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Suresh Kumar v. State Of J And K And Ors.

Jammu and Kashmir High Court

Mar 7, 2006

Judgment

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Summary of Judgment

Factual and Procedural Background

The petitioner, Suresh Kumar, challenged Order No. 1443 of 2000 dated 12.10.2000 issued by the Senior Superintendent of Police, Jammu, which terminated his services as a Constable in the Jammu & Kashmir Police. The petitioner was selected as a constable by DPO Order No. 337 of 1999 dated 24.02.1999 and was to undergo basic police training. He remained absent unauthorizedly from the District Police Line (DPL) Jammu from 18.08.2000 and later appeared before the Superintendent on 12.10.2000 seeking permission to resume duties. After a personal hearing, the Superintendent found the petitioner to be "bad material" who deserted the force when to be deputed for basic training, and discharged him under Rule 187 of the Police Rules with effect from the date of absence, declaring his post vacant.

The petitioner filed a writ petition (SWP No. 1594/2001) seeking certiorari to quash the impugned order, reinstatement and consequential benefits, arguing (inter alia) that the discharge was stigmatic, in breach of principles of natural justice, and that an inquiry under Rule 359 of the Police Rules was required. The State respondents defended the discharge as lawful under Rule 187 and contended that no inquiry for probationers is contemplated by the Police Rules.

Legal Issues Presented

Whether the impugned order discharging the petitioner under Rule 187 of the Police Rules is arbitrary, stigmatic or unlawful for want of a departmental inquiry or for breach of principles of natural justice.
Whether an inquiry under Rule 359 of the Police Rules (or any regular departmental inquiry) is required before terminating the employment of a probationer constable.
Whether differential treatment (i.e., other similarly situated constables not being discharged) amounts to hostile discrimination violative of Article 14 of the Constitution of India, entitling the petitioner to reinstatement.
Whether the petitioner is entitled to quashing of the order, reinstatement and consequential monetary and other benefits.

Arguments of the Parties

Petitioner's Arguments (as advanced in the petition and by counsel)

The petitioner contended that his discharge under Rule 187 was unwarranted and stigmatic because it was passed without holding any inquiry and without following principles of natural justice.
Counsel for the petitioner argued that absence being the ground for discharge required an inquiry under Rule 359 of the Police Rules, and omission to hold such an inquiry rendered the impugned order illegal and unconstitutional.
The petitioner claimed hostile discrimination because other constables (Devinder Singh, Jatinder Singh and Jagdev Singh), who were selected by the same recruitment board and similarly alleged to have absented themselves, were not discharged and remained in service.
Counsel relied on multiple Supreme Court precedents (listed below) in support of the submissions that an inquiry was required and the order was impermissibly stigmatic.

Respondents' Arguments (as advanced by State counsel)

The State's counsel asserted that the petitioner refused to undergo essential basic training and remained absent, demonstrating unsuitability and justifying discharge under Rule 187; this did not render the order punitive or stigmatic.
It was argued that where a probationer is discharged under Rule 187, no departmental inquiry or observance of the full panoply of principles of natural justice is contemplated by the Police Rules; Rule 359(10) expressly excludes probationers from the scope of Rule 359.
The respondents emphasised the operational needs of a belt force engaged in counter-militancy work and submitted that the State cannot retain persons who refuse basic training and therefore prove unreliable.
The respondents relied particularly upon the Supreme Court judgment in State of Punjab v. Sukhwinder Singh (2005 AIR SCW 3477) to support the proposition that no regular inquiry was necessary in the case of a probationer discharged under relevant rules.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Major Singh v. State of Punjab and Ors., reported as 2001 AIR SCW 2272	Cited by petitioner's counsel in support of submissions (specific principle from the opinion not detailed in the provided text).	The judgment was listed among authorities relied upon by petitioner's counsel; the court did not separately analyze or apply this case in its reasons as recorded in the opinion.
Prithipal Singh v. State of Punjab and Ors., reported as 2001 AIR SCW 2287	Cited by petitioner's counsel in support of submissions (specific principle from the opinion not detailed in the provided text).	The judgment was cited by the petitioner; the court's opinion does not record a detailed application of this authority.
State of Punjab and Ors. v. Sukhwinder Singh, reported as 2005 AIR SCW 3477	Holds that discharge/termination of a probationer or temporary employee is not necessarily punitive; preliminary fact-finding or inquiry to assess suitability does not convert a discharge into punishment; Rule 359(10)/analogous rules exclude probationers from regular inquiry requirements.	The court treated this as the leading and decisive authority supporting the respondents' position that no inquiry was required in the case of a probationer discharged under Rule 187 and relied on paras 18–19 as a complete answer to petitioner's submission.
State of Kerala and Anr. v. P.V. Neelakandan Nair and Ors., reported as 2005 AIR SCW 3489	Cited by petitioner's counsel in support of submissions (specific principle from the opinion not detailed in the provided text).	Listed among authorities relied on by petitioner; the court's opinion does not record separate analysis or specific reliance on this case in the judgment.
Punjab National Bank v. R.L. Vaid and Ors., reported as 2004 AIR SCW 4708	Cited by petitioner's counsel in support of submissions (specific principle from the opinion not detailed in the provided text).	Cited by the petitioner; the court's opinion does not elaborate on the case or apply it expressly in its reasoning.
ICICI Bank Ltd. & Anr. v. Municipal Corporation of Greater Bombay & Ors., reported as 2005 AIR SCW 4031	Cited by petitioner's counsel in support of submissions (specific principle from the opinion not detailed in the provided text).	Included in the list of precedents relied upon by petitioner; the court's written reasons do not analyze this case further in the opinion.
Ajit Singh & Ors. v. State of Punjab & Anr. (reported in earlier authorities cited within Sukhwinder Singh)	Principle that the period of probation gives the employer the opportunity to watch ability, efficiency and competence; a probationer who is found not suitable may be dispensed with during or at the end of probation without anything more.	This principle is quoted within the Sukhwinder Singh discussion reproduced in the opinion and is used to support the legal proposition that discharge of a probationer need not be treated as punitive requiring a full departmental inquiry.

