Zubair Bin Majeed vs State Of J&K; And Others on 23 May, 2017

[Cites 8, Cited by 1]

Jammu & Kashmir High Court - Srinagar Bench

Zubair Bin Majeed vs State Of J&K; And Others on 23 May, 2017

1. Petitioner, vide Order No. TRG/624/2012/36352 dated 26th July 2012, was appointed as Constable and subsequently deputed to CTC Lethpora for undergoing nine months' Basic Recruit Training Course (BRTC), scheduled to commence from 01.08.2012. He was vide Order dated 30.07.2012. He claims to have joined CTC Lethpora and continued his training for a period of nine months. During training, he is stated to have slipped down and his leg injured. The said injury is averred to have been treated by the department. Thereafter petitioner again got fracture in his back and he was not able to move and was confined to bed. In support of the contentions, pleaded in writ petition, learned counsel for petitioner has referred to medical certificates with regard to petitioner's illness and submitted that petitioner has already conveyed respondents as to his ailment by forwarding a leave along with medical SWP no.300/2016 Page 1 of 15 2 certificates through courier. It is further contended that immediately after recovery from illness, petitioner approached respondents for resuming his duties, but he was not allowed to resume; instead he was handed over copy of impugned order which has effect of discharging him from duties and against which petitioner filed a representation to respondent no. 2. Despite noticing the illness and medical certificates, respondents issued order of discharge in terms of Rules 187 of J&K Police Manual. Learned counsel for petitioner has also submitted that since impugned order, whereby, discharging petitioner from services, is against settled law laid down by the Supreme Court as well as various High Courts, because petitioner cannot be discharged in terms of Rules of 187 of J&K Police Manual without conducting the enquiry. Learned counsel, in support of his contention, has referred to and relied upon the judgment passed by the Division Bench of this Court reported in 2015 (4) JKJ 95 (HC).

2. In their objections respondents assert that during period of probation petitioner remained absent at several occasions, for which he was awarded departmental punishment, as such, his service record did not remain satisfactory and up to the mark. It is insisted that petitioner along with other recruit Constables was selected to undergo BRTC and he was relieved from the District vide Order No. Estt/BRTC/ SWP no.300/2016 Page 2 of 15 3 212/11912-21 dated 30.07.2012. However, petitioner absented from the said training unauthorizedly at various occasions. The petitioner is averred to have deserted from the training centre on 27.03.2013 and remained at large and exhibited non-seriousness towards attaining the training. Further contention of respondents is that several notices have been served on petitioner, but of no response, thus, leaving respondents with no option but to issue Discharge Order, whereby services of petitioner have been discharged on the basis of his conduct.

3. Heard learned counsel for the parties and considered the matter.

4. Learned counsel for the petitioner has urged that respondents while passing impugned order, discharging petitioner from the services, have observed provisions of Rule 187, J&K Police Rules in breach. He states that exercise of powers under Rule 187 are discretionary but discretion exercised must be judicial, must have far reaching effect, reasonable and supported by cogent finding and reasoning inasmuch as when impugned order was issued, petitioner was suffering from AC. LBA with Radiculopathy (H/O fall from height) and was under

bedrest/confined to home from 29.03.2013 to 28.02.2014.

5. Per contra, learned counsel for respondents states that order impugned has been passed by competent authority SWP no.300/2016 Page 3 of 15 4 with complete application of mind to the facts and circumstances of the case and that petitioner was given ample opportunity for resumption of duty before issuance of discharge order, even a notice was served upon him under proper receipt but due to his failure to give any response it was not feasible to keep him on the rolls of Police and was therefore discharged from service.

