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2012 DIGILAW 1048 (JHR)

Rajesh Kumar v. State of Jharkhand

2012-07-25

ALOK SINGH

body2012
ORDER 1. The petitioner was appointed as a constable in the Indian Reserve Batalion and has reported for the training pursuant to the appointment letter dated 26th April, 2005 (Annexure-B to the supplementary counter affidavit). Petitioner, while undergoing training, left the training centre without informing the superior and without getting any leave on 2nd November 2005 and has returned on 17th November, 2005. Thereafter, vide order dated 7th February, 2006 (Annexure no. 2) petitioner was discharged from the services without assigning any reason. Feeling aggrieved, the petitioner preferred an appeal, which was also rejected by the Deputy Inspector General of Police. Feeling aggrieved, the petitioner has invoked writ jurisdiction of this Court under Article 226 of the Constitution of India. 2. I have heard learned counsel for the parties and have carefully perused the record. Dr. S.N. Pathak, learned Sr. Advocate appearing for the petitioner has vehemently argued that the petitioner was dismissed from service because the petitioner remained absent without any leave as stated in paragraph 33 of the counter affidavit. Mr. Pathak further contends that unauthorized absent amounts to misconduct and dismissal for the alleged misconduct requires prior notice and an opportunity of hearing to the delinquent employee/ petitioner as provided under Article 311 of the Constitution of India read with Rule 828 (2) of the Jharkhand Police Manual. Dr. Pathak has further contended that as per Rule 828 of the Jharkhand Police Manual termination, dismissal- removal are the major penalty, which can only be inflicted after following the due procedure as prescribed under Rule 828. Dr. Pathak, learned Sr. Advocate further contends that a constable is neither the executive officer nor a ministerial officer, therefore, he shall not be treated as probationer as per Rule 668 of the Jharkhand Police Manual. Therefore, compliance of Rule 828 of the Jharkhand Police Manual before passing the order of dismissal-removal from services is mandatory. Dr. Pathak while placing reliance on the judgment of the Apex Court in the case of Union of India & other Versus Mahaveer C. Singhvi , reported in (2010) 8 Supreme Court Cases 220, has argued that if dismissal is for the reason of misconduct and outcome of discreet enquiry and if employee was not put on notice and was not heard before passing the order of dismissal, same is liable to be set aside. Dr. Dr. S.N. Pathak, in the last, has vehemently argued that respondents, in the counter affidavit, have admitted that petitioner was dismissed from the service and have not stated that petitioner was discharged, therefore, it should only be treated as dismissal and not the discharge, therefore, compliance of Rule 828 of the Jharkhand Police Manual was mandatory. 3. On the other hand Mr. Ajit Kumar, learned Additional Advocate General has vehemently argued that the police constable is Executive Officer as provided in Appendix 41 of the Police Manual therefore petitioner constable was probationer. He further contends that as per Rule 668 of Jharkhand Police Manual, Executive Officer or ministerial cadre on probation can be removed/ discharged from service without following formalities as laid down under Rule 828 of the Jharkhand Police Manual. 4. To appreciate the respective arguments of the learned counsel appearing for the parties, it would be proper to reproduce the relevant provisions of Rule 668 and Appendix 41 of the Jharkhand Police Manual as under: “Rule 668. Removal or reversion of officers appointed direct or promoted on probation.-The following rules shall govern first appointments and the promotion of police and ministerial officers as detailed in Appendix 41:- (a) All Officers shall in the first instance be appointed or promoted on probation. Where the period of probation is not otherwise provided for in the rules it shall be for a period of two years in the case of executive officers and one year in the case of ministerial officers. The authority authorized to make such appointment or promotion, may at any time during such probationary period and without the formalities laid down in rule 828, remove an executive officer directly appointed or revert such an officer promoted who has not fulfilled the conditions of his appointment or who has shown himself unfit for such appointment or promotion. Similarly probationary period may also be extended without any show cause. No appeal shall lie in such cases. (b) Executive Officers appointed or promoted in other than permanent vacancies are also liable to removal or reversion in the manner indicated in clause (a) above. APPENDIX 41. “LIST OF AUTHORITIES WHO CAN MAKE APPOINTMENTS AND GIVE PROMOTIONS TO DIFFERENT RANKS IN THE POLICE DEPARTMENT. Serial no. No appeal shall lie in such cases. (b) Executive Officers appointed or promoted in other than permanent vacancies are also liable to removal or reversion in the manner indicated in clause (a) above. APPENDIX 41. “LIST OF AUTHORITIES WHO CAN MAKE APPOINTMENTS AND GIVE PROMOTIONS TO DIFFERENT RANKS IN THE POLICE DEPARTMENT. Serial no. Rank Period of Appointing Promoting Probation authority authority 1 2 3 4 5 Executive Ranks 1 Deputy Three years for direct Superintendent recruits and one year promoted as 648 (a) and (b) respectively per. Rules Government Governor 2. Reserve Inspectors Two Years No Direct Inspector-(Armed) (Armed) recruitment. General 3. Inspector (unarmed) Two Years Ditto Ditto and its equivalent rank in technical branches. 