Mohammad Shafi vs State of Jammu & Ors.

Both these writ petitions rasing identical issues of fact and law are being disposed of by this common judgment. The writ petitioners in these

petitions were appointed'as constables in these petitions were appointed as constables in the Police Force and were deputed for Police training at

Police Training College Udhampur.

According to writ petitioner in SWP NO. 1018 of 1989, he was treated unauthorisesly absent for 30 days by the DirectorcumPrincipal of

SheriKashmir Police Training College, Udhampur and was ordered to be reverted to his parent district without taking examination of the training,

though he had completed nine months course. Feeling aggrieved, the petitioner cliams to have filed writ petition Ni. 810 of 1989 in this court

wherein the impugned order in the petition was stayed, but even then respondent No. 3 proceeded to discharge him from service by order No. 33

of 1989 dated 15.06.1989.

According to writ petitioner in SWP No, 3208 of 1992 on hearing about the sudden ailment of his father, he returned to home on 17.11.1992

and after ten days i.e. on 27.11.1992 when he reported back, respondent No.3 did not allow him to join. Then he submitted an application to

respondent No.2 explaining the circumstances in which he had abandoned his training in the College. He was eventually removed from service by

order NO. 2170 of 1992 dated 14.12.1992 passed by respondent No.2.

The writ petitioners in both these writ petitons question the orders impugned primarily en the gvound that these were passed arbitrarily. Without

conducting any inquiry and in violation of the rights to them under Article 14, 16, and 311(2) of the Consitution. They have also submitted that the

orders impugned were passed under Rule 187 of the J&K Police Rules in colourable exercise of power. But even so the concerned authority was

bound to hold an inquiry into the matter to find out whether the writ petitioners were found ""unlikely to prove efficient police officer."" Alternatively,

it is pleaded that besides the procedure established in the Police Rules, the respondents were required to proceed against them (writ petitioners)

under Article 128 of the Civil Service Regulations, lastly it is urged that the orders impugned were nonspeaking and bad in law.

In SWP No. 1018 of 1989, the respondents have not filed any counter affidavit though sufficient opportunities were granted to them for the

purpose.

In SWP No. 3208 of 1992, the respondents have filed objections stating therein that the petitioner remained absent unauthorisedly for ten days

from the Police Training College Udhampur for which he was liable to be terminated from service. Since he was on probation and there was no

requirement under law to issue him a show cause notice, therefore, he could not claim any benefir under the provisions of J&K Police Rules as well

as Classification (Control and Appeal) Rules and as he was not a member of regular Police force, therefore, the question of invoking the provision

so Articles 14,16 and 311 of the Constitution does not arise.

It is not in dispute that the writ petitioners were on probation and that they stayed away from the police training college without any

permission/sanction of the concerned authority. As such, all that is to be seen is whether they could claim protection of Article 311(2) read with

Section 126(2) of the State Consitution or the relevant J&K Police Rules.

It is well settled by now that a probationer is not entitled to claim protection under Article 311(2) of the Constitution which is otherwise available

to a member of a service or a person holding civil post under the state, unless the order termination his services attached any stigma to him or is

passed by way of punishment. If the order is a termination order simpliciter and does not cast any stigma to the employee noe entrails any

punishment to him safeguards contained in Article 311 would not available to him. In otherwords, the Government employer is not under any

obligation to put such delinquent employee to notice informing him of the charge against him or to hold an enquiry into the matter. This position is

buttressed by the provisions of the J&K Police Act and also the Police Rules made thereunder. (See AIR 1974 SC 2192, AIR 1981 SC 957 and

1980(111) SCC 428).

Section 8 of the Police Act empowers the competent authority to dismiss, suspend or reduce in rank any police officer of the subordinate rank

at any point of time if he thinks that he was remiss or negligent in the discharge his duty or unfit for the same. 10. Chapter XI of the J&K Police

Rules deal ""Punishment"". Rule 334 provides

No Police officer shall be departmentally punished otherwise than as prescribed in these rules."" and its subclause(2) catalouges various types of

punishments liable to be imposed.

Rule 335 authorises various officers of the police Department to impose these punishments and Rule 336 cautions that the punishment should fit the

default and that general character of the officer affected and his past service should be taken into consideration, while inflicting such punishment.

