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2013 DIGILAW 563 (JK)

Javaid Ahmad Shah v. State Of J&K

2013-09-19

TASHI RABSTAN

body2013
1. Petitioner, vide Order No. 494 of 2004 dated 18.06.2004, after approval given by PHQ vide order No. 3971/2003 dated 13.12.2003, has been appointed as Constable in J&K Executive Police in District Baramulla. Within the probationary period of three years, petitioner was nominated and deputed for undergoing Basic Recruitment Training Course (BRTC). While undergoing BRTC at STC Sheeri, petitioner allegedly remained absent with effect from 05.06.2005, resultantly respondent no. 5 in exercise of powers under Rule 187 of J&K Police Manual, vide his order No. 438 of 2005 dated 02.07.2005 discharged petitioner from the service with effect from 05.06.2005, the date he absented from STC Sheeri. Aggrieved of discharge order No. 438 of 2005 dated 02.07.2005, issued by respondent No. 5, petitioner has come up with writ petition on hand. 2. Respondents have vehemently opposed the petition on the grounds that the petitioner was on and as it was found that he will not become a good/efficient official/officer for his having at the very inception committed misconduct by leaving the duty and remaining absent unauthorisedly, therefore, the competent authority utilized the power that is available to him under Rule 187 of J&K Police Manual, against which power petitioner has no right to challenge it. It is insisted that since petitioner was on probation, therefore, there was no need to hold an enquiry. 3. Heard learned counsel for parties. Considered the matter. 4. Learned counsel for petitioner states that removal of petitioner has been ordered without holding any enquiry. It is alleged that no formal charge was framed, no opportunity of hearing was afforded to petitioner to explain his absence, no evidence was recorded nor any show cause notice was issued to petitioner while imposing penalty of discharge from service. Learned counsel for the petitioner further submits that any removal, dismissal or discharge from service without adopting such a course is hit by the provisions of Constitution of India and cannot, therefore, stand. 5. Facts are not in dispute. Admittedly, during the probationary period of three years, petitioner was nominated and deputed for undergoing Basic Recruitment Training Course (BRTC). While undergoing BRTC at STC Sheeri, he allegedly remained absent with effect from 05.06.2005, resultantly vide order No. 438 of 2005 dated 02.07.2005 his services were discharged with effect from the date he absented from STC Sheeri. 6. Admittedly, during the probationary period of three years, petitioner was nominated and deputed for undergoing Basic Recruitment Training Course (BRTC). While undergoing BRTC at STC Sheeri, he allegedly remained absent with effect from 05.06.2005, resultantly vide order No. 438 of 2005 dated 02.07.2005 his services were discharged with effect from the date he absented from STC Sheeri. 6. The Respondents have taken the ground that on account of unauthorized absence, petitioner's services were discharged. The respondents insist that as petitioner was on probation, they in exercise of powers vested in them under Rule 187 of J&K Police Rules, discharged petitioner's services inasmuch as it was found that petitioner will not become a good/efficient official for his having at the very inception committed misconduct by leaving the duty and remaining absent unauthorizedly, therefore, the competent authority utilized the power that is available to him, against which power petitioner has no right to challenge it. It is insisted that since petitioner was on probation, therefore, there was no need to hold an enquiry. 7. It is no more res integra that discharge simpliciter does not warrant enquiry before discharge but when the discharge is stigmatic then order of discharge cannot be passed unless adequate opportunity of being heard to the concerned employee is given same being in keeping with Article 311 of Constitution of India, Section 126 of J&K Constitution and Rule 359 of Police Rules. 8. Admittedly in the instant case, petitioner has been appointed as Constable, who was on probation, and within the period of probation he absented from the STC Sheeri w.e.f 05.06.2005. 9. The perusal of impugned order reveals that after recording the circumstances and facts of the case, the order passed by Senior Superintendent of Police for discharging petitioner reveals as under: "In view of the above facts, it is obvious that you have absented yourself unauthorisedly only to avoid the Basic Training Course. At the early stage of your service you have misconducted and it is presumed that in future you will not become a good Police official. As such in exercise of powers conferred to me under Rule No. 187 of J&K Police Manual, I, M.A. KHAN-IPS Sr. Superintendent of Police Baramulla do hereby DISCHARGE you R/CT Javaid Ahmad 191/B (EXK-045528) son of Rtd. As such in exercise of powers conferred to me under Rule No. 187 of J&K Police Manual, I, M.A. KHAN-IPS Sr. Superintendent of Police Baramulla do hereby DISCHARGE you R/CT Javaid Ahmad 191/B (EXK-045528) son of Rtd. ASI Noor-ud din Shah R/o Nadihal Rafiabad Tehsil and District Baramulla, from service wef, the date you absented from sTC Sheer i.e. 05.06.2005." 