6. Impugned order, on its cursory look, would reveal that petitioner absented himself unauthorizedly from CTC Lethpora from 27.03.2013 and was subsequently reverted back for his continuous absence by Principal CTC Lethpora vide order dated 06.04.2013 and was also struck off from the rolls of the training centre with a direction to report his parent district i.e. District Kulgam for further duties. However, petitioner is stated to have not reported back for duties despite repeated signals through his concerned home police station, which according to respondents clearly depicts hi non-seriousness towards his duty. Thereafter a notice is shown to have been served upon petitioner at his residence directing him to resume duty within seven days from the date of receipt of notice but petitioner did not attend duty. As being on probation for a period of three years, during which petitioner is stated to have deserted his duty unautohrisedly and was found unlike to prove an efficient police official, petitioner has SWP no.300/2016 Page 4 of 15 5 been discharged from service in terms of impugned order. The enquiry, as such, while discharging petitioner from service has not been conducted.

7. The reason for discharge of petitioner, in the present case, is unauthorized absence. Petitioner avows that his absence was not deliberate or intentional but was due to the reasons, which were beyond his control and for that matter he has placed on record Medical Certificate of Department of Health & Family Welfare (Annexure P-1 to writ petition) in which it is certified that petitioner had been suffering from AC LBA Radiculopathy and he was under

treatment and advised to take complete bedrest from 29.03.2013 to 28.02.2014. Respondents have not controverted the said certificate or fact in their reply.

8. Declaring an official not likely to prove an efficient police official and unwilling to serve the department certainly stigmatizes the official as this casts a serious reflection on his whole personality and will have adverse effect to deprive him to seek employment elsewhere. When such a finding becomes basis for passing of order of discharge, same does not remain an order of discharge simpliciter merely, but the order becomes punitive in nature. In the present case impugned order declares petitioner unlikely to be an efficient police official. Thus, declaring petitioner not an efficient personnel, stigmatizes his whole career. It SWP no.300/2016 Page 5 of 15 6 is no more res integra that discharge simpliciter does not warrant enquiry before discharge but when the discharge is stigmatic then order of discharge cannot be passed unless adequate opportunity of being heard to the concerned employee is given.

9. It is an admitted position that enquiry at all has not been conducted nor petitioner given opportunity of being heard before passing order impugned. Both reply and impugned order do not furnish conducting of enquiry prior to issuance of impugned discharge order. Impugned order of discharge records that petitioner will not be a good police official, which on the face of it, is stigmatic, so as to prejudice the future prospectus of getting employment when without conducting enquiry such order is passed, same, therefore, cannot sustain in the eye of law as the same violates guaranteed rights.

10. The question of holding enquiry before discharge that too of a probationer without enquiry has been catching attention but has been set at rest by this Court in Bashir Ahmad v. State of J&K & others 2005 (3) JKJ [HC] 167:

2005 (1) SLJ 375. Paragraph 12 thereof reads:

"The question as to whether any enquiry is required to be conducted before discharging a probationer police official under Rule 187 J&K Police Manual is not res integra. It is settled now by this Court that before invoking Rule 187, it is incumbent and obligatory upon the appointing authority to hold an enquiry into the matter to afford adequate opportunity of being heard to the concerned employee".

SWP no.300/2016 Page 6 of 15 7

Thus, from the above settled position, holding of enquiry is incumbent upon appointing authority and affording of adequate opportunity of being heard to the concerned employee before inflictment of punishment of discharge under Rule 187, necessary.

11. It is pertinent to mention here that impugned order of discharge, in the present case, is not an order of discharge simpliciter. Superintendent of Police, Kulgam - respondent no.4, while passing impugned discharge order, has gone through the record and declared that petitioner has deserved his duty unauthorizedly and is unlikely to prove an efficient police official. This finding will be an impediment for petitioner for any future employment elsewhere. In such circumstances, principles of natural justice required that petitioner should have been given an opportunity to explain the grounds on which respondent no.4 proposed to pass impugned order of discharge and then consider the explanation to be submitted by the petitioner and only thereafter respondent no.4 was competent to pass appropriate orders according to the rules. Since this part of procedure has not been adopted the impugned order of discharge is vitiated by manifest error of law. In this regard, the Supreme Court in State of Haryana and another v. Jagdish Chander AIR 1995 SC 984, while dealing with a case of Constable, who was SWP no.300/2016 Page 7 of 15 8 absent from duty for a particular period and discharged under Rule 12.21 of the Punjab Police Rules, which is pari material to Rule 187 of J&K Police Rules, without conducting enquiry and declaring him "unlikely to prove an efficient police officer, being habitual absentee, negligent to his duty and in disciplined, has held:

