Jammu & Kashmir High Court - Srinagar Bench
Mohamad Rafiq Najar vs State Of Bihar on 23 May, 2019
Author: Rashid Ali Dar
Bench: Rashid Ali Dar
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP No. 641/2008
Reserved on:- 31.01.2019
Pronounced on: 23.05.2019
Mohamad Rafiq Najar
...Petitioner(s)
Through:- Mr. Hilal Ahmad, Advocate
State of J&K and Ors.
...Respondent(s)
Through:- Mr. B. A. Dar, Sr. AAG.
CORAM: Hon'ble Mr. Justice Rashid Ali Dar, Judge.
i) Whether to be reported in Press/Media: Yes/No
ii) Whether to be reported in Digest/Journal: Yes/No (JUDGMENT)
1. This Petition has been filed for grant of the following reliefs:
i) A writ of certiorari be issued in favour of the petitioner and against the respondents whereby the order No. 742 PHQ of 2008 dated 29-02-2008 be quashed and declared as non est in the law.
ii) A writ of mandamus be issued in favour of the petitioner and against the respondents whereby the respondents be commanded to reinstate the petitioner with all consequential benefits.
2. Before appreciating the merits of the case, it would be quite fruitful to go through the facts of the case as put forth in petition:
i) That the petitioner was selected as constable vide APHQ order No. 351 of 2007 dated 27-04-2007. The registration for verification of the character and antecedents was submitted to IGP CID J&K and final verification was received from CID Hqrs vide letter No. CID/VB/07/F/112-
551/A dated 21-10-2007 which revealed that the petitioner SWP No. 641/2008 1 of 25 is a released PTM of Albarq outfit and was involved in FIR No. 220/1998 U/S 10 CL Act, the case of the petitioner was thereafter referred to APHQ for legal opinion and the legal opinion vide letter APHQ/Legal Opinion/2008-1622-26 dated 10-02-2008 has intimated that PHQ vide letter No. Per-67/2006-1/232 dated 02-01-2008 conveyed that examination of the matter indicates that nothing adverse has been found against the petitioner as such formal appointment orders be got issued provided they are otherwise fit.
ii) That the petitioner was then referred to medical board and was declared medically fit vide medical suppt, police Hospital Srinagar letter No. GB/PHS/08/385 dated 02-02- 2008. Thereafter formal appointment order was issued vide order No. 39 of 2008 dated 14-02-2008 and regiment No. 477/IR 12th was allotted to him.
iii) That the petitioner discharged his duties and was paid salary for the month of February 2008 and on 27-03-2009 the petitioner was verbally informed by the respondent No. 4 that his service has been terminated. However no formal order was ever served to the petitioner but he managed to get a photocopy of the termination order vide Order No. 111 of 2008 dated 27.03.2008 (for short impugned order)
3. Aggrieved with the said order dated 27-03-2008 passed by respondents, the petitioner challenges the same on the following grounds:
i) That the impugned order has been passed without following the due procedure of law as no enquiry was every conducted. It may be mentioned here that the impugned order has been passed without assigning any reason as to what allegations are against the petitioner which warrants his termination.
ii) That the order impugned is against Section 126 (2) (b) and
(c) of the Constitution of State and as such is liable to be set aside. It is further submitted that the order having been passed by incompetent authority deserves to be set aside.
iii) That the respondents had conducted a thorough enquiry and it was only after proper investigation that the petitioner was appointed as Constable. It is pertinent to mention here that the petitioner had been falsely implicated in FIR No. 220/1998 and has since been acquitted by the court of 3rd SWP No. 641/2008 2 of 25 Additional District Judge Srinagar vide his judgment dated 16-11-2007.
iv) That the impugned order being without jurisdiction is non est in law. It is pertinent to mention here that the petitioner was not served with any show cause or any other notice and as such the principles of natural justice were not followed which is legal infirmity in the impugned order.
v) That the impugned order has been issued without providing the petitioner an opportunity of hearing nor the petitioner was appraised of allegations leveled against him which warranted his termination the order having been passed in hot haste deserves to be set aside.
4. Petitioner sought permission to amend the writ petition later which was granted by this Court vide order dated 17-03-2011. The main cause of the amendment was that petitioner was under a notion that his termination was ordered vide order No. 742 of 2008 dated 29-02-2008 but of late on scrutiny, petitioner found that his termination has been ordered vide order No. 111/08 dated 27-03-2008. He therefore sought incorporation some other grounds and relief by way of amended writ petition, which are quite necessary to be summarized as:
Additional Grounds:
i) That in the writ petition the petitioner has prayed for quashing the order No. 742 PhQ of 2008 dated 29-02-
2008 which in fact is the order of cancellation of candidature of the petitioner.
ii) That the respondents while filing the reply had mentioned that the appointment order issued in favour of the petitioner has been cancelled by virtue of order No. 111/08 dated 27-03-2008. Therefore it become imperative and necessary for petitioner to challenge the said order also on the grounds already raised in the writ petition.
