Fayaz Ahmad Mir vs State of J & K

S.K. Gupta, J.—The petitioner, Fayaz Ahmad Mir, was a recruit constable in Jammu and Kashmir Police, appointed in District Police,

Baramulla, to be on probation for a period of three years, vide order no. 581 of 1991 dated 11.07.1991. While undergoing basic training at Police

training College, Udhampur, petitioner allegedly absented himself unauthorisedly from 7.04.1992 and failed to report for duty till 01.10.1992. A

regular enquiry was conducted against the petitioner and the impugned order dated 06.11.1992 was passed discharging him from service. The

discharge order came to be challenged by the petitioner on the ground that it was not a discharge simpliciter, but exfacie stigmatic and punitive,

which could not have been passed without holding a regular enquiry and giving an opportunity of hearing to the petitioner. The regular enquiry

though conducted in this case, but without following the procedure as envisaged under rule 359 of the Jammu and Kashmir Police Rules (hereto

after refers to as Police Rules).

Respondents in their counter pointed out that petitioner was appointed a recruit constable by order dated 11.07.1991 in District Police,

Baramulla and deputed to undergo training at PTC, Udhampur alongwith other recruits. But he absented himself from the training with effect from

7th April, 1992 and remained unauthorisedly absent continuously till 1.10.1992, resulting into passing of an order of discharge from service on

06.11.1992, because of unauthorized absence preceded by a department enquiry.

Mr. S.H. Thakur appearing for the petitioner submitted that the order of discharge on account of unauthorized absence cast stigma on the

petitioner, which is a punishment as contemplated under Rule 334 of the Police Rules, therefore, it could not be passed without holding an enquiry,

in case it is held and afforded an opportunity of being heard, which though done in this case, but without following the procedure for a regular

enquiry in case of a Police Officer provided in Rule 359 of the Police Rules and according to him, the order impugned is bad in law and deserves

to be quashed. It is also contended by Mr. Thakur that respondent

before passing an order of discharge of the petitioner from service, was obliged to observe the principles of natural justice.

Mr. M.I. Qadiri, learned senior AAG appearing for the State, on the contrary submitted that the petitioner stood discharged from service during

his probation on the basis of his unauthorized absence and which provided basis and induced for the view taken by respondent 3, that he would

not likely to prove an efficient Police Officer in the department. According to Mr. Qadiri, no enquiry was required to be conducted with regard to

the unauthorized absence of the delinquent recruit constable in the light of Rule 359 (10) of the Police Rules, but still a regular enquiry in following

the procedure laid down in Rule 359 of the Police Rules was conducted resulting into discharge order of the petitioner penultimately on 6.11.1992.

It was further admitted by Mr. Qadiri that the order doesnot amount to punishment and merely because of unauthorized absence of the petitioner

prompted for passing the order of discharge. It is an order of discharge simpliciter passed during the probationary period.

Admitted case of the parties is that the petitioner was a recruit constable, who had neither completed training nor the probation prior to

absenting himselfunauthorisedly from duty. The petitioner, because of his unauthorized absence from duty, was discharged from service.

Law relating to termination of services of an employee on probation is well settled. If any order terminating services of a probation is an order of

termination simpliciter without attaching any stigma to the employee and if the said order is not an order by way of punishment, the provisions of

Article 311 cannot be attracted. No enquiry, in such an event, is required to be held against a probationer employee whose services were

terminated by an innocuous order without casting any stigma on him. So the first question for determining is whether the order of discharge

impugned herein cast a stigma on the name of the petitioner with penal consequences other than termination of service. It is profitable to reproduce

order of discharge formulated by respondent3 in verbiage, which reads as under:

Where, recruit constable Fayaz Ahmad No. 820/B of DPL, Baramulla who was deputed from DPL Baramula to undergo eleventh CRTC

training course at PTC Udhampur vide PHQ deputation order No. 1060/91 dated 7.12.1991 commencing from 11 Nov, 1991 and relieved on

23.10.91 alongwith other recruits vide above quoted order.

Whereas, constable Fayaz Ahmed No. 820/B attended PTC. Udhampur for the said training course and after some time he proceeded on three

days casual leave + four days station leave from PTC Udhampur vide DD report No. 25 dated 31.3.92 of PTC Udhampur and was due to the

report back on 7.4.92 (F.N.) but the said trainee constable Fayaz Ahmad No. 820/B did not report at the said Institution well in time and

accordingly he was marked absent there vide DD report No. 37 dated 7.4.72 (F.N.) of PTC Udhampur. Subsequently the said trainee constable

Fayaz Ahmad No. 820/B did not bother to report at PTC and remained continuously absent till 15.04.1992. On this gross negligence the said

constable was reverted back from PTC to his parent district vide Director PTC Udhampur order No. 438 of 1992 dated 15.04.1992 with

immediate effect.

