held that whenever and wherever the termination of service of a probationer is punitive, the probationer is entitled to be heard before his services are terminated. The Supreme Court proceeded to lay down the principles to determine whether the termination is punitive in nature or simpliciter. It was held that whenever the allegations against the probationer form foundation for motive of termination order, the termination is to be treated as punitive in character and probationer to be held entitled to show cause against the proposed action. 16. The law was reiterated in V.P. Ahuja v. State of Punjab, AIR, 2000, SC 1080. It is held that the discharge from services of a probationer was stigmatic on the face of it. The court observed:- "A probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principles of natural justice." 17. The principle of law also finds expression in Dr. Kuldeep Singh Choudhary v. State and others, KLJ, 1996, 139. The court observed:- "A probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principles of natural justice." 17. The principle of law also finds expression in Dr. Kuldeep Singh Choudhary v. State and others, KLJ, 1996, 139. The Court emphasizing the factors that warrant consideration while dealing with discharge from service of a probationer, observed:- "Therefore, all that falls for determination is whether the order is a simpliciter order of discharge or whether it is an order passed by way of punishment and amounts to his removal from service. The order would naturally be vitiated if it is found that the motive behind passing it was to punish the petitioner and see him out of service." 18. The principle has been consistently followed in almost all the cases that have subsequently come up before courts, involving discharge from services of a probationer. The principle finds expression in the following reported cases: 1. State of J&K & ors v. Firdous Ahmad Sheikh & ors., SLJ, 2003(II), 331; 2. Constable Bashir Ahmad v. State of J&K and others, SLJ 2005(I), 375. 3. Mst. Raja v. State of J&K and others, SLJ, 2005(I) 380. 4. Zahoor Ahmad Shall v. State and others, SLJ, 2005 (II), 593; 5. Mushtaq Ahmad Dar v. State of J&K & others, SLJ, 2008 (I) 392; 19. However, learned counsel for the appellants sticks to his stand that a probationer under no circumstances is to he heard or a departmental inquiry conducted prior to his discharge from the service. Learned counsel for the appellant seeks to find support from the following reported cases. However, controversy involved in and facts of aforesaid cases as would be seen are distinguishable from the facts of case is hand. 20. In Mathew P. Thomas v. Kerala State Civil Supply Corpn. Ltd. and others, AIR 2003, SC, 1789, relied upon by learned counsel for the appellants, a show cause notice was issued to the probationer before the order discharging his services and the petitioner was given an opportunity to respond to the show cause notice. In the present case, no notice at all was issued to the respondent and the respondent denied an opportunity to explain his stand. In the present case, no notice at all was issued to the respondent and the respondent denied an opportunity to explain his stand. The facts of the present case thus are markedly different from the facts of the reported case. It would, nonetheless, be profitable to reproduce following observations made by the Court as regards factors to be considered to determine whether termination from service of a probationer is to be taken as simpliciter or punitive observed: "Whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times 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 simpliciter falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or on motive on the ground of unsuitability to continue in service. If the form and language of the so called order of termination simpliciter of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simpliciter or punitive. In cases where the services of a probationer are terminated by an order of termination simpliciter and the language and form of it do not show that either it is punitive or stigmatic on the face of it but in some cases there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer. In other words, the facade of the termination order may be simpliciter but the real face behind it is to get rid of services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simpliciter to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. In such cases it becomes necessary to travel beyond the order of termination simpliciter to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. In that process it also becomes necessary to find out 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." 21. In Commandant, 11th Battallion, A.P. Special Police (IR) v. B.S. Naik, AIR 2003, SC, 2249, the probationer was required to pass language test within the period of probation and in the event probationer failed to pass the test within stipulated time, his services were liable to be terminated. The probationer questioned his termination on the ground of his failure to pass the language test, on the plea that he was exempted from the prescribed test and that in any case requirement of training did not include the requirement to pass the test. The court on going through the appointment order held it to require the probationer to undertake 10 months basic training and held that the requirement included successful completion of the training as otherwise the training would be meaningless and purposeless training without any relevance. The controversy in the present case is nowhere near the controversy in the reported case. In the case in hand the controversy is whether delayed reporting to the training on the ground of serious ailment, entitled the appellants to "remove" the respondent "from services", and that also without affording him an opportunity to explain his failure to report to the Police Training Academy immediately after he was relieved from Central Jail Srinagar. 22. In State of Punjab v. Sukhwinder Singh, AIR 2005 SCW 3477, the probationer police constable was discharged from service on the ground of absence from duty. It was held that as "discharge order" was not based upon the misconduct and was not punitive in nature, the order was not to be preceded by a regular departmental inquiry or discharge as "punitive in character". It was held that as "discharge order" was not based upon the misconduct and was not punitive in nature, the order was not to be preceded by a regular departmental inquiry or discharge as "punitive in character". The Court observed: "The period of probation gives time and opportunity to the employer to watch the work ability, efficiency, sincerity and competence of the servant and if he is found not suitable for the post, the master reserves a right to dispense with his service without anything more during or at the end of the prescribed period, which is styled as period of probation. The mere holding of preliminary inquiry where explanation is called from an employee would not make an otherwise innocuous order of discharge or termination of service punitive in nature. 23. The facts of the reported case are distinguishable from the facts of the present case inasmuch as in the present case the respondent was during period of probation "removed from service" and not "discharged" as in the reported case. The "order of discharge" came to be passed after the respondent had completed the period of probation. 