10. Scanning through the contents of discharge order, it is visible that petitioner's unauthorized absence is taken as basis to determine likelihood or unlikelihood of police official to become good official or a bad official. Once foundation is unauthorized absence, of which conduct of petitioner is being judged to be a good or bad police official, it could not be said that order is a discharge simpliciter. The order of discharge has cast stigma on petitioner as he is likely not to get any future job on the basis of stigma that has been cast on him by order impugned. The respondents could have very safely passed the order of discharge simpliciter by stating that being unauthorized absence is required to be discharged by invoking Rule 187 of the Police Rules. This has not been done in the present case. 11. It is admitted position that enquiry at all has not been conducted nor petitioner has been given opportunity of being heard before passing of order impugned. Same position is admitted in the counter affidavit, in which it is recorded that the question of conducting or holding of enquiry in the matter of a constable, who was still on probation, did not arise. In the order of discharge impugned, it is recorded that petitioner will not be a good police official, which on the face of it, is stigmatic so as to prejudice the future prospectus of getting employment when without conducting enquiry such order is passed, same cannot sustain in the eye of law as the same violates guaranteed rights. 12. The question of holding enquiry before discharge that too of a probationer without enquiry has been catching attention but finally has been set at rest by this Court. 12. The question of holding enquiry before discharge that too of a probationer without enquiry has been catching attention but finally has been set at rest by this Court. In this connection it is quite relevant to quote paragraph 12 of the judgment in case titled Constable Bashir Ahmad v. State of J&K and others 2005 (3) [JKJ[HC] 167 : 2005 (1) SLJ 375], which reads as under: "The question as to whether any enquiry is required to be conducted before discharging a probationer police official under Rule 187 J&K Police Manual is not res intergra. It is settled now by this Court that before invoking rule 187, it is incumbent and obligatory upon the appointing authority to hold an enquiry into the matter to afford adequate opportunity of being heard to the concerned employee." 13. In case titled State of Haryana & another v. Jagdish Chander [ AIR 1995 SC 984 ], while dealing with a case of Constable, who was absent from duty for a particular period and discharged by Superintendent of Police under Rule 12.21 of the Punjab Police Rules, which is pari materia to Rule 187 of J&K Police Rules, in which Superintendent of Police without conducting a regular enquiry had observed that the constable was unlikely to prove an efficient police officer, being habitual absentee, negligent to his duty and indisciplined. Apex Court in para 03 of the judgment held thus: "It would thus be clear from the order of discharge that it is not an order of discharge simpliciter. On the other hand, the S.P. considered the record and found him to be habitual absentee, negligent to his duty and indisciplined. The findings of habitual absence and indiscipline would be an impediment for any of future employment elsewhere. Under those circumstances, the principles of natural justice do require that he should be given an opportunity to explain the grounds on which the S.P. proposes to pass an order of discharge and then to consider the explanation submitted by the Police Officer. Then the S.P. is competent to pass appropriate orders according to the rules. Since this part of procedure had not been adopted, the order of discharge is vitiated by manifest error of law." 14. In Chaman Lal v. State of J&K [1989 (2) JKLR 1200] this Court discussed the scope and ambit of Rule 187 and the consequences of not observing the rule. Since this part of procedure had not been adopted, the order of discharge is vitiated by manifest error of law." 14. In Chaman Lal v. State of J&K [1989 (2) JKLR 1200] this Court discussed the scope and ambit of Rule 187 and the consequences of not observing the rule. It was held:- "A perusal of the rule would make it clear that before discharging a constable the Superintendent concerned has to ascertain that such constable was unlikely to prove an efficient officer. The word `found used in the Rule is significant and categoric in terms. It is not possible to `find a person unlikely to prove an efficient officer', without holding some sort of inquiry after giving such constable an opportunity of being heard and basing the finding of such conclusion on the basis of material placed before the Superintendent of police. It is not the more subjective satisfaction of the police officer which is relevant for the purposes of deciding as to whether he has rightly held a constable to be unlikely to prove an efficient police official. To find the concerned as in efficient the authority has to decide on the basis of the record the likelihood of the retention of a police officer as otherwise. The finding must be based upon a conscious decision arrived at after proper application of mind hypothecally or more upon conjectures or suspicion. According to Webster's English Dictionary the word `find' means, amongst other things, ` to arrive at a conclusion, come to a finding, determine and declare as a verdict in a judicial proceedings, agree or settle upon or deliver the finding regarding innocence or quilt of a person. Such a finding arrived at by the concerned authority may not be open to challenge in the court of law, but if the record shows that the finding was based upon no material that the same was arrived at mechanically or that the aggrieved were not offered reasonable opportunity of being heard before passing the order impugned, this court would immediately come to the rescue of such civil servant and grant him appropriate relief." 