Whereas, recruit constable Fayaz Ahmad No. 820/B did not report in this district till 1.10.1992, a signal was flashed to his vide office signal

No. Estt/92963536 dated 01.10.1992 through S.H.O. P/S Boniyar to report in DPO, Baramulla otherwise action under rules will be taken against

him on receipt of the massage recruit constable Fayaz Ahmad No. 820/B attended D.P.O. Baramulla on 8.10.92 with a request that he may be

allowed to resume his duties in this behalf DYSP (Hqrs.) Baramulla was directed to hold a departmental enquiry against him.

Whereas, DYSP (Hqrs.) Baramulla held a departmental enquiry against the said recruit constable Fayaz Ahmad No. 820/B and submitted his

finding to the under signed for formal orders. I perused the enquiry file and issued a show cause notice to the recruit constable Fayaz Ahmad No.

820/B vide this office endstt. No. 10392 / Estt. dated 29.10.92 with the direction that why he should not be discharged from service. On the

above mentioned charge. Reply submitted by the diligent constable could not substantiate allegations levelled against him. 5. Whereas, he was

appointed as constable vide this office order No. 581/91 dated 11.7.91 with effect form 12.7.91 and put on probation on for a period of three

years. Under rules the constable was bound to maintain proper discipline and to observe regularly and punctuality in the discharge of duties which

in the instant instance he has filled to do so much so, did not bother to report his duties.

Now therefore, I.S.M. SahaiIPS Superintendent of Police,. Baramulla after having gone through the case and applied my mind to the matter do not

consider that the recruit constable will be likely to prove an efficient police officer in the department and do hereby discharge the recruit constable

Fayaz Ahmad No. 820/B from services with immediate effect and period of absence w.e.f. 15.4.92 (F.N.) to 8.10.92 treated as dies on.

However he is entitled to draw the emoluments for the period he remained present in DPO i.e. 8.10.92 upto the date for finalization of

departmental enquiry.

Whether any express words in the order of discharge are stigmatic or cast aspiration against the conduct of employee. The entirety of

circumstances preceding or attendant on the impugned order must be examined and overriding test will always be whether misconduct is a mere

motive or is the very foundation of the order. I find, if instead of making simple order of discharge of the probationer and branding him as a

dishonest or incompetent officer, it would involve punishments and attract Article 311 (2). (Shamsher Singh vs State of Punjab, 1974 SC 2192).

Adverting to the impugned order referred to supra, the question arises as to whether the express words that after having gone through the case and

applied my mind to the matter do not consider that the recruit constable will be likely to prove an efficient police officer"" cast stigma or imputation

on the conduct of the recruit constable.

An identical matter came up for consideration before this court in Abdul Rehman Mir vs. State, 1997 SLJ 350 and in deriving support from the

Supreme Court judgement in State of Haryana vs. Jagdish Chander, 1995 (2) SCC 567, it was held as under :

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 unauthorized 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 V.P. Ahuja V. State of Punjab and others, AIR 2000 SC 1080, it was found as under:

A probation, or a temporary servant, is also entitled to certain protection and his service cannot be terminated arbitrarily, nor can those services

be terminated in a punitive manner without complying with the principles of natural justice."" 10. in the like manner, unauthorized absence of the

petitioner may be considered to be the motive or the influencing factor for passing an order of discharge, but it can never be held to be an order of

punishment, Mr, Qadri in support of his arguments that no enquiry was required as petitioner was a probationer and undergoing probation period

and his order of discharge from service was a termination order simpliciter without any stigma of punishment attached to it, relied upon judgement

of the Division Bench of this court in Ali Mohd. V. Chairman, N.A.C. Udhampur, 1979 J and KLR (10) 51, wherein it was held that:

Turning now to the case of petitioner Mulkh Raj, he was removed from service on the grounds of absence from duty, as well as, unsuitability

for service. We are not indined to accede to proposition, that unsuitability for service constitutes a stigma to attract the provisions of subsection 2

of section 126 of the State constitution. We are fortified in taking this view by Supreme Court in Dr. R.C.M. Pillai vs. Indian Institute of