4. Reserve Sub- Two yeas for Deputy Deputy Inspector direction recruits Inspector inspector (armed) and its and 1 year for -General -General equivalent ranks in promoted technical branches 5. Sub-Inspectors Two years Ditto Ditto (unarmed) and subject to rule its equivalent in 659 for direct technical branches recruits and 1 year subject to rule 659(g) for promoted. 6. Steno-Typist Two years in Ditto Ditto Sub-Inspectors case of direct recruits and 1 years in case of promoted. 7. Assistant Sub Two years subject No direct Superinte- -Inspectors to rule 660 recruitment. ndent but selection on range seniority basis by D.I.G. 8. Typist Assistant Two years. Deputy Inspector Ditto. Sub-Inspector -General and Steno Typist Assistant Sub- Inspector. 9. Havildar and its Two years No direct Superinte- equivalent ranks in subject to rule appointment. ndent. technical branches. 660 A. 10. Lance naiks and 1 year .. Superinte- Niaks .. . ndent 11. Constables .. Superintendent including driver constables, armourer constables etc. II. Technical Cadres ......... 12... 13... 14... III MINISTERIAL CADRE 15 to 24................ 6. Having perused Rule 668 and Appendix 41 of the Jharkhand Police Manual, I have no hesitation to hold that constable, as mentioned at serial no. 11 in Appendix 41, shall be executive officer. I have no doubt to further hold that as per Rule 668 (a)of the Jharkhand Police Manual, all the officers at the first instance shall be appointed or promoted on probation. In other words no police officer at the first instance shall be appointed as confirmed officer. New appointee or a promotee shall always be considered as probationer. Period of probation for executive officer shall be Two years and for the ministerial officer shall be One year. In other words no police officer at the first instance shall be appointed as confirmed officer. New appointee or a promotee shall always be considered as probationer. Period of probation for executive officer shall be Two years and for the ministerial officer shall be One year. During the probation the appointing authority or the authority competent to grant promotion, as the case may be, may remove an executive officer directly appointed or promoted without following procedure provided under Rule 828 of the Jharkhand Police Manual, if in his opinion such probationer- direct appointee or promotee, as the case may be, is unfit for such appointment or promotion. Such authority may also extend the period of probation without any show cause. No appeal lies against the order of the competent officer removing the probationer or extending the period of probation. 7. Hon'ble Apex Court in the case of Union of India & other Versus Mahaveer C. Singhvi (Supra) in paragraph nos. 10 and 46 has observed as under: “Para-10:It was held by this Court in Dipti Prakash Banerjee' case that whether an order of termination of a probationer can be said to be punitive or not depends on whether the allegations which are the cause of the termination are the motive or foundation. It was observed that if findings were arrived at in inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, a simple order of termination is to be treated as founded on the allegations and would be bad, but if the enquiry was not held, and no findings were arrived at and the employer was not inclined to conduct an enquiry, but, at the same time, he did not want to continue the employee's services, it would only be a case of motive and the order of termination of the employee would not be bad. Para-46: As has also been held in some of the cases cited before us, if a finding against a probationer is arrived at behind his back on the basis of the enquiry conducted into the allegations made against him/ her and if the same formed the foundation of the order of discharge, the same would be bad and liable to be set aside. On the other hand, if no enquiry was held or contemplated and the allegations were merely a motive for the passing of an order of discharge of a probationer without giving him a hearing, the same would be valid. However, the latter view is not attracted to the facts of this case.” 8. From perusal of paragraph nos. 10 and 46 of the supreme Court judgment, it is thus clear that if probationer is discharged pursuant to the finding arrived at in an enquiry conducted behind his back, to look into the allegations made against him, then such discharge order would be bad, if such probationer was not put on notice and was not heard. However, if competent authority has not contemplated or held any enquiry to look into the allegations of alleged misconduct then discharge of probation without notice and hearing would be legal and valid although motive of discharge is alleged misconduct. 9. Now coming to the present case, there was no complaint against the petitioner by the third person or any other officer, therefore, there was no necessity to hold the enquiry to find out the correctness of the allegations levelled against the petitioner. Admittedly, the petitioner has left the training Centre without informing his superior, therefore, it is a sound reason to remove him. Since, no enquiry was required and was ever contemplated, therefore, impugned order of removal, cannot be set aside merely because the petitioner was not served with show cause notice and was not heard. 10. Perusal of impugned order shows that RAJESH KUMAR KO SEWA MUKT KIYA JATA HAI. As per the dictionary meaning SEWA MUKT means REMOVED OR DISCHARGED. In my firm opinion petitioner was removed. It seems, while preparing the counter affidavit, word dismissed is wrongly used in place of Removed. 11. In view of the discussion made herein above impugned order does not require any interference. Therefore, writ petition is dismissed. 12. No costs. Petition dismissed.