Additional Prayer:
SWP No. 641/2008 3 of 25
i) Writ of Certiorari whereby the order No. 742/08 read with order No. 111/08 dated 27-03-2008 be quashed.
5. Respondents have filed the counter affidavit wherein it is stated that:
i) Vide PHQ J&K Order No. 351/2007 dated 27-04-2007, petitioner (Shri Mohammad Rafiq Najar S/o Mohammad Sidiq Najar R/o Danmar Srinagar) was selected as Constable and adjusted in the answering respondent Unit, accordingly, his verification of character and antecedents was got conducted from the concerned department i.e. J&K CID Headquarters, which reveals that the candidate is a released Pak Trained Militant (PTM) of Al-Baraq Militant Outfit and was also involved in case FIR No. 220/1998 Under Section 10 C.L.A Act, which was subjudice in the competent court of law.
ii) That after sometime, the petitioner produced a copy of Judgment under the seal and signature of 3rd Additional District and Sessions Judge , Srinagar where under the accused (petitioner) was acquitted in the said case. Accordingly, the matter was brought to the notice of APHQ J&K vide Office Letter No. Estt/Rec/07/8235 dated 27-11-2007 for providing of legal opinion into the matter and in turn APHQ J&K vide Letter No. APHQ/Legal/Opinion/2008/1622-26 dated 10-01-2008 opined that "Examination of the matter indicated that nothing adverse has been found against the candidate under reference in person.
As such, their formal appointment order may be got issued provided that they are otherwise fit. On receipt of the said opinion petitioner's formal appointment order was passed vide Officer Order No. 39/2008 dated 14-02-2008 issued under endorsement No. Estt/Apptt/CT/07/1058-67 dated 14-02-2008.
iii) That later on the grounds of adverse report of CID Headquarters, selection of the said petitioner was cancelled by PHQ J&K vide Order No. 742/2008 dated 29-02-2008 on the recommendation of APHQ J&K, which was subsequently implemented vide Officer Order No. 111/2008 dated 27-03-2008 .
6. Heard learned counsel for the parties.
7. Learned counsel for the petitioner had relied upon the judgment of the Hon'ble Apex Court in Case titled Shrawan Kumar Jha And Others vs State Of Bihar And Others AIR 1991 SC 309, 1991 wherein after noting the facts has been i held :
SWP No. 641/2008 4 of 25 "The appellants, who are 175 in number, were appointed as Assistant Teachers by the District Superintendent of Education, Dhanbad, by an order dated May 28, 1988. Before joining, they were supposed to get their certificates and other qualifications verified from the authorities. They were to join the specified schools by July 4, 1988. The appellants assert that they had joined their respective schools but this fact is denied by the State.
By an order dated November 2, 1988, the Deputy Development Commissioner cancelled the appointments of the appellants. Mr. Ashok H. Desai, learned Solicitor General appearing for the respondents has contended that the appointments have been cancelled because the District Superintendent of Education had no authority to make the appointments, it was a device of by-passing the reservations and that the conditions which are part of the appointment order were not complied with. Mr. U. R. Lalit and Mr. A. K. Ganguli, learned Senior Advocates, appearing for the appellants have controverted these allegations and have dated that all these teachers were validly appointed and they had joined their respective schools.
It is not necessary to go into all these questions. In the facts and circumstances of this case, we are of the view that the appellants should have been given an opportunity of hearing before cancelling their appointments. Admittedly, no such opportunity was afforded to them. It is well settled that no order to the detriment of the appellants could be passed without complying with the rules of natural justice. We set aside the impugned order of cancellation dated November 3, 1988 on this short ground. As suggested by the learned Solicitor General, we direct that the secretary (Education), Government of Bihar, or to other person nominated by him should give an opportunity of hearing to the appellants and thereafter give a finding as to whether the appellants were validly appointed as Assistant Teachers.
He has also laid emphasis on the judgment of the Hon'ble Supreme Court in case titled Mohammad Imran Vs. State of Maharashtra and Ors. In Civil Appeal No. 10571/2018. Para 11 and 102 are relevant to be extracted herein below:
SWP No. 641/2008 5 of 25
11. In the entirety of the facts and circumstances of the case, we are of the considered opinion that the consideration of the candidature of the appellant and its rejection are afflicted by a myopic vision, blurred by the spectacle of what has been described as moral turpitude, reflecting inadequate appreciation and application of facts also, as justice may be demand.
12. We, therefore, consider the present a fit case to set aside the order dated 04.06.2010 and the impugned order dismissing the writ petition, and direct the respondents to reconsider the candidature of the appellant. Let such fresh consideration be done and an appropriate decision be taken in light of the present discussion, preferably within a maximum period of eight weeks from the date of receipt and production of the copy of the present order. In order to avoid any future litigation on seniority or otherwise , we make it clear that in the event of appointment, the appellant shall not be entitled to any other reliefs.
He had also relied on the judgment of the Hon'ble Apex Court in case titled Commr, of Police and others Vs. Sandeep Kumar (2011) AIR (SCW) 3601.