Technology, (1971 SLR 679), wherein it was held: ""It is well settled that a probationer or a temporary servant can be discharged if it is found that

he is not suitable for the post which he is holding. This can be done without complying with the provisions, of Article 311 (2) unless the services are

terminated byway of punishment, suitability does not depend merely on the excellence or proficiency in work. There are many factothers which

enter into consideration or confirming a person who is on probation. A particular attitude or tendency displayed by an employee can well influence

the decision of the confirming authority while judging his suitability of fitness for confirmation."" No fault can, therefore, be found with termination of

service of this petitioner as well."" 11. Mr. Qadri to further support his contention referred to a case Ganganagar Zila Dugdh Utpadak Sahkari

Sangh Ltd. and another vs. Priyanka Joshi and another, AIR 1999 SC 2363, wherein it was held that: ""In our opinion, the Division Bench of the

High Court was not correct in the conclusion which it arrived at it is not in dispute that when the order dated 30th November, 1994 was passed,

the respondent was still on probation. The reason for passing of the said order appears to be the absence of the respondent from duty. In the order

of appointment, it was clearly stipulated that the respondent's services could be terminated during the probationary period if the services were

unsatisfactory. When judging the performance of a person if the services are terminated during the period of probation, obviously there has to be a

reason for such termination. If the services are terminated during the probationary period without any reason whatsoever, it is possible that such an

order may be impugned on the ground that it has been passed arbitrarily. On the other hand, when there is a reason for terminating services during

the probationary period and the order terminating services is worded in an innocuous manner, we do not see any force in the contention that such

an order has to be regarded as by way of punishment.

Applying the ratio of the judgment in Abdul Rehman Mir's case (supra), which on all fours covers the issue involved in this case, there is no

escape in reaching a conclusion that the words expressed in the order of discharge that ""do not consider that the recruit constable will be likely to

prove an efficient police officer"" attach a stigma and imputation on the conduct of the recruit and is an order of punishment. In such a case,

provisions of Article 311 of the Constitution corresponding to Section 126 of the State Constitution are attracted warranting a regular enquiry

under rules and giving an opportunity of hearing to the petitioner in compliance to the principles of natural justice.

Where the employer chooses to hold an enquiry, in case of discharge of a probationer from service, into his alleged misconduct, or inefficiency

of termination of services is by way of punishment, the employee is entitled to protection of Article 311 (2) of the Constitution. In the instant case,

the order of discharge of recruit constable is preceded by a regular enquiry held under Rule 359 of the Police Rules. Rule 359 lays down the

procedure for conducting enquiries.

Mr. S.H. Thakur, petitioner's advocate, vehemently urged that the order of discharge on account of unauthorized absence attaching a stigma

on the petitioner, which is a punishment within the meaning of rule 359 of the police rules necessitates the holding of an enquiry into his conduct and

giving an opportunity of being heard. His further contention is that the enquiry held in this case was not in compliance to the procedure laid down

under rule 359 of the police rules as neither an opportunity of hearing was giving to the petitioner nor petitioner associated with any such enquiry

and as a consequence, the order of discharge of he recruit constable form service is liable to be quashed. 15. Rule 359 of the Jammu and Kashmir

Police Rules provides the following procedure to be followed in departmental enquiries:

Procedure in Departmental Enquiries : (1) The following producer shall be followed in departmental enquires: a. The enquiry shall, whenever,

possible be conducted by a gazetted officer empowered to inflict a major punishment upon the accused officer. Any other gazetted officer or an

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 inquiry 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. 2. The officer conducting the inquiry shall summon the

accused police officer before him and shall record and read out to him a statement summarizing the alleged misconduct in such a way as to give full

notice of the circumstances in regard to which evidence is to be recorded.

If the accused police office at this stage admits the misconduct alleged against him, the officer conducting the enquiry may proceed forthwith to

record a final order if it is within his power to do so or a finding to be forwarded to an officer empowered to decide the case.

Whenever, a serious default is reported and the preliminary enquiry is necessary before a definite charge can be framed, this is usually best done on

the spot and might be carried out by the SubInspector of the particular Police Station in the case of Head Constable and Constables serving under

him or by the Inspector of the circle in the case of SubInspectothers within his charge. At the same time it must be left to Superintendent of Police

to select the most suitable officers for the purpose or to do it themselves when such a course appears desirable.

