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2013 DIGILAW 429 (JK)

Bashir Ahmad Dar v. State

2013-07-26

Hasnain Massodi

body2013
1. Petitioner vide order No. 1140 of 1996 dated 31st July 1996 was appointed as Constable in Jammu and Kashmir Police Department, allotted to district Baramulla and given Belt No. 1070/B. He unauthorizedly absented himself from the place of attachment on 5th June 2004. After notices issued to him to report to duty failed to evoke any response, the petitioner was discharged from service vide order No. 1344/2004 dated 21st December 2004, w. e. f. the date of his unauthorized absence i.e. 5th June 2004. 2. The order No. 1344/2004 dated 21st December 2004 (appended as annexure- D to the writ petition), whereby the petitioner has been discharged is assailed in the writ petition on hand on the grounds set out in the petition. The order is primarily questioned on the grounds that the respondents failed to comply with the mandate of Jammu and Kashmir Police Rules, 1960 (herein after referred to as Rules of 1960) while dealing with the matter and discharging the petitioner from the services. 3. Respondents oppose the writ petition on the grounds that the service record of the petitioner is full of punishments, that the petitioner was a habitual absentee, and failed to discharge his duties to the satisfaction of his superiors. It is pleaded that a number of notices served on the petitioner including one served through SHO Police Station Pattan, requiring him to resume his duties did not yield any result. A is notice also said to have been published in a local daily without any response from the petitioner. It is insisted that the order dated 21st December 2004 questioned in the writ petition was passed after adhering to the rules and regulations and is therefore beyond challenge. 4. I have gone through the pleadings as well as record available on the file and have heard learned counsel for the parties at length. 5. Petitioner, as already stated, joined J&K Police Department in 1996 and had rendered a little more than eight years of service on the date he was discharged from the duties. Petitioner, a closer look at the order impugned would reveal, has been discharged from service on the grounds of "obnoxious service record and continuous absence". 6. Discharge from service does not find place in the list of punishment catalogued in Rule 334 (2) of Rules of 1960. Petitioner, a closer look at the order impugned would reveal, has been discharged from service on the grounds of "obnoxious service record and continuous absence". 6. Discharge from service does not find place in the list of punishment catalogued in Rule 334 (2) of Rules of 1960. The Rule enumerates the punishments that can be inflicted departmentally on a police officer of rank below sub inspector. However, discharge from service is a device available to Superintendent of Police to get rid of an "in efficient" in the department, who in his opinion is unlikely to prove an efficient police officer. However, the device available under Rule 187 of the Rules of 1960 can be used at any time within three years of enrollment. In the present case as already pointed out petitioner had more than eight years of service to his credit on the date order impugned was passed. Rule 187 of Rules of 1960 therefore could not have been pressed into service by Superintendent of Police of district Anantnag to get rid of the petitioner. 7. It is pertinent to point out that where a Superintendent of Police decides to discharge a police constable, he is not required to hold an enquiry, as the discharge is not to visit the discharged police constable with any adverse consequences or comment on his conduct. The discharged police officer is free to seek employment in any government department and discharge like any punishment given to a police officer in terms of Rule 334 of the Rules of 1960 would not stand in his way to start afresh in eye. However, where the authority competent to discharge a police officer while making such an order comments adversely on the work and conduct of the discharged police officer, the discharge is to be taken as stigmatic requiring an enquiry before such an order is made. The object is to afford an officer proposed to be discharged, an opportunity to convince the authority that the allegations of misconduct are misplaced and without substance. 8. In the present case, the petitioner in the first place could not have been discharged from service as he had more than three years of service to his credit (total eight years of service) and therefore device available under Rule 187 of Rules on 1960 was not available to be used to get rid of the petitioner. 