Suresh Kumar vs State of Jammu & Kashmir and Others

Hon'ble Per Justice Virender Singh, J.—Aggrieved of the order No. 1443 of 2000 dated 12.10.2000 passed by the Senior Superintendent

of Police, Jammu (respondent No. 4) whereby removing the appellant (for short writ petitioner) as Constable from the rolls of District Jammu, he

filed SWP No. 1594 of 2001 seeking quashment of the said order, which now stands dismissed by the learned Single Judge Vide judgement dated

7th of March, 2006. Hence the instant Letters Patent Appeal.

The writ petitioner was a probationer and discharged under Rule 137 of the Jammu and Kashmir Police Manual (hereinafter to be referred to as

'Police Rules') on the ground that after he was appointed as Constable in Police Department in 1999, he had to proceed for basic training course

along with other recruits, but he willfully absented himself from District Police Line, Jammu, as such, avoided the basic training course. Ultimately,

Superintendent of Police (respondent No. 4) passed the order of his removal from the rolls with effect from the date he absented himself

unauthorizedly i.e. 18-08-2000.

The main thrust of argument on behalf of the writ petitioner before the learned writ court was that absence being the ground of discharge,

necessarily required an enquiry under Rule 359 of the Police Rules and omission on the part of the respondents to hold an enquiry has rendered the

order of termination illegal. The learned Writ Court did not find force in the submissions and while referring to Rule 359(10) of the Police Rules

dismissed the writ petition, holding that the order was neither stigmatic nor punitive in nature and Rule 187 of Police Rules supports the action of

discharge. The learned Writ Court also relied upon the decision of Apex Court handed down in case State of Punjab & ors v. Sukhwinder Singh

reported as AIR 2005 SCW 3477.

Heard Mr. C.M. Gupta, learned counsel for the appellant and Mr. Gagan Basotra, learned Additional Advocate General, appearing for the

respondents. Perused the memo of appeal and the Writ Court record.

Assailing the impugned judgement, Mr. Gupta submits that the writ petitioner was always willing to join the basic training course along with other

selected recruits but due to certain unavoidable circumstances as he had suddenly fell ill, he could not make it. He then submits that all these facts in

detail were averred in the main writ petition by the writ petitioner and the respondents did not deny the pleadings made in this regard. Even the

documentary evidence in support of his case is neither challenged nor denied by the respondents in their objections. Learned Counsel goes on to

submit that without considering the aforesaid facts, the writ petitioner was treated as absent from duty and ultimately an order of removal under the

garb of Rule 187 of the Police Rules has been passed.

Mr. Gupta further submits that the order passed by the Senior Superintendent of Police, Jammu, on the face of it, is stigmatic in nature as the

writ petitioner has been declared as deserter, unreliable person and bad material, which is out of the scope of Rule 187 of Police Rules. On this

count also, the order of removal is bad.

Referring to the latest judgment handed down by Division Bench of this court in case Naseer Ahmad v. State & ors, LPA No. 86 of 2008

decided on 1st of April, 2011, Mr. Gupta submits that this court has even gone to the extent of observing that since the order under Rule 187 of

Police Rules is to be passed only when the competent authority comes to the conclusion that the official is not likely to prove a good police office,

such an order, by its very nature and basis, always be a stigmatic, therefore, in every case where power is exercised under this rule, enquiry is

required to be done before passing an order. According to the learned counsel, on the aforesaid rationale, the impugned judgment of learned

Single Judge is otherwise not sustainable.

On the strength of aforesaid submissions, Mr. Gupta prays for allowing of the instant appeal, in turn, allowing of the writ petition also.

Per contra, Mr. Basotra learned Additional Advocate General submits that it was a case of discharge simpliciter of a Constable under Rule 187

who was on probation and absented himself unauthorizedly from duty. The order is passed in terms of the Rule 359(10) of the Police Rules, where

employment of the probationer can be terminated during or ending of probation without holding an enquiry. He then submits that the order passed

by respondent No. 4 is not at all stigmatic in nature, as such, not open to judicial scrutiny and therefore, the learned Writ Court has rightly

observed that the order is neither punitive nor stigmatic.

In support of his submissions, Mr. Basotra relies upon another judgment of Apex Court in case, State of Punjab & ors v. Rajesh Kumar,

(2006) 12 SCC 418. Whether Order No. 1443/2000 dated 12.10.2000 passed by the Senior Superintendent of Police, Jammu (respondent No.

