JKLR-Part(IV)                                         LPA 136/1999 232/1997                             Back To Index

(2001) 1 J & K LAW REPORTER 467
High Court of Jammu and Kashmir
at Srinagar
Before
Hon’ble Mr. Justice G.D. Sharma, Judge
Hon’ble Mr. Justice Syed Bashir-Ud-Din, Judge

Mst. SUNDRI                                                                                                               Appellant
                                                                               versus
STATE OF J & K AND ORS.                                                                                     Respondents

LPA Nos. 136 / 1999 and  232 / 1997, decided on  1.9.2000.

            J&K Police Rules, 1960, Rule 359 (10) - Probationer - Unauthorised absence - Discharged - Mention of Rule 187 of Police Rules and Art. 128 of J&K CSR in order -Whether contemlates enquiry - Held : No - R. 359 (10) carves out an exception while dealing with probationer - Bars the mandate of holding enquiry.  

            Examination of Rule 187 and Sub-Rule (10) of Rule 359, (supra) reveals   that  a constable who is found unlikely to prove an efficient police officer can be discharged within three years of enrolment. Here the word “found” used in the rule has been interpreted by the learned Single Judge in 1997 SLJ 350 (supra) in the context that the Superintendent of Police  should give an opportunity to the delinquent constable of being heard. Rule 359 lays down the procedure for conducting the enquires. It, therefore, follows that while holding enquiry under Rule 187, Rule 359 has to be followed so far procedural matters such as recording of evidence is concerned.  Sub-Rule (10) of Rule 359 carves out an exception while dealing with the case  of probationer. Sub-Rule (10) in unambiguous terms states that Rule 359 has no application where the service of a probationer is terminated whether during or at   the end of the period of probation. This exclusionary Sub-Rule bars the mandate for holding an inquiry as required by Rule 187. This is so as successful completion of  probation period is condition precedent for confirmation. The very object of putting a recruit constable on probation is to test the suitability of such incumbent and  if  the  appointing  authority finds that the candidate is not suitable, it certainly has the power to terminate the services of probationer. In the instance cases the unauthorised  absence from duty is seen as motive to pass the impugned orders though   the foundation is un-suitability. These are not the bases of discharge of in-efficient constables because that is not the foundation of the orders. A mention made by respondent No. 4 in impugned order No.  954 / 90 that it is  passed under Rule 187 and Article 128 C.S.R. will not render Sub-Rule (10) of Rule 359 (Supra) as  redundant. It is an exceptional provision incorporated in Rule 359 to deal with  probationers and requires to be mandatorily observed. In other words, it is the only  rule under which the petitioner suitability is to be determined. In the facts and circumstances Rule 187 of the J&K Police Rules is not relevant and applicable to this case.                                                                                                                      [ Para 16]

            Probationers - Unauthorised absence for long period of 9 months - Discharged - Mention of unauthorised absence in order - Whether stigmatic - Held : Order is a simple order of discharge and not stigmatic, though inducement behind was unauthorised absence but foundation is unsuitability.

            A trainee who unauthorisedly absents from the training course and remains untraced for more than nine months cannot claim to be a suitable constable for the police force where discipline is a pre-requisite. In case he could not undergo the training, who can he be set to be suitable candidate to serve in the police force where physically fitness is in demand for discharge of the duties. The order(s) in question cannot be termed as stigmatic. The element of stigmatic nature has by now lost its relevancy as appellant has died during the pendency of appeal and claim of re-employment is beyond reach. The other argument advanced by Mr. Shaheen that appellants should have been deemed confirmed is neither factually nor legally correct. This plea is not covered by the pleadings and has not been raised before the learned single bench. We have not been shown any rule incorporated in the J&K Police Rules which provides for deemed confirmation. The argument as such does not hold good.                                                      [Para 19]

Advocates who appeared in this case :
Mr. J.Iqbal, Advocate for the appellant
Sr. Additional Advocate General Mr. M.I. Qadiri for the respondents