When the preliminary enquiry indicates a criminal offence, application for permission to prosecute should at once be made to the authority

competent to dismiss the officer and permission should be promptly granted if that authority agrees that there is prima facie case for prosecution.

If the accused police officer does not admit that misconduct, 'the officer conducting the enquiry shall proceed to record such evidence oral and

documentary in proof of the accusations as is available and necessary to support the charge. Whenever possible witnesses shall be examined direct

and in the presence of the accused who shall be given opportunity to crossexamine them. The officer conducting the enquiry is empowered

however to bring on to the record the statement of any witness whose presence cannot in the opinion of such officer be produced without undue

delay and expense or inconvenience if he considered such statement necessary and provided that it has been recorded and attested by the Police

Office not below the rank of Inspector or by a Magistrate and is signed by the person making it. The accused shall be bound to answer questions

which the enquiring officer may see fit to put to him, with a view to elucidating the facts referred to in statements or documents brought on the

record as herein provided.

When the evidence in support of the allegation has been recorded, the enquiring officer shall:

a. If he considers that such allegations are not substantiated either discharge the accused himself if he is empowered to punish him, or recommend

his discharge to the Superintendent or other officer who may be so empowered, or

b. proceed to frame a formal charge or charges in writing, explain them to the accused officer and call upon him to answer them.

The accused officer shall be required to state the defence witnesses whom he wishes to call and may be given time in no case exceeding 48

hours to prepare a list of such witnesses together a summary of the facts as to which they will testify. The enquiry officer shall be empowered to

refuse to hear any witnesses whose evidence he considers will be irrelevant or unnecessary in regard to the specified charge framed in which case

he shall record the reason for his refusal. He shall record the statements of those defence witnesses whom he decides to admit in the presence of

the accused, who shall be allowed to address questions to them the answers to which shall be recorded, provided that the enquiring officer may

cause to be recorded by any other officer not below the rank of Inspector the statement of any such witness whose presence cannot be secured

without undue delay or inconvenience and may bring such statement on the record. The accused may file documentary evidence and may for this

purpose be allowed access to such files and papers except such as form part of the record of the confidential office of the Superintendent of Police

as the enquiring officer deems fit, The supply of copies of documents to the accused shall be subject to the ordinary rules regarding copying fees.

At the conclusion of the defence evidence or if the enquiring officer so directs at any earlier stage, following the framing of a charge the accused

shall be required to state his own answer to the charge. He may be permitted to file a written statements and may be given time not exceeding one

week for its preparation but shall be bound to make an oral statement in answer to all questions which the enquiring officer may see fit to put to him

arising out of the charge, the recorded evidence or his own written statement.

The Enquiring Officer shall then proceed to pass orders of acquittal or punishment if empowered to do so or to forward the case with his finding

and recommendations to an officer having the necessary powers,

Nothing in the foregoing rules shall debar a Superintendent of Police from making or causing to be made a preliminary investigation into the

conduct of a suspected officer. Such an inquiry is notinfrequently necessary to ascertain the nature and degree of misconduct which is to be

formally enquired into. The suspected Police Officer may or may not be present at such preliminary enquiry as ordered by the superintendent of

police or other Gazetted Officer initiating the investigation but shall not crossexamine witnesses. The file of such a preliminary investigation shall

form not part of the formal departmental record but may be used for the purposes of subrule 4 above.

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.

11 .(1.) As laid down in section 126 of the constitution of Jammu and Kashmir, no officer shall be dismissed or removed by an authority

subordinate to that by which he was appointed.

(2). No police officer shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause orally

and also in writing against the action proposed to be taken in regard to him provided that this clause shall not apply:

a. Where a person is dismissed or removed or his conviction on a criminal charge ;

b. Where an authority empowered to dismiss or remove an officer or to reduce him in rank is satisfied that for some reason to be recorded by that

authority in writing it is not reasonably practicable to give to that person an opportunity of showing cause; or

c. Where the SadariRiyasat is satisfied that in the interest of the 'security of the State, it is not expedient to give to that officer such an opportunity.

(3). If any question arises whether it is reasonably practicable to give to any officer an opportunity of showing cause under clause (2) above, the

decision thereon of the authority empowered to dismiss or remove such officer or to reduce him in rank, as the case may be, shall be final.

