Research › Search › Judgment

J&K High Court · body

2012 DIGILAW 641 (JK)

Randhir Singh v. State of J&K and Ors.

2012-10-06

MANSOOR AHMAD MIR

body2012
Mansoor Ahmad Mir, J.— 1. By the medium of this petition, the petitioner is seeking to quash Order dated 05.05.2006, whereby services of petitioner came to be terminated, with a further prayer to quash advertisement notice No.DIP/J-2272 dated 24.08.2006 issued by the Director School Education, Jammu, so far as it relates to inviting of applications for filling up the third post of Rehbar-e-Taleem (Teacher) in Government Primary School, Samote, with a direction to the respondents to allow him to re-join against the post of Rehbar-e-Taleem in the said School (for short, impugned order/advertisement notice), on the grounds taken in the writ petition. 2. The facts in brief are envisages as under: 3. The petitioner was selected and appointed as a third teacher in Government Primary School, Samote, under Rehbar-e-Taleem Scheme vide order dated 24.01.2004, however, his services came to be terminated vide order dated 05.05.2006, impugned herein, on the ground that he was allegedly involved in a criminal case. It is averred that the impugned order of termination came to be passed without hearing the petitioner and without holding any inquiry as warranted under law. That he has not committed any crime, but came to be falsely implicated in the criminal case. Further, it is averred that after terminating his services, Director School Education, Jammu, respondent no.3 herein, issued advertisement notice dated 24.08.2006, whereby among other posts of Rehbar-e-Taleem, applications were also invited for filling up the third post of Rehbar-e-Taleem in Government Primary School, Samote, which post was held by the petitioner before his termination order could be issued. 4. Respondents have filed reply resisting the petition on the ground that the petitioner was allegedly involved in a criminal case and that is why his services came to be terminated vide the impugned order. It is further contended that a case had been registered against the petitioner, he was not entitled to any hearing. Further, advertisement notice came to be issued for filling up the third post of Rehbar-e-Taleem in Government Primary School, Samote, which became vacant due to the termination of services of the petitioner, but still no appointment has been made. It is stated that the case of petitioner for taking him back as a Rehbar-e-Taleem is under active consideration. 5. Further, advertisement notice came to be issued for filling up the third post of Rehbar-e-Taleem in Government Primary School, Samote, which became vacant due to the termination of services of the petitioner, but still no appointment has been made. It is stated that the case of petitioner for taking him back as a Rehbar-e-Taleem is under active consideration. 5. Admittedly, petitioner was appointed as a third teacher in Government Primary School, Samote, under Rehbar-e-Taleem Scheme and his services came to be terminated vide the impugned order without hearing him. During the pendency of writ petition, the petitioner also filed a copy of judgment and order dated 27.05.2009 delivered by the Principal Sessions Judge, Rajour, whereby he stands honourably acquitted of the charges levelled against him, relevant part whereof reads as under: “Hence, on taking into consideration, my aforesaid findings as to absence of the incriminating material/evidence against the accused persons in the instant case, it can easily be said that the prosecution has miserably failed to connect them with the allegations as contained in the police challan, muchless for which they were charge sheeted by this court. They deserve their acquittal. Accordingly, they are acquitted. Their personal and bail bonds stand discharged. Seized case property be destroyed after the time of appeal is over and, if the appeal is filed, subject to the order of the appellate court. File shall go to records after its due compilation.” 6. 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. It is beaten law of the land that before passing the impugned order respondents had to follow the procedure and they should have given an opportunity of hearing to the petitioner. Thus, only on this count the impugned order needs to be quashed. 7. 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). 8. Admittedly, as discussed hereinabove, the petitioner stands acquitted honourably. Thus, the respondents are under legal obligation to pass appropriate orders. 9. 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). 8. Admittedly, as discussed hereinabove, the petitioner stands acquitted honourably. Thus, the respondents are under legal obligation to pass appropriate orders. 9. 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. 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. 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.” 10. The Apex Court in State of West Bengal & ors. vs S. Nazrul Islam, reported in 2011 AIR SCW 6558, has also laid down the same principle. 11. 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. 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. 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….” 12. 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. 13. 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. 14. This Court in Jagdish Kumar vs State & ors., 2011 (4) JKJ 80 (HC), in similar circumstances directed the respondents therein to consider the case of petitioner therein for permitting him to join his duties. It is useful to reproduce paragraphs 8 & 9 herein. “8. The Apex Court in case titled Babu Lal v. State of Haryana, 1991 AIR 1310, 1991 SCC (2) 335 and High Court of Delhi in case titled Sandeep Kumar v. Commissioner of Police have held that pendency of a criminal case is not a ground to deprive a candidate from his selection and appointment. 9. Keeping in view the ratio laid down in the judgments (supra) coupled with the fact that post is still lying vacant and the verity of petitioner having been honourably acquitted, I deem it proper to allow this writ petition and direct the respondents to consider the case of petitioner for permitting him to join his duties.” 15. 9. Keeping in view the ratio laid down in the judgments (supra) coupled with the fact that post is still lying vacant and the verity of petitioner having been honourably acquitted, I deem it proper to allow this writ petition and direct the respondents to consider the case of petitioner for permitting him to join his duties.” 15. Admittedly, the advertisement notice was issued after passing of the impugned termination order for filling up of the post in Government Primary School, Samote, but yet no selection process has been undertaken and the post is still vacant in view of the reply filed by the respondents. They have specifically averred that the case of petitioner is under active consideration of respondent no.2 for taking him back as Rehbar-e-Taleem. It would be relevant to reproduce relevant portion of the reply herein. “Since the petitioners were stands disengaged and was not allowed to join the post which was subsequently advertised for fresh engagement and the said matter was taken up by the answering respondent no.4 with the respondent No.3 by virtue of order No.COER/W/9605-06 dated 7-7-2009 for seeking instructions pertaining to rejoining of the petitioner when in fact he was no more continued as RET teacher because of being disengaged/terminated and is absent from duty because of the circumstances mentioned above. The matter pertaining to the taking back of the petitioner as RET teacher is still under the active consideration of the respondent No.2.” 16. 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 Rehbar-e-Taleem and the case of petitioner is under active consideration of respondent no.2 for taking him back, this writ petition is allowed and the impugned order of termination is quashed. Advertisement notice, so far as it relates to filling up the third post of Rehbar-e-Taleem in Government Primary School Somate, is also 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 termination till today, but, the said period shall qualify for all other service benefits. 17. Disposed of along with all connected CMPs.