Cases referred : Chronological
1.         Kumar Arun Kumar v. U.P. Hill Electronics Corpn. (1997) 1 SLR 136
2.          Abdul Rehman Mir v. State (1997) SLJ 350
3.         GangaNagar Zilla Dugdh Utpadak Sahkari Sangh Ltd. v. Priyanka Joshi AIR 1999 SC 2363
4.          V.P. Ahuja v. State of Punjab AIR 2000 SC 1080

JUDGMENT AND ORDER

Per G.D. Sharma, Judge

            This appeal  (LPA  No. 136 / 1998) is directed against the judgement dated    29.04.1998 passed by the Ld. Single Judge whereby he dismissed writ petition (SWP No. 1054 / 95). The appellant was a recruit constable serving in J&K Armed  Police.     He was sent to undergo RTC course at Kathua. On 3.12.1989, he unauthorisedly absented from the training centre which   led  to his discharge from service vide  order dated 13.9.1990. The order was challenged in writ petition on the ground  that it was not an order of discharge simpliciter but one of   punishment,  which  could be done after holding regular enquiry in which appellant was to  be  given  opportunity  of being heard. The plea found no favour with the learned Judge who held that impugned discharge order did not  cast  any  stigma  and  the  appellant  was eligible to get employment in any other government department.

            The impugned judgement is challenged on following grounds :

i)         The appellant did  not wilfully absent himself. He had proceeded on four days leave and was due to join on 3.12.1989, but   ill  health  prevented him from   doing  so. He applied for the extention of leave telegraphically which evoked no response.  These telegrams were treated as representations as after his discharge; the S.H.O. Police Station Baramulla informed  him  that his representations for reinstatement had been rejected. He never made any representation but telegrams sent by him were meant for extention of leave.

ii)        The basis of the impugned order was unauthorised absence from duty. The appellant was not afforded any opportunity to rebut this allegation. The removal from service for such misconduct without hearing the delinquent, runs contrary to the relevant rules of service and is bad in the eye of law.

iii)       The  appellant had proceeded on leave and it was not a case of wilful absence from duty. After the  expiry of the leave he had been sending telegrams but they  were not considered by the respondents. The Ld. Single Judge also did not take into account those telegrams.

iv)       The order of discharge has been passed under Rule 187 of the Police Rules read with Article 128 of J&K C.S.R. The order in question was an order of  discharge  passed  without  affording  an opportunity to the appellant of being heard and thus a stigma was cast on his career which debarred him further employment.

v)        Rule 187 of the J&K Police Rule deals with a police constable’s discharge on the basis of in-efficiencies. It postulates that in case a Constable is found unlikely to prove an efficient police officer he may be discharged by the Superintendent of Police at any time within three years of enrolment. The word “found” used in the rule contemplates holding an enquiry which has not been held in the instant case.  Absence from duty was not a sufficient ground for discharging the appellant from service as that could be explained. The law laid down in the case of Abdul Rehman Mir v. State (SLJ1997 350) was not followed.

            During the  pendency  of  the  appeal,  the  appellant  died  and  is represented by his  LRs  namely,  Mst. Sunderi   (wife), Mst.  Nusrat, Mst.Azrat (daughters) and Mohd.  Sadiq (Son).

            LPA No.  232/97

            Through the medium of this LPA, judgement dated 4.7.1999 passed by the Ld. Single Judge in SWP No. 1018 / 89 has been challenged. The appellant had  remained unauthorisedly absent for thirty days while undergoing training in S.K. Police Training College, Udhampur. Vide order No. 336 / 89 dated 15.6.89, he was  discharged from service. The Ld. Judge has held that the appellant abandoned his  duty without obtaining any permission or authorisation from the concerned authority.  He was probationer constable and could be  ousted  from  service  without  holding  any enquiry. The order of discharge is not stigmatic.

            The order has been challenged on the following grounds :

i)         The appellant on directions of  his  superiors joined the Police Training College,  Udhampur on 7.9.1988 and had undergone all types of trainings till 26.5.1989. The  Director / Principal of the Police Training College, Udhampur on 26.5.1989 passed order No. 314 / 89 dated 26.5.89 which had the effect of cancelling the admission of the appellant along with other twenty one absentees. All the aggrieved trainees challenged the said order by filing writ petition (SWP No. 1018 / 89) which was accompanied by (CMP No. 2604 / 89). On 10.6.1989 the court stayed the operation of the impugned  order unless already  not   implemented. The appellant could not join the training course  in Police  Training  College,  Udahmpur  because    respondent   No.3 (Superintendent of  Police Anantnag) vide order No. 336 / 89 dated 15.6.89 had discharged him from service.