The enquiry, as is manifested from the record, was conducted by Dy. SP (Headquarters) Baramulla (Respondent4). The first step to be taken

by the Enquiring Officer provided under Rule 359 is that he shall give a summary of allegations to the accused Police Officer in respect of which

evidence is to be recorded. In case the accused officer admits the alleged misconduct, the enquiring officer may forthwith record a final order in

case it is within his competence or forward a finding to an officer empowered to decide the case. Where the police officer does not plead guilty to

the accusations, the enquiring officer shall proceed but record such evidence orally or documentary in proof of the accusations as essential to

support the charge. The witnesses shall be examined in presence of the accused police officer associated with the inquiry. After recording the

evidence to support the accusations, the enquiring officer, if considers that the allegations are not substantiated, may discharge himself if

empowered or recommend his discharge to the superintendent of police or other empowered officer and in case otherwise proceed to frame a

charge, explain to the accused officer requiring him to reply and also state the defence witnesses whom he proposes to examine, may be given time

upto 48 hours to make a list of witnesses alongwith summary facts to be deposed by them. The enquiring officer shall record the statement of the

defence witnesses in presence of the accused and also receive the documentary evidence that may be filed by the accused police officer. The

enquiring office shall then pass an order of punishment or acquittal, if empowered to do so, or recommend the same with his finding to the officer

having the requisite power. A reasonable opportunity of showing cause orally and also in writing against the action proposed to be taken in regard

to him shall be given to the accused police officer, as contemplated by the rule.

Now the question arises whether the enquiring officer adhered to the procedure envisaged in Rule 359 of the Police Rules in conducting

enquiries, which are mandatory in character. While going through the annexures appended with the writ petition by the petitioner, it is indisputably

gatherable from the reply to the charge sheet dated 14.10.1992 (annexure P8 appended to the writ petition) by the recruit constable, Fayaz

Ahmad Mir, submitted to the enquiring officer that the summary of allegation was given to the petitioner to which he pleaded not guilty, the first

steps in the enquiry to be taken by the enquiring officer. It is further borne out from paras 6, 7 and 8 of the reply to show cause furnished by the

petitioner on 30.10.1992 (annuexreP10 appended with the writ petition), with regard to the proposed action to be taken in regard to him, that

after the charge sheet was given, he replied in details with fullproof and evidence, besides unfolding active association in the enquiry proceedings.

The relevant paras from the reply to show cause notice dated 30.10.1992 read as under:

That till the date of receipt of charge sheet from Dy. S.PO., H/ Q, I was regularly enquiring from the D.P.O. / D.P.L. regarding the receipt of

my papers from P.T.C. Udhampur and remained present either in D.P.L. or D.P.O. Baramulla. But I was once ever allowed to mark my presence

. in D.D./D.D.P.L. Baramulla or any other place.

That accordingly I was given summary of allegations which I pleaded as not guilty.

That then a charge sheet was given to me by Dy. S.P., H/Q Which I replaced in details with fullproof and evidence.

The stand taken by the petitioner that procedure laid down in Rule 359 of the Police Rules for holding a regular enquiry against the accused

police officer has not been followed by the enquiring officer if totally belied by his own reply firstly to the charge sheet and thereafter to the action

proposed to be taken in regard to the petitioner. There has been a fulldressed enquiry conducted by the enquiring officer into the misconduct of the

recruit constable on account of his unauthorized absence, which is strictly in accordance with the procedure provided under Rule 359 of the Police

Rules. It is also found from the record that the recruit constable participated in the enquiry and was given full opportunity of hearing in observance

of principles of natural justice. The contention raised by the petitioner's advocate, Mr. Thakur, about the deviation from the mandatory procedure

by the enquiring officer does not merit acceptance being ipsidixit of the petitioner and nothing on the record to show. It may not be out of place to

mention that the result of enquiry cannot be challenged byway of a writ petition for which the remedy is available under Police Rules by way of

appeal and revision.

The pith and substance of enquiry is that the delinquent officer must be given a reasonable opportunity of being heard and the order is justified.

The court is concerned to determine whether the enquiry held by an authority competent in that behalf is according to the procedure prescribed in

that behalf and whether the principles of natural justice are not violated.

Taking conspectus of overall consideration, I do not find any infirmity in the order of discharge, dated 6.11.1992, of the refruit constable form

service passed by respondent 3 after fulldressed enquiry as contemplated by Rule 35S of the Police Rules in compliance to the mandatory

procedure laid down therein and observance of principles of natural justice so as to warrant interference of this court. This petition is, therefore,

dismissed without any order as to costs.