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2012 DIGILAW 628 (JK)

Rakesh Kumar v. State and Ors.

2012-10-04

MANSOOR AHMAD MIR

body2012
Mansoor Ahmad Mir, J.— 1. By the medium of this petition, the petitioner is seeking to quash Order No.221 of 2005 dated 07.03.2005, issued by the Commandant, JKAP, 5th Bn., Srinagar, respondent no.3 herein, whereby he has been discharged from service with immediate effect (for short, impugned order). 2. It is averred that the petitioner was selected as a Constable in IRP 9th Bn. after following due selection process. The said selection was also approved by the PHQ vide Order No.2191 of 2003 dated 21.06.2003. After completion of all the formalities, the petitioner was allowed to join on 08.10.2003 in 9th Bn. and, thereafter, was adjusted in 5th Bn., wherefrom he was deputed to undergo training at STC Talwara vide Order No.Estt/V/15647-55 dated 13.10.2003. It is further averred that a false and frivolous complaint was lodged against him at Police Station Rajouri under Sections 498-A, 380 and 323 of Ranbir Penal Code (for short, RPC)S, was subject matter of trial before the Court of District Judicial Mobile Magistrate, Rajouri and was acquitted vide judgment and order dated 31.05.2005. However, the respondents without hearing the petitioner or holding any inquiry passed the impugned order, thereby discharging him from service on the ground that he was allegedly involved in the aforesaid criminal case. 3. Respondents have filed reply resisting the petition on the ground that the petitioner was involved in a criminal case registered at Police Station, Rajouri, vide FIR No.209/2001 under Sections 498-A, 380 and 323 RPC of Ranbir Penal Code (for short, RPC), which information the petitioner had concealed while joining his service in the Police Department. It is further contended that in the earlier verification report it did not come into their notice that the petitioner was involved in the aforesaid criminal case. However, on re-verification by the CID Headquarters, it was found that the allegations alleged against the petitioner were correct as a criminal case was pending in the Court of District Judicial Mobile Magistrate, Rajouri. 4. The question now involved for consideration is: i. Whether the respondents were within their powers to cancel the appointment of petitioner and discharge him from service without hearing him and holding departmental inquiry? ii. Whether the alleged involvement of the petitioner in the aforesaid criminal case was a ground for making the impugned order? iii. 4. The question now involved for consideration is: i. Whether the respondents were within their powers to cancel the appointment of petitioner and discharge him from service without hearing him and holding departmental inquiry? ii. Whether the alleged involvement of the petitioner in the aforesaid criminal case was a ground for making the impugned order? iii. Whether the petitioner is entitled to the relief sought for in view of the fact that he has already been acquitted of the charges levelled against him? 5. Admittedly, no inquiry has been conducted and the petitioner has been condemned unheard. Non-adherence to the rules while discharging the petitioner from service is violation of principles of natural justice. In terms of the mandate of Police Manual, the petitioner was required to be given an opportunity of hearing before making the impugned order, which has not been done in the instant case. Thus, only on this count the impugned order needs to be quashed. 6. A Division Bench of this Court in Khair Din vs State of J&K, 1994 SLJ 463, has held that the order of discharge/removal/dismissal from service without holding any inquiry is bad in law. Same view was taken by the Single Bench of this Court in Malook Khan vs State, 2011 (1) JKJ 31 (HC), and in Abdul Rashid Lone vs State, 2012 (2) JKJ 70 (HC). 7. The Apex Court in case, Ram Kumar vs. State of UP and ors., 2012(1) JKJ 113(SC), has held that if the police official is acquitted, his order of discharge or termination is required to be quashed. It would be profitable to reproduce paragraphs 8 & 11 thereof, which read as under: “8. In the facts of the present case, we find that though Criminal Case No. 275 of 2001 under Section 324/323/504 IPC had been registered against the appellant at Jaswant Nagar Police Station, District Etawah, admittedly the appellant had been acquitted by order dated 18.07.2002 by the Additional Chief Judicial Magistrate, Etawah. On a reading of the order dated 18.07.2002 of the Additional Chief Judicial Magistrate would show that the sole witness examined before the Court, PW-1 Mr. On a reading of the order dated 18.07.2002 of the Additional Chief Judicial Magistrate would show that the sole witness examined before the Court, PW-1 Mr. Akhilesh Kumar, had deposed before the Court that on 02.12.2000 at 4.00 p.m children were quarrelling and at that time the appellant, Shailendra and Ajay Kumar amongst other neighbours had reached there and someone from the crowd hurled abuses and in the scuffle Akhilesh Kumar got injured when he fell and his head hit a brick platform and that he was not beaten by the accused person by any sharp weapon. In the absence of any other witness against the appellant, the Additional Chief Judicial Magistrate acquitted the appellant of the charges under Section 323/34/504 IPC. On these facts, it was not at all possible for the appointing authority to take a view that the appellant was not suitable for appointment to the post of a police constable. 11. For the aforesaid reasons, we allow the appeal, set aside the order of the learned Single Judge and the impugned order of the Division Bench and allow the writ petition of the appellant and quash the order dated 08.08.2007 of the Senior Superintendent of Police, Ghaziabad. The appellant will be taken back in service within a period of two months from today but he will not be entitled to any back wages for the period he has remained out of service. There shall be no order as to costs.” 