"It would thus be clear form the order of discharge that it is not an order of discharge simpliciter. On the other hand, the S.P. considered the record and found him to be habitual absentee, negligent to his duty and indisciplined. The findings of habitual absence and indiscipline would be an impediment for any of future employment elsewhere. Under those circumstances, the principles of natural justice do require that he should be given an opportunity to explain the grounds on which the S.P. proposes to pass an order of discharge and then to consider the explanation submitted by the Police Officer. Then the S.P. is competent to pass appropriate orders according to the rules. Since this part of procedure had not been adopted the order of discharge is vitiated by manifest error of law."

12. This Court in Chaman Lal v. State of J&K SWP no.

1009/88 decided on 23.8.1989 reported as 1989 (2) JKLR 1200, discussed the scope and ambit of Rule 187 and the consequences of not observing the rule. It was held:

"A perusal of the rule would make it clear that before discharging a constable the Superintendent concerned has to ascertain that such constable was unlikely to prove an efficient officer. The word 'found used in the Rule is significant and categoric in terms. It is not possible to 'find a person unlikely to prove an efficient officer', without holding some sort of inquiry after giving such constable an opportunity of being heard and basing the finding of such conclusion on the basis of material placed before the Superintendent of police. It is not the more subjective satisfaction of the police officer which is relevant for the purposes of deciding as to whether he has rightly held a constable to be unlikely to prove an efficient police official. To find the concerned as in efficient the authority has to decide on the basis of the record the likelihood of the retention of a police officer as otherwise. The finding must be based upon a conscious decision arrived at after proper application of mind hypothecally or more upon conjectures SWP no.300/2016 Page 8 of 15 9 or suspicion. According to Webster's English Dictionary the word 'find' means, amongst other things, ' to arrive at a conclusion, come to a finding, determine and declare as a verdict in a judicial proceedings, agree or settle upon or deliver the finding regarding innocence or quilt of a person. Such a finding arrived at by the concerned authority may not be open to challenge in the court of law, but if the record shows that the finding was based upon no material that the same was arrived at mechanically or that the aggrieved were not offered reasonable opportunity of being heard before passing the order impugned, this court would immediately come to the rescue of such civil servant and grant him appropriate relief."

13. Evaluation of the Rule 187 furnishes that during the period of probation of three years if on the performance of the Constable, the Superintendent forms an opinion that he/she would not prove to be an efficient police officer, then he/ she may be discharged from service. The law in regard to probationer is well settled. The probationer has no right to the post held by him and under the terms of his appointment, he is required to be discharged at any time during the period of his probation under the rules governing such cases. Probationers are discharged generally because they are not found to be competent or suitable for the post they held. In other words, if the temporary servant or a probationer is found to be satisfactory in his work, efficient or otherwise, eligible, it is unlikely that his service would be terminated and so before discharging such employee the authority may have to examine the question about the suitability of the said servant to be continued and take action bona fide in that behalf. The authority may also afford an opportunity to employee to explain, if any SWP no.300/2016 Page 9 of 15 10 complaints are made against him or his competence or suitability is disputed on some grounds arising from the discharge of his work, then such an enquiry should be held only for the purpose of deciding whether he should be continued or not, there is no element of punitive proceedings in such an enquiry and if the authority comes to the conclusion that the incumbent is not suitable to be continued, it may simply pass the order of discharge by virtue of the powers conferred upon it by the contract or by the relevant rules and it would not be open to the concerned employee to invoke Article 311 of the Constitution of India of Section 126 of the Jammu and Kashmir Constitution, for the simple reason that the enquiry ultimately led to his discharge, was held only for the purpose of deciding whether the power should be exercised in terms of the rules. But if a probationer is discharged on the ground of misconduct or inefficiency without a proper enquiry and without giving a reasonable opportunity of showing cause against the discharge in a given case it may amount to removal from service within the meaning of Article 311 of the Constitution of India and Section 126 of the Jammu and Kashmir Constitution. Reference in this regard is made to Smt Suriya Khan v. State of J&K and others 2002 (I) SLJ 210. The same view has been reiterated in Bashir Ahmad's case (supra) by SWP no.300/2016 Page 10 of 15 11 holding that no doubt Rule 187 of the Police Rules gives to Superintendent to discharge a probationer within three years of enrolment, yet he is of the view that such probationer is not likely to prove a good police official but since the finding casts a stigma on the career of the constable and there is likelihood that the ground for such discharge order may act as an impediment for any future employment, provisions of Article 311 of the Constitution of India are attached and therefore, the discharge order should not be passed without affording an opportunity of being heard.