Court's Reasoning and Analysis

The court proceeded by examining the statutory/regulatory basis for discharge and the content of the impugned order. The principal steps of the court's analysis were:

The court reproduced Rule 187 of the Police Rules, which empowers a Superintendent of Police to discharge a constable "who is found unlikely to prove an efficient police officer" at any time within three years of enrolment. The rule thus provides express authority for dispensation of a probationer within the three-year period.
The court considered the impugned order in detail. The Superintendent had conducted a personal hearing, noted the petitioner's unexplained prolonged absence after being due for basic training, and concluded that the petitioner was "bad material" whose unsuitability had come to light when he deserted the force on being sent for basic training. The Superintendent found that in the interest of the department and public, the petitioner should not be retained.
The court observed that the petitioner failed to produce any satisfactory explanation for the long absence (beyond a claim about some religious rituals and a reference to other constables not being discharged). The court held that mere omission by authorities to act against similarly situated persons does not confer a right to retention; Article 14 does not contemplate a negative concept of equality and the petitioner's claim of hostile discrimination was misconceived on the facts before the court.
The court addressed the central contention that an inquiry under Rule 359 of the Police Rules was required. The court rejected that contention because Rule 359(10) expressly states that "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." On that textual ground, the court held that Rule 359 did not mandate an inquiry in the case of a probationer.
The court extensively relied on the Supreme Court's decision in State of Punjab v. Sukhwinder Singh (2005 AIR SCW 3477), observing that the judgment is a complete answer to the petitioner's submission. The court quoted paras 18–19 of Sukhwinder Singh, which explain that inquiries to assess suitability during probation are not to be treated as punitive departmental inquiries and that a probationer can be discharged without the procedural protections available to a permanent employee.
Applying these principles, the court found that the impugned order was neither punitive nor stigmatic, and that Rule 187 supported the respondents' action in dispensing with the petitioner's service because he was found unfit (bad material) by reason of refusal to undergo basic training.

Holding and Implications

Holding: Petition dismissed.

Implications and direct consequences:

The writ petition seeking quashing of Order No. 1443 of 2000 and reinstatement was dismissed for lack of merit.
The impugned discharge under Rule 187 stands; the petitioner remains removed from the rolls with effect from the date of unauthorized absence (18.08.2000) as per the Superintendent's order.
The dismissal was ordered without any costs being imposed.
The court based its decision on existing rule provisions (Rule 187 and Rule 359(10)) and on precedent (notably Sukhwinder Singh). The opinion does not purport to lay down any new legal principle beyond application of those rules and authorities to the facts of this case.

Note: This summary is drawn exclusively from the provided opinion text and does not introduce facts or legal propositions not contained therein.

Show all summary ...