4) removing the writ petitioner from the rolls, is an order passed in terms of Rule 187 of Police Rules simpliciter or casts stigma on the career of the

constable, therefore, falls within the ambit of regular enquiry, is the sole issue before us. At the very outset, we have felt the necessity of

reproducing the order passed by respondent No. 4. It reads:

Copy of order No. 1443 of 2000 dated 12.10.2000 received from the office of SSP/Jammu vide his office endstt. No. 12110-14/DPO dated

17.10.2000, and copy to the all concerned for info and n/a reads as under:-

Recruit Constable Suresh Kumar No. 3304/J who was appointed as Constable in District Police Jammu, vide DPO Order No. 337 of 1999

dated 24.02.1999, on his selection by the Recruitment Board. The Recruit Constable deserted from District Police Line Jammu, when he was to

be deputed for basic training. The Constable after remaining unauthorizedly absent from DPL Jammu w.e.f. 18.08.2000 appeared before the

undersigned on 12.10.2000 in orderly Room with an application for permitting his to resume duties.

He was given personnel hearing to which he stated that due to his father's death on 23.01.2000, he had to perform some religious rituals. He was

asked about duration of the said ritual to which he replied that it was one day only. He has been asked as to why did he not report on 19th or 20th

Aug. 2000 and why has he come after one month and twenty four days, which is a long period. To this he had no satisfactory reply. It is a case of

bad material which has been recruited and the unsuitability has come to fore now when he deserted the force after learning about his being sent for

basic training. Therefore, acting in the best interest of the department and also in the larger interest of public for which this organization exists, we

cannot have such unreliable persons who would desert the force at critical end. Accordingly using my authority vested in me under rule 187 of

J&K Police Manual, I order the removal of the said Constable from the rolls of this District with effect from the date, he absented unauthorizedly

viz 18.08.2000. The post of Constable No. 3304/J is hereby declared vacant.

Rule 187 of Police Rules gives power to the Superintendent of Police to discharge a Constable from service, if he is satisfied that he

(constable) is unlikely to prove an inefficient police officer. Admittedly, removal of the writ petitioner from rolls is under this very rule only. Rule

187 has to be read along with Rule 359(10) of the Police Rules. Conjoint reading of these two rules make it very clear that if it is a case of

discharge simpliciter of the probationer constable, he can be discharged from service without any enquiry in terms of Rule 359(10) of the Police

Rules. But in a situation, where the order of discharge amounts to cast stigma to the Constable-probationer, such an order would get out of ambit

of Rule 359(10) of the Police Rules.

In case titled State of Haryana and another Vs. Jagdish Chander, , while dealing with a case of Constable, who was absent from duty for a

particular period and discharged by Superintendent of Police under Rule 12.21 of the Punjab Police Rules, which is pari materia to Rule 187 of

Police Rules wherein the Superintendent of Police without conducting a regular enquiry had observed that the constable was unlikely to prove an

inefficient police officer being habitual absentee, negligent to his duty and in disciplined, the Apex Court in para 3 of the judgment held thus:

It would thus be clear from the order of discharge that it is not an order of discharge simpliciter. On the other hand, the S.P. considered the

record and found him to be habitual absentee, negligent to his duty and in disciplined. The findings of habitual absence and indiscipline would be an

impediment for any of future employment elsewhere. Under those circumstances, the principles of natural justice do require that he should be given

an opportunity to explain the grounds on which the S.P. proposes to pass an order of discharge and then to consider the explanation submitted by

the Police Officer. Then the S.P. is competent to pass appropriate orders according to the rules. Since this part of the procedure had not been

adopted, the order of discharge is vitiated by manifest error of law.

In the aforesaid judgment, while dealing with the Rule 12.21 of the Punjab Police Rules, the Apex Court further observed that 'during the

expiry of three years from the date of enrollment of the police officer into the service, if the Superintendent of Police finds that he is unlikely to

prove an efficient police officer, exercising the power under the rule, he may discharge simpliciter the police officer from service, but recording the

finding that the officer is unlikely to prove an efficient police officer, there must be anterior record and the Superintendent of Police must objectively

consider that record and record the conclusion in that behalf. But if he records a finding, after considering the record, which would be a stigma on

the career of the discharged police officer, it is settled law that the principles of natural justice require that an opportunity be given to him before

recording finding adverse to the officer's conduct, which disentitles the officer for any future employment or would be a blot on his career'. The

ratio of Jagdish Chander's case (supra) has been reiterated by this Court in case Abdul Rehman Mir v. State reported as 1997 SLJ 350.

In Suriya Khan v. State of J&K reported as 2002 (1) SLJ 210 in which Rule 187 of the Police Rules came to be discussed vis a vis the scope

of Article 311 of the Constitution of India and Section 126 of the J&K Constitution, this Court held:

Rule 187 of the Police Manual provides that a constable who is found unlikely to prove an efficient police officer may be discharged by the

Superintendent at any time within three years of enrollment. Reading of the rule shows that during the period of probation of three years if on the

performance of the Constable, the Superintendent forms an opinion that he/she would not prove to be an efficient police officer, then he/she may

be discharged from service. The law in regard to probationer is well settled. The probationer has no right to the post held by him and under the

terms of his appointment, he is required to be discharged at any time during the period of his probation under the rules governing such cases.

