Shamim Ahmed vs State

The petitioner calls into question order No. 666 of 1994 dated 2nd Nov. 1994 passed by respondent No.3 whereby and whereunder he has

been discharged from service w.e.f. 7th Oct. 1994.

The case of the petitioner is that he was appointed in J&K Armed Police in the year 1990 as constable. The further case of the petitioner is that

in May 1994 he fell ill and remained confined to bed till 05th July 1994. It is further case of the petitioner that thereafter he resumed his duties. As

per claim of the petitioner a departmental enquiry was conducted against him for having remained unauthorizedly absent. The further case of the

petitioner is that though the enquiry was not conducted in accordance with rules as neither charge sheet was served upon him nor he was granted

opportunity of hearing, but the petitioner tendered explanation before the enquiry officer about his absence from duty, which explanation of the

petitioner was accepted by the enquiry officer, who recommended that the period of absence to be treated as diesnon. The respondent No.3

however issued show cause notice to petitioner as to why he should not be discharged from service. Further case of the petitioner is that he again

fell ill and remained confined to bed w.e.f 6th Sept. 1994 to 7th Nov. 1994 and it is during this period that the discharge order was passed.

The petitioner has challenged the order of discharge interalia on the ground that language and expression used in the impugned discharge order

are stigmatic in nature in as much as the petitioner has been dubbed to be a habitual absentee and absconder which renders the impugned

discharge order bad in law.

Counter has been filed and details of petitioner's absence has been given in the counter. It has been stated that departmental enquiry was

initiated and ultimately the petitioner was discharged from service.

Heard learned Counsel for parties. Considered the matter.

In the impugned order it has been stated that keeping in view the unauthorized absence of the petitioner, he is an absconder. It is further stated

that his service is no longer required by the department as he is not likely to prove to be a good police official. It is further stated in the impugned

order that the petitioner has already been awarded a censure and the punishment which had no affect on him.

A member of police force has to discharge his duties with utmost care and caution. The police service is discipline service and cannot be

equated with any other civil services. Much depends upon the dedication of police official, dedicated to his service in maintaining the law and order

particularly in the State like ours which was ushered into most abnormal circumstances in the year 1989/1998. In our state more dedication and

discipline is required to be exhibited by the members of the discipline force. There can't be any compromise with the security of the State.

Individual rights have to pave way to the rights of the society more so when it affects the security of the state itself.

The petitioner admittedly was on probation when he was discharged in terms of Rule 187 of J&K Police Manual. The competent authority

when he had found that because of his absence he could not likely to become good police official was within his powers to discharge him from

service.

In the present case, however, the competent authority out of sheer enthusiasm has initiated departmental enquiry against the petitioner. The

enquiry officer recommended that the period of absence should be treated as diesnon but the disciplinary authority did not agree with the said

recommendations and, accordingly, issued notice to petitioner informing him to explain as to why his probation shall not be discharged. In the

impugned order, the expression used by competent authority are that ""in view of his prolonged unauthorized absence he is declared absconder"". It

has been further stated that petitioner was awarded a censure for his unauthorized absence earlier as well. In the counter affidavit it has been stated

that the departmental enquiry was conducted.

In terms of the J&K Police Manual, the departmental enquiry is to be conducted under rule 359 which provides a complete mechanism and

procedure for conducting regular departmental enquiry. Admittedly there is violation of Rule 359 but then the regular departmental enquiry was not

to be conducted in such type of cases in all circumstances, as the petitioner was only on probation. The competent authority would have conducted

inhouse enquiry so to provide him a motive and not foundation for passing the discharge order.

The rights of the petitioner are guaranteed under Article 311 of the Constitution of India read with 126 of the Constitution of J&K. The

expression used in the impugned order on the face of it, are stigmatic and would disentitle the petitioner to seek an employment in future.

The ld. Counsel for the petitioner has referred to State of Haryana vs. Jagdesh Chander reported in 1995 (2) SCC 567 and 2009 SCC page

In both the judgments the Hon'ble Supreme Court in almost in identical circumstances has held that when the police officer/official is declared

to be habitual absentee the expression becomes stigmatic and the consequence of the order are penal. Such type of orders can be passed only

when regular departmental enquiry is conducted.

Mr. Gupta, ld. AAG for respondents tried to defend the impugned order by stating that it was only an inhouse enquiry which was conducted as

no departmental enquiry was required to be conducted in such type of cases because the petitioner was only on probation. But the learned counsel

in his fairness and in view of the expressions used in the impugned order, which the Hon'ble Supreme Court has held to be stigmatic admitted that

the impugned order is indefensible.

For the above stated reasons, this petition is allowed, impugned order No. 666 of 1994 dated 2nd of Nov. 1994 passed by respondent No.3

is quashed. Respondents are given liberty to pass orders either under Rule 187 of J&K Police Manual in case they so chooses or they may

conduct regular enquiry. It is further made clear that the petitioner is not entitled to any salary from the date he was discharge till passing of this

judgment.

Disposed of.