P. Singh, J.

1. Suresh Kumar, petitioner, seeks the issuance of a direction in the nature of certiorari for quashing order No. 1443 of 2000 dated 12.10.2000 issued by Senior Superintendent of Police, Jammu, whereby his services as Constable in Jammu & Kashmir Police have been terminated. Reinstatement and consequential benefits, including pecuniary and otherwise, in the event of reinstatement too have been sought by the petitioner in SWP No, 1594/2001. The petitioner submits that he was selected vide DPO Order No. 337 of 1999 dated 24.02.1999 as a Constable in District Police, Jammu, and was willing and prepared to undergo basic training. He submits that Constables- Devinder Singh, Jatinder Singh and Jagdev Singh, were also selected by the same recruitment board, which selected him. They too are stated to have absented rather than joining the training. Their services are still intact and they continue to serve as Constables whereas the petitioner has been singled out for hostile discrimination. The petitioner submits that his discharge under Rule 187 of the Police Rules contained in J&K Police Manual Volume 1, is unwarranted. He submits that the order impugned is stigmatic having been passed without holding any inquiry and following the principles of natural justice.

2. Sh. R. S. Thakur, learned Counsel appearing for petitioner, while reiterating the factual basis laid by the petitioner in his petition submits that the absence being the ground of discharge, necessarily required an inquiry under Rule 359 of the Police Rules. He adds that omission of the respondents to hold inquiry renders the impugned order illegal besides being unconstitutional. Sh. Thakur refers to 'Major Singh v. State of Punjab and Ors.' reported as 2001 AIR SCW 2272; 'Prithipal Singh v. State of Punjab and Ors.' reported as 2001 AIR SCW 2287; 'State of Punjab and Ors. v. Sukhwinder Singh' reported as 2005 AIR SCW 3477; 'State of Kerala and Anr. v. P.V. Neelakandan Nair and Ors.' reported as 2005 AIR SCW 3489; 'Punjab National Bank v. R.L. Vaid and Ors.' reported as 2004 AIR SCW 4708; and 'ICICI Bank Ltd. and Anr. v. Municipal Corporation of Greater Bombay and Ors.' reported as 2005 AIR SCW 4031, in support of his submission.

3. Ms. Safina Beigh, learned Assistant Advocate General appearing on behalf of respondents, vehemently argued that the petitioner having refused to undergo basic training and instead remaining absent has proved him to be unfit for retention in service and this finding of the Superintendent of Police, during the period of probation of the petitioner, did not require the holding of any inquiry, for, holding of inquiry or following of principles of natural justice in such a case, is neither contemplated by law nor warranted in respect of the members of a belt force, whose primary object is to train their cadre in such a way that they prove effective and meaningful in discharging their duties. She submits that the State of J&K, which has been fighting militancy since long, can ill afford to retain those persons in service in the belt force who are not even prepared to take their basic training, thereby disproving their worth for being retained in the service. Learned Counsel, while distinguishing 'State of Punjab and Ors. v. Sukhwinder Singh' reported as 2005 AIR SCW 3477 relied upon by Sh. Thakur, submits that in view of the law reiterated by the Hon'ble Supreme Court of India in the judgment, there was no need for holding any inquiry in the present case because no inquiry is contemplated when a probationer constable is discharged under Rule 187 of the Police Rules. She submits that Sukhwinder Singh's case is on all fours and supports the validity of the impugned order.

4. I have considered the submissions of learned Counsel for the parties and gone through the judgments cited by learned Counsel for the petitioner.

Rule 187 of the Police Rules, gives jurisdiction and authority to a Superintendent of Police to discharge a Constable who is found unlikely to prove an efficient police officer at any time within three years of enrolment. Rule 187 reads, thus:

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.

5. I will now refer to the order impugned in the writ petition for understanding the true import of the order passed by the Superintendent of Police. Impugned order reads, thus:

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 him 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 un-authorizedly viz. 18.08.2000. The Post of Constable No. 3304/J is hereby declared vacant.

6. Perusal of the impugned order makes it explicit that the Superintendent of Police was satisfied, after hearing the petitioner, that it was a case of bad material which had been recruited and his unsuitability had come to the fore when he deserted the force after learning about his being sent for basic training. Superintendent of Police has further found that it will be in the interest of department as also in the larger interest of public, not to retain the petitioner as Constable in the police force.

7. Nothing has been brought on records by the petitioner as his explanation for refusing to join the essential basic police training except pleading that some constables, though similarly situated, have not been discharged Omission of the authorities to take action against similarly situated persons does not, in my opinion, confer any right of retention in the petitioner or for that matter offend Article 14 of the Constitution. Article 14 of the Constitution of India does not contemplate a negative concept of equality. Petitioner cannot, thus, derive any benefit on this plea of his, which is utterly misconceived.

8. This apart, the petitioner does not appear to have been discharged only on the ground of absence, which according to learned Counsel was only the basis for discharging the petitioner and according to Sh. Thakur, warranted regular inquiry under Rule 359 of the Police Rules.

