Abdul Rehman Mir vs State

Petitioner was a constable on probation.He allegedly absented himself unauthorisedly from 27.8.1992 from District Police Lines, Kupwara, and

failed to report for duty till the impugned order No.518 of 1993 dated 15.9.1993 was passed discharging him from service in exercise of the

power under Rule 187 of the Police Rules.

Petitioner's case is that he was suffering from some neurological problem for which he was examined in SKIMS Soura (Srinagar). He thereafter

reported for duty again on 28.6.1992, but, as he was taken ill he had to rush to the medical institute at Srinagar where he remained under medical

treatment and observation. Later he came to know that he was discharged from service by respondent No.3 under rule 187 of the Police Rules.

Respondent's stand is that the petitioner was a probationer for two years and since he had absented himself unauthorisedly on 27.8.92 and

failed to report for duty, he was discharged from service. It is also pointed out that no departmental inquiry was required to be held in his case

being a probationer.

Petitioner's counsel, Mr. Sofi, has placed reliance on a judgment of the Supreme Court in State of Haryana v. Jagdish Chander (1995 (2) SCC

567) which covers the point in issue in the present case on all fours. According to him, petitioner's case was a case of termination simplicitor during

probation but the order impugned had a consequence of casting a stigma on him in as much as respondent No.3 had found him ""unlikely to prove a

good police official"" which could as well be interpreted to attribute stigma to him. It is also contended that since respondent No.3 had exercised

power under rule 187, he was obliged to observe the principles of natural justice, as ruled by this Court, before discharging the petitioner.

Mr. Qadiri, on the contrary, submitted that the petitioner was discharged from service during his probation on the basis of his unauthorised

absence and which constituted material foundation for the view taken by respondent No.2 that he was not likely to prove a good police official.

According to him no inquiry was required to be conducted in his unauthorised absence in light of rule 359 (10) of the"" Police Rules.

It is well settled that the services of a probationer can be terminated for his unsuitability in service without any inquiry where such termination

does not amount to casting a stigma or punishment. It is also held by me in SWP No. 1018/89 (Mohd Shaffi v. State and others) dated 4.7.1997

that no inquiry was required to be held against a probationerconstable whose services were terminated by an innocuous order without casting any

stigma on him in light of rules 359(10) and 339 in exercise of the power by a competent authority under Sec. 8 of the Police Act or otherwise.

In the present case respondent No.3 had admittedly discharged the petitioner under rule 187 and had further stated in the order that he was

unlikely to come a good police officer."" This by itself attaches a stigma to him. An absence from duty need not necessarily render a police official

unfit for the service in all events and circumstances. Such absence can be explained away also in certain causes and yet the official may be found fit

for service. But, where an unauthorised absence is taken as basis to determine the likelihood or unlikelihood of the police official, to become good

official or a bad official, it certainly attaches a stigma where the official is discharged specifically on the ground that he was not likely to become to

good police official.

In the circumstances driving support from the judgment of the Supreme Court and also the rule position contained in police rules, this petition

succeeds and the impugned order No. 518 of 1993 dated 15.9.1993 shall stand quashed. But, it shall be open to the Competent Authority to hold

an inquiry into the petitioner's alleged unauthorised absence, if any intended, and to pass appropriate orders thereafter in accordance with law

within a period of four months from the date of receipt of this order. In case petitioner succeeds in such inquiry he shall be entitled to reinstatement

but Competent Authority shall again be free to decide his case of consequential benefits. But, should he fail, the Authority can pass appropriate

orders in the matter according to rules.