8. In the present case, the petitioner in the first place could not have been discharged from service as he had more than three years of service to his credit (total eight years of service) and therefore device available under Rule 187 of Rules on 1960 was not available to be used to get rid of the petitioner. Secondly, the impugned order refers to "obnoxious service record and continuous absence" and is stigmatic in character. Even if it is assumed that respondent no. 4 was competent to discharge the petitioner, he was required to mandatorily hold an enquiry in the matter, give petitioner a reasonable and adequate opportunity to project his stand. This has not been done in the present case. 9. It is vehemently argued by learned counsel for the respondents that in a case like the one on hand, the court should not give any importance to the nomenclature used by the author of the impugned order and instead look at the intention of the authority to find out the object of the order. Dwelling upon the argument learned counsel for the respondents insists that the order should be taken as one awarding the punishment of dismissal from service. There would be a practical difficulty in accepting this argument as the dismissal is not the only punishment that may be awarded on proof of misconduct against a Police Officer. Rule 334 (2) enumerates (a) dismissal (b) removal (c) compulsory retirement, amongst punishments with which an officer may be visited in case misconduct is proved against him. We refer only to the aforesaid three punishments as these amongst eleven punishments prescribed have same consequences as discharge from the service. Even if it is accepted that the impugned order though styled as discharge from service should be taken as one awarding punishments prescribed under Rule 334 (2) (a) to (c) there is no material to conclude whether it fell within Rule 334 (2) (a), 334 (2) (b) or 334 (2) (c) of the Rules 1960. This aspect of the case cannot be ignored inasmuch as dismissal from service, removal from service and compulsory retirement before attaining of age of superannuation have different consequences for an erring officer as regards his future prospects. This aspect of the case cannot be ignored inasmuch as dismissal from service, removal from service and compulsory retirement before attaining of age of superannuation have different consequences for an erring officer as regards his future prospects. While dismissal from service operates as a bar to re-employment in the Government service, removal from service and compulsory retirement don't have such consequence and expressly have been declared as not a bar to re-employment in Government service in other departments. 10. Let us take a worst scenario for the petitioner and assume that notwithstanding the nomenclature used, the order impugned in the petition is to be taken as an order of dismissal from service, such an assumption would necessarily raise the question as to whether the procedure required to be followed under Rules of 1960 in case of dismissal of service have been followed in the present case. 11. While Rule 334, Chapter-XI of the Rules of 1960 lays down the punishments that may be inflicted departmentally on a Police Officer, Rule 359 in the same Chapter deals with the procedure to be followed before such a punishment is departmentally inflicted on a Police Officer. This Court in Abdul Satar Lone v. State of J&K and others 2011 (4) JKJ [HC] 587 summarized the procedure so laid down step by step in para-15 of the Judgment. It reads: (a) Whenever a definite complaint of misconduct is received against Police officer, the officer receiving the complaint is to immediately record statements, if any, in support of the complaint and through usual channels forward the complaint with the statements, if any, to the Superintendent of Police or other Gazetted Officer under whose immediate control the officer receiving the complaint, is serving. The police or other officer if satisfied that a prima facie case for enquiry is made out is to entrust the enquiry as far as possible to a Gazetted Officer empowered to inflict a major punishment upon the delinquent officer. (b) The officer conducting the enquiry is to summon the delinquent police officer, read out to him the statements summarizing the alleged misconduct so as to give notice to such police officer of the circumstance in regard to which evidence is to be recorded. (b) The officer conducting the enquiry is to summon the delinquent police officer, read out to him the statements summarizing the alleged misconduct so as to give notice to such police officer of the circumstance in regard to which evidence is to be recorded. In case the delinquent police officer admits the misconduct alleged against him, the officer conducting enquiry may then and there record a final order if it is within his power to do so or forward the matter to an officer empowered to pass a final order. (c) If the delinquent police officer does not admit the alleged misconduct, the enquiry officer is required to record such evidence oral and documentary in proof of accusation as is available and necessary to support the charge. Whenever possible, witnesses are to be examined in presence of the delinquent police officer and such officer given opportunity to examine the witness unless he is of the opinion that the presence of the witness cannot be secured without undue delay and expense or inconvenience. In later case the statement of the witness recorded and attested by Magistrate, may be considered though not recorded in presence of the delinquent officer and without opportunity to cross-examine the witness to such officer. (d) When the evidence is recorded and it is found not to substantiate