Rule 337 lays down:

Dismissal shall be awarded only for the acts of misconduct e.g. fraud and dishonestly, corruption and offences involving moral disgrace..

It again cautions that regard shall be had to all the service of the offender and his claim to pension, while awarding the punishment.

Rule 339 deals with removal from service. The relevant portion of the explanation appended thereto assuming crucial importance for purposes of

this case and is reproduced, thus:

Explanation: The discharge

a) of a person appointed on probation, before the termination of his period of probation;

(b) and (c) does not amount to dismissal or removal within the meanig of these rules.

Rules 359 provides for the procedure to be observed in the departmental inquired. SubRule (10) of this Rule, which is significant requires to be

extracted mutatis mutandis to facilitate determination of the point in issue. It reads, thus:

(10) This rule shall also not, apply where is proposed to terminate the empoly ment a probationer whether during or at the time of the period of

probation.

(1) As laid down in section 126 of the Constitution of Jammu & 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 removed ore 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 reduced in rank on the ground of conduct which led to 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 interests of the security of the State it is not expedient to give to that officer such an opportunity.

It emerges from all this that the Competent Police authority is vested with the powers under section 8 of the Police Act to dismiss, suspend or

reduce in rank any police officer if he thinks that he was remiss, negligent in the discharge of his duty or unfit for the same. But the J&K Police

Rules places fetters on exercising these powers by providing a machanism/procedure before such punishment or any other punishment enlisted in

Rule 334(2) is awarded. As such, it remains to be seen whether an admittedly probationer was entitled to the benefit of prescribed procedure

under rules or for that matter protection under Article 311(2) read with Section 126(2) of the Constitution.

It is noticed that the constitutional safeguard of an inquiry and show cause notice is available to the delinquent employee if he is dismissed or

removed from service or reduced in rank and not in the case of any other punishment inflicted on him. But the question that arises here is

Whether the discharge of a probationer amounts to his dismissal or removal from service? It stands already established by decided judgements of

the Supreme Court that termination of a probationer simpliciter does not amount to removal from service, unless it is established that a stigma was

cast on him and the action tentamounted to punishment. This position is supported by the J&K Police Rules, Rule 339 whereof deals with removal

and which specifically excludes the discharge of a probationer from its purview. Besides, subrule (1) of Rule 359 also excludes the requirement of

holding an inquiry where it is proposed to terminate employment of the petitioner during or at the end of their probation.

In these circumstances, the writ petitioners have failed on both the counts. They are niether entitled to any protection under Article 311(2) read

With Section 126(2) of the Consitution nor under Rule 359 of the J&K Police Rules which provides procedure for an inquiry against the

delinquent employee against whom departmental inquiry is proposed to be held. Since it is nobody's case that any stigma was cost on the writ

petitioners, while ousting them from service or that their termination was by way of punishment they can't claim the safeguard or inquiry etc. They

seem to have left the police training college on their own without any permission/ sanction from the concerned authority which could not be done in

a disciplined Police Force. Therefore, the writ petitioners cannot be heard complaining that they were thrown out of service by way of any

punishment. This position is supported by latest rulings of the Supreme Court reported in AIR 1996 SC 7361500 laying emphasis on maintaining

the high degree of discipline in the Police force and acautioning in interfering in the punishment awarded to the delinquent employees of such a

force.

The writ petitioners appear to have assumed that they were ousted from service under Rule 187 of the Police Rules which deals with the

discharge of an inefficient police constable and empowers Superintendent of police to discharge a constable, if he was found unlikely to prove an

efficient police officer at any time within three years of his enrolment. The orders impugned in both the writ petitions are not passed under any rules

and it can't be assued that they were passed under Rule 187 for their proving unlikely to be the efficient police officer. On the contrary they were

dealth with for abandoning their duties without obtaining any permission or authorisation from the concerned authority. The action couls, therefore,

fall under Section 8 of the Police Act also.

An over all consideration of the matter leads to the one and the only conclusion that a probationer constable can be ousted by the competent

authority without any inquiry and without any adherence to the available safeguards under Art. 311(2) read with Section 126(2) of the Constitution

so long as it does not case any stigma on him and could not amount to any punishment.

Viewed thus, I find no merit in these two writ petitions which are accordingly dis missed.