15. In Smt. Suriya Khan v. State of J&K and others [2002 (I) SLJ 210 : JKJ Soft JKJ/12423] this Court observed: "Reading of the Rule shows that during the period of probation of three years if on the performance of the Constable, the Superintendent forms an opinion that he/ she would not prove to be an efficient police officer, then he/ she may be discharged from service. The law in regard to probationer is well settled. The probationer has no right to the post held by him and under the terms of his appointment, he is required to be discharged at any time during the period of his probation under the rules governing such cases. Probationers are discharged generally because they are not found to be competent or suitable for the post they held. In other words, if the temporary servant or a probationer is found to be satisfactory in his work, efficient or otherwise, eligible, it is unlikely that his service would be terminated and so before discharging such employee the authority may have to examine the question about the suitability of the said servant to be continued and take action bonafide in that behalf. The authority may also give(sic) employee to explain, if any complaints are made against him or his competence or suitability is disputed on some grounds arising from the discharge of his work, then such an enquiry should be held only for the purpose of deciding whether he should be continued or not there is no element of punitive proceedings in such an enquiry and if the authority comes to the conclusion that the incumbent is not suitable to be continued, it may simply pass the order of discharge by virtue of the powers conferred upon it by the contract or by the relevant rules and it would not be open to the concerned employee to invoke Article 311 of the Constitution of India or section 126 of the Jammu and Kashmir Constitution, for the simple reason that the enquiry ultimately led to his discharge was held only for the purpose of deciding whether the power should be exercised in terms of the rules. But if a probationer is discharged on the ground of misconduct or inefficiency without a proper enquiry and without giving a reasonable opportunity of showing cause against the discharge in a given case it may amount to removal from service within the meaning of Article 311 of the Constitution of India and Section 126 of the Jammu and Kashmir Constitution." 16. In case Bashir Ahmad v. State of J&K and others [2005(3) JKJ [HC] 167], the same view is reiterated holding that no doubt under Rule 187 of the Police Rules, Superintendent of Police has got powers to discharge a probationer within three years of enrollment, if he is of the view that such probationer is not likely to prove a good police official but since the finding casts a stigma on the career of the constable and there is likelihood that the ground for such discharge order may act as an impediment for any future employment, provisions of Article 311 of the Constitution of India are attached and therefore, the discharge order should not be passed without affording an opportunity to the official of being heard. 17. It shall be quite relevant to quote hereunder as to what has been held in the judgment captioned Kulbir Singh Sanina v. State of J&K and anr. [1989 SLJ J&K 42 : JKJ Soft JKJ/ 21007]:- "....Rule 187 of the Police Rules does not give an arbitrary power to the appointing authority to remove any employee of the police without observing the principles of natural justice, which is the minimal requirement to hold an employee liable for removal from service, who has been appointed on a clear vacancy and has been put on probation of three years from the date of appointment." 18. There can be no doubt that absence from duty without a proper permission or overstaying a leave without any valid and justified reason is the gravest type of misconduct, particularly for a member of the disciplined force, from whom strict adherence to the rules is expected. Thus, unauthorized absence amounts to misconduct, which necessitates holding of an enquiry against a delinquent official. Where there is overstaying of leave and absence from duty without justification, it would be misconduct, justifying penalty even up to the extent of dismissal, but the concerned employee must be given an opportunity of being heard before any prejudicial action is taken. 19. Thus, unauthorized absence amounts to misconduct, which necessitates holding of an enquiry against a delinquent official. Where there is overstaying of leave and absence from duty without justification, it would be misconduct, justifying penalty even up to the extent of dismissal, but the concerned employee must be given an opportunity of being heard before any prejudicial action is taken. 19. Even otherwise, action of the respondents is violative of principles of natural justice which demand that nobody should be condemned unheard. The delinquent official is required to be afforded an opportunity of being heard before any administrative action is taken against him. In Canara Bank v. V.K. Awasthy [ AIR 2005 SC 2090 ] the Supreme Court has held:- "10. