Jammu & Kashmir High Court
Farooq Abdullah vs U. T. Of J&K And Others on 15 July, 2025
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
60
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C) No. 2538/2023
.....Appellant(s)/Petitioner(s)
Farooq Abdullah
Through: Ms. Shamima Jan, Adv.
vs
U. T. of J&K and others ..... Respondent(s)
Through: Ms. Monika Kohli, Sr. AAG
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
15.07.2025 Oral:
1. Article 226 of the Constitution has been invoked by the petitioner herein for seeking the following reliefs:
WRIT OF CERTIORARI so as to impugned quash the orders bearing No.263 of 2022 dated 28.06.2022 passed by the respondent No. 3 by virtue of which the services of the petitioner were illegat1y terminated, without conducting enquiry and without issuing show cause notice or granting any opportunity of being heard to the petitioner, which is violative of section 19 of the Po1ice Act, 1983 and also against the provisions of RuIe 359 of Clause II.
WRIT 0F MANDAMUS so as to command and direct the respondents to reinstate the petitioner as SPO.
Further direct the respondents to grant all the notional, monetary, seniority and all other consequential benefits to the petitioner w.e.f. the date of his wrongful dis-engagement of service.
Any other writ, order or direction, appropriate in the circumstances, may also be issued in favour of the petitioner as against the respondents.
2. The facts pleaded in the instant petition by the petitioner are that, he, the petitioner herein was engaged as a Special Police Officer (SPO) in the Police Department on 03.03.2003 and assigned number 438/SPO, 2 WP(C) No. 2538/2023 whereupon the petitioner started discharging his duties to the best of his ability and entire satisfaction of his superiors. It is stated that during the course of his working as SPO, the petitioner herein was implicated in FIR bearing No. 58/2022, registered with Police Station, Gool on baseless, frivolous and false grounds, whereafter an ex parte enquiry was conducted against the petitioner herein by the respondents without affording him any opportunity of hearing and on the recommendation and basis of the said enquiry, respondent 3 herein ordered disengagement of the petitioner in terms of order No. 263 of 2022 dated 27.06.2022.
3. The petitioner has maintained the instant petition on the grounds that the impugned order is illegal and bad in the eyes of law, also being violative of Section 19 of the Police Act 1983, inasmuch as, violative of the principle of natural justice.
4. Objections to the petition have been filed by the respondents, wherein the petition is being opposed on the premise that the petitioner though was working as a SPO, however, due to his involvement in FIR No. 58/2022 for offences under Sections 354-A and 509 IPC, 67 IT Act registered with Police Station, Gool, the disengagement of the petitioner was ordered, in that, the engagement of the petitioner as SPO was purely temporary in nature and not subject to the Police Act 1983. It is further stated that the disengagement of the petitioner was ordered for very cogent and serious reasons owing to his involvement in the criminal activities. It is further stated that an enquiry got initiated against the petitioner before his disengagement vide DPO Ramban order No. 3 WP(C) No. 2538/2023 Estt/Enquiry-SPO/22/9558-60 dated 18.06.2022, which enquiry upon being entrusted to the Sub Divisional Police Officer, Gool came to be held and upon the recommendation in the said enquiry vide report dated 23.06.2022 having found the petitioner involved in the criminal case, disengagement of the petitioner was ordered as the petitioner did not prove himself to be an efficient and honest police officer and instead maligned the image of the Police in the eyes of the public.
Heard learned counsel for the parties and perused the record available on the file as also the record produced by the learned counsel for the respondents.
5. Before proceeding to advert the issues involved in the instant petition, it would be advantageous and appropriate to refer hereunder sections 18, 19 and 30 of the Police Act, 1983 being relevant herein:
18. Special Police officers- When it shall appear that nay unlawful assembly, or riot or disturbance of the peace has taken place, or may be reasonably apprehended, and that the Police force ordinarily employed for preserving the peace is not sufficient for its preservation and for the protection of the inhabitants and the security of property in the place where such unlawful assembly or riot or disturbance of the peace has occurred, or is apprehended, it shall be lawful for any Police officer not below the rank of Inspector to apply to the nearest Magistrate to appoint so many of the residents of the neighbourhood as such Police officer may require to act as Special Police officers for such time and within such limits as he shall deem necessary ; and the Magistrate to whom such application is made shall unless he see cause to the contrary comply with the application.
19. Powers of Special Police Officers- Every special Police Officer so appointed shall have the same powers, privileges and protection, and shall be liable to perform the same duties and shall be amenable to the same penalties, and be subordinate to the same authorities as the ordinary officers of Police.
