J&K Police Manual Allows Discharge Of Probationer Without Assigning Reasons But No Stigmatic Citations Without Enquiry: High Court

The observation was made by a bench comprising Chief Justice Kotiswar Singh and Justice Wasim Sadiq Nargal while hearing a plea in terms of which the the petitioner had assailed a Judgment passed by the Central Administrative Tribunal (CAT), Jammu, by virtue of which, the plea filed by the petitioner against the order of discharge had been dismissed.

In the instant matter the petitioner, a constable in Jammu and Kashmir Armed Police fell ill while on duty in May 1994 and took leave for medical treatment. He resumed duty in July but was later subjected to a departmental inquiry without being served a charge sheet or given a chance to be heard, allegedly in violation of Rule 359 of J&K Police Rules. The inquiry officer was informed of the petitioner's absence due to illness but still recommended the petitioner's discharge from service.

The petitioner fell ill again and sought permission to take leave, which was granted. However, he later found out that he had been discharged from service in his absence. The petitioner challenged this order in a writ petition, which was allowed by the court. The impugned order was quashed and the respondents were given the option to either pass an order under Rule 187 of J&K Police Manual or conduct a regular enquiry.

After the court's judgment on May 22, 2009, the respondents examined the matter on their own but did not involve the petitioner in the enquiry. The respondents passed another order on October 31, 2009, discharging the petitioner from service with effect from September 7, 1994, on the ground that he had not proven to be a good police officer during his probation period.

Feeling aggrieved by the order the petitioner approached the court through the medium of the writ petition, which was transferred to CAT post Abrogation of Article 370. However, the CAT didn't find any merit and dismissed the same.

The petitioner challenged the judgment of the Central Administrative Tribunal (CAT) on the grounds that the discharge order passed by the respondents attached a stigma to his name, making it penal in nature. The petitioner argued that such an order cannot be passed without conducting an enquiry under the provisions of the law and affording him an opportunity to be heard.

No reasonable opportunity has been given to him before passing the order impugned nor stigma attaching to the aforesaid order has been enquired into by the respondents, therefore, the order impugned cannot sustain the test of law and is liable to be quashed, it was argued.

After considering the contentions, the bench observed that the order impugned is not a simpliciter, but punitive in nature, wherein the respondents have specifically mentioned the reasons for such discharge by attaching stigma that the petitioner had not proved to be good police officer. The language and the expression used in the order of discharge is stigmatic in nature and the petitioner has been categorized as a bad police officer, which renders the impugned discharge order bad in the eyes of law, the bench pointed.

Such type of order can be passed only, when regular departmental enquiry is conducted, but, in the present case, no enquiry was conducted and in absence of departmental enquiry being conducted in such type of cases, the petitioner cannot be thrown out by way of a stigmatic order, Justice Nargal writing for the bench maintained.

Deliberating on the Rule 187 of the Jammu and Kashmir Police Manual in terms of which the petitioner had been discharged from his services, the bench explained a person can be discharged under Rule 187 by way of discharge simplicitor though the motive may be because of omission and commission on the part of the incumbent.

"However, it is not necessary to mention those omissions and commissions in the termination or discharge order. In case any such reason is given in the discharge order showing the deficiency in the service of the incumbent, it would amount to be stigmatic and if such a discharge order is put to challenge, may not sustain on the ground being stigmatic", the bench added.

Observing that Rule 187 can only be invoked against a probationer within three years of their enrolment, and not against a permanent employee who has completed 15 years of service, the bench also pointed that the petitioner cannot be considered a probationer after 15 years and cannot be discharged under Rule 187 of the Jammu and Kashmir Police Manual, as he became a regular constable after completing his probation period.

Accordingly the petition was allowed, and the impugned order of the CAT was set aside. The respondents were directed to reinstate the petitioner with immediate effect.

Case Title: Shamim Ahmed Vs UT of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 116

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