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alter am partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta". The classic exposition of Sir Edward Coke of natural justice requires to "vocate interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of Works, (1963) 143 ER 414, the principle was thus stated: Even God did not pass a sentence upon Adam, before he was called upon to make his defence. The classic exposition of Sir Edward Coke of natural justice requires to "vocate interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of Works, (1963) 143 ER 414, the principle was thus stated: Even God did not pass a sentence upon Adam, before he was called upon to make his defence. "Adam" says God, "where art thou has thou not eaten of the tree whereof I commanded thee that though should not eat". Since then the principle has been chiseled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond." 20. In para 12 of the aforesaid judgment, the Apex Court has further held:- "What is meant by the term `principles of natural justice' is not easy to determine. Lord Summer (then Hamilton, L.J.) in Ray v. Local Government Board, (1914) 1 KB 160 at p.199:83 LJKB 86) described the phrase as sadly lacking in precision. In General Council of Medical Education & Registration of U.K. v. Sanckman, (1943) AC 627: [1948] 2 All ER 337, Lord Wright observed that it was not desirable to attempt `to force it into any procusteam bed' and mentioned that one essential requirement was that the Tribunal should be impartial and have no personal interest in the controversy, and further that it should give `a fall and fair opportunity', to every party of being heard." 21. In P.D. Dinakaran (1) v. Judges Inquiry Committee and others [ 2011(8) SCC 380 ], it is held in paragraphs 31 and 32:- "31. The consideration of the aforesaid question needs to be prefaced by a brief reference to the nature and scope of the rule against bias and how the same has been applied by the courts of common law jurisdiction in India for invalidating judicial and administrative actions/orders. Natural justice is a branch of public law. It is a formidable weapon which can be wielded to secure justice to citizens. Rules of natural justice are "basis values" which a man has cherised throughout the ages. Principles of natural justice control all actions of public authorities by applying rules relating to reasonableness, good faith and justice, equity and good conscience. Natural justice is a part of law which relates to administration of justice. Rules of natural justice are indeed great assurances of justice and fairness. Principles of natural justice control all actions of public authorities by applying rules relating to reasonableness, good faith and justice, equity and good conscience. Natural justice is a part of law which relates to administration of justice. Rules of natural justice are indeed great assurances of justice and fairness. The underlying object of the rules of natural justice is to ensure fundamental liberties and rights of subjects. They thus serve public interest. The golden rule which stands firmly established is that the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. 32. The traditional English Law recognized the following two principles of natural justice:- "(a) Nemo debert esse judex in propria causa : No man shall be a judge in his own cause, or no man can act as both at the one and the same time= a party or a suitor and also as a Judge, or the deciding authority must be impartial and without bias; and (b) Audi alteram partem: Hear the other side, or both the sides must be heard, or no man should be condemned unheard, or that there must be fairness on the part of the deciding authority. However, over the years, the courts throughout the world have discovered new facets of the rules of natural justice and applied them to judicial, quashi-judicial and even administrative actions/decision. At the same time, the courts have repeatedly emphasized that the rules of natural justice are flexible and their application depends upon the facts of a given case and the statutory provisions applicable, if any, nature of the right which may be affected and the consequences which may follow due to violation of the rules of natural justice." 22. I am also fortified by the view taken by the Apex Court in Mohd. Yunus Khan v. State of Uttar Pradesh and others [ 2010 (10) SCC 539 ] wherein it is held:- "16. We have to proceed keeping in mind the trite law that holding disciplinary proceedings against a government employee and imposing a punishment on his being found guilty of misconduct under the statutory rules is in the nature of quasi-judicial proceedings. Yunus Khan v. State of Uttar Pradesh and others [ 2010 (10) SCC 539 ] wherein it is held:- "16. We have to proceed keeping in mind the trite law that holding disciplinary proceedings against a government employee and imposing a punishment on his being found guilty of misconduct under the statutory rules is in the nature of quasi-judicial proceedings. Though, the technical rules of procedure contained in the Code of Civil Procedure, 1908 and the provisions of the Evidence Act, 1872 do not apply in a domestic enquiry, however, the principles of natural justice require to be observed strictly. Therefore, the enquiry is to be conducted fairly and reasonably and the enquiry report must contain reasons for reaching the conclusion that the charge framed against the delinquent stood proved against him. It cannot be an ipse dixit of the enquiry officer. Punishment for misconduct can be imposed in consonance with the statutory rules and principles of natural justice...." 23. The ratio laid down in the above referred judgments is that when the order of discharge is stigmatic then without enquiry order of discharge cannot be passed even against the probationer by invoking powers under Section 187 of J&K Police Rules. 24. Since no enquiry has been conducted in the present case in accordance with the rules, the order impugned bearing No. 438 of 2005 dated 02.07.2005 cannot stand and the same is hereby quashed. However, the quashment of the order impugned shall not prevent the authorities from conducting any fresh enquiry against the delinquent petitioner. 25. Petition accordingly succeeds and disposed of as such.