Research › Search › Judgment

J&K High Court · body

2013 DIGILAW 517 (JK)

Irshad Ahmad Hajam v. State

2013-09-06

Mansoor Ahmad Mir

body2013
1. Petitioner has called in question and sought quashment of Order no. 732 of 2001 dated 13th September, 2001, by virtue of which petitioner has been removed from service by the respondents. 2. Respondents resisted the writ petition by filing reply and it is averred in the reply that petitioner is a probationer, therefore, no enquiry was required in his case before terminating his service. 3. Heard. Considered. 4. Admittedly the writ petitioner was on probation on 13th September, 2001- the date the order of discharge was passed without any enquiry and even without show-cause notice. 5. The moot point for consideration is whether regular enquiry was required in the matter in view of the fact that the writ petitioner was a probationer and order was passed within a period of probation i.e. within a period of three years. 6. In order to determine the said issue it is necessary to reproduce the relevant Regulation which governs the subject, i.e. Regulation 187 of the J&K Police Manual:- "DISCHARGE OF INEFFICIENTS: A constable who is found unlikely to prove an efficient police officer may be discharged by the Superintendent at any time within three years of enrolment." 7. While going through this provision of law it can be safely said and held that a probationer can be discharged from service on finding that he is unlikely to become an efficient police officer, which implies that probationer can be discharged even without notice in terms of order which is not stigmatic, but if it is not so, then enquiry is required. 8. The order of discharge needs a relook to find out whether it is stigmatic or not- "1. Whereas Shri Irshad Ahmad Hajam S/o Mohammad Abdullah Hajam R/o Diyalgam Kukernag District Anantnag was appointed as Constable in J&K Executive Police in District Anantnag vide DPO Anantnag order No. 813/97 dated 14.11.97 under belt No. 1271/A, on probation for a period of three years. 2. Whereas the above named constable was transferred from District Anantnag to Range Baramulla vide ZPHQ Order No. 206/98 dated 19.06.1998 and further adjusted in District Baramulla. 3. Whereas the above named constable joined in this District on 15.09.1998 and belt no. 1437/B allotted to him from this District. 4. Whereas the above named constable was deputed to from DPL Baramulla to Karhama Minority Picked Guard vide DD report No. 15 dated 24.04.2001. 5. 3. Whereas the above named constable joined in this District on 15.09.1998 and belt no. 1437/B allotted to him from this District. 4. Whereas the above named constable was deputed to from DPL Baramulla to Karhama Minority Picked Guard vide DD report No. 15 dated 24.04.2001. 5. Whereas one 303 bolt-action rifle bearing registration No. 1661-E, butt No. 95, alongwith 50 rds, of 303, were issued to the above named constable from DPL Baramulla under proper receipt. 6. Whereas, the preliminary enquiry report submitted by Addl. SP Sopore vide his office letter No. 124/C dated 13.09.2001, reveals, the above named constable did not resist the militants attempt and surrendered his weapon before the militants on 12.09.2001, displaying cowardice and lack of courage. This act of the delinquent constable indicate that he is not likely to become a good police official and will prove burden on the department and as such cannot be retained in the department any more. In view of the above facts, I, AQ Manhas- IPS, SSP Baramulla do hereby REMOVE constable Irshad Ahmad No. 1437/B S/o Mohammad Abdullah Hajam R/o Diyalgam Kukarnag District Anantnag, from the service, with immediate effect, in view of the powers vested in me under Art, 126 clause "2" sub-clause "B" of J&K Constitution." 9. While going through the order of discharge, it appears to have been passed on the counts; i) the writ petitioner was on probation; ii) has proved coward; iii) he cannot be a good police officer in future in view of his conduct and iv) he is a burden on State exchequer. 10. Apex Court in series of cases has thrashed when and when not an order of dismissal can be said to be stigmatic. One of such cases reported as AIR SCW 2007 6764 lays down a principle to take care of the stigmatization of an order. 11. If the said principle is applied to the instant case the order of discharge would prove to be nevertheless a stigmatic and not an order of simplicitor. 12. One of such cases reported as AIR SCW 2007 6764 lays down a principle to take care of the stigmatization of an order. 11. If the said principle is applied to the instant case the order of discharge would prove to be nevertheless a stigmatic and not an order of simplicitor. 12. Petitioner's case gains more weight for the reason that the regulation applied in his case is irrelevant because the petitioner had completed the period of probation, thus, was not at all a probationer, as he has been appointed on 14th November, 1997 and was removed from service on 13th September, 2001, meaning thereby that he had rendered more than three years of service at the time of issuance of impugned order. 13. The enquiry can be dispensed with if the disciplinary authority derives satisfaction that enquiry in the matter is not viable. The said question came up for consideration before the Division Bench of this court, in a case titled Farooq Ahmad Mir v. State of J&K and others, reported as 2005 (1) SLJ 182 : 2005 (1) JKJ [HC] 181, and it has been held therein that enquiry can be dispensed with on the ground that it was not practicable to hold enquiry in view of the fact that delinquent police official was involved in militancy activities and such a satisfaction/ decision is of the disciplinary authority on spot. There is nothing on the file which can be made basis for holding that such a satisfaction has been derived by the competent authority while dispensing with the enquiry in the matter, in view of the disturbed situation in the Valley. 14. The decision to dispense with the enquiry is more unwarranted for the reason that no nexus is alleged between the conduct of the petitioner and the prevailing circumstances. The respondents nowhere allege the petitioner having indulged in militancy related activities and the order of discharge also does not make any such mention. 15. In the background depicted above I feel that the enquiry in the matter was necessary and dispensing with the same is uncalled for. The petitioner has a right of hearing which has been denied for no good reasons. 16. In the circumstances and having regard to the discussion made hereinbefore, I am of the considered view that impugned order is bad, therefore, is quashed. The petitioner has a right of hearing which has been denied for no good reasons. 16. In the circumstances and having regard to the discussion made hereinbefore, I am of the considered view that impugned order is bad, therefore, is quashed. However, respondents are at liberty to conduct enquiry and complete the same within three months from the date of copy of the judgment is served upon them and the period of absence shall remain subject to outcome of such enquiry. It goes without saying that if no enquiry is conducted, the period of discharge shall qualify for all salary benefits except salary. 17. Disposed of.