Ghulam Hassan Rather vs State and Ors.

Claiming to have been appointed as constables in respondent/Police Department vide order No. 102 of 1987 dated: 15.2.1987, and undergone

requisite training whereafter the petitioner maintains that he joined regular service. On 24.10.1989 he proceeded on leave but due to illhealth could

not resume duty for a couple of months after the leave expired, till he got medically fit and reported for duty in 1990, but was not allowed to join

and instead informed that his services had been dispensed with. Since no dismissal or termination order had been served upon him he instituted a

petition in this court being SWP No. 472/2000 which was disposed of on 4.8.2000 with a direction to respondents to provide a copy of

termination order to petitioner allowing him liberty to him for challenge the same, and have the present petition to impugn the termination order No.

1734 of 1998 dated: 12. 12.1990 on the grounds that petitioner has been removed from service without any inquiry or opportunity of being heard,

nor have the grounds of impugned termination order ever been supplied to him as was legally required to be done particularly because termination

order would take effect only after it is communicated to petitioner, as respondents had never made it known as to why it was not practical for them

to hold inquiry before passing impugned termination order against petitioner which suggests that the whole exercise is malafide. Accordingly the

petitioner seeks quashment of the said order alongwith a direction to respondents for allowing him to rejoin his duties.

In their reply the respondents while pleading that petitioner had no cause to maintain the writ petition, even though being based on mixed

questions of fact and law and having been instituted after a delay of around a decade, particularly while the post against which petitioner was

working has also been filled up through regular selection process after petitioner abandoned his services during the crucial period of turmoil. It is

further pleaded that petitioner was employed in February 1987 as constable and it was during his probation period that he remained absent from

28.10.1989 and never resumed duties thereafter, and that being so no inquiry was required for his termination under police rules. The respondents

have also disclosed that petitioner had associated himself with militancy related activities and arrested on 27.5.1996 by SOG, with arms and

ammunition including one AK rifle, four magazines, one pistol and thirty rounds having been recovered from him, resulting in registration of a case

under FIR No. 176 of 1996 under section 7/25 LA. Act against him and his detention under order No. DNMS/PSA/254/96 dated: 27.6.1996. In

parawise reply the respondents have denied ail the assertions made by petitioner and main tained that in view of petitioners conduct and

circumstances attending his absence from duty no inquiry was required in the matter and 3rd respondent was completely within his powers to issue

the impugned order which in the circumstances of the case is well founded in law. During verbal submissions that respondents counsel has further

argued that after his arrest the petitioner admitted having crossed LOG and receiving training there whereafter he returned back and got involved in

militancy related activities. After continuing as such for around a decade so sought reentry into service in 2000 which in given circumstances he

could not ask for.

In his rejoinder petitioner has further pleaded that most of the pleas set up by respondents in the reply were factually incorrect and as a matter of

fact he never crossed the LOG or received training nor were any arms recovered from him. Admitting having been detained under P.S. Act, the

petitioner has further maintained that his detention was quashed by this court on 22. 7. 1997 vide judgment passed in HCP No. 95 of 19976 and

as such petitioner's removal from service was totally illegal as having been ordered without any inquiry whatsoever. During course of arguments

petitioner's counsel has further elucidated the pleas taken by him in the original writ petition.

I have heard learned counsel and considered the matter. The petitioner had admittedly been appointed as constable in respondent/police

department and at the time of termination of his services, was only a probationer as his services had not been confirmed/regularized. Under rule a

87 of the ""Police Rules"" a constable on probation can be discharged from service without inquiry provided there is a substantial cause for his

removal as such, touching upon his efficiency to discharge his duties as a constable which certain includes his character, integrity and commitment

to the job. In instant case the petitioner is stated to have been removed from service for the reason of his having involved himself in militancy and

even crossed LOG ""or receiving training and joining a group of militants whereafter he has been arrested and significant quantity of arms and

ammunition recovered from his possession or at his instance. The petitioner himself also admits that he was detained under P.S. Act but later

released when his detention order was quashed by this court.

