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2011 DIGILAW 663 (JK)

State & Ors. v. Abdul Majeed Bhat

2011-11-28

MOHAMMAD YAQOOB MIR, VIRENDER SINGH

body2011
Virender Singh, J.— 1. In the appeal at hand, the State has questioned the judgment/order of the learned Single Judge dated 23rd of March, 2005 rendered in SWP No. 56 of 2000, whereby quashing the order No. 831 of 1992 dated 16.04.1992 passed by appellant No. 3, removing respondent-writ petitioner (for short 'petitioner') from the rolls of JKAP 3rd Bn (Anantnag) on the ground of unauthorized absence w.e.f. 03.11.1991 till the passing of the order of removal. 2. The petitioner was selected as Constable vide DIG AP(K) Letter No. 243-45/PA/ARCK dated 29.08.1991.He joined his duties on 24.09.1991 as probationer and absented himself unauthorizedly w.e.f 03.11.1991. An entry was made in this regard in the daily dairy report No. 19 on 03.11.1991. The department waited for his return upto 16.04.1992. As he failed to resume duties, it was presumed that he was not willing to serve the department, as such removed from the rolls of the department vide order dated 16.04.1992. He challenged the said order of removal through the medium of SWP No. 56 of 2000 mainly on the ground that his services were terminated without holding an enquiry as envisaged under the rules governing the field, inasmuch as no opportunity of being heard was provided to him. The learned Writ Court allowed the writ petition along with bunch of other writ petitions of the similar nature by quashing the order of removal holding that it was passed without an enquiry. It was further held that in case the authority concerned felt that it was not practicable to hold an enquiry due to the absence, non-cooperation or hostile attitude of the petitioner, they should have exercised their powers under rule 359(ii)(2)(b) of J&K Police Manual (for short 'Police Rules'), which empowers the authority to dispense with the enquiry on the ground of impracticability. Aggrieved of the said judgment, State is before us through the present Letters Patent Appeal. 3. We have heard Mr. Magray at length. There is no assistance rendered from the side of the respondent as he goes unrepresented. However, we have gone through the writ court record ourselves. 4. Mr. Aggrieved of the said judgment, State is before us through the present Letters Patent Appeal. 3. We have heard Mr. Magray at length. There is no assistance rendered from the side of the respondent as he goes unrepresented. However, we have gone through the writ court record ourselves. 4. Mr. Magray contended before us that despite the appellants have specifically raised a preliminary objection before the writ court, questioning the abnormal delay of more than seven years in filing the writ petition, the impugned judgment has been passed without dealing with the said issue at all, more so, when no explanation has been put forth by the petitioner for this huge delay and this flaw by itself is sufficient to uphold the order of his removal from service. 5. Mr. Magray then submitted that even otherwise the appellants were not under law required to hold a regular enquiry against the petitioner as he was a probationer and his services were to be confirmed only after successful completion of probation period. In the case at hand, the authority concerned has exercised its power under Rule 187 of Police Rules, which empowers it to discharge a constable from the organization, if he does not prove to be an efficient police official. According to the learned State counsel, Rule 359(10) of Police Rules, empowers the competent authority to dispense with the enquiry in case of a probationer. He thus contended that the petitioner has no case on any count. 6. In support of his contentions, Mr. Magray has relied upon the Division Bench of this court in LPA No. 218 of 2005 (connected with other appeals) decided on 08.10.2007 and LPA No. 128 of 2006 decided on 08.06.2011. 7. We are not in agreement with any of the submissions advanced by Mr. Magray. 8. On examining the writ court record minutely, we find that before passing the order of removal dated 16.04.1992, a notice was received by the petitioner through SHO, Police Station Dooru directing him to resume to his duties within seven days. This notice is dated 27.02.1992 and annexed as Annexure-A with the main writ petition. 9. Magray. 8. On examining the writ court record minutely, we find that before passing the order of removal dated 16.04.1992, a notice was received by the petitioner through SHO, Police Station Dooru directing him to resume to his duties within seven days. This notice is dated 27.02.1992 and annexed as Annexure-A with the main writ petition. 9. The case set up by the petitioner is that immediately after receiving the aforesaid said notice, he approached appellant No. 3 with an application to allow him to resume to his normal duty upon which appellant No. 3 asked for the report from the concerned Incharge, who reported that the petitioner had absented since 03.11.1991. The said application is annexed as Annexure-B with the writ petition and bears the signatures of appellant No. 3. He moved another application (Annexure-C) showing his willingness to resume to his normal duties. Once again he sought the intervention of appellant No. 3 for allowing him to resume to his duties through an application (Annexure-D) dated 05.04.1992. It was thereafter only that the order of removal dated 16.04.1992 was slapped upon him. 10. In order to show his bonafides, the petitioner made a representation (Annexure-F) along with medical certificate (Annexure-G) to Dy. Inspector General, J&K Armed Police, Communication (Annexure-H) dated 21.07.1999 is also available on the writ court record. It is by one Sh. G. H. Bhat, Parliamentary Secretary for PHE, I&FC addressed to the Director General of Police, J&K State (Srinagar) for according Consideration to the case of the petitioner for his reinstatement. 