Para 4, 12(a), 13, 14 and 15 are relevant to be quoted herein below:
4.The respondent herein-Sandeep Kumar applied for the post of Head Constable (Ministerial) in 1999. In the application form it was printed :
"12(a) Have you ever been arrested, prosecuted kept under detention or bound down/fined, convicted by a court of law for any offence debarred/disqualified by any Public Service Commission from appearing at its examination/selection or debarred from any Examination, rusticated by any university or any other education authority/Institution."
13.When the incident happened the respondent must have been about 20 years of age. At that age young people often commit indiscretions, and such indiscretions can often been condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives.
13.In this connection, we may refer to the character 'Jean Valjean' in Victor Hugo's novel 'Les Miserables', in which for committing a minor offence of SWP No. 641/2008 6 of 25 stealing a loaf of bread for his hungry family Jean Valjean was branded as a thief for his whole life.
14.The modern approach should be to reform a person instead of branding him as a criminal all his life.
15.We may also here refer to the case of Welsh students mentioned by Lord Denning in his book 'Due Process of Law'. It appears that some students of Wales were very enthusiastic about the Welsh language and they were upset because the radio programmes were being broadcast in the English language and not in Welsh. Then came up to London and invaded the High Court. They were found guilty of contempt of court and sentenced to prison for three months by the High Court Judge. They filed an appeal before the Court of Appeals. Allowing the appeal, Lord Denning observed :-
"I come now to Mr. Watkin Powell's third point. He says that the sentences were excessive. I do not think they were excessive, at the time they were given and in the circumstances then existing. Here was a deliberate interference with the course of justice in a case which was no concern of theirs. It was necessary for the judge to show - and to show to all students everywhere - that this kind of thing cannot be tolerated. Let students demonstrate, if they please, for the causes in which they believe. Let them make their protests as they will. But they must do it by lawful means and not by unlawful. If they strike at the course of justice in this land - and I speak both for England and Wales - they strike at the roots of society itself, and they bring down that which protects them. It is only by the maintenance of law and order that they are privileged to be students and to study and live in peace. So let them support the law and not strike it down.
But now what is to be done? The law has been vindicated by the sentences which the judge passed on Wednesday of last week. He has shown that law and order must be maintained, and will be maintained. But on this appeal, things are changed. These students here no longer defy the law. They have appealed to this court and shown respect for it. They have already served a week in prison. I do not think it necessary to keep them inside it any longer. These young people are no ordinary criminals. There is no violence, dishonesty or vice in them. On the contrary, there was much that we should applaud. They wish to do all they can to preserve the Welsh language. Well may they be proud of it. It is the language of the bards - of the poets and the singers - more melodious by far than our rough English tongue. On high authority, it should be equal in Wales with English. They have done wrong- very wrong - in going to the extreme they did. But, that having been shown, SWP No. 641/2008 7 of 25 I think we can, and should, show mercy on them. We should permit them to go back to their studies, to their parents and continue the good course which they have so wrongly disturbed."
He has also referred to the judgment of this court in case titled Jasbir Singh Vs. State (2013) 2 JKJ 368. Para 12, 8, and 9 are relevant to be quoted herein below:
"12. It is true that in the application from the respondent did not mention that he was involved in a criminal case under Sections 325/34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified. AT any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter.
8. The law laid down by this Hon'ble Supreme Court in Sandeep Kumar's case oblige the respondents to accord consideration to the case of the petitioner. Post of follower (Cook) is not of that importance, which would impel the respondents not to consider the claim of the petitioner for appointment, on the said post.
9.For the reasons mentioned above, this writ petition is disposed of in the following manners:-
Respondents are directed to reconsider the claim of the petitioner for being appointed on the post of follower (Cook) f or which he was already selected and take a decision in t his regard preferably within a period of eight weeks from the date copy of this order is served upon them. Disposed of along with connected CMP(s)".
8. Per contra, learned counsel for the respondents submits that the petitioner's service was terminated because of the adverse report of the CID Headquarters. He had relied on following judgment of Hon'ble Supreme Court in case titled Commissioner of Police New Delhi and anr.
Vs. Mehar Singh 2013 3 SCC 669
4. FIR No.126/04 was registered against respondent - Mehar Singh and others under Sections 143, 341, 323 and 427 of the Indian Penal Code SWP No. 641/2008 8 of 25 ("the IPC") upon a complaint received from Ramji Lal s/o. Mamraj Saini r/o. Khetri - the owner of Bus No.RJ-18P 0493. The substance of the complaint was that when the bus reached the bus stand of village Raipur on 15/5/2004 at about 3.15 p.m, respondent - Mehar Singh along with others armed with iron chain, lathi, belts, danda, stones etc. stopped the bus on the road and rebuked the conductor of the bus as to how he dared to take the fare from one of his associates. Sanjay Singh, Basant, Udai Bhan, Rajesh, Sandeep, Jagmal, Suresh and Karan Singh intervened and tried to save the conductor of the bus. During intervention, Sanjay and Basant suffered injuries on their back, eyes and ears. All the accused broke the side window panes of the bus by throwing stones and by giving blows with lathis/dandas. When the other passengers intervened, the accused fled the spot. The complainant along with the injured reached the police station and lodged the aforementioned complaint.