30. Penalties for neglect of duty, etc.- Every Police officer who shall be guilty of any violation of duty or willful breach or neglect of any rule or regulation or lawful order made by competent authority, or who shall withdraw from the duties of his office without permission, or without having given previous notice for the 4 WP(C) No. 2538/2023 period of two months, or who, being absent on leave, shall fail, without reasonable cause, to report himself for duty on the expiration of such leave, or who shall engage without authority in any employment other than his police duty, shall be guilty of cowardice, or shall offer any unwarrantable personal violence to any person in his custody, shall be liable, on conviction before a 1[Judicial Magistrate], to a penalty not exceeding three months' pay, or to imprisonment for a period not exceeding three months, or to both.
6. Keeping in mind the aforesaid provision and reverting back to the case in hand, perusal of the record available on the file inasmuch as the record produced by the counsel for the respondents on a deeper and closer examination would reveal that even though an enquiry was ordered to be held against the petitioner before his disengagement by the respondents, yet in the said enquiry, the petitioner has not been associated therewith the said enquiry, so much so, neither a show cause notice nor an opportunity of hearing has been provided by the respondents to the petitioner before issuance of order of his disengagement.
7. Even otherwise also, since the respondents have stated that the petitioner is involved in the commission of offences covered under the FIR No. 58/2022 (supra), yet without awaiting the outcome of the said FIR, the respondents could not have ordered disengagement of the petitioner in that, the guilt or otherwise of the petitioner was yet to be established.
8. As has been noticed in the preceding paras that the respondents even though ordered holding of an enquiry against the petitioner owing to his alleged involved in the FIR No. 58/2022 (supra) and the respondents in the said enquiry did not associate the petitioner at any stage in the said enquiry or else even after the conclusion of the said enquiry before 5 WP(C) No. 2538/2023 issuance of disengagement order, the respondents cannot, but be said to have observed the principle of natural justice in blatant breach.
A reference in this regard to the judgment of the Apex Court passed in case tilted as Basudeo Tiwary v Sido Kanhu University and others, AIR 1988 SC 3261 would be relevant, wherein in para 9, the following has been held:
"9. The law is settled that non-arbitrariness is an essential facet of Article 14 pervading the entire realm of State action governed by Article 14. It has come to be established, as a further corollary, that the audi alteram partem facet of natural justice is the antithesis of arbitrariness. In the sphere of public employment, it is well settled that any action taken by the employer against an employee must be fair, just and reasonable which are components of fair treatment. The conferment of absolute power to terminate the services of an employee is antithesis to fair, just and reasonable treatment. This aspect was exhaustively considered by a constitution Bench of this Court in Delhi Transport Corporation vs. D.T.C. Mazdoor Congress reported in AIR 1991 SC 101."
9. It is significant to mention here that the reliance placed by the counsel for the respondents upon the judgment passed by the Division Bench of this Court in a case titled as, State of J&K and others vs. Mohd. Iqbal Malla, LPA No. 153 of 2022 decided on 05.06.2014 do not lend any support to the case of the respondents, in that the said case is quite distinguishable from the case in hand as in the said case, no enquiry have had been conducted against the delinquent SPO being respondents therein in the said LPA before disengaging him and the Division Bench in the said case thus observed that no such enquiry was required to be held for complying with the rules of principle of natural justice as the SPO does not hold a post much less a civil post, whereas in the instant case, the respondents herein notwithstanding the said observation of the 6 WP(C) No. 2538/2023 Division Bench, have had themselves ordered holding of an enquiry against the petitioner owing to his alleged involvement in the FIR No. 58/2022(supra), yet did not associate the petitioner in the said enquiry and in the process violated the principle of natural justice being a facet of Article 14 of the Constitution.
10. Viewed thus, for what has been observed, considered and analyzed hereinabove, the instant petition succeeds, as a consequence whereof, impugned order No. 263/2022 dated 27.06.2022 is quashed, with a direction to the respondents to reinstate the petitioner as Special Police Officer and extend him all service benefits to which he is entitled thereto minus the monetary benefits for the period, the petitioner herein has remained out of service.
11. It is made clear that the respondents herein shall be free to proceed against the petitioner in accordance with law, in case the petitioner is held guilty in FIR No. 58/2022 (supra).
12. The record produced by the counsel for the respondents is returned back in the open court.
(JAVED IQBAL WANI) JUDGE Jammu 15.07.2025 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No Rakesh Kumar 2025.07.22 10:51 I attest to the accuracy and integrity of this document