Probationers are discharged generally because they are not found to be competent or suitable or the post they held. In other words, if the

temporary servant or a probationer is found to be satisfactory in his work, efficient or otherwise, eligible, it is unlikely that his service would be

terminated and so before discharging such employee the authority may have to examine the question about the suitability of the said servant to be

continued and take action bona fide in that behalf. The authority may also give employee to explain, if any complaints are made against him or his

competence or suitability is disputed on some grounds arising from the discharge of his work, then such an enquiry should be had only for the

purpose of deciding whether he should be continued or not, there is no element of punitive proceedings in such an enquiry and if the authority

comes to the conclusion that the incumbent is not suitable to be continued, it may simply pass the order of discharge by virtue of the powers

conferred upon it by the contract or by the relevant rules and it would not be open to the concerned employee to invoke Article 311 of the

Constitution of India or Section 126 of the Jammu and Kashmir Constitution, for the simple reason that the enquiry ultimately led to his discharge

was held only for the purpose of deciding whether the power should be exercised in terms of the rules. But if a probationer is discharged on the

ground of misconduct or inefficiency without a proper enquiry and without giving a reasonable opportunity of showing cause against the discharge

in a given case it may amount to removal from service within the meaning of Article 311 of the Constitution of India and Section 126 of the Jammu

& Kashmir Constitution.

In case Bashir Ahmed v. State of J&K & ors reported as 2005 (3) JKJ[HC] 1,67, 2005 (1) S.L.J. 375, the same view is reiterated holding

that no doubt under Rule 187 of the Police Rules, Superintendent of Police has got powers to discharge a probationer within three years of

enrollment, if he is of the view that such probationer is not likely to prove a good police official, but since the finding casts a stigma on the career of

the constable and there is likelihood that the ground for such discharge order may act as an impediment for any future employment, provisions of

Article 311 of the Constitution of India are attracted and therefore, the discharge order should not be passed without affording an opportunity to

the official of being heard.

Let us now advert to the order slapped upon the writ petitioner. In our view, calling the writ petitioner as bad material by itself makes the order

stigmatic in nature. Observing that the writ petitioner deserted the force is also stigmatic. Similarly, dubbing him as an unreliable person is again

stigmatic. This simply means that if this order is sustained as it is, it is likely to disentitle the writ petitioner for future employment. Such type of

orders are not warranted under Rule 187 of Police Rules. May be for his own satisfaction, the prescribed authority could enquire into the matter

on its own level by adopting any mode or even asking for any explanation from the probationer, but the final order of discharge has to be guarded

one and within the ambit of Rule 187 of Police Rules only. Every word has its importance and significance and giving any loose end to it would

have different complexion.

The word, 'found' used in Rule 187 of Police Rules is very categoric in terms. If a temporary person or a probationer is found to be

satisfactory in his work, it is unlikely that his services shall be terminated and therefore, before discharging such an employee, the prescribed

authority has to examine the suitability of such person for his continuation in the service. For this, the prescribed authority may hold such an

enquiry, but only for the purposes of deciding whether the probationer should be continued or not. Such type of proceedings cannot be said to be

punitive proceedings for the reason that if the prescribed authority ultimately comes to the conclusion that a person is not suitable to be continued,

an order of discharge simpliciter can be passed. Such type of an order cannot be subjected to judicial scrutiny. But by traveling beyond the

purview of Rule 187 of Police Rules, if the prescribed authority may be by holding preliminary enquiry, ultimately records a finding, which casts

stigma upon the police official, in that eventuality, the said order would not be petitioner as bad material, deserter and person and such an order, in

our considered an order of discharge simpliciter. In the case at hand, the prescribed authority has gone too ahead in declaring the writ petitioner as

bad material, deserter and unreliable person and such an order, in our considered view, cannot be clothed within Rule 187 of Police Rules, as

such, deserves to be set aside.

We are considering the order slapped upon the writ petitioner as unsustainable, yet from another angle. As we have already observed that

every word of the order assumes importance. In the concluding para of the order, respondent No. 4 observed thus:

Accordingly using my authority vested in me under Rule 187 of J&K Police Manual, I order the removal of the said constable from the rolls of this

District with effect from the date, he absented unauthorizedly viz. 18-08-2000.

The post of Constable No. 3304/J is hereby declared vacant.