            Order No.  336 / 89 dated 15.6.1989 was  challenged  by  filing  writ petition (SWP  No.1018 / 89)  which  was  dismissed by the Ld. Single Judge on 4.7.1997.  Order  No. 314 of 1989 dated 26.5.1989 passed by the Director / Principal Police  Training  College  Udhampur  which  was the sheetanchor for passing the impugned order is stated as stigmatic. In  terms  of this order, the appellant along with other trainees were reverted to their parent districts by stating that  their retention in the  police  training course would have adversely effected the discipline of training of the other trainees because they had remained absent for more than thirty days.

            The impugned order is stated arbitrary in nature  as  passed  without giving any opportunity to the appellant of being heard. It suffers from illegality as reliance was placed on Sub-Rule (10) of Rule 359 of the   Police Rules to justify the order of discharge.

            Identical  questions  of  fact  and  law  are  involved in this case,therefore, to be decided by the common judgement.

            Heard the argument.

            Mr.  J.  Iqbal learned  counsel  (in  LPA  No.136  of  1998)  submits that  the impugned order is passed by respondent No.4 under Article128 of J&K C.S.R.  and Rule 187 of J&K Police Rules.  Article 128 of the  J&K C.S.R. deals with  absence  without  leave or absence at the end of leave. Such an absence involves loss of appointment except as  provided  in  Article 203  (b) or when such absence is due to ill-health in which case the absentee must produce the certificate of Medical Officer.  Rule 187 of Police Rules deals with discharge of inefficient constables and 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 enrolment.  The counsel contends that in the case of Abdul Rehman Mir v. State  (1997  SLJ 350)  it   is  held  by  the learned Single Judge that when probationer Police officer remains absent from duty, his discharge from  service  ordered  under Rule 187 on the ground that he is unlikely to become good police officer is an order of punishment as the same attached stigma. In such a  case  inquiry is required to be conducted otherwise order is likely to be quashed.

            The arguments  have  been  rebutted by Mr.   Qadiri by arguing that no inquiry was required as the appellant was a probationer and undergoing probation period.     Procedure for holding departmental enquiry has been laid down in Rule 359 of the Police Rules where regular procedure is prescribed as to how the enquiries are to be held against the guilty police personnel.  Sub Rule (10) of this Rule makes deviation by  prescribing  that no enquiry is required where it is proposed to terminate the employment of a probationer whether during or at the end of  the  period  of  probation.    Rule 187 is attracted where discharge is contemplated against inefficient Police Constables. Article 128 of the C.S.R.  has no application because J&K Police Rules are special Rules and a specific provision for the discharge of a probationer has been provided in the Rules. Respondent No. 4 wrongly quoted Article 128 of C.S.R.   in the impugned order, but that makes no difference after all its substance has to be looked into and not its form. The impugned order is a simple order of discharge and  it  is  not  stigmatic  though  the inducement for   passing it emanated from unauthorised absence. The appellant who could not undergo training was found not a suitable  constable to be retained in the Police force. Respondent No. 4 was not under any legal obligation to hear the appellant on his absence.

            The counsel  appearing  for  appellant  (in  LPA  No.    232 / 97)  has contended that   Annexure  P-2  (order  No.  314 of 1989 dated 26.5.89) is the basis  for  passing  the  impugned order and it is stigmatic because Director / Principal   Police  Training  Course Udhampur had stated in the order that appellant alongwith other 21 trainees had remained on unauthorised absence for more than 30 days  during the 3rd training period in police training course and their conduct was going  to adversely effect the discipline of the other trainees. The appellant had remained absent due to the reasons beyond his control and before passing the impugned order  it was required that he should have been given an opportunity of being heard. He has adopted the other arguments advanced by Mr. J. Iqbal in LPA No. 136 / 98.

