Mohd.Rafi vs State and Others

Petitioner came to be appointed as Constable vide order No. 579 of 1999 dated 2641999 issued by the Senior Superintendent of Police,

Udhampur and was allowed Belt No. 108/U. The appointment of petitioner was subject to C.I.D. verification, as alleged. It is stated that

petitioner's brother was involved in some militant activities and an FIR No. 62/99 was registered on 19111999 for offence under section 212

RPC. Petitioner was also involved and arrested in the said FIR. Based upon aforesaid circumstances, respondent5 passed order No. 417 of 2000

dated 2732000 discharging the petitioner from service with immediate effect, in view of his arrest in FIR No. 62/99.

Writ petition SWP No. 435/2000 was filed by petitioner challenging the aforesaid order. This writ petition was disposed of vide judgment dated

2252000 with the following directions:

................In the face of statement made on behalf of petitioner, this writ petition is disposed of with a direction to respondents to examine the

case of petitioner in accordance with law after final decision of criminal prosecution that is pending against the petitioner on the basis of FIR

no.62/99, P.S. Gool u/s 212 RPC and proceed accordingly. It is further directed and clarified whether to retain the petitioner in service in case he

is acquitted shall be determined by the respondents on the basis of material that may available with them. Mere acquittal of petitioner by the court

will not be enough for the petitioner to claim reinstatement, if the respondents have other material to deny such benefit to him.

In the meanwhile, charge sheet was produced regarding FIR No. 62/99 and petitioner was acquitted vide judgment dated 29112000 passed by

the Judicial Magistrate 1st Class, Gool in case titled State Vs. Mohd. Rafi.

It appears that after acquittal, petitioner filed contempt petition being COA(SW) No. 66E/01 for alleged noncompliance of the order dated

2252000 passed in SWP No. 435/2000. During the pendency of this contempt petition, representation filed by him came to be rejected vide

order No. 276 of 2001 dated 782001 and petitioner was denied reinstatement to service. Relevant paragraph dealing with the ground for rejection

reads as under:

Whereas in terms of the representation filed by the constable and in compliance of the directive of Hon'ble High Court vie its order dated

2252000 the question of reinstatement of the constable was considered and it was found that the constable being an upper ground worker of H.M.

Outfit and was involved in providing information food to the militants his case for reinstatement at this stage is not primafacie made out. There is

therefore, no force in the prayer of the constable for his reinstatement as prayed by him in his representation.

Petitioner has challenged the aforesaid rejection order. It has been urged on behalf of petitioner that after his acquittal, petitioner was required to

be reinstated to service and his discharge is bad in law, as it costs stigma upon him which also amounts to denial of government job in future. It is

stated that impugned order has been passed without holding any enquiry.

I have heard learned counsel for the parties.

Petitioner has relied upon a judgment of this Court in 2005(2) JKJ 121(HC) titled Zahoor Ahmed Shah Vs. State and others wherein following

was observed:

....It is evident from the impugned discharge order that petitioner has been discharged on account of alleged misconduct. Admittedly, no

explanation was sought from him nor any show cause notice issued providing him an opportunity to explain the circumstances and allegations

against him. Once the authorities were of the opinion that petitioner has misconducted in any manner, it was obligatory to have conducted an

enquiry. Nothing has been done. Petitioner has been condemned unheard. Though the petitioner was on probation, but his discharge on account of

misconduct is a stigma and thus, violative of section 126 of the Constitution of India read with Article 311 of the Constitution. Even Police Rule

187 is applicable for discharge of petitioner from service only if the appointing authority is satisfied that he is unlikely to prove an efficient police

official. No such satisfaction has been recorded. The discharge of petitioner cannot be said to be in accordance with the Police Rules or

permissible under law. The discharge of petitioner is accordingly illegal and violative of principles of natural justice.

Another case relied upon by the petitioner is titled Constable Bashir Ahmed Vs. J&K State and others reported as 2005 (1) S.L.J. 375. In this

case, Single Bench of this observed as under:

Had it been a discharge simpliciter, there would have been no need of any enquiry but since the discharge is a stigmatic discharge and definitely

punitive in nature, being passed on the ground that due to the frequent absence the petitioner was not likely to prove a good police officer, it was

mandatory to hold an enquiry giving opportunity to the petitioner to show cause. Needless to mention that enquiry in such case required to be held

in accordance with the provisions of Rule 359 of J&K Police Manual.