Under Rule 187 of Police Rules, a police official, who is on probation, can be only discharged from service, if he is found unlikely to prove an

efficient police officer. This rule does not empower the prescribed authority to remove the said police official from service. It is altogether different

punishment. Removal from service is prescribed in Rule 334(2) of Police Rules dealing with the departmental punishments. 'Dismissal' and

'Removal' are two departmental punishments prescribed under this rule. 'Dismissal' creates a bar for re-employment in Government service,

whereas 'Removal' does not create a bar to re-employment in Government Service or any other department. For imposing the punishment of

removal from service, there is a prescribed procedure to be adopted as contained in Rule 359 of Police Rules. Only one exception is carved out in

Rule 359(10) of Police Rules, which deals with a case of probationer where the services of probationer have to be terminated during or at the end

of the period of probation. Therefore, before passing an order of removal, the prescribed authority is supposed to resort to all the prescribed

formalities as contained in Rule 359 of Police Rules and if the same are not complied with, the order of removal cannot just stand. In the case at

hand, if the prescribed authority in its wisdom had thought of removing the writ petitioner, it should have gone for a full fledged enquiry as

contained in Rule 359 of Police Rules. In that eventuality, the order now slapped upon the writ petitioner of removal from service could not be

passed under Rule 187 of Police Rules. It appears that the order impugned has been passed by the prescribed authority in a most casual manner

with a closed mind showing scant regards to the rules. We do not appreciate the approach adopted in this case. On this ground also, in our

considered view, the order of removal of the writ petitioner cannot stand the test of judicial scrutiny.

In the present set of circumstances of this individual case, as noted hereinabove, the judgment of the Hon'ble Supreme Court in Sukhwinder

Singh's case (supra) and relied upon by the learned Writ Court will not be applicable to the facts of the present case. Similarly, another decision of

Hon'ble Apex Court in Rajesh Kumar's case (supra) and relied upon by Mr. Basotra, learned State Counsel, is also distinguishable on facts. In this

case, their Lordships while considering the case of a Constable, who was discharged from service under Punjab Police Rules, R. 12.21, held that

'the order of discharge of a constable on probation because of his unauthorized absence from duty is not based on misconduct as it was a simple

order of termination and, therefore, departmental enquiry is not required'. In Rajesh Kumar's case (supra), Senior Superintendent of Police has

found the constable unlikely to prove an efficient police officer as per high standard of discipline as being expected from police personnel on

account of he being an unauthorized absentee and passed the order of discharge under Rule 12.21 of Punjab Police Rules. The said order was

quashed by the High Court observing that it is punitive in nature and, therefore, enquiry was necessary. The Hon'ble Supreme Court ultimately set

aside the said order of the High Court, observing that departmental enquiry was not required. In the case at hand, the fact situation is different. The

writ petitioner has been dubbed as bad material and deserter. As already observed by us, this is stigmatic in nature and, therefore, the order

slapped upon the writ petitioner does not fall within the ambit of Rule 187 of Police Rules.

Although we are quashing the order passed by Senior Superintendent of Police (respondent No. 4) removing the writ petitioner from the rolls

of Police Constable finding certain inherent weaknesses in it as discussed hereinabove, yet we would like to bring on record that the writ petitioner

at least cannot derive any benefit from the observation made by the Coordinate Division Bench of this court in Naseer Ahmad's case (supra)

wherein it is said that in every case where power is to be exercised under Rule 187 of Police Rules, enquiry is required to be done before passing

the order. As we understand, those observations are made in the context of that very case only on its individual facts, wherein also, the order of

discharge was ultimately quashed holding it to be stigmatic in nature.

In the aforesaid case, the police constable while undergoing training had unanthorizedly absented himself from the training centre, resultantly,

removed from service. He filed statutory appeal against the order of removal, which was considered by Dy. Inspector General of Police, who also

dismissed the same by passing a separate order. In the said order, Dy. Inspector General of Police returned a finding that the police constable had

adopted the way of unauthorized absence, which tantamount to gross negligence and carelessness. The Division Bench observed that the basic

order had merged in the order of Dy. Inspector General of Police and the latter order passed showing the removal on the ground of gross

negligence and carelessness was stigmatic in nature. In that backdrop of the facts, the Division Bench ultimately went to observe that Rule 187 of

Police Rules does not give an arbitrary power to the appointing authority to remove any employee of the police without observing the principles of

natural justice, as such, enquiry is required. The purport of the observation made by the Division Bench in Naseer Ahmad's case (supra) was not

with regard to each and every case falling under Rule 187 of Police Rules.

As a sequel to the aforesaid discussion, the net result is that the impugned judgment of learned Writ Court dismissing the writ petition, thereby

confirming the order of removal of the writ petitioner dated 12-10-2000 from the rolls of the Police passed by Senior Superintendent of Police,

Jammu deserves to be set aside. The instant Letters Patent Appeal is, thus, allowed, in turn, writ petition bearing SWP No. 1594 of 2001 stands

allowed and the order No. 1443 of 2000 passed by respondent No. 4 (Senior Superintendent of Police, Jammu) is hereby quashed.

If advised, the respondents shall be at liberty to proceed against the writ petitioner in accordance with the rules governing the field.

No order as to costs.