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Jharkhand High Court · body

2014 DIGILAW 1052 (JHR)

Mukesh Kumar Layak v. State of Jharkhand

2014-10-17

SUJIT NARAYAN PRASAD

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Order The petitioner has challenged the order dated 12.4.2007 (Annexure-6), by which he has been removed from service by exercising the powers conferred under Rule 668 (a) of the Jharkhand Police Manual. 2. The brief facts of the case is that petitioner was appointed on the post of Constable in India Reserve Battalion and joined on the said post on 9.5.2005 at Padma Police Training Centre, Hazaribagh and underwent training for six months and after completion of training successfully he was posted and was discharging his duty. 3. That while the petitioner was undergoing training of firing practice under Border Security Force at Meru Sitagarh Range, District Hazaribagh, he sustained injury in his ear and developed some problem in hearing and acute pain in his ear, for which the petitioner was referred for specialised treatment, and as per the advice of doctor, he underwent operation on 30.03.2007, and to this effect the petitioner has also annexed the medical prescription as Annexure 3 to the writ petition. 4. Further the case of the petitioner is that when the petitioner has not resumed his duties after the sanctioned leave for twelve days i.e. from 2.1.2007 to 14.1.2007, after waiting for few days the respondent authority removed him from service vide Memo no. 459 dated 12.4.2007 passed by the Commandant, India Reserve Battalion, Camp Musabani district East Singbhum, exercising power conferred under Rule 668(a) 2 of the Police Manual, with retrospective effect. 5. That assailing the order dated 12.4.2007 the learned counsel for the petitioner has mainly argued that the petitioner was in service since 9.5.2005 without providing any opportunity he has been removed from services. He further submitted that the order of dismissal is stigmatic since certain allegation have also been made, hence, it is not termination simplicitor. 6. Counsel for the respondents has controverted the argument advanced on behalf of the petitioner mainly on the ground that since the service of the petitioner had not yet been confirmed respondents authority had rightly removed him from service, exercising power conferred under Rule 668 (a) of the Police Manual. 7. Heard counsel for the parties. The respondents have mainly relied in support of their arguments upon Rule 668 (a) of Police Manual which reads as follows:- “668. 7. Heard counsel for the parties. The respondents have mainly relied in support of their arguments upon Rule 668 (a) of Police Manual which reads as follows:- “668. Removal or reversion of officers appointed, direct or promoted on probation.-The following rules shall govern first appointments and the promotion of police and ministerial officers as detailed in Appendix 41:- (a) All officers shall in the first instance be appointed or promoted on probation. Where the period of probation is not otherwise provided for in the rules it shall be for a period of two years in the case of executive officers and one year in the case of ministerial officers. The authority authorized to make such appointment or promotion, may at many time during such probationary period, and without the formalities laid down in rule 828, remove an executive officer directly appointed or revert such an officer promoted who has not fulfilled the conditions of his appointment or who has shown himself unfit for such appointment or promotion. Similarly, probationary period may also be extended without any show cause. No appeal shall lie in such cases.” 8. From perusal of provisions contained in Rule 668 (a) of the Police Manual it appears that the same relates to the period of probation which will be for two years subject to extension and the appointing authority are empowered to remove an executive officer directly appointed or revert such an officer promoted who has not fulfilled the conditions of his appointment or who has shown himself unfit for such appointment. The respondent no.3 had passed the said order dated 12.4.2007, exercising power conferred under Rule 668(a) of the Police Manual but the same is not sustainable in the eye of law in view of the reasons mentioned hereinbelow:- (i) The petitioner having been appointed on 9.5.2005,was sent for training where he successfully completed the same but during the training period he was discharged from duty without giving any show cause. (ii) The petitioner had sustained injury in course of training and has been sent for his treatment and as per the advice of the doctor he underwent operation, for that he was on sanctioned leave for twelve days i.e. from 2.1.2007 to 14.1.2007 and he was supposed to report on 15.1.2007 but he could not report to office on 15.1.2007. (ii) The petitioner had sustained injury in course of training and has been sent for his treatment and as per the advice of the doctor he underwent operation, for that he was on sanctioned leave for twelve days i.e. from 2.1.2007 to 14.1.2007 and he was supposed to report on 15.1.2007 but he could not report to office on 15.1.2007. The communication has been issued under the signature of the Commandant, India Reserve Battalion, Camp Musabani district East Singbhum dated 27.3.2007 annexed as annexure 4 to the writ petition wherein the petitioner has been directed to report to the office, or otherwise a departmental proceeding will be initiated against him. (iii) Immediately after about fifteen days the impugned order dated 12.4.2007 has been passed without initiating any departmental proceeding, exercising power conferred under Rule 668(a) of the Police Manual. (iv) The provisions which has been followed by the respondents contained in Rule 668 (a) of the Police Manual does not provide that the service of the probationer will be taken away without following the minimum requirement of principle of natural Justice. (v) The petitioner had sustained injury during the course of duty while returning from office. (vi) From perusal of impugned order dated 12.4.2007 it appears that the same has been issued by making aspersion against the petitioner to the effect that the petitioner has not followed the order passed by the disciplinary authority and not presented himself in the work. From the reference of the allegation made in the impugned order dated 12.4.2007, thus it is clear that the order of termination is not simpliciter rather the specific allegation has been levelled against the petitioner. (vii) That the counsel for petitioner while assailing the order of termination dated 12.4.2007 has submitted that even though the petitioner was on probation during the relevant time he is entitled to be protected by providing an opportunity of undergoing due process based on the principles of natural justice before removing him from service since the order of termination is not simpliciter. Hence in my view the ground taken by the respondent/State that since the petitioner was on probation during the relevant period he has rightly been removed, is without any force in view of the judicial pronouncements in the case of Anoop Jaiswal reported in AIR 1984 SC 636 wherein it has been held that: “In the instant case, the period of probation had not yet been over. The impugned order of discharge was passed in the middle of the probationary period. An explanation was called for from the appellant regarding the alleged act of indiscipline, namely, arriving late at the Gymnasium and acting as one of the ring leaders on the occasion and his explanation was obtained. Similar explanations were called for from other probationers and enquiries were made behind the back of the appellant. Only the case of the appellant was dealt with severely in the end. The cases of other probationers who were also considered to be ring leaders were not seriously taken note of. Even though the order of discharge may be non-committal, it can not stand alone. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read along with the order for the purpose of determining its true character. If on reading the two together the court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in Art. 311(2) of the Constitution”. Further in the case of V.P. Ahuja Vs. State of Punjab reported in AIR 2000(3) SCC 239 , it has been held that if the order is stigmatic or punitive the rules of principles of natural justice ought to have been followed by the respondents authority as because in paragraph 7 of the said judgment it has been held that “a probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principles of natural justice”. 9. 9. From the impugned order dated 12.4.2007 it is apparent that no notice has ever been issued to the petitioner, before removing from service which leads to civil consequence, since the order of termination is punitive in nature passed with retrospective effect, the impugned order dated 12.4.2007 is not sustainable and as such the same is hereby set-aside. 10. The matter is remitted back before competent authority to take a fresh decision after observing principle of natural justice and take afresh decision within reasonable period preferably within a period of twelve weeks from the date of receipt of copy of this order and communicate the same to the petitioner within a period of two weeks thereafter. The instant writ petition is disposed of.