Bachan Lal vs State of Jammu and Kashmir

The petitioner, a Police Constable was dismissed from service for remaing absent without leave. He challenges the order of dismissal on the

ground that neither any enquiry was held nor any opportunity was provided to him to explain the charge of unauthorised absence, the only ground

on which he has been removed from service.

The order impugned is sought to be justified by respondent on the ground that a number of notices were issued to the petitioner to resume duty

but he did not comply. Since his defiance was creating indiscipline as his conduct was unbecoming

of a police officer, he was removed from service by invoking Rule 187 and 208 of the Police Rules.

The admitted facts of the case are that the petitioner was enrolled as Police Constable in the year 1987 . He proceeded on ten days casual leave

commencing from 7.3.1993.He was scheduled to resume his duty on 18.3.1993 but failed. He was also permitted to leave the station. The order

impugned was issued on 2241993. It reads as under:

The order relates to the removal of Const. Bachan Lal No.377 of 'F Coy of this battalion. Brief facts of the case are that aforesaid Constable

proceeded on 82 days casual leave on 731993 and was due to report back on 18393. But he failed to do so. As such, a signal was sent through

concerned police station directing him to report at Bn. Hqr. Immediately failing which severe action against him will follow. But the constable did

not bother to resume his duties till 15493, as such another attendance notice was sent to him vide this office order No.5659 dated 20493. But

even then the constable did not report at Bn. Hqr, till date .This clearly indicates that the constable, is not willing to serve the department any more.

Even ii he may be willing, he will not prove a good police constable. Perusal of this service record reveals that the Const, is appointed on

21111987 \.He has earned 2 Major Punishments for his unauthorised absence during the last Five years. Besides he has availed 164 days earned

leave and his period of absence at various occasions i.e. 6ll,days has been treated as Diesnon to mend himself. Further the Const, has managed to

get his following period of absence regularised.

10791 to 31791 22 days

22891 to 161191 85 days

Including 12 days C/L.

3193 to 8293 37 days including 7 days C/l.

Besides, as per his annual remarks, the Const, is an average type and has been dismissed from service for dereliction of duty vide Govt. Order

No. Home 310/ camp./Sgr/90 dated 6390.Thereafter reinstated liability on the department and it is of no use to retain such irresponsible person on

the rolls of this Bn. unnecessarily.

Absenting unautherisedly from leave amounts to loss of appointment as enviaged under rule 187 and 208(g) of J and K Police Mannual. Keeping

in view the aforesaid facts, it is hereby ordered that Constable .Banch Lal No.377 of Copy of this Bn.is hereby removed from service w.e.f.

18393 the date he has absented unauthorisedly from leave and his period' of absence is treated as dies non. The constable with deposit all the

govt. articles in the Bn. store issued to him from to time.

Admittedly Rule 187 of the Police Rule could be invoked only within a period of three years from the date of enrolment i,e. Probation period.

Since the petitioner was enrolled in 1987, he had completed more than five years service and as such rule 187 could not be invoked. Moreover

the petitioner has been removed from service and not discharged under Rule 187.Such an order could be passed only after holding enquiry

because it is a major punishment. The order is even otherwise not sustainable because the petitioner has been removed from service on the ground

that:

i. he was earlier dismissed from the service by order dated 6.3.1990 and thereafter reinstated;

ii. he is a liability for the police department being irresponsible person; and

iii. his conduct over the years indicates that he will not prove a good police Constable.

Such an order could not be passed even in case of a probationer as laid down in ""State of Haryana and another Vs Jagdish Chander"" AIR 1995

SC 984, holding that;

It would thus be clear from the order of discharge that it is not an order of discharge simplicitor on the other hand the S. Pconsidered the record

and found him to be habitual absentee, negligent to his duty and indisciplined.The findings of habitual absence and indiscipline necessarily cast

stigma on his there and they 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 propose 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 order according to the RulesSince this

part of the procedure had not been adopted, the order of discharge is vitiated by manifest error of law

Mr.Jandial has also relied on the decision of this court in ""Abdul Rehman Mir Vs State"" 1997 SLJ 350 holding that : ""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 become 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 abed

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

official.

However, with respect to the learned Judge, the proposition has been stated too widely ignoring the fact that Rule 187 of the Police Rules is a

condition of service and any discharge on the ground stated therein cannot be said to be a stigma. It is only when something more than what is

permitted by the rule is made the ground of discharge as in Jagdish Chander case that the proposition may hold good. Not otherwise. The case of

the petitioner, is however, squarely covered by the judgment in Jagdish Chander case. So the petition is allowed and the order impugned quashed.

However respondents shall be at liberty to hold enquiry in the absence of the petition and decide the same in accordance with Article 128 of the

Civil Service Regulations within a period of three months. Failure to hold any such enquiry shall result in automatic reinstatement of the petitioner.