Jammu & Kashmir High Court - Srinagar Bench
Mushtaq Ahmad Rather vs State Of J&K And Others on 22 April, 2011
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP No. 230 of 2005 Mushtaq Ahmad Rather Petitioners State of J&K and others Respondents !Mr. R. A. Sogami, Advocate ^Mr. A. M. Magray, Advocate Honble Mr. Justice Hasnain Massodi, Judge Date: 22/04/2011 :J U D G M E N T:
The petitioner, appointed as Constable vide order No.752 of 1998 dated 29.10.1998, in J&K Police Department has been discharged from services by Senior Superintendent of Police Kulgam respondent No.4 herein, vide order No.137/2003 dated 30th January 2003, on the ground of his having unauthorisedly absent from duty with effect from 19.09.2000 till the date of his discharge order.
The order No.307 of 2002 dated 01.08.2002 is, inter-alia, assailed on the grounds that the petitioner was prevented from reporting to duty with effect from 19.09.2000 because of his serious illness and hospitalisation. The petitioner claims to have reported to duty after he fully recovered from illness but was not allowed to resume the duty. It is averred that the petitioner was neither afforded an opportunity to project his case before the competent authority and explain his absence from duty nor given an opportunity to show cause against the proposed punishment.
The writ petition is resisted on the grounds that the petitioner remained unauthorisedly absent from duty and did not submit any convincing material to justify his unauthorised absence. It is insisted that the petitioner after he absented himself from duty was repeatedly requested to resume the duty though without any response from the petitioner. The respondents also question very maintainability of writ petition on the ground that petitioner during his probation period absented from duty and did not have right to question his discharge.
Heard and considered.
The impugned discharge order is liable to be quashed for the following reasons:-
1. The impugned order has been passed in exercise of powers vested under Article 126 (Clause-2) of J&K Constitution and Article 187 of J&K Police Manual. The order depicts non application of mind inasmuch as neither the provisions of J&K Constitution nor J&K Police Manual are classified as Articles.
The provisions of J&K Constitution are classified as Sections and J&K Police Rules 1960 as Rules. Furthermore, Section 126(2), J&K Constitution does not deal with discharge of a probationer. It prohibits dismissal, removal, reduction in rank of a member of a civil service of the State or holding a civil post, except after an inquiry in which he has been informed of the charges against him and given reasonable opportunity of being heard in respect of those charges and where it is proposed to impose such penalty, he is given reasonable opportunity of making representation as regards the penalty proposed. The inquiry in terms of proviso to Section 126(2) may be dispensed with in the circumstances set out in Clauses a to c of the proviso to Section 126(2). The respondent No.4, by relying on Section 126(2) J&K Constitution, has exhibited lack of application of mind to the facts of the case and failed to arrive at a conclusion on objective appraisal of the material produced before him.
2. In terms of Rule 187, Police Rules, discharge of a Constable on probation can be ordered only where the Constable is found unlikely to prove an efficient officer. In other words the authority competent to order discharge has to record satisfaction that on the basis of material placed before him, he is satisfied that the Constable is unlikely to prove an efficient officer. In the present case no such satisfaction is recorded by respondent No.4 author of discharge order. Respondent No.4 instead has observed that the petitioner has not proved to be an efficient police officer making a reference to his past conduct and not any opinion as regards his future prospects of proving himself to be an efficient police officer. In other words respondent No.4 has not opined or recorded the satisfaction that the petitioner, in his opinion, on the basis of record produced before him, is unlikely to prove an efficient police officer. It is pertinent to point out that the use of word found implies that the finding must be on the basis of some material and not merely on the personal opinion of the Officer, directing discharge order. The impugned order thus fails to comply with the requirement of Rule 187 of J&K Police Rules.
3. The respondent No.4, while making impugned discharge order, has observed that the petitioner is not interested to serve the department. The respondent No.4, while directing discharge of petitioner, was not at all required to comment on the interest of petitioner to serve the department. Such a comment makes the discharge of petitioner a stigmatic discharge and is punitive in nature. The rule-makers have made room for discharge of a probationer without any inquiry as such discharge is not to cast any stigma on the discharged Constable and the Constable may very well avail all opportunities that may come his way to get employment in a government, semi government or private organisation. Once the discharge is made stigmatic, the law enjoins upon the authority making discharge order to hold an inquiry so that the official has an opportunity to persuade the competent authority not to cast any stigma on the official while making a discharge order or to convince that whatever is imputed to him is devoid of any basis and untenable. In the case on hand, if respondent No.4 intended to discharge petitioner with a stigma, right course for respondent No.4 was to hold an inquiry, afford petitioner reasonable opportunity of being heard and thereafter make a representation against proposed penalty.
For the reasons discussed above, the writ petition is allowed and by a writ of certiorari order No. 307 of 2002 dated 01.08.2002, quashed. The respondents would be at liberty to proceed in the matter in accordance with law. In the event the respondents decide not to conduct inquiry and proceed against petitioner, the petitioner shall be allowed to resume his duty and the period from the date of impugned order till the date the petitioner is allowed to resume duty shall be dealt with in accordance with rules. However, in case respondents decide to conduct inquiry against petitioner, the aforesaid period shall be subject to outcome of inquiry. In any case the respondents shall take decision in the matter within four weeks from the date copy of the order is made available/served on respondent.
Disposed of.
(Hasnain Massodi) Judge Srinagar 22/04/2011