5. 5. In the year 2009, the appellants issued an advertisement for filling- up the post of constables (Exe.) (male). It appears that in the criminal case registered against respondent - Mehar Singh, he arrived at a compromise with the complainant. In terms of the compromise, he and other accused were acquitted of the offences under Sections 323, 341 and 427 of the IPC on 30/1/2009. As regards the offence under Section 147 of the IPC, the trial court acquitted him and other co-accused for want of evidence. It is pertinent to note that the witnesses turned hostile. Respondent - Mehar Singh applied for the post of constable pursuant to the advertisement issued by the appellants. In relevant papers, he disclosed his involvement in criminal case and his acquittal as both parties had entered into a compromise. He was assigned Roll No.422165 and put through the physical endurance and measurement test and written test. After interview, he was declared provisionally selected, subject to verification of character and antecedents. During character and antecedent verification, his involvement in the criminal case and his subsequent acquittal due to compromise between the parties was taken into account.
6. 6. The case of respondent - Mehar Singh was examined by the Screening Committee constituted by respondent 1 i.e. the Commissioner of Police, Delhi. The Screening Committee observed that respondent - Mehar Singh and others had assaulted the bus conductor with iron chain, belt and stones in a preplanned manner and caused injuries to him, which showed respondent - Mehar Singh's violent nature and scant respect for the law of the land. The Screening Committee in the circumstances did not recommend his case for appointment to the post of constable.
SWP No. 641/2008 9 of 25
7. On 3/3/2011, appellant 2 - the Deputy Commissioner of Police (Recruitment), New Delhi issued a notice to respondent - Mehar Singh calling upon him to show cause as to why his candidature should not be cancelled. He replied to the show cause notice. He submitted that he was falsely implicated in the criminal case and acquitted in the year 2009 after a full fledged trial. He submitted that a mere registration of an FIR would not show any criminal propensity. According to him the offence was falsely reported by the complainant due to local issues and to avoid prolonged proceedings, the issue was settled between him and the complainant and the trial court had acquitted him. The Screening Committee did not find his reply to be convincing. In his order dated 22/3/2011, the Deputy Commissioner of Police (Recruitment), New Delhi stated that the Screening Committee has, inter alia, observed that the actions of respondent - Mehar Singh depicted his violent nature and that he had no respect for the law of the land and on considering the totality of the circumstances, the Screening Committee held that he was not suitable for appointment to the post of constable. By the said letter, candidature of respondent - Mehar Singh was cancelled.
19. A careful perusal of the policy leads us to conclude that the Screening Committee would be entitled to keep persons involved in grave cases of moral turpitude out of the police force even if they are acquitted or discharged if it feels that the acquittal or discharge is on technical grounds or not honourable. The Screening Committee will be within its rights to cancel the candidature of a candidate if it finds that the acquittal is based on some serious flaw in the conduct of the prosecution case or is the result of material witnesses turning hostile. It is only experienced officers of the Screening Committee who will be able to judge whether the acquitted or discharged candidate is likely to revert to similar activities in future with more strength and vigour, if appointed, to the post in a police force. The Screening Committee will have to consider the nature and extent of such person's involvement in the crime and his propensity of becoming a cause for worsening the law and order situation rather than maintaining it. In our opinion, this policy framed by the Delhi Police does not merit any interference from this Court as its object appears to be to ensure that only persons with impeccable character enter the police force.
20. 20. We find no substance in the contention that by cancelling the respondents' candidature, the Screening Committee has overreached the judgments of the criminal court. We are aware that the question of co- relation between a criminal case and a departmental inquiry does not directly arise here, but, support can be drawn from the principles laid down by this SWP No. 641/2008 10 of 25 Court in connection with it because the issue involved is somewhat identical namely whether to allow a person with doubtful integrity to work in the department. While the standard of proof in a criminal case is the proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities. Quite often criminal cases end in acquittal because witnesses turn hostile. Such acquittals are not acquittals on merit. An acquittal based on benefit of doubt would not stand on par with a clean acquittal on merit after a full fledged trial, where there is no indication of the witnesses being won over. In R.P. Kapur v. Union of India[11] this Court has taken a view that departmental proceedings can proceed even though a person is acquitted when the acquittal is other than honourable.
26. So far as respondent - Mehar Singh is concerned, his case appears to have been compromised. It was urged that acquittal recorded pursuant to a compromise should not be treated as a disqualification because that will frustrate the purpose of Legal Services Authorities Act, 1987. We see no merit in this submission. Compromises or settlements have to be encouraged to bring about peaceful and amiable atmosphere in the society by according a quietus to disputes. They have to be encouraged also to reduce arrears of cases and save the litigants from the agony of pending litigation. But these considerations cannot be brought in here. In order to maintain integrity and high standard of police force, the Screening Committee may decline to take cognizance of a compromise, if it appears to it to be dubious. The Screening Committee cannot be faulted for that.