11. The main writ petition came to be filed on 8th of February, 2000 on which date while admitting it, the following order was passed: "Admit. Notice CMP No. 85/2000 Notice. Prima-facie it appears that the petitioner has asked for joining on the same day when final notice dated 27.02.1992 was passed (Annexure-A). However, he was not allowed to join with the result that impugned order No. 831 of 1992 dated 16.04.1992 has been passed to terminate his services. Representation of petitioner against this order is still pending. Petitioner did not approach this court immediately after passing of order dated 16.04.1992 but went on with the prosecution of his case with respondents. However, he was not allowed to join with the result that impugned order No. 831 of 1992 dated 16.04.1992 has been passed to terminate his services. Representation of petitioner against this order is still pending. Petitioner did not approach this court immediately after passing of order dated 16.04.1992 but went on with the prosecution of his case with respondents. Before submission of learned counsel for staying the operation of this order and reinstatement of petitioner is concerned, it is desirable that respondents consider the matter themselves in the light of various decisions rendered by this court holding that this kind of order, terminating the services without hearing cannot be passed. Therefore, respondents are directed to consider the matter in the light of submissions made by the petitioner and observation made above. Decision be taken within a period of one month and copy of the decision be filed along with reply." 12. From the above narrated facts, it is amply clear that there is no delay on part of the petitioner at any stage, which would stand in his way. 13. The Division Bench decisions on which Mr. Magray has relied upon in support of his contentions are not applicable to the facts of the present case. In LPA No. 128 of 2006, the Division Bench while dealing with the bunch of appeals on the point of delay and laches observed as under: "Applying the ratio laid down in the judgments supra, the writ petitioners have not explained the delay, as discussed here in above. At the cost of repetition, it is apt to mentioned here as to how could it lie in the mouth of the petitioners that they were not having any knowledge of the impugned orders. Even if it be presumed that they had no knowledge of their orders of termination/removal/discharge from service, but when their salary/pay dues were not released to them, did they raise their voice for the non-payment of their salary/pay dues. Where were they from the date of termination till filing of the writ petition. A constable who remains deep slumber for more than five years and in another case for about ten years, and one fine morning he comes to the court for quashment of the order of his termination/removal/discharge and for the reinstatement. Can such a person be allowed to serve in disciplined force. A constable who remains deep slumber for more than five years and in another case for about ten years, and one fine morning he comes to the court for quashment of the order of his termination/removal/discharge and for the reinstatement. Can such a person be allowed to serve in disciplined force. Thus, all the three writ petitions were liable to be dismissed only on the ground of laches and delay. It is worthwhile to mention here that the question of laches and delay was not be determined at the final hearing of the writ petition, as per interim orders, whereby writ-petitions came to be admitted, subject to laches and delay. One writ petition was even admitted without notice. Thus it cannot be said that the writ respondents have waived the object of delay and laches. The writ court has erred in allowed the writ petitions without considering the objection raised by the appellants that the writ petitions were not maintainable and liable to be dismissed on the ground of inordinate delay and laches. The writ court has lost sight of the said objection." 14. In LPA No. 128 of 2006, the Division Bench while allowing the appeal of the State observed in para 9 as under: "In this case also, when the appellants raised a specific plea of delay and laches on the part of the respondents in having filed the writ petition after ten long years, we find that the said stand of the appellants was not even referred to in the order impugned in this appeal. As rightly contended by the learned Senior Additional Advocate General, though the respondent would claim that he was approaching various authorities between 1990 to 2000, we are at a loss to understand as to how the respondent, after finding that there was no response from any of the superior authorities to any of his representations made in 1990, 1993 and 1994 etc., he had no inclination to approach this court to seek for any relief and that he chose to wait for ten long years to come forward with the present petition. If really the respondent was diligent in his claim for the restoration of his employment, he ought to have worked out his remedies at the earliest point of time. If really the respondent was diligent in his claim for the restoration of his employment, he ought to have worked out his remedies at the earliest point of time. He cannot be heard to state that he was running here and there between 1990 to 2000 and wisdom dawned upon him after ten long years to approach this court for working out his remedy. Moreover, except the ipse dixit of the respondent that he had written certain communications to his higher authorities, we do not find any material to support the said stand. If such communications were really addressed or were really delivered on the concerned authorities there must be some material in proof of such communications having been delivered on the appellants. We therefore, do not accept such a story by the respondent. We, therefore, do not find any valid explanation on the part of the respondent to cover up his laches in not approaching this court for nearly ten long years to work out his remedy, in such circumstances, it is a typical case which was really hit by the doctrine of delay and laches and, consequently, the writ petition did not deserve any considered. Therefore, the order impugned in the appeal cannot be sustained and the same is set aside. LPA stands allowed." 