Jammu & Kashmir High Court
State Of J And K And Ors. vs Firdous Ahmad Sheikh And Ors. on 6 June, 2003
Equivalent citations: 2003(3)JKJ410
JUDGMENT
V.K. Jhanji, A.C.J.
1. This Civil 2nd Appeal is directed against the Judgement and decree passed by the learned 1st Additional District Judge, Srinagar, dated 16th June, 1998 and also the judgement and decree dated 11th September, 1997 passed by the learned trial court, i. e., Judge Small Causes Court, Srinagar decreeing the suit of the plaintiffs, namely, the respondents herein, as a consequence whereof orders bearing Nos. 154 of 1996; 150 of 1996; 151 of 1996; 152 of 1996; 159 of 1996; 158 of 1996; 149 of 1996; 148 of 1996; 156 of 1996; 157 of 1996; 155 of 1996 and 153 of 1996 dated 15th March, 1996, passed by Commandant, IRP, Ist Battalion, Zewan, Srinagar, discharging the plaintiff-respondents from service, have been declared illegal and bad in law and the plaintiff-respondents have been directed to be treated in service. The trial court held the plaintiff-respondents entitled to all the benefits, including pay, allowances, etc. and the defendant-appellants were directed to release the salary and other emoluments admissible under rules to the plaintiff-respondents. However, the 1st Appellate court, while confirming the judgement passed by the trial court, modified it to the extent of directing the plaintiff-respondents to make a representation to the defendant-appellants for their back wages to be considered by them on compassionate grounds according to rules.
2. In brief, that facts are that the respondents herein were appointed as Constables in IRP, 1st Battalion, Zewan, Srinagar, put on three years' probation and deputed for training at Armed Police Training College, Kathua, Jammu. They continued to receive the training till March, 1996, they were served with orders discharging them from service on the ground that their services were not required by the defendant-appellants. The plaintiffs, being aggrieved of their discharge from service be declared null and void and that they be treated in service. The case of the plaintiff-respondents before the trial court was that they have been appointed as Constables after due verification of their character antecedents by the concerned police and intelligence authorities and their work and performance had been good and the orders discharging them from service amounted to punishing them, and that too, without giving them an opportunity of hearing. They, accordingly, challenged the orders of discharge being in violation of Article 311 of the Constitution of India read with Section 126 of the Constitution of J&K. Upon notice of the suit, defendant-appellants in their written-statement submitted that the plaintiff-respondents were placed on probation for a period of three years from the date they joined the department and during that probation period they have been discharged from service. The defendant-appellants further alleged that the plaintiff-respondents were discharged from service as they were not found suitable for the post of Constable. As regards the record, on the basis of which they were found not suitable for the post, the same was not produced at the time of filing of the written-statement, but it was stated therein that the record, being confidential, would be submitted as and when directions were issued in this behalf by the court. On the basis of the pleadings of the parties, necessary issues were framed and, after the parties were given full opportunity to lead evidence, the trial court, on appreciation of the evidence led by the parties, decreed the suit. The defendant-appellants filed civil 1st. Appeal which was heard and decided by the learned 1st. Additional District Judge, Srinagar. The 1st Appellate Court, as noticed above, modified the judgement of the trial court only to the extent of directing the plaintiff-respondents to make a representation to the defendant-appellants for their back wages. The State has come in appeal against the judgement and decree passed by the 1st Appellate Court as well as that of the trial court.
3. The submission of learned counsel for the defendant-appellants is that the plaintiff-respondents, while on probation, were not found suitable and fit and, accordingly, the commandant, IRP, 1st Battalion, Zewan, Srinagar, who had appointed them temporarily and put them on probation, issued the orders, discharging the plaintiff-respondents from service. Further, according to the learned counsel, the orders discharging the respondents from service are not stigmatic in nature and, therefore, not violative of Article 311 of the Constitution of India read with Section 126 of the State Constitution. Learned counsel submitted that the findings of the courts-below to the contrary are erroneous in law.
4. On the other hand, learned counsel appearing on behalf of the plain-tiff-respondents, submitted that both the courts-below have returned a firm finding of fact that the plaintiff-respondents were discharged from service not because they were not likely to prove efficient police officers but because of some adverse reports which were alleged to have been received against them from the Criminal Investigation Department (CID). Further, according to him, the respondents were not put on notice regarding the said reports nor they were given any opportunity of hearing to show that the reports of the Criminal Investigation Department were factually incorrect.
5. I have heard learned counsel for the parties at length and have gone through the record of this case.
6. The substantial question of law which arises for consideration of this court in this appeal is whether the plaintiff-respondents, who were put on probation, could be discharged from service without conducting enquiry as envisaged under Article 311 of the Constitution of India read with Section 126 of the Constitution of J&K. The answer to this question lies in the determination of the nature of the order of discharge.