28. The police force is a disciplined force. It shoulders the great responsibility of maintaining law and order and public order in the society. People repose great faith and confidence in it. It must be worthy of that confidence. A candidate wishing to join the police force must be a person of utmost rectitude. He must have impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged in the criminal case, that acquittal or discharge order will have to be examined to see whether he has been completely exonerated in the case because even a possibility of his taking to the life of crimes poses a threat to the discipline of the police force. The Standing Order, therefore, has entrusted the task of taking decisions in these matters to the Screening Committee. The decision of the Screening Committee must be taken as final unless it is mala fide. In recent times, the image of the police force is tarnished. Instances of police personnel behaving in a wayward manner by misusing power are in public domain and are a matter of concern. The SWP No. 641/2008 11 of 25 reputation of the police force has taken a beating. In such a situation, we would not like to dilute the importance and efficacy of a mechanism like the Screening Committee created by the Delhi Police to ensure that persons who are likely to erode its credibility do not enter the police force. At the same time, the Screening Committee must be alive to the importance of trust reposed in it and must treat all candidates with even hand.
31. In the ultimate analysis, we are of the view that the opinion formed by the Screening Committee in both these cases which is endorsed by the Deputy Commissioner of Police (Recruitment), Delhi, that both the respondents are not suitable for being appointed in the Delhi Police Force does not merit any interference. It is legally sustainable. The Tribunal and the High Court, in our view, erred in setting aside the order of cancellation of the respondents' candidature. In the circumstances, the appeals are allowed. The orders of the Delhi High Court impugned in both the appeals are set aside. The cancellation of candidature of the respondents - Mehar Singh and Shani Kumar is upheld.
8. He has also relied upon the judgment of this Court titled Fayaz Ahmad Panchoo Vs. State of J&K a nd Ors. 2003 (Supp.) JKJ 765 [HC (DB)] and submits that the instant case merits dismissal.
9. Considered the rival arguments.
10. It is evident on perusal of the record that the petitioner had been selected for appointment of constable and consequent thereupon he has been adjusted as constable in 12th Battalion vide APHQ J&K Order No. 351 of 2007 dated 27.04.2007. He has been appointed thereafter vide Order No. 39 of 2008 dated 14.02.2008. He has received even salary from month of February 2008 and on 27.03.2009. Recital with regard to the petitioner in the said order is:
"in compliance of above APHQ order these newly recruited constables were put on physical measurement test conducted by the Recruitment Cell in this Unit constituted vide this office order issued under endst. No. Estt/Rec/07/1379-87 dated 01.05.2007 and subsequently their verification rolls were SWP No. 641/2008 12 of 25 submitted to ADGP CID J&K Srinagar for verification of t hier character and antecedents which has not been found positive by the said organization as communicated by DIC Hqrs. J&K Srinagar vide their letter No. CI/VB/07/F/27112-551/A dated 21.10.07 and dated 28.08.07 and in this regard PHQ vide letter No. PHQ/Per-67/2006-I/232 dated 02.01.08 has intimated that nothing has been found adverse against the above mentioned candidates. Accordingly their medical examination was got conducted by the Medical Supdt. Police Hospital, Srinagar and were declared medically fit as communicated vide his letter No. Esstt/PHS/08/385 dated 02.02.2008 and were also put on literacy test which they have passed as per Board Proceedings submitted by Recruitment Cell of this Unit.
After completion of the above necessary formalities, they are hereby appointed as constables in IRP 12th Battalion against clear vacancies in the pay scale of Rs. 2750-70-3800-75- 4400 and other usual allowances as admissible under rules with effect from the dates they enter joining report in the Battalion Daily Diary. Their inter seniority will be determined in accordance with the merit they possess in the basic recruit training course (BRTC).
The appointees shall remain on probation for a period of three years and shall be liable for removal/dismissal from service for any misconduct/indiscipline of their testimonials found fictitious/fake and fabricated at any stage as envisaged in J&K Police Manual. Tis appointment order comprising of 02 constables."
11.The respondent No. 4 has in terms of the said order represented to the petitioner that his removal/dismissal from service for any misconduct/indiscipline etc would be subject to Rules in J&K Police Manual.
The cancellation of his appointment in view of order dated 29.02.2008 is to be examined in light of above facts. It may be however proper to have a glance of the said order supra as:
SWP No. 641/2008 13 of 25 "Whereas vide APHQ Order No. 351 of 2007 dated 27.04.2007 Mohammad Rafiq Najar S/o Mohamad Sidiq R/o Dammar Srinagar was selected as constables by the recruitment board and adjusted in this Unit. Accordingly his verification of character and antecedents was submitted to IGP CID J&K vide this office No. Estt/07/1783-86 dated 12.05.2007 and his final verification was received from CID Hqrs. J&K vide letter No. CID/VB//07/F/27112-551/A dated 21.10.2007 which reveals that the candidate is a released PTM of Al-Baraq outfit and was also involved in case FIR No. 220/1998 U/s 10 C.L. Act which was subjudiced in the court of law.
