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2011 DIGILAW 160 (JK)

Naseer Ahmad v. State & Ors.

2011-04-01

HAKIM IMTIYAZ HUSSAIN, MUZAFFAR HUSSAIN ATTAR

body2011
JUDGMENT 1. This appeal is directed against a judgment and order dated 3rd May, 2008 passed by learned Single Judge in SWP No. 1744/2003 titled Nasser Ahmad Khan vs. State & ors., dismissing the writ petition filed by the appellant herein. 2. The brief facts of the case are as under: 3. Appellant-Naseer Ahmad was appointed as Constable in the State Police Department on compassionate grounds vide Order No. 1818 of 2000 dated 19.6.2000 and was posted in District Kupwara. 4. In the year 2001, he was deputed to undergo training to PTS, Manigam vide PHQ Order No. 1041 dated 19.3.2001. 5. While undergoing training, he unauthorizedly absented himself from the Training Centre with effect from 22.5.2001. He was therefore, reverted back to District Kupwara by the Principal PTS, Manigam vide Order dated 3.7.2001. 6. The Superintendent of Police, Kupwara, on consideration of the matter found that the appellant was on probation and is not likely to prove a good police official. He therefore, removed the appellant from service vide order No. 555 of 2001 dated 30.7.2001 in terms of Rule-187 of J & K Police Manual with effect from 22.5.2001 i.e., the date of his absence from PTS, Manigam. He was directed to deposit his uniform, kit/identity card with DPL stores and obtain NOD in his favor within a week's time from the date of issuance of the order. 7. The appellant filed a statutory appeal against the order of removal which was considered by the Deputy Inspector General of Police, Baramulla who has dismissed the same vide order No. 151 of 2003 dated 9.9.2003. 8. Feeling aggrieved of his removal and dismissal of appeal, the appellant challenged the same through a writ petition before this court. One of the grounds taken in the petition to assail the order of removal, was that while undergoing training, he received information from his home that his wife had seriously fallen ill. He informed Principal, PTS, Manigam about the illness of his wife and sought permission to leave the school for attending his ailing wife. The appellant contends that the Principal of the Training School orally granted him permission to leave for his home in view of seriousness of the problem confronting the petitioner and assured him that he will pass necessary orders regarding his leave in accordance with law. The appellant contends that the Principal of the Training School orally granted him permission to leave for his home in view of seriousness of the problem confronting the petitioner and assured him that he will pass necessary orders regarding his leave in accordance with law. On this bonafide belief, the appellant left the School for providing treatment to his ailing wife. He further stated before the court that he was required to attend his wife round the clock during the period from 22.5.2001 to 30.7.2001 and in support he produced a certificate issued in this regard by Sub District Hospital, Kupwara, where petitioner's wife was operated upon. He also placed on record the discharge certificate and stated that immediately after discharge of his wife from the Hospital, he reported for duty but found that he stood removed from service in terms of Rule 187 of J & K Police Manual with retrospective effect. The appellant urged that the removal order was directed without any enquiry into the matter. 9. The respondents in their reply stated that the appellant was appointed as Constable in the year 2000. He was on probation. He was deputed from District Kupwara for undergoing BRTC(Basic Recruit Training Course) to STC, Manigam, Ganderbal, Srinagar on 1.4.2001. During the training course, he absented himself from the said training centre. Consequently he was repatriated to District Police, Kupwara by the Principal, PTS, Manigam vide his order issued under endorsement No. 4585-89 dated 3.7.2001. In this view of the matter, the appellant came to be removed from service under Rule 187 of J & K Police Manual because he would not have proved a good police officer. The respondents further stated that the appellant had not sought any permission from the competent authority to leave the training school. Consequently the Principal of the training school reverted him back to the District Police, Kupwara. They further stated that the appellant was not entitled to opportunity of hearing. He remained absent for a pretty long period and if his wife was really ill, he should have sought proper leave from the Principal of the training school, which he did not and preferred to leave the training school of his own unauthorisedly. 10. They further stated that the appellant was not entitled to opportunity of hearing. He remained absent for a pretty long period and if his wife was really ill, he should have sought proper leave from the Principal of the training school, which he did not and preferred to leave the training school of his own unauthorisedly. 10. In his rejoinder filed before the writ court, the appellant reiterated the stand taken in the main writ petition and stated that he sought permission from the Principal of the Training School and went to his home bonafidely believing that he could return back after seeing his wife. The appellant further stated that after his wife was discharged from the Hospital, he approached the respondents to resume the duty but he was shown the exit gate telling him that leave has not been sanctioned and his services have been terminated on account of being on unauthorized absent. He further stated that he filed an appeal against the order of his removal from service before Deputy Inspector General of Police, North Range, Baramulla. The appeal was dismissed in arbitrary fashion without providing any opportunity of hearing to him in the matter. The order of the Appellate forum, according to the appellant, shows that the appellant has remained allegedly on unauthorized absence which tantamount to gross negligence, carelessness and entails removal of services under rules. The order of removal, according to the appellant, has been directed on account of misconduct allegedly committed by the appellant but no enquiry has been conducted before passing such an order. 