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2016 DIGILAW 308 (JK)

SANJAY SINGH v. STATE OF J&K

2016-06-01

TASHI RABSTAN

body2016
JUDGMENT : Tashi Rabstan, J. By the medium of this petition, the petitioner is seeking quashment of Order No. 639 of 1998, dated 16.11.1998 issued by the Commandant, IR-2nd Battalion, Respondent No. 4 herein, whereby the petitioner has been discharged from service with effect from 02.04.1998. The petitioner is also seeking quashing of Order No. 1323 of 2011, dated 06.04.2011 issued by the Director General of Police, J&K, Respondent No. 2 herein, whereby the statutory appeal filed by him has been rejected. 2. The facts-in-brief as averred in the writ petition are that vide Order No.779 of 1995, dated 12.07.1995 the petitioner was appointed as a Constable in IR-2nd Bn. and deputed to undergo nine months Basic Training Course at Armed Police Training College, Kathua. It is averred that due to severe health ailments the petitioner could not continue his service and Respondent No. 4 vide Order No. 907 of 1995, dated 11.08.1995 discharged the petitioner from service with effect from 15.07.1995. The petitioner preferred a representation before the Additional Director General of Police, who vide Order No. 79/1997, dated 14.01.1997 reinstated the petitioner into service. Thus, it is averred, the petitioner resumed his Basic Training Recruitment Course at APTC Kathua. Further, it is averred that since the wife of petitioner was not well and he was not getting leave, the same resulted into his absence from service. He joined his duties in March 1997 and the period of his absence was treated as dies non. Further, it is averred that again the petitioner suffered with serious ailment and he could not continue his service. It is averred that after recovering from illness when he went to join his duties, instead of allowing him to join, Respondent No. 4 issued Order No. 639 of 1998, dated 16.11.1998, impugned herein, whereby he has been discharged from service with effect from 02.04.1998. It is stated that thereafter the petitioner made a statutory appeal in terms of J&K Police Manual and also submitted number of representations seeking his reinstatement. It is stated that thereafter the petitioner made a statutory appeal in terms of J&K Police Manual and also submitted number of representations seeking his reinstatement. It is stated that when the respondents did nothing, he filed SWP No. 1879/2010, before this Court, which came to be disposed of on 06.08.2010 at its threshold with a direction to the respondents to consider the representation of petitioner within a period of three months after affording him an opportunity of being heard, it is stated that Respondent No. 2 in terms of the order of this Court issued Order No. 1323 of 2011, dated 06.04.2011 rejecting the statutory appeal of petitioner holding that he being the probationer was rightly discharged from service on account of his repeated unauthorized absence from the training centre despite his reinstatement into the service in the year 1997. Hence, the present writ petition. 3. The contention of learned counsel for petitioner is that 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. It is contended the respondents without conducting any inquiry or following the procedure as required under the Police Manual or affording him an opportunity of being heard have discharged the petitioner from service. Thus, it is pleaded that the petitioner has been condemned unheard. Learned counsel also contended that the order discharging the petitioner from service, that too without affording him an opportunity of hearing to explain his absence, is not only stigmatic in nature, but is highly disproportionate and too excessive in so far as the alleged charges against the petitioner are concerned. 4. Objections have been filed on behalf of respondents. It is averred that the petitioner was a habitual absentee, even before passing the impugned order, earlier also he was discharged from service vide order dated 11.08.1995. Further, it is aver red that the impugned order came to be passed in November, 1998, whereas after more than 11 years the petitioner for the first time approached this Court in the year 2010 challenging the impugned order. It is averred that the impugned orders are well reasoned and have been passed in accordance with the Police Rules. 5. Heard learned counsel appearing for the parties, perused the file as well as the record produced by learned AAG. 6. It is averred that the impugned orders are well reasoned and have been passed in accordance with the Police Rules. 