Whereas vide this office letter No. Estt/rec/07/8235 dated 27.11.2007, APHQ was requested to provide legal opinion/guidance so that necessary action is taken accordingly.
Whereas APHQ vide letter NO. APHQ /Legal/Opinion/2008- 1622-26 dated 10.01.2008 has intimated that PHQ vide letter No. Per-67/2006-I/232 dated 02.01.2008 has conveyed that "examination of the matter indicates that nothing adverse has been found against the candidate, under reference, in person, as such appointment order may be got issued provided they are otherwise fit" and this office was directed to proceed accordingly.
Whereas in view of the above directions, the candidates was sent to police Hospital Srinagar for conducting his medical examination and he was declared medically fit vide Medical Supdt. Police Hospital Srinagar letter No. GB/PHS/08/385 dated 02.02.2008 and his formal appointment order was issued vide this office order No. 39 of 2008 dated 14.02.2008 and Regt. No. 477/IT/12th allotted to him.
Whereas vide PHQ Order No. 742 of 2008 dated 29.02.2008, the selection order of the said candidate has been cancelled abinitio.
Therefore in light of PHQ order quoted above, appointment order in respect of Mohd Rafiq Najar No. 477/IR 12th S/o Mohd Sidiq R/o Danmar Srinagar issued vide officer SWP No. 641/2008 14 of 25 Order No. 39 of 2008 dated 14.02.2008 is hereby cancelled abinitio.
Quarter master of this unit is requested to ensure the deposition of all Government items issued to the said Follower during his active service under proper procedure."
12. It is an admitted feature of the case that the petitioner had been appointed pursuant to verification made by the respondent. He has been paid salary for the month of February 2008 and on 27.03.2009. He had to be treated as a member of the police service and so subject to regulations framed in this regard regarding the condition of the service. He has also to be treated to be member of Civil Service and so Civil Service Regulations would also be attracted in case the condition of service are altered to his detriment.
Constitutional protection in terms of the Section 126 -B of the Constitution of Jammu and Kashmir would also be applicable. It would be proper herein to have a glance of Section 126-B as:
""1) No such person who is a member of a civil service of the State or holds a civil post under the State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry:
Provided that this sub section shall not apply-
a) Where a person is dismissed or removed or reduced in rank on the ground of conduct w hic he has led to his conviction on a criminal charge; or
b) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry;
or SWP No. 641/2008 15 of 25
c) Where the Governor is satisfied that in the interest of the security of the State4, it is not expedient to hold such inquiry.
3) If, in respect of any such person as aforesaid, a' question arises whether it is reasonable to hold such inquiry as is referred in sub section (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in the rank shall be final".
13.On summary perusal of the provisions above referred, it is clear that no person who is a member of Civil Service of the State or holds a civil post under the State shall be dismissed or removed except after an enquiry in which he has been charged and given a reasonable opportunity of being heard in respect of those charges except where the inquiry is not held for which exception is carved out in terms of Clause b notified above.
14.The mechanism delineated under Rule 33 of J&K Civil Services (Classification, Control and Appeal) Rules, 1956 for removal or dismissal of Public Servant or a member of Civil Service may also need a mention here, to appreciate the merit of the petition. For reference, same is reproduced as under:
33.(1) Without- prejudice to provisions of the Public Servants Inquiries Act, 1977, no order (other than an order based on facts which had led to his conviction in a criminal court or by a court-martial) of dismissal, removal, or reduction in rank 1 [which includes reduction to a lower post and/or lower timescale, - and/or to a lower stage in time-
scale] but excludes the reversion to a lower post of a person who is holding a higher post temporarily shall be passed on a person who is a member of a Civil service, or holds a Civil post under the State unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded and adequate opportunity of defending himself. The ground s on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the person charged, together with a statement of tile allegations on which each charge is based and of any other circumstances which it is proposed to SWP No. 641/2008 16 of 25 take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be head in person. If he so desires, or if the authority concerned so directs, an oral inquiry shall be held in respect of such of the allegations as are not admitted. At that inquiry such oral evidence will be heard, as the inquiring officer considers necessary. The person charged shall be entitled to cross- examine the witnesses, to give evidence in person and to have such witnesses called as he may wish; provided that the officer conducting the inquiry may for sufficient reason to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof. (2) The rule shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to communicate with him, or where in the interest of the security of the State, it is considered not expedient to give to that person an opportunity of showing cause against the action proposed to be taken against him. All or any of the provisions of the rule may for sufficient reasons to be recorded in writing be waived, where there is difficulty in observing exactly the requirements of the rule and those requirements can in the opinion of the inquiring officer be waived without injustice to the person charged. (3) this shall also not apply where it is proposed to terminate the employment of a probationer whether during or at the end of the period of probation, or to dismiss, remove or reduce in rank a temporary government servant, for any specific fault or on account of his unsuitability for the service. 1 (4) the competent authority may inquire into the charges itself or if it considers it necessary so to do, it may appoint an inquiry officer for the purpose.]
15. Quite apposite, it may be to quote Rule 334, 339 and 359 of Police Rules:
334. (1) No police officer shall be departmentally punished otherwise than a prescribed in these rules.