24. The facts of the cases reported in Mohd Shafi v. State & Ors, SLJ, 2000 (II), 603 and Naseer Ahmad Khan v. State of J&K & others SLJ, 2009(1), 345, also relied upon by learned counsel for the appellants, are different from the facts of the present case and law laid down in the reported cases pertains to discharge simpliciter and that also during the period of probation. 25. From the above discussion it emerges that the litmus test to decide whether the probationer was entitled to be heard before his services were discharged is whether discharge from services is punitive or simpliciter. Again to opine whether the discharge from service is punitive or simpliciter, the deciding factor is whether discharge from service is edificed on the allegations leveled against the probationer. After making a brief survey of the case law on the subject, let us shift focus on the case in hand. The order No.35 of 1998 dated 28.5.1998, titled as "removal from service" records following two reasons for respondent’s removal from service:- (i) That the respondent has taken least interest towards normal duties; (ii) That the respondent could not come to mark; 26. The order No.35 of 1998 dated 28.5.1998, titled as "removal from service" records following two reasons for respondent’s removal from service:- (i) That the respondent has taken least interest towards normal duties; (ii) That the respondent could not come to mark; 26. Vide order No. 189 of 1998 dated 25.9.1998, the order of "removal from service" was directed to be treated as "discharge from service". The alleged unauthorized absence of respondent found a mention in the Order No. 189 of 1998 dated 25.9.1998. It appears that on a representation made by the respondent during pendency of the suit, a report was sought from Superintendent Central Jail Srinagar i.e., immediate officer of the respondent, who vide his report No.Estt/318/CJ/3387 dated 10.12.2003, concluded that the respondent had not shirked his duty or avoided to undergo training but was prevented because of his ailment to report to Police Training Academy Udhampur in time. The conclusions arrived at by the appellant No.3 were not considered muchless acted upon by the appellants. The removal from services order that was later changed into "discharge from service" thus cannot be treated as a discharge simpliciter but is punitive in nature. Learned Trial Court was right in holding that the appellants were under duty to hold departmental inquiry and afford the respondent an opportunity to present his case, explaining reasons for his absence and failure to report to Police Training Academy in time. Learned Trial Judge has appreciated the evidence available on the file in right perspective, made an objective and dispassionate appraisal of evidence brought on the file, identified the issues and dug out the principle of law applicable to the facts before the Trial Court. The findings returned by the Trial Court on all the issues including Issue No.9, on which fate of the Civil Suit is hinged, are in tune with law. 27. We need to be reminded of the law laid down by the Supreme Court in Mathew P. Thomas case (supra) that the court to find out whether the removal/discharge is punitive, stigmatic or simpliciter has not to restrict itself to the language and form of the order but the court may go to the background and attending circumstances as well. The grounds pleaded in the memorandum of appeal to question the findings returned by the Trial Court on key issues including Issue No.9 are bereft of any merit. The grounds pleaded in the memorandum of appeal to question the findings returned by the Trial Court on key issues including Issue No.9 are bereft of any merit. Learned Trial Judge, to draw the conclusions, has rightly placed reliance on the case law discussed in the impugned judgment. 28. There are some other aspects of the case that need to be noticed and further supplement and strengthen the findings returned on the issues framed in the Suit by the Trial Court. Order No.35 of 1998 dated 28th May 1998 is in the nature of "removal of respondent" from service. Order on the face of it is stigmatic and punitive in character. The order, obviously, could not have been passed without holding an inquiry and affording respondent opportunity to show cause against the proposed action, which admittedly has not been done in the present. The order dated 18th September 1998, whereby representation made by the respondent was used as a tool to make an attempt to rectify the order dated 28th May 1998, has been passed after the period of probation of the respondent, as laid down in his appointment order No. 689 of 1996 dated 25th June 1996, came to an end. In either case the appellants were duty bound to hold an inquiry before proceeding to terminate services of the respondent. It needs to be pointed out that the appellants were aware of ailment of the respondent and due to said ailment, the appellant as is admitted in Order No.35 of 1998 dated 28th May 1998, postponed deputation of respondent for training course at Police Training Academy, Udhampur. The appellants thus had no occasion to summarily reject review petition only on the ground that the medical certificate was issued by a Private Doctor when the appellants had earlier taken note of the indisposition of the respondent. 29. For the reasons discussed above the appeal is devoid of any merit and deserves to be dismissed. However, the Trial Court after returning its finding on Issues 1 to 9 and holding the order Nos. 29. For the reasons discussed above the appeal is devoid of any merit and deserves to be dismissed. However, the Trial Court after returning its finding on Issues 1 to 9 and holding the order Nos. 35 of 1998 dated 28th of May 1998 and Order No. 189 of 1998 dated 25th of September 1998 bad in law and null and void, and directing the appellants to allow the respondent to join against the post the respondent held in Central Jail Srinagar, has further held the respondent entitled to pay, emoluments and other benefits due from the date of removal. The respondent did not plead and prove before the Trial Court that the respondent was not gainfully employed after his removal from services vide order No.35 of 1998 dated 28th of May 1998. In the circumstances, the Trial Court judgment and decree in question deserve to be modified to the extent that the respondent shall be entitled to the pay, allowance and other benefits attached with the post of Warder that the respondent held at the time of his removal, from the date the respondent reports back to the Superintendant Central Jail, Srinagar. 30. In the circumstances the appeal is dismissed with costs. The judgment and decree of Trial Court are upheld subject to the modification that the respondent shall be entitled to receive pay, allowance and other benefits from the date the respondent submits his joining report to the Superintendent Central Jail, Srinagar pursuant to this judgment. The respondent though not entitled to any monetary benefit for the period w.e.f. 28.05.1998 till he reports to the Superintendent, Central Jail, Srinagar, the said period shall be notionally reckoned for the purpose of pensionary benefits. Decree sheet be drawn. Record be send down. Appeal file to go to records.