In cumulative consideration of all these circumstances, the petitioner who after his employment as a constable in Police department absented

unauthorizedly in 1990 and surfaced only in 2000 for seeking permission to join back his duties does not appear to have conducted himself

responsibly, much less to the requisite level of discipline and commitment that a man in uniform is ordinarily expected to have. A police constable

associating himself with militant activities and practically indulging in it, is an impermissible contradiction in terms. In simple but sound terms,

policing and militancy are mutually exclusive. True, that ordinarily the loss of appointment to a duly employed person must not occur without a

proper inquiry/hearing the affected employee, but that generalized norm would perhaps not apply in the instant case for the simple reason that in the

first instance the petitioner could not have been available for being heard or associated with the inquiry as his whereabouts immediately after

absence from duty were not known, as claimed by respondents and after his arrest and recovery of arms there was hardly any room form such

enquiry which in given circumstances of the case would have been an undesirable stretch of the right of ordinance claimed by petitioner.

Coupled therewith is the inordinate delay involved in institution of this petition. Admittedly the petitioner has been removed from service in 1990

but incidentally it is only after a full decade that he chose to approach this court which suggests that in between either he has not cared to agitate

the matter or he did not think it necessary to do the same. However, nothing is forthcoming from the record to render any explanation for delayed

institution of the petition.

Generally speaking the period between 1990 and 2000, in view of the general public disorder prevalent then was the most trying time for the

entire police force when their mettle was on trial. Anybody amongst them who left the field when he was most needed, to return back only after

finding things comparatively conformable cannot be deemed to have the requisite mettle that ordinarily would recommend facilitating of a come

back.

In view of what has been discussed above, the petitioner's claim that before his removal from service, he should have been subjected to inquiry

or at least heard, even though technically arguable, does not appear to have any substance as revealed by circumstances attending the matter in

view whereof the omission to conduct an inquiry in the matter even though admitted, does not appear to have vitiated petitioners termination. In this

behalf support can be drawn from a judgment of this court in ""Mohmmad Iqbal vs. State and others and reported"" as 2004(11) SLJ 655, where,

in Para 8 following observations were made:

It is admitted case of the parties that no inquiry as contemplated under rule 359 of the J&K Police Rules was held against the petitioner. In such a

situation the question which arises for consideration is whether the order terminating the services of the petitioner without following the procedure

as laid down under rule 359 is bad in law? In my considered view the holding of inquiry as envisaged under section 126 of the Constitution of J&K

and Rule 359 of the J&K Police Rules, may be necessary before the services of an employee are terminated for absence without leave or absence

after leave, but this principle of law has no universal application. In cases where the facts disclose that the employee had absconded or where it is

impossible to communicate with him, then the order in my view does not suffer from any legal infirmity. In Menaka. Gandhi vs. Union of India, AW

1978 SC 597 the supreme court said that since the audi alteram partem rule is intended to inject justice into the law, it cannot be applied to defeat

the ends of justice, or to make the law lifeless, absurd stultifying, self defeating or plainly contrary the common sense of the situation. Bhagwati, J

(as his lordship then was) in Menaka Gandhi's case (supra) said, ""what opportunity may be regarded as reasonable would necessarily depend on

the practical necessities of the situation. It may be a sophisticated full fledged hearing or it may be hearing which is very brief and minimal; it may be

a hearing prior to the decision or it may even be post decisional remedial hearing. The audi alteram partem rule is sufficiently flexible to permit

modifications and variations to suit the exigencies of myriad kinds of situations which may arise."" The supreme court thus has settled that audi

alteram partem rule is not case in a rigid mould and that it may suffer situational modifications.

Accordingly and for what has been discussed above, the petition does not appear to, have any merit and is dismissed alongwith connected

CMPs.