11. Learned Single Judge has on consideration of the matter and after referring to the judgments of the Apex Court and the Division Bench of this Court, found that since the appellant was on probation, no enquiry was required in the matter, so the order of removal did not suffer from any illegality. The learned Single Judge has, therefore, dismissed the petition vide order dated 3.5.2008, which is impugned in the present appeal. 12. Various grounds have been taken to assail the order of the learned Single Judge. It is contended that the order of removal of the appellant from service is punitive in nature and attaches stigma on the appellant as the same is based on misconduct. 12. Various grounds have been taken to assail the order of the learned Single Judge. It is contended that the order of removal of the appellant from service is punitive in nature and attaches stigma on the appellant as the same is based on misconduct. The order provides that the appellant was removed on account of unauthorized absence from the training centre from 22.5.2001, which is the basis for passing the impugned order. Since impugned order dated 30.7.2001 has been passed on misconduct of the appellant i.e., his unauthorized absence from duty, it required an enquiry and as no enquiry has been conducted in the matter, order of removal of the appellant from service is bad in law. 13. Heard. We have considered the matter. 14. We have gone through the order impugned. 15. We have also considered the order passed by the Deputy Inspector General of Police in the matter. 16. Learned counsel for the appellant has referred to the order impugned dated 30.7.2001, by means of which the appellant has been removed from service. The order reads as under:- ...Whereas while undergoing the training, he unauthorizedly absented himself from the Training Centre with effect from 22.5.2001. Whereas the recruit Constable was reverted back to this District by the Principal PRS Manigam vide his office order No. 4585-88 dated 3.7.2001. Whereas the recruit constable is on probation and is not likely to prove a good police official. As such, recruit constable Naseer Ahmad No. 1067-KP S/o Najib-ullah Khan R/o Hyhama Kupwara is hereby removed from service in terms of Rule 187 of J & K Police Manual with effect from 22.5.2001 i.e., the date of his absence from PTS Manigam. He shall deposit his uniform kit/identity card with DPL stores/this office and obtain NOC in his favor within a week's time from the date of issuance of this order. In case of outstanding, if any, which may occur in terms at any stage, he shall be liable for action under law. 17. After the appellant came to know about his removal, he preferred an appeal before the competent authority against the order of his removal. The appeal has been heard by the Deputy Inspector General of Police, North Range, Baramulla and vide order No. 151 of 2003 dated 9th September, 2003 the appeal has been dismissed. 17. After the appellant came to know about his removal, he preferred an appeal before the competent authority against the order of his removal. The appeal has been heard by the Deputy Inspector General of Police, North Range, Baramulla and vide order No. 151 of 2003 dated 9th September, 2003 the appeal has been dismissed. The Deputy Inspector General of Police has found that the appeal had no legal force behind it for its acceptance. While rejecting the appeal he has observed as under:- In view of his conduct, being probationer, the appellant was discharged from service by SP Kupwara vide his order No. 555 of 2001 dated 30.7.2001. The appellant was aggrieved with the order of SP Kupwara and to agitate the matter he preferred an appeal against the said discharge order. His appeal was received in RPO vide SP Kupwara's letter No. ESTT/APPEAL/2002/14516 dated 13.8.2002. Comments were sought from SP Kupwara on each point of the appeal touched by the appellant in his appeal papers. I have gone through the memorandum of appeal together with its connected papers and comments put-forth by SP Kupwara on the subject. I have observed that, infact, the appellant has willfully absented himself from PTS Manigam. In case the wife of appellant was really ill he could have reported the matter to the Principal concerned or any other senior officer for proper permission to leave the Training centre, which he has not done. He adopted the way of unauthorized absence, which tent-amounts gross negligence, carelessness and entails the removal from service, under rules. 18. Though the order of Superintendent of Police, Kupwara No. 555 of 2001 dated 30.7.2001, is under Rule 187 on the ground that the appellant is not likely to prove a good police official, the order passed by the Deputy Inspector General of Police while disposing of the appeal of the appellant is on the ground of misconduct. The Appellate Authority has observed that the appellant adopted the way of unauthorized absence, which tantamount to gross negligence, carelessness and entail the removal from service, under rules. Since the basic order has merged in the order of the Deputy Inspector General of Police and the latter order would show that the removal is on the ground of gross negligence and carelessness on the part of the appellant, in our view it is stigmatic in nature. 19. Since the basic order has merged in the order of the Deputy Inspector General of Police and the latter order would show that the removal is on the ground of gross negligence and carelessness on the part of the appellant, in our view it is stigmatic in nature. 