14. This Court in in Kulbir Singh Sanina v. State of J&K and anr. SLJ 1989 J&K 42 has held that Rule 187 of the Police Rules does not give an arbitrary power to the appointing authority to remove any employee of the police without observing the principles of natural justice, which is the minimal requirement to hold an employee liable for removal from service, who has been appointed on a clear vacancy and has been put on probation of three years from the date of appointment.

15. There can be no doubt that absence from duty without a proper permission or overstaying a leave without any valid and justified reason, is the gravest type of misconduct, particularly for a member of the disciplined force, from whom strict adherence to the rules is expected. Thus SWP no.300/2016 Page 11 of 15 12 unauthorized absence amounts to misconduct, which necessitates holding of an enquiry against a delinquent official. Where there is overstaying of leave and absence from duty without justification, it would be misconduct, justifying penalty even up to the extent of dismissal, but the concerned employee must be given an opportunity of being heard before any prejudicial action is taken.

16. Even otherwise, action of respondents, in the present case, is violative of principles of natural justice which demand that nobody should be condemned unheard. The delinquent official is required to be afforded an opportunity of being heard before any administrative action is taken against him. The Apex Court in Canara Bank v. V.K.Awasthy AIR 2005 SC 2090, has held:

10. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alter am par tem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous.

It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the ``Magna Carta''. The classic exposition of Sir Edward Coke of natural justice requires to ``vocate SWP no.300/2016 Page 12 of 15 13 interrogate and adjudicate''. In the celebrated case of Cooper v. Wandsworth Board of Works, (1963) 143 ER 414, the principle was thus stated:

"Even God did not pass a sentence upon Adam, before he was called upon to make his defence. ``Adam'' says God, ``where art thou has thou not eaten of the tree whereof I commanded thee that though should not eat''.

Since then the principle has been chiseled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.

17. The Apex Court at para 12 has further held:-

"What is meant by the term `principles of natural justice' is not easy to determine. Lord Summer (then Hamilton, L.J.) in Ray v. Local Government Board, (1914) 1 KB 160 at p.199:83 LJKB 86) described the phrase as sadly lacking in precision. In General Council of Medical Education & Registration of U.K. v. Sanckman, (1943) AC 627: [1948] 2 All ER 337, Lord Wright observed that it was not desirable to attempt `to force it into any procusteam bed' and mentioned that one essential requirement was that the Tribunal should be impartial and have no personal interest in the controversy, and further that it should give `a full and fair opportunity', to every party of being heard."

18. In P. D. Dinakaran (1) v. Judges Inquiry Committee and others 2011(8) SCC 380, the Apex Court has held:-

31. The consideration of the aforesaid question needs to be prefaced by a brief reference to the nature and scope of the rule against bias and how the same has been applied by the courts of common law jurisdiction in India for invalidating judicial and administrative actions/orders.