15. As stated above, in the case at hand, the fact position is altogether different as the petitioner wanted to project his bonafides before passing of the order of removal and had also been fighting out his cause as is evident from the record. Therefore, in our considered view, on the point of delay and laches, he cannot be shown ouster. 16. We are conscious of the fact that the learned Single Judge has not dealt with this aspect at all despite there being a preliminary objection raised by the appellants in their counter submitted to the main petition, but we have not dealt with it in detail after going through the writ Court record minutely. This exercise has been done by us to avoid any miscarriage of justice. 17. The other argument advanced by Mr. Magray, learned Sr. This exercise has been done by us to avoid any miscarriage of justice. 17. The other argument advanced by Mr. Magray, learned Sr. AAG, that it was a case of removal simpliciter of a constable under Rule 187 of Police rules, who was on probation and absented himself unauthorizedly from duty and the order slapped upon him is in terms of Rule 359(10) of Police Rules, on the face of it, appears to be attractive, but when appreciated in its right perspective, it looses its weight. 18. Let us advert to the order of removal dated 16.04.1992 passed by appellant No. 3. The language used in it is that Constable Ab. Majid No. 305/ III is till on probation and to allow such unwilling officials in the Department is not desirable and such type of 'chronic absentees' will definitely spoil the image of the force. Dubbing the petitioner as 'chronic absentee', in our view, is stigmatic in nature. If this order is sustained, it is likely to disentitle the petitioner for future employment. Such type of orders are not warranted under Rule 187 of Police Rules. May be for his own satisfaction, the prescribed authority can enquire into the matter on his own level by adopting any mode or even asking for any explanation from the probationer but the final order of discharge has to be guarded one and within the ambit of Rule 187 of Police Rules only. Every word has its importance and significance and giving any loose end to it would have different complexion altogether. 19. We are considering the order of removal as unsustainable, yet from another angle. As we have already observed that every word of the order assumes importance, let us refer to con-eluding para of the order passed. It reads thus: - "In view of the above and to such this tendency of absention during these crucial days, it is therefore ordered that prob. Constable Ab. Majid No. 305/111 of this Bn is removed from the rolls of this BN with effect from 08.11.2001 the date he absented unauthorizedly." 20. While dealing with this issue, the Division Bench of this court in LPA No. 168 of 2006 (decided on 28.07.2011) observed as under: "Under Rule 187 of Police Rules, a police official, who is on probation, can be only discharged from service, if he is found unlikely to prove an efficient police officer. While dealing with this issue, the Division Bench of this court in LPA No. 168 of 2006 (decided on 28.07.2011) observed as under: "Under Rule 187 of Police Rules, a police official, who is on probation, can be only discharged from service, if he is found unlikely to prove an efficient police officer. This rule does not empower the prescribed authority to remove the said police official from service. It is altogether different punishment. Removal from service is prescribed in Rule 334(2) of Police Rules dealing with the departmental punishments. 'Dismissal' and 'Removal' are two departmental punishments prescribed under this rule. 'Dismissal' creates a bar for re-employment in Government service, whereas "Removal' does not create a bar to re-employment in government service or any other department. For imposing the punishment of removal from service, there is a prescribed procedure to be adopted as contained in Rule 359 of Police Rules. Only one exception is carved out in Rule 359(10) of Police Rules, which deals with a case of probationer where the services of probationer have to be terminated during or at the end of the period of probation. Therefore, before passing an order of removal, the prescribed authority is supposed to resort to all the prescribed formalities as contained in Rule 359 of Police Rules and if the same are not complied with, the order of removal cannot just stand. In the case at hand, if the prescribed authority in its wisdom had thought of removing the writ petitioner, it should have gone for a full fledged enquiry as contained in Rule 359 of Police Rules. In that eventuality, the order now slapped upon the writ petitioner of removal from service could not be passed under Rule 187 of Police Rules. It appears that the order impugned has been passed by the prescribed authority in a must casual manner with a closed mind showing scant regards to the rules. We do not appreciate the approach adopted in this case. On this ground also, in our considered view, the order of removal of the writ petitioner cannot stand the test of judicial scrutiny." 21. We do not appreciate the approach adopted in this case. On this ground also, in our considered view, the order of removal of the writ petitioner cannot stand the test of judicial scrutiny." 21. For what is said hereinabove and following the ratio of aforesaid decision of Division Bench of this court, the net result now surfaces is that the order of removal dated 16.04.1992 slapped upon the petitioner and challenged in the writ petition is not sustainable in the eye of law as it does not fall within the ambit of Rule 187 of Police Rules so as to bring it within the four corners of Rule 359(10) of Police Rules, dispensing with an enquiry. 22. Viewed thus, we do not find any substance in the appeal filed by the State on any count, resultantly, dismissed. Connected CMP(s), it any, also stands disposed of accordingly. 23. However, there shall be no order as to-costs.