19. We find that enquiry in the matter was required notwithstanding the fact that the authorities were exercising power under Rule 187 of the J & K Police Manual. 20. Under Rule 187 of the Police Manual a constable can be discharged from service if the appointing authority is satisfied that he is unlikely to prove an efficient police officer. Rule 187 of the Police Rules provides a guideline for its exercise and a protection of the rights of the constables by affording them an opportunity of being heard. 21. 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. In Bilal Ahmad Bangroo v. State of J & K & ors. 2006 SLJ 437, it was, however, held that Rule 187 does not contemplate holding of enquiry or providing of opportunity to the Police Officer before directing his discharge within a period of three years of enrollment. Opportunity of hearing may be afforded only if order of discharge was stigmatic. 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. 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. 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 Webster's 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. 22. This authority was followed with approval by V.K. Gupta, J (as his lordship then was) in Ghulam Mohd. Paswal 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. 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. 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 9sic) 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. 23. 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. 24. 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 cannot prove good police officials. 24. 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 cannot 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 material 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 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. 25. Similar observations were made in Abdul Rehman Mir Vs. State 1997 SLJ 350 and Kulbir Singh Sain vs. State of J & K 1989 SLJ J & K 42 and Shabir Ahmad vs. State of J & K & ors. 2005 (1) SLJ 375. 26. In Constable Bashir Ahmad v. State of J & K & ors. 25. Similar observations were made in Abdul Rehman Mir Vs. State 1997 SLJ 350 and Kulbir Singh Sain vs. State of J & K 1989 SLJ J & K 42 and Shabir Ahmad vs. State of J & K & ors. 2005 (1) SLJ 375. 26. In Constable Bashir Ahmad v. State of J & K & ors. 2005 Srinagar LJ 375, it was held that 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. 27. 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. 28. A perusal of Rule 187 of the Police Rules 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 mere subjective satisfaction of the Police Officer which is relevant for the purposes of deciding as to whether he has highly held a constable to be unlikely to prove an efficient Police official. It is not the mere subjective satisfaction of the Police Officer which is relevant for the purposes of deciding as to whether he has highly held a constable to be unlikely to prove an efficient Police official. To find the concerned as insufficient the authority has to decide on the basis of the record the likelihood of the retention of a Police Officer or otherwise. The finding must be based upon a conscious decision of mind and cannot be resorted to or arrived at hypothecation or mere upon conjectures or suspicion. 29. Rule 187 of the Police Rules does not give an arbitrary power to the appointing authority to remove any employee of the Police without observing the principles of natural justice, which is the minimal requirement to hold an employee liable for removal from service who has been appointed on a clear vacancy and has been put on probation of three years from the date of the appointment. 30. Where the order of termination under Rule 187 stated that the constables did not go for basic training and absented themselves and therefore would not prove as good police officials, it was held that the order is not stigmatic warranting detailed enquiry before termination of service. In State of Haryana & anr. v. Jadish Chander (1995)2 SCC 567 , the Apex Court held that where an order of discharge is passed against a Constable on the ground that he was unlikely to prove an efficient police officer and such finding is likely to disentitle future employment, the order being stigmatic if passed without enquiry was bad in law. 31. On consideration of the facts of the present case and going through the case law cited above, we find authorities relied upon by the learned Single Judge are distinguishable and cannot be made applicable to the facts of the present case. 32. Another important issue, which arises for determination in the case is regarding the nature of the order, impugned dated 30.7.2001.Under Rule 187, a police official who is on probation can be discharged from service if the prescribed authority finds that such police official is not likely to prove a good police official. Thus the rule empowers the prescribed authority to discharge an employee who is on probation. Prescribed authority is under this rule vested with the power only to discharge a police official, he cannot remove him/her from service. Thus the rule empowers the prescribed authority to discharge an employee who is on probation. Prescribed authority is under this rule vested with the power only to discharge a police official, he cannot remove him/her from service. For a penalty of removal provisions of Rule 395 of the Police Manual are required to be complied with and where no such formalities are complied with, the order of removal cannot stand. 33. In the present case, we find the respondents have instead of discharging the appellant, removed him from service and that too without any enquiry. On this ground too, we find that removal of the appellant from service cannot sustain. 34. In the circumstances noted above, we find the orders impugned are not sustainable. The same are set aside. The LPA as well as the writ petition of the appellant are allowed. There shall be no order as to costs.