SWP No. 641/2008 17 of 25
(2) Authorized departmental punishments: - The following
punishments may be inflicted departmentally on police-officers of and below the rank of Inspector: -
(a) Dismissal (bar to re-employment in Government service).
(b) Removal (not a bar to re-employment in Government service in another department)
(c) Compulsory retirement before attainment of the age of superannuation.
(d) Withholding of increments
(e) Confinement to quarters for a period not exceeding 15
days (for constables only)
(f) Fine not exceeding one month's pay.
(g) Reduction to a lower rank, grade or time scale or to a
lower stage in the same time scale.
(h) Punishment drill, extra guard or other duty not
exceeding 15 days (for constables only)
(i) Censure
(j) Recovery from pay of the whole or part of any
pecuniary loss caused to Government by negligence or breach of order.
(k) forfeature of increment.
(3) For the purpose of these rules the term "Major
Punishment" shall be held to mean any authorized punishment of dismissal, removal, compulsory retirement, withholding of increments, fine, reduction, recovery from pay and forfeiture of increment. The term "Minor Punishment" shall mean all other authorized punishments.
Explanation - Stopping a police officer of and below the Rank of Inspector at an efficiency bar in the time scale of his pay on the ground of his unfitness to cross the bar does not amount to withholding of increment or promotion within the meaning of this rule.
339 Removal
SWP No. 641/2008 18 of 25
Removal should be the penalty in all cases where it is not thought necessary to bar future re-employment under Government in another department for which the person may be suited, and an order of removal should not be accompanied by any subsidiary orders which would operate as such a bar or otherwise prejudice the person in question:
Explanation: The discharge -
(a) Of a person appointed on probation, before the termination of his period of probation;
(b) Of a person appointed otherwise than under contract to hold a temporary appointment on the expiration of the period of the appointment;
(c) Of a person engaged under contract in accordance with the terms of his contract;
does not amount to dismissal or removal within the meaning of these rules.
359 Procedure in department enquiries.
(1) The following procedure shall be followed in departmental enquiries: -
(a) The enquiry shall, whenever, possible be conducted by a gazette officer empowered to inflict a major punishment upon the accused officer. Any other gazetted officer or an Inspector specially empowered by the Minister I/C Police Department, to hold departmental enquiries (vide order No. 636-C dated 27.06.1945) may be deputed to hold an enquiry or may institute an enquiry on his own initiative against an accused police officer who is directly subordinate to him, except that in the case of a complaint against a constable the enquiry may be conducted by an Inspector. The final order, SWP No. 641/2008 19 of 25 however, may be passed only by an officer empowered to inflict a major punishment upon the accused police officer.
(2) The officer conducting the inquiry shall summon the accused police officer before him and shall record and read out to him a statement summarising the alleged misconduct in such a way as to give notice of the circumstances in regard to which evidence is to be recorded.
(3) If the accused police officer at this stage admits the misconduct alleged against him the officer conducting the enquiry may proceed forthwith to record a final order if it is within his power to do so or a finding to be forwarded to an officer empowered to decide the case.
Whenever a serious default is reported and the preliminary enquiry is necessary before a definite charge can be framed, this is usually best done on the spot and might be carried out by the Sub-Inspector of the particular Police Station in the case of head constables and constables serving under him or by the Inspector of the circle in the case of Sub-Inspectors within his charge. AT the same time it must be left to Superintendent of Police to select the most suitable officers for the purpose or to do it themselves when such a course appears desirable.
When the preliminary enquiry indicates a criminal offence, application for permission to prosecute should at once be made to the authority competent to dismiss the officer and permission should be promptly granted if that authority agrees that there is prima facie case of prosecution.
4) If the accused police officer does not admit that misconduct the officer conducting the enquiry shall proceed to record such evidence oral and documentary in proof of the accusation as is SWP No. 641/2008 20 of 25 available and necessary to support the charge. Whenever possible witnesses shall be examined direct and in the presence of the accused who shall be given opportunity to cross examine them. The officer conducting the enquiry is empowered however to bring on to the record the statement of any witness whose presence cannot in the opinion of such officer be produced without undue delay and expense or inconvenience if he considers such statement necessary and provided that it has been recorded and attested by a police officer not below the rank of Inspector or by a Magistrate and is signed by the person making it. The accused shall be bound to answer questions which the enquiring officer may see fit to put to him, with a view to elucidating the facts referred to in statements or documents brought on the record as herein provided.
(5) When the evidence in support of the allegations has been recorded, the enquiring officer shall :
(a) if he considers that such allegations are not substantiated either discharge the accused himself if he is empowered to punish him or recommend his discharge to the Superintendent or other officer who may be so empowered, or
(b) proceed to frame a formal charge or charges in writing, explain them to the accused officer and call upon him to answer them.
(6) The accused officer shall be required to state the defence witnesses whom he wishes to call and may be given time in no case exceeding 48 hours to prepare a list of such witnesses SWP No. 641/2008 21 of 25 together with a summary of the facts as to which they will testify. The enquiring officer shall be empowered to refuse to hear any witnesses whose evidence he considers will be irrelevant or unnecessary in regard to the specified charge framed in which case he shall record the reason for his refusal.