            It will be advantageous to reproduce the impugned orders. Order No. 954 of 1990 dated 13.9.90 runs as under:

  “            (Discharge)

              Order No. 954 of 1990

              Dated:  13-09-1990

  The following recruit constables who  were  undergoing  Basic RTC at Kathua   have absented unauthorisedly from the training centre on the dates shown against each. On account of their long unauthorised absence from training centre, the incharge of APTC Kathua has struck off these recruit constables from training centre vide his order No. 83 dated 22.2.1990 and 697 dated 12.12.1989, but till date they have not reported at Bn. Hqrs. for rejoining their duties. It clearly indicates that they are not willing to serve the police department.

  Now it is necessary to take action against the recruit constables. Under rule 128 of J&K CSR and 187 of J&K police Manuual Powers vested to the undersigned.  it is hereby ordered that the recruit constables mentioned below are discharged  from the rolls of this Bn. w.e.f. the dates they absented themselves unauthorisedly.

1.             R.Ct.                 Ab. Hamid No. 48                        8.11.1989

2.             R.Ct.                 Ab. Rashid 608              16.11.1989

3.             R.Ct.                 Gh. Mohi-ud-din 684      17.11.1989

4.             R.Ct.                 Mohd. Sadiq 532                        10.10.1989

5.             R.Ct.                 Mohd. Irshad 678                       28.12.1989

6.             R.Ct.                 Showkat Ahmad 825       4.12.1989

7.             R.Ct.                 Bashir Ahmad Sofi 830    3.12.1989

  Quartermaster will act under rule 120 of J&K Police Mannual 1960.

                                                                                  Sd/

                                                                          Commandant,

                                                              JKAP, III Bn.  Anantnag

  Estt / III / 90 / 29929 - 41

  Dated 13.9.90

Copy to the:

  1.          IG (AP) J&K Sgr. for favour of inf.

  2.          DIG (AP) J&K Sgr. (Kmr. range) for favour of inf.

  3.          Commandant JKAP 13th Bn. for inf.

  4.          CCF Coy/QM for inf. and n/a.

  5.          Actt;/LO/CRC/QBN. for inf. & n/a.

  6.          All concerned P-file of the above named Ct. for records.

                                                                                 Sd/-

                                                                          Commandant”

            The order of termination of the appellant of appeal No. 232 / 97 is reproduced hereunder :

“                          District Police Office Anantnag

Order No. 336/89

Date:15.6.89

  Const. Mohd. Shafi 704/A who was appointed on probation for a period of 3 years vide order No. 748/87 dated 9.11.1987 is hereby discharged from service with immediate affect.

No.  Estt.

Dt:  15.6.89                                                                                           Sd/-

                                                                  Superintendent of Police

                                                                              Anantnag.”

            It is an admitted fact that appellants were probationers at the time when the impugned orders were passed. They have been discharged from service because of unauthorised absence from duty. Impugned order No. 954 / 90 dated 13.9.90 recites that appellant Bashir Ahamd Sofi alongwith other named trainees absented unauthorisedly from training centre, Kathua and their names were struck-off vide order No. 697 dated 12.12.1989 and order No. 83 dated 22.2.90. All of them did not rejoin their duties at Battalion headquarter till the impugned order was passed. At any rate they remained absent for more than 7 months. The motive for passing the order is unauthorised absence. Impugned order No. 336 / 89 dated 15.6.89 does not disclose the motive and is an order of simple discharge. In order to find out the  motive, the veil has to be lifted. By doing so it is revealed that his unauthorised absence alongwith other trainees from police training centre, Kathua  induced respondent No. 4 to pass the impugned order.

            Now, the question which falls for consideration and determination is whether the impugned orders are stigmatic or not. The basis for passing these orders is   unauthorised absence from duty. Here it is relevant to determine under what provision of law they have been discharged. While passing impugned order No. 954 / 90 dated 13.9.90 respondent No. 4 has referred to rule 187 (of J&K Police Rules) and Article 128 (of the J&K Civil Service Regulation (volume I). Rule 187 (supra) deals with discharge of inefficients. The rule runs as under :

“187 Discharge of Inefficients:-

  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 enrolment.”