5. Heard learned counsel appearing for the parties, perused the file as well as the record produced by learned AAG. 6. Admittedly, as per the record, the petitioner was appointed as a Constable on 12.07.1995 and on the same very day deputed to undergo nine months Basic Training Course at APTC Kathua. On 15.07.1995, i.e., merely after three days of his joining, he unauthorisedly absented himself from training centre. Accordingly, he was discharged from service w.e.f. 15.07.1995 on the ground that neither he turned up to join the training nor he presented himself in the office for facing the inquiry despite making signals to him. However, on his representation, the petitioner was reinstated into service vide order dated 14.01.1997 and the period w.e.f. 15.07.1995 to 22.07.1995 and 26.07.1995 to 21.03.1997 was treated as dies-non. After few days of re-joining his service, the petitioner again unauthorisedly absented himself with effect from 13.02.1997 to 26.03.1997. Accordingly, a Charge Sheet was served upon petitioner vide No. 325/FIR-IInd, dated 01.05.1997. The petitioner submitted his reply and the period of 41 days of his unauthorized absence, i.e., w.e.f. 13.02.1997 to 26.03.1997 was treated as dies non vide order dated 15.09.1997. Again, the petitioner was deputed to Police Training School, Vijaypur on 11.12.1997 to complete his Basic Training Course, but, as per the record, he again deserted the training centre with effect from 02.04.1998 and did not report back. Accordingly, vide order impugned he was discharged from service w.e.f. 02.04.1998. 7. Thus, from the above factual position, it seems that although the petitioner was a habitual absentee, yet the record reveals that neither any show cause notice was served upon him nor any inquiry was conducted or any opportunity of hearing was ever afforded to the petitioner in terms of J&K Police Manual and the rules/regulations framed there under so as to show the cause of his absence before discharging him from service, that too when an observation has been recorded in the order impugned to the effect that he cannot be proved to be a good police official and is un-necessary burden upon the Government exchequer, which shows that the order is stigmatic in nature and not a simpliciter order of discharge. Therefore, it seems the petitioner has been discharged from service by exercising power under Rule 187 of Police Manual and not under Rule 359(10). Had it been a case of discharge of probationer simpliciter in terms of Rule 359(10) and not exercise of power under Rule 187, there would be hardly any scope of interference with the orders impugned because in terms of Rule 359(10), a probationer constable can be discharged from service without any inquiry and the same does not amount to punishment and cause no stigma to him. 8. Therefore, in my view, before invoking Rule 187 of J&K Police Manual, it was incumbent and obligatory upon the appointing authority that before discharging/terminating the petitioner from service on the ground that he is not likely to become a good police officer, the appointing authority was required to conduct a formal inquiry into the charges levelled against him by affording him an adequate opportunity of being heard. The same view was taken by a Division Bench of this Court in case, titled as, Naseer Ahmad v. State, LPA No. 86/2008 decided on 01.04.2011 and by this Court in case, titled as, Kali Dass v. State and Ors., 2013 (3) JKJ 240 [HC]. 9. Further, Rule 359 of the J&K Police Rules, 1960 also envisages that the delinquent official must be given an opportunity to meet the charges levelled against him; especially sub-rule (H)(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 he afforded an opportunity of hearing before discharging him from service. The action of respondents, therefore, is in violation of Articles 14 and 16 of the Constitution of India and also against the principles of natural justice. 10. Therefore, in view of the discussion made herein above, the writ petition is allowed and Order No. 639 of 1998, dated 16.11.1998 discharging the petitioner from service with effect from 02.04.1998 as well as Order No. 1323 of 2011, dated 06.04.2011 rejecting his statutory appeal are quashed. The respondents are, however, at liberty to conduct inquiry against the petitioner in accordance with the rules/regulations occupying the field and complete the same within a period of three months from the date a copy of this order/judgment is served upon them. The respondents are, however, at liberty to conduct inquiry against the petitioner in accordance with the rules/regulations occupying the field and complete the same within a period of three months from the date a copy of this order/judgment is served upon them. Petitioner's retention in service or otherwise shall depend on the outcome of such inquiry. Connected miscellaneous petitions accordingly stands disposed of. 11. Registry to return the record to learned counsel for the respondents.