8.Further reliance is placed upon State of J&K and Others v. Firdous Ahmad reported as 2003(11) S.L.J.331, wherein following was observed:

The orders of discharge passed in the case of the plaintiff respondents do not indicate that they were discharged from service because they were

not likely to prove efficient police officers or any satisfaction to that effect was recorded by the appointing authority. The orders of discharge only

state that their services are not required in the Police Department. Why is not their service required in the Department is not disclosed or spoken

out in the orders of discharge. J&K Police Manual does not recognize or envisage any such ground as the basis for discharging duly required

police personnel.

The Apex Court in State of Punjab and others v. Sukhwinder Singh reported as 2005 AIR SCW 3477 while considering discharge of

probationer without any formal departmental enquiry, observed as under:

The main contention on behalf of the appellant was that an inquiry was made by the Deputy Superintendent of Police as to the character of the

appellant into the allegation that the she stayed at Mahalpur for one or two nights with one constable Jaswant Singh and evidence was recorded

therein without giving the appellant any opportunity of hearing or to cross examine the witnesses and the impugned order was made after

completion of the investigation on the ground of her misconduct which cast a stigma on her service career. The contention was accepted and on the

finding that through the order of discharge stated to be made in accordance with the provisions of Rule 12.21 of the Rules, it was really made on

the basis of the misconduct as found on inquiry into the allegation behind her back and further that though the order was couched in innocuous

terms, the order was merely camouflage for an order of dismissal from service on the ground of misconduct, the impugned order of discharge was

set aside. With respect we are unable to agree with the view taken in this case. As discussed earlier the consistent view of this court is that even if

some kind of preliminary inquiry or factfinding inquiry is held in which the employee is not afforded an opportunity of hearing, the order of

discharge of a probationer cannot be treated as an order of punishment as the appointing authority has to necessarily ascertain all the relevant facts

before a decision whether the probationer should be retained in service or not. The decision in Smt. Rajinder Kaur v. State of Punjab is hereby

overruled.

I have considered the order discharging the petitioner from service, which reads as under:

I have carefully gone through the above facts and the CID report as sufficient to show that the character antecedent of the constable is not good.

On the basis of this report, Rect Constable Mohd. Rafi No. 108/U S/O Sh. Mohd. Shafi caste Muslim R/0 Dharan Tehsil Mahore is hereby

discharged from service with immediate effect. He will deposit the Govt. Uniform in DPL store immediately. Number constabulary 108/U is

treated as vacant.

The above order shows that the petitioner has not been discharged on account of misconduct during the service but he has been discharged

from service during probation on account of doubtful credentials prior to his joining the service. Petitioner was a member of the police force, which

is entrusted with the job of providing security to the common man maintaining law and order which includes antimilitancy and antiterrorism

operations. As a matter of fact, in the present scenario in the State, the society is largely dependent upon the police force and other security

agencies for safety and protection of their lives and property. The mere fact that petitioner was recruited as Constable, does not meant that his

credentials cannot be doubted. His involvement in FIR and CID report regarding his antecedents cannot be brushed aside. Acquittal in criminal

charge for want of requisite standard of evidence, is one thing and accepting the credentials of a person, is another thing. Though the discharge

order speaks of doubtful antecedents, however, it is not a stigma so far his conduct as government servant is concerned. In any case, petitioner has

been discharged during probation. If there is any doubt regarding his antecedents, respondents are well within their power to take a decision

whether to continue him in service or not. An inquiry is called for only, if any act of omission or commission is attributed to the discharged

employee in the course of his employment and attributable as a Government servant.

Keeping in view the fact that petitioner has been discharged on account of his antecedents, I do not find that any enquiry was required. The

ratio of judgment in 2005 AIR SCW 3477 (Supra) is fully applicable to the facts of this case.

In view of the above, there is no merit in this petition, which is dismissed.