Article 128 of C.S.R. so far it is relevant for our present purposes is reproduced as:

“Absence without leave or after the end of  leave  involves loss of appointment,  except as provided in Article 203 (b) or when due to ill-health in which case the absentee must produce the certificate of Medical officer.

              Exception 1  ...

              Exception 2  ...

              Exception 3  ...”

            Rule 359 (J&K Police Manual Vol. 2) lays down the procedure   for departmental enquiries. The competency of the Police officers and procedure to be followed in holding the inquiries against accused police officers is laid down. Sub- Rule (10) of this rule is an exception and states,

“This rule shall also not apply where it is proposed to terminate the employment of a probationer whether during or at the end of the period of probation.”

            Examination of Rule 187 and Sub-Rule (10) of Rule 359, (supra) reveals   that  a constable who is found unlikely to prove an efficient police officer can be discharged within three years of enrolment. Here the word “found” used in the rule has been interpreted by the learned Single Judge in 1997 SLJ 350 (supra) in the context that the Superintendent of Police  should give an opportunity to the delinquent constable of being heard. Rule 359 lays down the procedure for conducting the enquires. It, therefore, follows that while holding enquiry under Rule 187, Rule 359 has to be followed so far procedural matters such as recording of evidence is concerned.  Sub-Rule (10) of Rule 359 carves out an exception while dealing with the case  of probationer. Sub-Rule (10) in unambiguous terms states that Rule 359 has no application where the service of a probationer is terminated whether during or at  the end of the period of probation. This exclusionary Sub-Rule bars the mandate for holding an inquiry as required by Rule 187. This is so as successful completion of  probation period is condition precedent for confirmation. The very object of putting a recruit constable on probation is to test the suitability of such incumbent and  if  the  appointing  authority finds that the candidate is not suitable, it certainly has the power to terminate the services of probationer. In the instance cases the unauthorised  absence from duty is seen as motive to pass the impugned orders though  the foundation is un-suitability. These are not the bases of discharge of in-efficient constables because that is not the foundation of the orders. A mention made by respondent No. 4 in impugned order No.  954 / 90 that it is  passed under Rule 187 and Article 128 C.S.R. will not render Sub-Rule (10) of Rule 359 (Supra) as  redundant. It is an exceptional provision incorporated in Rule 359 to deal with  probationers and requires to be mandatorily observed. In other words, it is the only  rule under which the petitioner suitability is to be determined. In the facts and circumstances Rule 187 of the J&K Police Rules is not relevant and applicable to this case.

            The other argument advanced by the counsel for the appellants is that impugned order are stigmatic because discharge orders in question were passed on the basis of unauthorised absence, when they were undergoing training in respective training   centres. They cannot get future employment and as such orders are punitive. In support of this contention they cited the case of V. P. Ahuja v. State of Punjab (AIR 2000 SC 1080). In this case the Apex Court has held that a probationer or a temporary servant is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can their services be terminated in a punitive manner without complying with the principles of natural justice. In that case the termination order was found based on the assumption that the probationer had failed in the performance of his duties administratively and technically. Such an order ex-facie was found stigmatic which could not have been passed without holding a  regular enquiry and giving an opportunity of hearing to the petitioner. The plea that probationer cannot claim any right on post as his services could be terminated at any time during the period of probation without any notice, as set out in the appointment letter, was not countennaced by the Hon’ble Court.

            Mr. Qadiri in rebuttal has contended that impugned order No. 336 / 89 dated 15.6.89 is an order of discharge simpliciter as it does not stipulate that on account of unauthorised absence the order has been passed. The mention in impugned order (No. 954/90 dated 13.9.90) that because of unauthorised absence the order has been passed, does not make it stigmatic. In support of this contention he cites the case of Ganganagar Zilla Dugdh Utpadak Sahkari Sangh Ltd. v. Priyanka Joshi (AIR 1999 SC 2363). In this case the services of an employee who was an Assistant Manager were terminated on ground of absence from duty. Order of  termination was only of one sentence and real word used therin was ‘Barkhast’ i.e.  dismissed. The order was found innocuous and not accepted as by way of punishment. The following observations of the Apex Court recorded in para No. 5 of  the judgment  are for benefit so reproduced hereunder :

