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Judgment
01/- The petitioners were engaged as Special Police Officers (SPOs) on different dates, issued by the competent authority, they were disengaged by the respondents in terms of order bearing No. SPO/DIS/09/33700-711 Dated 10.09.2009, hereinafter, for short as impugned order, on the ground that the petitioners’ illegally exchanged their weapons, resulting in an accidental fire and injury to one of them. The petitioners are challenging the impugned order on varied grounds taken in the petition.
FACTUAL MATRIX
02/- The petitioners' case is that on 15.08.2009, while returning from Independence Day duties, they were fired upon by militants to which the petitioners responded by firing from their service rifles and in the process SPO-Jaswant Singh was injured. It is also stated that the incident was reported in the newspaper, Kashmir Times in its edition dated 17.08.2009, however, instead of appreciating the brave act of the petitioners, the respondents initiated an enquiry into the incident and concluded that SPO-Jaswant Singh had received a gun shot in his shoulder from the rifle which was illegally being carried by SPO-Kulwant Singh and such illegal exchange of weapons by the SPO-petitioners resulted in the accidental fire injuring SPO-Jaswant Singh. The petitioners further plead that the order was passed only on the basis of a factual report of the SHO concerned without any inquiry or opportunity of hearing.
03/- The petitioners’ plead that instead of appreciating their brave act of repelling the terrorist attack successfully, they were proceeded against mechanically in disregard of the factual position.
04/- The respondents' reply defends the order on the ground that SPOs are engaged on a purely temporary basis and can be disengaged at any time. The incident in question had been caused by their negligence as they exchanged their weapons, without any permission, because of which a misfire from the rifle being illegally carried by SPO-Kulwant Singh resulted in the injury to SPO-Jaswant Singh. The respondents further state in their reply that the petitioners’ instead of reporting an honest version of the incident to the police station manipulated the same by terming it as a terrorist attack so that disciplinary proceedings are avoided. The reply, however, does not claim that any inquiry was held in which the petitioners were associated, or that notice was given to them before the impugned order was passed.
05/- Heard learned counsel for the parties and perused the record.
06/- The impugned order, for facility of reference, is taken note of herein:
“As reported by SDPO Gandoh vide his letter No. SDG/09/4209-10 dated 16.08.2009 SHO P/S Gandoh has informed by I/C PP Joura that SPO Jaswant Singh No. 2133/SPO of Joura Picket who was on Special duty to P/S Gandoh got injured due to gun shot near Kota Ghati at about 1915 hours. On this a report was entered in DD No. 29 dated 17.08.2009 and start enquiry.
After conducted proper enquiry the following acts have came to the light.
1.That SPO Kulwant Singh No. 1013 s/o Des Raj r/o Joura and Jaswant Singh No. 2133 s/o Lekh Raj r/o Gandoh with the direction to report PP Joura but instead of reporting at PP Joura. They left for home without permission.
2.That SPO Jaswant Singh carrying a AK Rifle which was issued to SPO Uttam Singh No. 1384/SPO while SPO Kulwant Singh was carrying AK Rifle of Shakti Singh No. 1466. All the SPO’s exchanged their weapon with SLRs at their own level which is highly objectionable.
3.That during enquiry it has proved that SPO Jaswant Singh received bullet shot from back side from quite blank range from the rifle of SPO Kulwant Singh who was walking behind SPO Jaswant Singh and was clear that due to mishandling of weapon accidently fire went off from the borrowed AK rifle of SPO Kulwant Singh caused injuries to SPO Jaswant Singh.
4.To avoid the departmental action both the SPOs hatched a plan to give a shape of militancy incident, fired a burst from AK Rifle as 20 empty rounds of AK ammunition were recovered from the site of incident and during physical verification of ammunition 01 round of AK rifle belong to SPO Shakti Singh, 20 rounds of AK rifle belong to SPO Uttam Singh were found less. It clearly indicates that due to accidental fire he was injured.
5.Instead of lodging facts position in P/S Gandoh both the SPO’s manipulated a false story to get the benefits and to avoid police action they misguide the police officers by giving false statement.
Keeping in view the above mentioned facts their contractual service are no more required by the department, as all the four SPO’s have manipulated a false episode and misguided the police officer, which is grave of concern, highly objectionable, misconduct and against the police norms.