7. Undisputedly, the plaintiff-respondents were appointed on probation for three years and their seniority way to be determined in accordance with the merit secured by them in the training course, as prescribe under rules. It is further not in dispute that their character and antecedents we got duly verified after they were selected for appointment. At that time nothing adverse was found or reported against them. In fact, positive reports are stated to have been received about their character antecedents. In this connection, Communication No. SB/VB/3332-41 dated 6th September, 1995 from Inspector General of Police, CID, to the address of Commandant, IRP, 1st Battalion, Zewan, Srinagar, further shows that the plaintiff-respondents were not politically aligned nor there was any criminal adverse report against them. Enrollment of persons in Police Department is made only after their character and antecedents are duly and thoroughly verified. In this behalf reference may be made to Rule 181 of the J&K Police Manual, which reads as under:
"181, Recruits status of: -- (1) Recruits shall be good character and great care shall be taken in selecting men of a type suitable for police service from candidates presenting themselves for Enrollment. "
8. It is not the case of the defendant-appellant that there was any lapse on the part of the concerned agencies in verifying the character and antecedents of the plaintiff-respondents before they were appointed in the Force or that 'great care' as envisaged by Rule 181 of the Police Manual, was not taken in selecting or appointing the plaintiff-defendants, and, if there was any slackness on the part of the concerned agencies entrusted with the job of verification of character antecedents of persons contemplated to be appointed in the force, what action was taken against them. In that view of the matter, it appears to be not a case where the plaintiff-respondents could be said to be not fit or Enrollment in the Police Organisation on the ground of having such character or antecedents as are not conducive to and befitting the Force. And, if any adverse report was received against them after they were appointed and were, in fact, undergoing training, then resort had to be taken to the relevant provision of the Police Manual.
9. The services of police personnel in the State of Jammu and Kashmir are governed by the Rules called J&K Police Manual. Rule 187 thereof relates to discharge of inefficients. In terms of the said Rule, a constable, who is on probation, can be discharged from service during the period of probation, can be discharged from service during the period of probation. It reads as under:
"187. Discharge of inefficients: -- A constable, who is found unlikely to prove an efficient police officer, may be discharged by the Superintendent at any time within three years of enrolment".
10. The orders of discharge passed in the case of the plaintiff-respondents do not indicate that they were discharged from service because they were not likely to prove efficient police officers or any satisfaction to that effect was recorded by the appointing authority. The orders of discharge only state that their services are not required in the Police Department. Why is not their service required in the Department is not disclosed or spoken out in the orders of discharge. J&K Police Manual does not recognize or envisage any such ground as the basis for discharging duly recruited police personnel.
11. The case of the plaintiff-respondents is that they have been removed from service without recourse to the mandate of Article 311 of the Constitution of India read with Section 126 of the Constitution of Jammu and Kashmir, as no enquiry was held against them, nor they were given an opportunity of being heard. The orders of discharge are, therefore violative of Article 311 of the Constitution of India read with Section 126 of the State Constitution, besides being violative of the provisions contained in J&K Police Manual.
12. The law relating to discharge of temporary employees has been well settled by a catena of cases decided by their lordships of the Supreme Court. Reference in this regard may be made to judgements of the Supreme Court in Jagdish Mitter v. Union of India, AIR 1964 SC 449; Champaklal v. Union of India, AIR 1964 SC 1854 and Shamsher Singh v. State of Punjab AIR 1974 SC 2192. An order of discharge, on the face of it, may be simplicitor, but the confidential report, reference of which was made in paragraph 9 of the written-statement and produced on the record, shows that the petitioners have been discharged from service because of negative verification received from the Criminal Investigation Department. It is not a case where the appointing authority had any suspicion about the character and conduct of the plaintiff-respondents. In fact, the appointing authority was not only satisfied about their conduct during the course of training they had undergone till their discharge, but was also of the view that their discharge, without resort to enquiry would be illegal. In this connection reference may be made to the communication dated 6th April, 1996, bearing No. 2299-2300/IRP/96, from the Commandant, IRP, 1st Battalion, Zewan, Srinagar, who is the appointing authority of the plaintiff-respondents, to the Director General of Police, which reads as under;
"HEAD QUARTERS IRP 1ST. BN. ZEWAN SRINAGAR.
No. 2299-2300/IRP 96 Dated 6.4.96.
The Director Genl. of Police, J&K Camp Srinagar.
