HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. SWP No. 1823 OF 2001 Abdul Rehman Petitioners State & Ors Respondent !Mr. Rahul Pant, Advocate ^Mr. V.K. Chopra, AAG MR. JUSTICE SUNIL HALI, JUDGE Date: 06/02/2009 :J U D G M E N T :
The petitioner’s unauthorized absence resulted in his discharge from the service
on 1-12-2000. He was admittedly on probation as Special Police Officer (SPO) in
the Jammu & Kashmir Police. The respondents invoked Rule 187 of the Police Rules
and discharged him from the service as being a probationer. The only question to
be determined in this petition is whether the order is discharge simplicitor or
punitive.
The perusal of the impugned order reveals that after recording the
circumstances and facts of the case the order passed by the Senior
Superintendent of Police for discharging the petitioner reveals as under:
Keeping in view the above, it is clear that the said constable is not
interested to serve in the Police Department, Retention of such absentee type
official in the Department is a burden and can create bad effect on the other
officials of the force. His unauthorized absence is against the Police rules and
tantamounts to gave misconduct, indiscipline and highly objectionable.
Keeping in view the above facts and circumstances, I Satvir Gupta IPS,
Sr. Supdt. of police District Udhampur, by virtue of powers in me under Rules
187 of J&K Police Manual 1960, discharge Constable Ab. Rehman No. 1636/U from
service with immediate effect. His period of unauthorized absence with effect
from 24.7.2000 to date is hereby treated as Dies-non on the basis of no work no
wages.
Scanning through the contents of the order, it is visible that
petitioner’s unauthorized absence is taken as the basis to determine the
likelihood or unlikelihood of the police official to become good official or a
bad official. Once foundation is the unauthorized absence of which the conduct
of the petitioner is being judged to be a good or bad police official, it could
not be said that the order is a discharge simplicitor. The order of discharge
has cast stigma on the petitioner as he is likely not to get any future job on
the basis of the stigma that has been cast on him by the order impugned. The
respondents could have very safely passed the order of discharge simplicitor by
stating that being unauthorized absence is required to be discharged by invoking
Rule 187 of the Police Rules. This has not been done in the present case.
The petitioner has placed reliance upon the judgment titled State of
Haryana and another Vs. Jagdish Chander reported in (1995) 2 SCC 567.
The findings of habitual absence and indiscipline necessarily cast a
stigma on his career and they would be an impediment for any 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 SP proposes to pass an order of discharge and than to consider the
explanation submitted by the police officer. Then the SP 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.
This being the position, the petitioner could not have been discharged
without holding proper inquiry. The petitioner is required to be heard in the
matter before any order of termination is passed.
I, therefore, set aside the order of removal from the service of the
petitioner and direct the respondents to conduct afresh inquiry against the
petitioner within a period of four months from the date a copy of this order is
received by the respondents. The entitlement of the service benefits shall be
decided after the conclusion of the inquiry.
Disposed of alongwith connected CMP(s) if any.
Jammu
(SUNIL HALI)
6-2-2009
Judge
Ajit