Hence all the SPO’s are hereby disengaged from the SPO roll with immediate effect SHO P/S Gandoh directed to get recovered the A/A of the erring SPO’s and deposit in DPL Kote Doda under intimation to this office.”
07/- The Court accepts that SPOs are engaged on a temporary basis and have no vested right to continue. But the impugned order is not a simple discontinuation. It rests on a finding of misconduct, namely the unauthorised exchange of weapons, and failure to report the incident to the Police station concerned, leading to an accidental fire. Such a finding is stigmatic and affects the petitioners' future prospects. When an order is founded on such a finding, the person affected must be told of the allegation and the material relied upon, and given a fair opportunity to respond. The Division Bench of this Court recently in case titled UT of J&K v. Mushtaq Ahmad Shah bearing LPA No. 90/2026 decided on 10th September, 2026, has held that SPOs engaged under Section 18 of the J&K Police Act, 1983, are not covered by Article 311, but are entitled to the minimum safeguard of notice and an opportunity of reply before a stigmatic order of disengagement is passed. It would be profitable to reproduce para-14 of the judgment titled “UT of J&K v. Mushtaq Ahmad Shah” herein:
14.“It is needless to say that this Court is not hesitant to lay down and say that if at all such SPO is no longer required due to the end of exigencies envisaged under Section 18 and the termination is only on account of end of the task in question then probably even the parameters of natural justice would not be attracted as it would
amount to only completion of the task in question for which the powers under Section 18 were invoked. Even in the contractual employment, it is a settled phenomenon that a person could be ousted for his misconduct, end of the contractual period and if the scheme or project for which he is employed comes to an end. Similarly, in the present perspective under Section 18 of the Act if the powers are invoked for a particular exigency and the exigency would come to an end it would be a natural corollary that role of the SPO will also automatically come to an end but in the exceptional cases, where services of SPO is terminated or disengaged on account of any misconduct then it shall be a minimum requirement as laid down in various jurisprudences such as UT of J&K and others v. Shahen Shah (supra) that the opportunity of hearing and doctrine of audi alteram partem has to be followed. This court is of the firm opinion that in the given perspective of Sections 18 and 19, Article 311 of the Constitution will not operate and only the immediate safeguard of a notice and a reply to the satisfaction of the respondent shall operate. Hence, while agreeing with the judgment in Mohammad Iqbal Mallah as well as the judgment in Gh. Haider and Shahen Shah this Court deems it appropriate to modify the impugned order to the extent that for disengagement of people appointed under Section 18 of the Act, it shall be a requirement that wherever a stigma or allegation has resulted into such disengagement, they shall be entitled to a notice prior to the disengagement and after such notice is given and reasonable opportunity for filing reply or hearing is given, the appellant shall be free to pass appropriate orders. Accordingly, it is directed that in the present case the order dated 24.04.2021, for the reasons mentioned, shall stand quashed but at the same time the appellants are given liberty to revisit the issue and reconsider the case of the petitioner after issuance of show cause notice and providing an adequate opportunity of hearing.”
08/- The material made available shows that no inquiry involving the petitioners has been conducted. They were not served with any notice or the material relied upon, they were not heard before the finding was recorded and the impugned order passed. The respondents' own pleadings do not say otherwise. The order, therefore, violates the principles of natural justice and cannot stand.
09/- The Court expresses no opinion on whether the incident was an accidental discharge or a militant attack. That is for the competent authority to determine after a fair inquiry.
10/- Accordingly, The petition is allowed and the impugned order dated 10.09.2009, is set aside on the ground of violation of the principles of natural justice. The respondents are at liberty to proceed afresh in accordance with law, after giving the petitioners notice, the material relied upon, a reasonable opportunity of hearing, and to pass a speaking order within a period of six weeks of receiving a certified copy of this order. The petitioners shall be re-engaged within a period of four weeks which shall remain subject to the outcome of the fresh inquiry. Any consequential benefits shall abide by the outcome of the inquiry. The petitioners are directed to extend all cooperation to the respondents in the inquiry.
11/- Disposed of along with connected applications.
12/- No order as to costs.