9. I do not accept the proposition propounded by Sh. Thakur that an inquiry, in the circumstances of the case, was warranted under Rule 359 of the Police Rules and that the order impugned is stigmatic in character. I am, however, inclined to accept the submission of Ms. Beigh that no inquiry in case of probationer is contemplated by Police Rules in view of the finding of the Superintendent of Police that the petitioner was a bad material enrolled in the police force, and was not required to be retained in service because of his refusal to go for the police basic training.

10. I am supported in taking the view that no inquiry is contemplated in case of discharge of a probationer in terms of Rule 359 of Police Rules by Rule 359(10) of the Police Rules, which was brought to my notice by Ms. Beigh while repelling the submission of Sh. Thakur that inquiry in the circumstances of the case was an unavoidable necessity. Rule 359(10) is reproduced hereunder:

359(10) 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.

11. 'State of Punjab and Ors. v. Sukhwinder Singh' reported as 2005 AIR SCW 3477, the latest judgment on the subject is a complete answer to the submission of Sh. Thakur and this judgment takes note of earlier judgments on the subject. Hon'ble Supreme Court of India after referring to various judgments on the point held as follows:

18. It must be borne in mind that no employee whether a probationer or temporary will be discharged or reverted, arbitrarily, without any rhyme or reason. Where a superior officer, in order to satisfy himself whether the employee concerned should be continued in service or not make inquiries for this purpose, it would be wrong to hold that the inquiry which was held, was really intended for the purpose of imposing punishment. If in every case where some kind of fact-finding inquiry is made, wherein the employee is either given an opportunity to explain or the inquiry is held behind his back, it is held that the order of discharge or termination from service is punitive in nature, even a bona fide attempt by the superior officer to decide whether the employee concerned should be retained in service or not would run the risk of being dubbed as an order of punishment. The decision to discharge a probationer during the period of probation or the order to terminate the service of a temporary employee is taken by the appointing authority or administrative heads of various departments, who are not judicially trained people. The superior authorities of the departments have to take work from an employee and they are the best people to judge whether an employee should be continued in service and made a permanent employee or not having regard to his performance, conduct and overall suitability for the job. As mentioned earlier a probationer is on test and a temporary employee has no right to the post. If mere holding of an inquiry to ascertain the relevant facts for arriving at a decision on objective considerations whether to continue the employee in service or to make him permanent is treated as an inquiry "for the purpose of imposing punishment" and an order of discharge or termination of service as a result thereof "punitive in character", the fundamental difference between a probationer or a temporary employee and a permanent employee would be completely obliterated, which would be wholly wrong.

19. In the present case neither any formal departmental inquiry nor any preliminary fact-finding inquiry had been held and a simple order of discharge had been passed. The High Court has built an edifice on the basis of a statement made in the written statement that the respondent was habitual absentee during his short period of service and has concluded therefrom that it was his absence from duty that weighed in the mind of Senior Superintendent of Police as absence from duty is a misconduct. The High Court has further gone on to hold that there is direct nexus between the order of discharge of the respondent from service and his absence from duty and, therefore, the order discharging him from service will be viewed as punitive in nature calling for a regular inquiry under Rule 16.24 of the Rules. We are of the opinion that the High Court has gone completely wrong in drawing the inference that the order of discharge dated 16-3-1990 was, in fact, based upon the misconduct and was, therefore, punitive in nature, which should have been preceded by a regular departmental inquiry. There cannot be any doubt that the respondent was on probation having been appointed about eight months back. As observed in Ajit Singh and Ors. etc. v. State of Punjab and Anr. (supra) ` the period of probation gives time and opportunity to the employer to watch the work ability, efficiency, sincerity and competence of the servant and if he is found not suitable for the post, the master reserves a right to dispense with his service without anything more during or at the end of the prescribed period, which is styled as period of probation. The mere holding of preliminary inquiry where explanation is called from an employee would not make an otherwise innocuous order of discharge or termination of service punitive in nature. Therefore, the High Court was clearly in error in holding that the respondent's absence from duty was the foundation of the order, which necessitated an inquiry as envisaged under Rule 16.24(ix) of the Rules.

12. In view of what has been held by Their Lordships of the Hon'ble Supreme Court in paragraphs Nos. 18 & 19 in 'Sukhwinder Singh's' case (supra), I do not find any illegality in the order impugned in the writ petition, for the same is neither punitive nor stigmatic. Rule 187 supports the action of the respondents in dispensing with the service of the petitioner, who was found to be a bad material and unfit to become a responsible police officer.

13. Absence is not the basis of taking action against the petitioner. The action has been taken on the ground of his having been found to be a bad material on the basis of his act of refusal to undergo basic police training.

14. I, thus, do not find any merit in this petition, which is, accordingly, dismissed, but without any order as to costs.