8. The Apex Court recently in a judgement, titled as, State of West Bengal & ors. vs S. Nazrul Islam, reported in 2011 AIR SCW 6558, has held that if a Constable is involved in any criminal offence, he cannot possibly be held to be suitable for appointment to the post of Constable, till he is acquitted of the charges levelled against him. It is relevant to extract paragraph-5 of the judgement, which reads as under: “5. We have heard learned counsel for the parties and we fail to appreciate how when a criminal case under Sections 148/323/380/427/596, IPC, against the respondent was pending in the Court of the Additional Chief Judicial Magistrate, Uluberia, Howrah, any mandamus could have been issued by the High Court to the authorities to appoint the respondent as a Constable. We have heard learned counsel for the parties and we fail to appreciate how when a criminal case under Sections 148/323/380/427/596, IPC, against the respondent was pending in the Court of the Additional Chief Judicial Magistrate, Uluberia, Howrah, any mandamus could have been issued by the High Court to the authorities to appoint the respondent as a Constable. Surely, the authorities entrusted with the responsibility of appointing constables were under duty to verify the antecedents of a candidate to find out where he is suitable for the post of constable and so long as the candidate has not been acquitted in the criminal case of the charges under Sections 148/323/380/427/596, IPC, he cannot possibly be held to be suitable for appointment to the post of Constable.” 9. The Supreme Court in another case, titled as, Commissioner of Police and others vs Sandeep Kumar, reported in (2011) 4 SCC 644 , has held that the authorities should condone the minor indiscretions made by young people rather than brand them as criminals for the rest of their lives. The Apex Court further held that young people often commit indiscretions, and the approach of the State should be to condone such indiscretions rather than branding them as criminals for rest of their lives, and that the modern approach should be to reform a person instead of branding him as a criminal for all his life. It is relevant to reproduce paragraphs 8, 9 and 10 of the judgement, which read as under: “8. We respectfully agree with the Delhi High Court that the cancellation of his candidature was illegal, but we wish to give our own opinion in the matter. When the incident happened the respondent must have been about 20 years of age. At that age young people often commit indiscretions, and such indiscretions can often be condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to branch them as criminals for the rest of their lives. 9. In this connection, we may refer to the character “Jean Valijean” in Victor Hugo’s novel Les Miserables, in which for committing a minor offence of stealing a loaf of bread for his hungry family Jean Valjean was branded as a thief for his whole life. 9. In this connection, we may refer to the character “Jean Valijean” in Victor Hugo’s novel Les Miserables, in which for committing a minor offence of stealing a loaf of bread for his hungry family Jean Valjean was branded as a thief for his whole life. The modern approach should be to reform person instead of branding him as a criminal all his life. 10. We may also here refer to the case of Welsh students mentioned by Lord Denning in his book Due Process of Law. It appears that some students of Wales were very enthusiastic about the Welsh language and they were upset because the radio programmes were being broadcast in the English language and not in Welsh. They came up to London and invaded the High Court. They were found guilty of contempt of Court and sentenced to prison for three months by the High Court Judge. They filed an appeal before the Court of Appeals. Allowing the appeal….” 10. The Supreme Court in the aforementioned judgement has further gone to say that even if a candidate has not mentioned in the application form that he was involved in a criminal case, that cannot be a ground for denying him the appointment. It is useful to reproduce paragraph 12 of the judgement, which reads: “12. It is true that in the application from the respondent did not mention that he was involved in a criminal case under Sections 325/34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified. At any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter.” 11. This Court in Narinder Kumar Sharma v. State and others, reported in 2011 (4) JKJ 176 (HC); Bilal Ahmad Parra vs State and others, reported in 2011 (4) JKJ 601 (HC), and Jahangir Ahmad Khanday vs State & others, SWP No.1811/2011, decided on 31.08.2012, while discussing the issue has laid down the same law. 12. This Court in Narinder Kumar Sharma v. State and others, reported in 2011 (4) JKJ 176 (HC); Bilal Ahmad Parra vs State and others, reported in 2011 (4) JKJ 601 (HC), and Jahangir Ahmad Khanday vs State & others, SWP No.1811/2011, decided on 31.08.2012, while discussing the issue has laid down the same law. 12. In view of the facts of the present case narrated above and in light of the law laid down by the judgments supra, coupled with the fact that the petitioner was already performing his duties as a Constable in the Jammu & Kashmir Armed Police, this writ petition is allowed and the order impugned is quashed. Respondents are directed to take the petitioner back in service within a period of two months from today. However, it is provided that the petitioner would not be entitled to any salary with effect from the date of passing the order of discharge till today, but, the said period shall qualify for all other service benefits. 13. Disposed of along with all connected CMPs.