He shall record the statements of those defence witnesses whom he decides to admit in the presence of the accused, who shall be allowed to address questions to them the answers to which shall be recorded, provided that the enquiring officer may cause to be recorded by any other officer not below the rank of Inspector the statement of any such witness whose presence cannot be secured without undue delay or inconvenience and may bring such statement on to the record. The accused may file documentary evidence and may for this purpose be allowed access to such files and papers except such as form part of the record of the confidential office of the Superintendent of Police as the enquiring officer deems fit. The supply of copies of documents to the accused shall be subject to the ordinary rules regarding copying fees.
(7) At the conclusion of the defence evidence or if the enquiring officer so directs at any earlier stage, following the framing of a charge the accused shall be required to state his own answer to the charge. He may be permitted to file a written statement and may be given time not exceeding one week for its preparation but shall be bound to make an oral statement in answer to all questions which the enquiring officer may see fit to put to him arising out of the charge, the recorded evidence or his own written statement.
SWP No. 641/2008 22 of 25 (8) The enquiring officer shall then proceed to pass orders of acquittal or punishment if empowered to do so, or to forward the case with his finding and recommendations to an officer having the necessary powers.
(9) Nothing in the foregoing rules shall debar a Superintendent of Police from making or causing to be made a preliminary investigation into the conduct of a suspected officer. Such an enquiry is not infrequently necessary to ascertain the nature and degree of misconduct which is to be formally enquired into. The suspected police officer may or may not be present at such preliminary enquiry as ordered by the Superintendent of Police or other gazetted officer initiating the investigation but shall not cross examine witnesses. The file of such a preliminary investigation shall form no part of the formal departmental record but may be used for the purpose of sub rule 4 above.
(10) this rule shall also not apply where it is proposed to terminate the employment of a probationer whether during or at the end of the period of probation.
(11) (1) As laid down in Section 126 of the Constitution of Jammu and Kashmir no officer shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No police officer shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause orally and also in writing against the action proposed to be taken in regard to him, provided that this clause shall not apply:-
a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which he led to his conviction on a criminal charge;
b) Where an authority empowered to dismiss or remove an officer or to reduce him in the rank is satisfied that for some reason SWP No. 641/2008 23 of 25 to be recorded by that authority in writing it is snot reasonably practicable to give to that person an opportunity of showing cause;
or
c) Where the Sadar-i-Riyasat is satisfied that in the interest of the security of the State it is not expedient to give to that officer such an opportunity.
(3) If any question arises whether it is reasonably practicable to give to any offer an opportunity of showing cause under clause (2) above, the decision thereon of the authority empowered to dismiss or remove such officer or to reduce him in rank, as the case may be, shall be final.
16.The admitted feature of the case is that the petitioner has been appointed vide order referred above. Cancellation of his appointment order ab-initio, is manifestly a Removal from Service. It visits the petitioner with civil consequences and so is vividly a punishment, for awarding of which mechanism provided under Rule 339 of the police Rules, Section 126-B of the Constitution of Jammu and Kashmir and Rule 33 of J&K Civil Services (Classification, Control and Appeal) Rules, 1956 had to adhered to. In Mehar Singh's case appointment had yet to be made, as only selection process was being taken to logical conclusion. Selection committee during the course of same framed the opinion referred supra. Mehar Singh was served with show cause notice. He submitted his reply, while as in the case in hand, same is not the position. Respondents had of their own knowing about his involvement selected and appointed him. Said case as such is distinguishable.
Cases relied on by petitioner are quite clearly applicable to the facts of instant case. It is quite manifest from the pleadings and the record that the petitioner has not been conveyed about the misconduct if any before passing impugned SWP No. 641/2008 24 of 25 order. Cancellation of his selection and the appointment which have been acted upon has been made at his back and is vividly in breach of principle of Audi alteram partem .
17.In Fayaz Ahmad Panchoo's case, the petitioner figured in the selection list and on the receipt of the verification report of his character, was found not fit to be appointed as Constable. He had filed a petition against non-selection which had been rejected by the learned Single Judge and so the appeal had been filed against the said order. The court observed that mere inclusion of the name in the select list is not sufficient.
18.Viewing the matter in its totality, I am of the opinion that the order No. 742 PHQ of 2008 dated 29.02.2008 is bereft of any legal force and is required to be quashed, as such is quashed accordingly. Consequently, the respondents shall allow the petitioner to join the service. However, if the respondents feel it expedient to alter the condition of service of the petitioner or find any scope to proceed for awarding of any punishment, same shall be done while affording an opportunity of being heard to the petitioner and in accordance with the Service Regulations governing the field.
19.Disposed of.
(Rashid Ali Dar) Judge Srinagar 23.05.2019 "Aasif"
AASIF GUL 2019.05.28 05:05 I attest to the accuracy and integrity of this documentSWP No. 641/2008 25 of 25