  “In our opinion, the Division Bench of the High Court was not correct in the  conclusion which it arrived at. It is not in dispute that when the order dated 30th November, 1994 was passed, the respondent was still on probation. The  reason  for  passing  of  the said order appears to be the absence of the respondent from duty. In the order of appointment, it was clearly stipulated that the respondent’s services could be terminated during the probationary period if the services were unsatisfactory.  when judging the performance of a person if the services are terminated during the period of probation, obviously there has to be a reason for such termination. If the services  are terminated during the probationary period without any reason whatsoever, it is possible that such an order may be impugned on the ground that it has been passed arbitrarily. On the other hand, when there is a reason for terminating the services during the probationary period and the order terminating service is worded in an innocuous manner, we do not see any force in the contention that such an order has to be regarded as by way of punishment.”

            In case of Kumar Arun Kumar v. U. P. Hill Electronics Corp. (1997) 1 SLR 136, cited at bar the service of writ petitioner was terminated on the basis of unsatisfactory performance and regular absence on one ground or the other. The Hon’ble Court held that the competent authority was within its powers to look into the performance and work of the probationer during the probation period. In case the performance of the work and duties during the probation period has been   unsatisfactory, the competent authority   is within its rights to terminate the services  of the probationer without holding an enquiry. Contextually the order of termination passed in the case read as under :

“During the period of probation your work performance was found unsatisfactory. Therefore, your services are hereby terminated with effect from 16 Jan. 1991 as per clause (2) of your appointment letter referred to above.”

The letter of appointment inter-alia provided

“During the period of probation, your services may be terminated without assigning any reason therefor.”

            We considered the respective submissions made at bar and gone through the law which has been cited in the above noted cases. In V. P. Ahuja’s case (supra) the termination order of the probationer had been found stigmatic because it stated that the probationer had failed in the performance of his duties administeratively and technically.  In Ganganagar Zilla Dugdh Upadak Sahkari Sangh Ltd. v.  Priyanka Joshi case (supra) the reason for passing the impugned order appeared absence of the respondent from duty. In the order of appointment it was stipulated that services could be terminated during the probationary period if the services  were unsatisfactory. He remained on unauthorised absence from 25th Oct. 1994 to 30.11.1994. The word used in the order of termination was “Barkhast” i.e. dismissed.    The Hon’ble Supreme Court held that it was not stigmatic.

            Applying the ratio decidendi of the above cited cases to the facts of the cases  under appeals (LPA Nos. 136 / 98 & 232 / 97), we find that holding of inquiry was not required as precursor / pre-condition for passing the impugned orders. Sub-   Rule (10) of Rule 359 of J&K Police Rules specifically debars the holding of inquiry in case of probationer during the period or at the end of the period of probation.    The foundation of both the orders is unauthorised absence during training periods.  Rule 187 of the Police Rules has no application in such like cases. Impugned order No. 336 of 1989 dated 15.6.89 is a simple order of discharge. Impugned order No. 954 of 1990 dated 13.9.90 incorporates the reason of unauthorised absence. He absented himself from December 3, 1989 till 13.9.90 when the impugned order was passed. This long absence for more than nine months speaks for itself qua  unsatisfactory conduct of the writ petitioner / probationer. A trainee who unauthorisedly absents from the training course and remains untraced for more  than nine months cannot claim to be a suitable constable for the police force where discipline is a prerequisite. In case he could not undergo the training, how can he be said to be suitable candidate to serve in the  police force where physical fitness is in demand for discharge of the duties. The order(s) in question cannot be termed as stigmatic. The element of stigmatic nature has by now lost its  relevancy as applellant has died during the pendency of appeal and claim of re-employment is beyound   reach. The other argument advanced by Mr. Shaheen that appellants should have been deemed confirmed is neither factually nor legally correct. This plea is not covered by the pleadings and has not been raised before the learned Single Bench.   We  havenot  been  shown any rule incorporated in the J&K Police Rules which provides for ‘deemed confirmation.’ The argument as such does not hold good.

            In the result, in view of the facts and  circumstances  and  for  thereasons given   herein  before the appeals are dismissed as without merit.  Noorder as to costs.