Natural justice is a branch of public law. It is a formidable weapon which can be wielded to secure justice to citizens. Rules of natural justice are "basis values" which a man has cherised throughout the ages. Principles of natural justice control all actions of public authorities by applying rules relating to reasonableness, good faith and justice, equity and good conscience. Natural justice is a part of law which relates to administration of justice. Rules of natural justice are indeed great assurances of justice and fairness. The underlying object of the rules of natural justice is to ensure fundamental liberties and rights of subjects. They thus serve public interest. The golden rule which stands firmly established is that the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. SWP no.300/2016 Page 13 of 15 14

32. The traditional English Law recognized the following two principles of natural justice:-

"(a) Nemo debert esse judex in propria causa : No man shall be a judge in his own cause, or no man can act as both at the one and the same time= a party or a suitor and also as a Judge, or the deciding authority must be impartial and without bias; and

(b) Audi alteram partem: Hear the other side, or both the sides must be heard, or no man should be condemned unheard, or that there must be fairness on the part of the deciding authority."

However, over the years, the courts throughout the world have discovered new facets of the rules of natural justice and applied them to judicial, quasi-judicial and even administrative actions/decision. At the same time, the courts have repeatedly emphasized that the rules of natural justice are flexible and their application depends upon the facts of a given case and the statutory provisions applicable, if any, nature of the right which may be affected and the consequences which may follow due to violation of the rules of natural justice."

19. I am also fortified by the view taken by the Apex Court in a judgment titled Mohd. Yunus Khan v. State of Uttar Pradesh and others, 2010(10) SCC 539, wherein it is held as under:-

16. We have to proceed keeping in mind the trite law that holding disciplinary proceedings against a government employee and imposing a punishment on his being found guilty of mis-conduct under the statutory rules is in the nature of quasi-judicial proceedings. Though, the technical rules of procedure contained in the Code of Civil Procedure, 1908 and the provisions of the Evidence Act, 1872 do not apply in a domestic enquiry, however, the principles of natural justice require to be observed strictly.

Therefore, the enquiry is to be conducted fairly and reasonably and the enquiry report must contain reasons for reaching the conclusion that the charge framed against the delinquent stood proved against him. It cannot be an ipse dixit of the enquiry officer. Punishment for misconduct can be imposed in consonance with the statutory rules and principles of natural justice. ..."

20. From the above, the baseline that emerges is that the discharge of petitioner was not a discharge simpliciter but based on allegations of unauthorized absence, therefore, only after following the principles of natural justice, namely, issuing charge memo, conducting enquiry and if the charge SWP no.300/2016 Page 14 of 15 15 of unauthorized absence was proved, only thereafter the petitioner could have been discharged from service. In this regard I am also fortified by the decision rendered by the Division Bench of this Court in State of J&K & ors v. Ramesh Lal 2015 (4) JKJ 95 [HC]. The Division Bench, while upholding the learned Single Bench judgement, has held that no charge memo was issued and/or enquiry was conducted to prove alleged misconduct of unauthorized absence and that there is no error in the order passed by the learned Single Judge.

21. The ratio laid down in the above referred judgements is that when the order of discharge is stigmatic, then without enquiry order of discharge cannot be passed even against the probationer by invoking powers under Section 187 of J&K Police Rules.

22. In the given circumstances, this petition is allowed. Order impugned No. 332 of 2013 dated 30.11.2013, passed by Superintendent of Police, Kulgam, is quashed. However, the quashment of the order impugned shall not prevent the authorities from conducting any fresh enquiry against petitioner, of course, in accordance with rules occupying the field, in which they shall afford due opportunity of hearing to petitioner.

23. Disposed of.

(Tashi Rabstan) Judge Srinagar 23rd May 2017 Ajaz Ahmad SWP no.300/2016 Page 15 of 15

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Jammu & Kashmir High Court - Srinagar Bench