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2014 DIGILAW 192 (JK)

Gh. Haider v. State Of J&K

2014-05-05

TASHI RABSTAN

body2014
1. By the medium of this petition, the petitioner is challenging the action of respondents, whereby he has been terminated/discharged from service. 2. The facts as emerge from the pleadings of the parties are that 120 persons including the petitioner were engaged as SPOs on contractual basis vide Order No. SPO/01/3381-88/C dated 26.02.2001 issued by the Senior Superintendent of Police, Doda. It is averred that the petitioner was performing his duties to the entire satisfaction of his higher authorities. He claimed to have participated in various anti-militancy operations, and in one of such operations in Khithar Bonjwah area he got injured and remained admitted in the hospital, for which he was also rewarded by the respondents. It is contended that despite rendering best services and actively participating in anti-militancy operations, the respondents without any reason or providing him an opportunity of hearing or serving any notice terminated his services. 3. Objections have been filed on behalf of respondents. They have also produced copy of Order No. SPO/627-41/C dated 21.01.2003, whereby services of 24 SPOs came to be terminated. The stand taken by the respondents is that the petitioner along with some more SPOs had misused their official position and harassed one Din Mohd. son of Khaliq Pathan resident of Bonjwah. It is contended that the matter was properly enquired at departmental level and only thereafter the services of petitioner were terminated vide order dated 21.01.2003. The next stand of respondents is that the services of petitioner were totally temporary and need based, therefore, he has no right to seek his re-engagement nor is entitled to protection under Articles 14 & 16 of the Constitution of India because the petitioner was not borne on the cadre of service nor was holding a post on substantive basis. 4. Heard learned counsel for the parties and perused the record. 5. Before dealing with the matter, it would be appropriate to reproduce Section 19 of the Police Act, 1983 (hereinafter, for short, the Act) hereunder. "19. Powers of Special Police Officers Every Special Police Officer so appointed shall have the same powers, privileges and protection, and shall be liable to perform the same duties and shall be amenable to the same penalties, and be subordinate to the same authorities as the ordinary officers of Police." 6. "19. Powers of Special Police Officers Every Special Police Officer so appointed shall have the same powers, privileges and protection, and shall be liable to perform the same duties and shall be amenable to the same penalties, and be subordinate to the same authorities as the ordinary officers of Police." 6. A perusal of the above section reveals that it gives same powers to SPOs which have been given to ordinary officers of Police who are appointed on substantive basis. Therefore, petitioner cannot be terminated from services on the ground of misusing his official position without conducting any enquiry. Thus, the respondents are prevented from taking the plea that the petitioner was not borne on the cadre of service or was not holding the post substantively. 7. The specific ground urged by the petitioner is that the respondents without following due procedure have terminated his services and they even did not supply him with the copy of termination order. 8. The record produced by learned Sr. AAG reveals that neither any show cause notice was served upon the petitioner nor was any inquiry conducted or he was ever given any opportunity of hearing before terminating his services. The engagement order reveals that earlier also the petitioner along with other persons was terminated from the roll of SPOs due to non-availability of vacancies. The respondents have themselves admitted in their reply that the petitioner participated in various anti-militancy operations for which he was also suitably rewarded by the higher authorities. It has also been revealed that from the date of his engagement the petitioner was continuously working without any break. The only stand taken by the respondents is that the petitioner while misusing his official position harassed one Din Mohammad, but the termination order does not whisper anything about this allegation. The contention of respondents of enquiring at departmental level is also contrary to the record, because no such inquiry report has been produced before the Court. 9. Section 19 of the Act envisages the powers of SPOs. Thus, the petitioner's services, even on need basis, cannot be terminated without affording him an opportunity of hearing, particularly when there were specific allegations against him of misusing his official position and harassing one Din Mohammad. 9. Section 19 of the Act envisages the powers of SPOs. Thus, the petitioner's services, even on need basis, cannot be terminated without affording him an opportunity of hearing, particularly when there were specific allegations against him of misusing his official position and harassing one Din Mohammad. Rule 359 of the J&K Police Rules, 1960 envisages that the delinquent official must be given an opportunity to meet the charges levelled against him; especially sub-rule (11)(2) thereof provides that the official has to be given a reasonable opportunity of showing cause orally and also in writing against the proposed penalty. Thus, the petitioner was required to be afforded an opportunity of hearing before terminating his services. The action of respondents, therefore, is in violation of Articles 14 & 16 of the Constitution of India and also against the principles of natural justice. 10. This Court while relying upon various judgments of the Supreme Court in case, titled as, Kali Dass v. State & ors., 2013 (3) JKJ 240 [HC], has observed that the delinquent official was required to be afforded an opportunity of hearing before taking punitive action against him. 11. A Division Bench of this Court in LPASW No. 105/2011 decided on 01.03.2013, has held that the State-appellant was required to hold an inquiry into the matter and pass fresh order after giving opportunity of hearing to the writ petitioner. 12. It is not in dispute that the initial engagement of petitioner was temporary in nature, therefore, the simplicitor order of termination would not have given him any right to challenge the same. However, the specific stand taken by the respondents is that the petitioner was removed from service as he had misused his official position by harassing one Din Mohammad, which is stigmatic in nature. The petitioner, therefore, was required to be afforded an opportunity of hearing before terminating his services. 13. In view of the discussion made hereinabove, the writ petition is allowed and the order of termination so far as it pertains to the petitioner is quashed. However, respondents are at liberty to conduct inquiry against the petitioner in accordance with the rules occupying the field and complete the same within a period of two months from the date a copy of this order is served upon them. Petitioner's retention in service or otherwise shall depend on the outcome of such inquiry. 14. However, respondents are at liberty to conduct inquiry against the petitioner in accordance with the rules occupying the field and complete the same within a period of two months from the date a copy of this order is served upon them. Petitioner's retention in service or otherwise shall depend on the outcome of such inquiry. 14. Disposed of along with connected CMA(s), if any. 15. Registry is directed to return the record against proper receipt.