Sub: Detailed factual report in respect of Ct. Firdous Ahmad No. 756/IRP and Bashir Ahmad No. 780/IRP. Sir, Kindly refer to PHQ letter No. IRP/95/636-37 dated 30. 3,96 regarding discharge of R/Constables cited above. The candidates were appointed as constables vide this office order No. 218/95 dated 07.10.95 alongwith other ten candidates on the basis of positive character and antecedents communicated by IGP CID vide his endstt. No. SB/VB/3332-41 dated 06. 09. 95. But on receipt of APHQ Order No. 568 of 1996 dated 13.02.96 at the end of Jan. 1996 directing to terminate the services of selected (13) constables after their deletion from the selected list against whom negative verification was received from CID Hqrs. at this late stage. In compliance to these directions (12) constables named below have been removed from services.
1. R/Ct, Mohd Ishaq No. 708/IRP
2. Manzoor Ahmad No. 730/IRP
3. Mushtaq Ahmad No. 710/IRP
4. Farooq Ahmad No. 712/IRP
5. Mohd Maqbool No. 724/IRP
6. Manzoor Ahmad No. 709/IRP
7. Emirdous Ahmad No. 756/IRP
8. Bashir Ahmad No. 760/IRP
9. Mohd Yousuf No. 761/IRP
10. Altaf Ali No. 765/IRP
11. Farooq Ahmad No. 766/IRP
12. Mohd Younis No. 771/IRP The matter was taken up with higher authorities as well as with the Dy. Director Prosecution to indicate the technical faults of furnishing adverse verification and also their deletion from select list long after their appointment. The Dy, Director Prosecution has rightly pointed put that these constables cannot be removed on these grounds without any enquiry or taking course to the criminal proceedings against them. The responsible officers proceedings against them. The responsible officers paid no heed to these facts of this case, which could attract adverse strictures from judicial quarters. However, the enquiry was handed over to Dy. Commandant IRP 1st. BN. Who took his hands off due to non-cooperation of CID authorities. Thus there was no course left for undersigned to discharge these constables inspite of the fact that their behaviour at Zewan and Kathua has remained excellent. Your's faithfully Sd/ Commandant, IRP 1st Bn. Zewan, Srinagar, "
(underlining supplied) From the above contemporaneous record of the defendant-appellants, t is unambiguously clear that even the legal opinion sought by the appointing authority from an officer of the rank of DY. Director, Prosecution, advised them not to discharge the plaintiff-respondents without resort to the principles of natural justice.
13. The question that arises for consideration is whether the court is empowered to go behind the order and to see whether the order is made as a camouflage for an order of dismissal for reasons other than what appear on the face of the order. In Gujrat Steel Tubes Ltd v. Gujrat Steel Tubes Mazdoor Sabha, AIR 1980 SC 1876 Hon'ble Mr. Justice V. R. Krishna Iyer (as his lordship then was), speaking for the majority, for the first time, expounded the doctrine of lifting of the veil to see the true nature of the order, i. e. , whether the discharge orders issued by the management were punitive or non-penal. The doctrine of lifting of veil again was considered by their lordships of the Supreme Court in Annop H. Jaiswal v. Government of India, 1984 (1) SLR 426 and, after considering the case law on the subject, their lordships were pleased to observe as under.
"... where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the court holds that the order, though in the form is merely a determination of employment, is in reality a cloak for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee. "
14. Since in the instant case, the orders of discharge are not orders of discharge simplicitor, therefore, in light of the above settled position of law, this court is within its power to go behind the orders. Reading the impugned orders together with communication dated 6th April, 1996 of the Commandant, IRP Bn. Zewal, Srinagar, a mention of which has been made above, in light of the decisions of the Apex Court, it would be clear that these orders are not the orders of discharge simplicitor but have been passed on the basis of some negative reports received after the plaintiff-respondents were duly appointed and they were not put on notice in regard to these reports nor any opportunity was afforded to them to prove that the said reports were factually wrong or incorrect. I am of the view that the plaintiff-respondents, who were appointed as constables after due verification of their character and antecedents, which were positive in nature, and put on probation, could not be discharged from service without conducting enquiry as envisaged under Article 311 of the Constitution of India read with Section 126 of the Constitution of J&K. Even if some negative reports were received after their appointment, plaintiff-respondents were entitled to be put on notice and heard in the matter before any orders adverse to their interests were passed. Such a course having not been adopted, despite the legal advice by none other than their own Dy. Director, Prosecution, the orders of discharge are penal in nature.
15. Moreover, as observed earlier in this judgement, under Rule 187 of the Police Manual a constable can be discharged from service if the appointing authority is satisfied that he is unlikely to prove an efficient police officer, but in this case no such satisfaction has been recorded. The orders of discharged of the plaintiff-respondents from service are, therefore, violative of Rule 187 of the Police Rules and on this score too the orders cannot be sustained.
16. In view of the above, no case is made out for interference with the judgements and decree passed by the courts-below. This appeal is, accordingly, dismissed. There shall, however, be no order as to costs.