the accusation, the officer is to recommend his discharge to the Superintendent of police or other officer so empowered. However, if the evidence collected substantiates the accusation of misconduct, the officer is to frame a formal charge/charges in writing, explain the charges to the delinquent police officer and call upon him to answer the charge. (e) The enquiry officer after the charge/charges are framed in writing is to explain it to the delinquent officer, and ask the delinquent police officer to furnish list of the defence witnesses whom he wishes to call along with summary of the facts as to which such witnesses are to testify. The enquiry officer thereafter has to record the statement of the defence witnesses whom he decides to admit, in presence of the delinquent police officer, who is also to be allowed address/put questions to the witnesses as he may deem fit. The enquiry officer thereafter has to record the statement of the defence witnesses whom he decides to admit, in presence of the delinquent police officer, who is also to be allowed address/put questions to the witnesses as he may deem fit. The delinquent police officer is also to be given opportunity to file documentary evidence and in this regard to have access to official files and papers except such as form part of the confidential record. (f) The Inquiry Officer, after the defence is concluded, is to allow the delinquent police officer to make a statement in reply to the charge and if he so chooses to file his written statement. The Inquiry Officer independent of the option exercised by the delinquent police official to file a written statement, would be competent to put all such questions to him which he may see fit to be put arising out of the charge. (g) The Inquiry Officer after the delinquent police officer closes his case files his written statement and answers questions, if any, put to him, is to pass order as may be warranted under facts and circumstances of the case or forward the case with his recommendations to an officer empowered to pass such order. However, no officer is to be dismissed or removed by an authority subordinate to that by which he was appointed. (h) The punishment of dismissal, removal or reduction in rank is not to be imposed unless delinquent police officer is given a reasonable opportunity of showing cause orally and also in writing against the action proposed to be taken against him. However such right may be denied if the delinquent officer is dismissed, removed or reduced in rank on his conviction on a criminal charge or the authority is of the opinion that it is not reasonably practicable to give the delinquent police officer an opportunity of showing cause or where the Governor is satisfied that in the interest of the security of the State it is not expedient to give that officer such an opportunity. (i) The Authority competent to order dismissal, removal or reduction in rank, is not merely to give an opportunity to the delinquent police officer to show cause against the proposed action but provide the officer copy of the enquiry report and the record, so as to enable the delinquent police officer to exercise his right to show cause against the proposed action in a meaningful manner. 12. Perusal of record would reveal that procedure laid down in the aforementioned Rule has been observed in breach. The record does not indicate that an enquiry was directed into the matter. The officer, if any, asked to conduct enquiry, summon the petitioner, read to him the statements summarizing the alleged misconduct, record oral and documentary evidence in proof of the accusation, allow the petitioner to cross-examine the witnesses or to examine witness and produce documents in his defense. The record also does not indicate that any formal charge was framed against the petitioner and the petitioner given an opportunity to furnish the list of defense witnesses or examine such witnesses, or allowed to file written statement. The petitioner has not been given an opportunity to show cause orally and in writing against the action proposed to be taken against him. It is pertinent to point out that the petitioner was not removed on his conviction of a criminal charge nor was satisfaction recorded by the respondents that giving him an opportunity to show cause against the proposed action would not be reasonably practicable. 13. In the circumstances the procedure mandatorily to be followed before making the impugned order, was not followed by the Competent Authority. The impugned order, therefore, has been passed in a violation of mandate of Rules of 1960 and in particular Rule 359 of the Rules of 1960. The order thus cannot stand legal scrutiny. 14. For the reasons discussed, the writ petition is allowed, order impugned quashed and respondents directed to allow the petitioner to resume his duty. However, respondents would be free to order an enquiry against the petitioner in accordance with Rule 359 of J & K Police Rules 1960. The period w.e.f. 05.06.2004 till the petitioner resumes duty pursuant to this direction, shall be dealt with in accordance with rules and having regard to the outcome of an enquiry, if any, ordered against the petitioner. 15. Disposed of.