Daleep Singh vs State and others

Nirmal Singh, J.—The petitioner was appointed as Constable in J&K Armed Police on compassionate grounds vide order dated

10.06.2000. The case of the petitioner is that in the month of September 2001 he suffered from acute low back pain and underwent treatment at

Srinagar in Kashmir Police Hospital. Thereafter, he was referred to Police Control Room, Batmallo, Sringar on 13.10.2001, for undergoing furher

treatment. On 21.10.2001, he was informed by the then Commandant, JKAP 8th Bn. Manigam, that he has been discharged from services. It is

stated that this action was taken by respondents without assigning any reason. Even the order of termination was given to the petitioner after the

issuance of No Demand Certificate.

The grievance of the petitioner is that the order of discharge has been issued without affording an opportunity of being heard to him and without

holding any inquiry which is against the principles of natural justice and rules.

On notice, the respondents have filed reply stating therein that the petitioner was asked to remain in readiness on 12102001 for undergoing

BRTC at STC at Shreei, Baramulla. After the announcement in the rollcall, he absented himself unauthorisedly on 13102001 only to avoid training

course. The further case of the respondents is that the petitioner informed through local Police Station vide Signal No. 1508182 to resume his

duties but he did not do so. It is pleaded that the petitioner was on probation, therefore, no inquiry was required to be conducted in terms of Rule

359 of the Police Rules. It is thus submitted that the action has rightly been taken by the respondents in discharging the services of the petitioner

who was unlikely to prove a good police officer.

I have heard the learned counsel for the parties and perused the record.

Before considering the submissions of learned counsel for the parties, it will be apt to notice Rule 187 of the Jammu and Kashmir Police Manual

Vol. 1. It reads as under :

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 erolment.

Rule 359 of the aforesaid Manual deals with the procedure regarding departmental enquiries. The enquiry has to be conducted by a gazetted

officer empowered to inflict a major punishment upon the delinquent official. However, in the case of constable, the inquiry may be conducted by

an Inspector but the final order has to be passed by an officer empowered to inflict a major punishment upon the said official. But the provisions of

Rule 359 are not applicable in the case of a probationer. This Rule in so far as relevant is being reproduced below :

Procedure in Departmental enquires. (1) The following procedure shall be followed in departmental enquiries :

a) The enquiry shall, whenever, possible be conducted by a gazetted officer empowered to inflict a major punishment Inspector specially

empowered by the minister I/C Police Department, to hold departmental enquiries (vide order No. 636C dated 2761945) may be deputed to hold

an enquiry or may institute an enquiry on his own initiative against an accused police officer who is directly subordinate to him, except that in the

case of a complaint against a constable the inquiry may be conducted by an Inspector. The final order, however, may be passed only by an officer

empowered to inflict a major punishment upon the accused police officer.

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10) This rule shall also not apply where it is proposed to terminate the employment of a probationer whether during or at the end of the period of

probation.

A perusal of Rule 187 noticed above shows that a Constable, who is found unlikely to become an efficient police officer, can be discharged at

any time within three years of his enrolment. So far as the provisions of Rule 359 noticed above, which provide for the procedure regarding

departmental enquiries against a delinquent official, are concerned, these are not applicable in case of a probationer.

The petitioner in the present case was still on probation. During this period of probation, he had remained absent from duties several times for

which he was awarded punishments as are reflected in the order impugned itself which reacts as under :

a) For 12 days unauthorized absence recruit Sr.Ct.No. 271/8th has been awarded 10 days pack drill and period of absence i.e. 12 days w.e.f.

10201 to 232 01 treated earned leave vide this office order No. 461 of 2001 dated 152001.

b) Again he absented himself w.e.f 4.5.2001 to 1452001 i.e. 9 days. Enquiry was conducted into his conduct properly. Sr./Ct. was awarded 9

days ""Diesnon"" vide this office order No. 585 of 2001 dated 31001.

c) On the third occasion the Sr./Ct proceeded on 2+1 days casual leave on 18501 and has overstayed for seven days. Proper inquiry was

conducted and the Sr./Ct was awarded seven days ""Diesnon"" vide this office order No. 608 of 2001 dated 1462001.

d) On the fourth occasion Sr./Ct absented from campus on 672001 and to this effect report was entered in Daily Diary of this Battalion vide report

No. 12 dated 972001. Accordingly R/Ct No. 271/8th remained absent for a period of 3 days i.e. w.e.f. 672001 to 9701. Proper inquiry was

conducted and period of absence i.e. 3 days has been treated as Diesnon vide this office order No. 727 of 2001 dated 972001.

e) On the 5th occasion Sr./Ct. 271/8th absented from campus w.e.f. 4.8.2001 to 17.8.2001 i.e. for a period of 12 days, after availing night

permission. Enquiry was conducted properly and Sr./Ct. was awarded forfeiture of increment for a period of one year and 12 days of absence

was treated as ""Diesnon vide this office order No. 964 of 2001 dated 3.9.2001.

f) On the 6th occasion Sr./Ct proceeded on two days casual leave and had overstayed for 12 days i.e. from 13.9.2001 to 2492001. Enquiry was

conducted properly and the E/O recommended that the R/Ct 271/8th may be discharged from the services w.e.f. the date of his absence.

g) Again the Sr./Ct absented unauthorisedly w.e.f. 13.10.2001 i.e. the date when he was asked to remain in readiness for undergoing BRTC.

A perusal of the above clearly shows that the petitioner is a habitual absentee. Even from the perusal of the record, which has been produced by

the respondents, it is revealed that when the petitioner absented himself, a signal was issued to him that he should resume his duty but despite that

he failed to comply the signal issued by the authority concerned. The competent authority after taking into consideration the aforesaid conduct of

the petitioner came to the conclusion that he is not likely to become a good and efficient police officer, and therefore, rightly exercising the power

under Rule 187 of the J&K Police Manual, have passed the order impugned, which in my opinion calls for no interference.

So far as the plea of the petitioner regarding nonobservance of principles of natural justice is concerned, in this regard, it would be apt to

mention that the application of the said principle would depend upon the facts and circumstances of each case and in case the court is satisfied that

the action has been taken by an authority on the administrative side in a fair and proper manner, then, the court should decline to interfere in such

an action taken by the said authority in this regard, I am guided by the observations made by the Apex Court in the case reported as Chairman,

Board of Mining Examination v. Ramjee, (1977)2 SCC 256. What was observed in this regard by the Apex Court is being reproduced below :

Natural justice is no untruly horse, no lurking land mine, nor a judicial cure al. If fairness is shown by the decision maker to the main proceeded

against, the form, features and fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each

situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities

and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No

man shall be hit below the belt that is the conscience of the matter....

.......The court cannot look at law in the abstract or natural justice as a mere artifact. Nor can one fit into as rigid mould be concept of reasonable

opportunity....

In the instant case, the petitioner was on probation. During the said period of probation, as noticed above, he remained on unauthorized

absence on different occasions. A perusal of order impugned which makes mention of such unauthorized absence on the part of the petitioner

shows that on each and every occasion, a proper enquiry was conducted and it was only thereafter, the punishments as noticed above were

awarded to the petitioner. The conduct of the petitioner while he was still on probation clearly shows that he is unlikely to prove a good police

officer. Therefore, it cannot be said that the action has been taken by the respondent authority in a mechanical manner or the same suffers from

nonapplication of mind or there is any breach of natural justice.

For the reasons mentioned above, there is no merit in this petition, which is dismissed alongwith the connected CMPs, if any.

Petition dismissed.