Mohd.Rayaz vs State and Others

The fact which is not disputed is that the petitioner was dismissed from service when he was serving in the Border Security Force. This fact was

not brought of the petitioner now have been brought to an end. The reason given is that he was earlier dismissed from service from the Border

Security Force and this fact was concealed by him. Taking note of the above fact, an order of termination has been passed. It has been observed

that the petitioner having been dismissed from service of the above Force, is not likely to prove a good police constable. It is this order which is the

subject matter of challenge in this petition. The challenge is being made interalia on the following guards:

i. That the petitioner was entitled to an opportunity of hearing as hearings he was vested with the penal order of dismissal.

ii. That even if he was dismissed from the service of Border Security Force, this would not stand in his way of getting employment in the State

service, iii. That as principles of natural justice have not been complied with therefore, the order of termination passed on 17th July'99 is liable to

be quashed. 2. The distinction between the order of dismissal and removal was pointed out way back by the Supreme Court of India in the case of

AIR 1953 SC 250. Satish Chandra Anand Vs. The Union of India. As a matter of fact there is a definite distinction between the terms ""dismissal

and ""removal"" from service. This distinction was noticed by a constitutional Bench of the Supreme Court in State of Bombay Vs. Subjagh Chand

AIR 1957 SC 892. It was observed that under the service rules an order of dismissal is a punishment imposed on a Government servant when it is

found that he has been guilty of misconduct or inefficiency or the like and it is penal in character because it involved loss of pension which under the

rules would have accrued in respect of the service already put in. An order of removal also stands on the same footing as an order of dismissal.

And involves the same consequences the only difference between them being that while a servant who is dismissed is not eligible for

reappointment, one who is removed is. The same distinction was noticed in the case of Trikha Ram Vs. V.K. Seth AIR 1988 SC 285. The

provisions of Probation of offenders Act 1958 were commented upon it was in this regard observed that instead of dismissing the delinquent from

service he should have been removed from service so that the order of punishment did not operate as a bar and disqualification for further

employment with the Government, under the circumstances, the impugned order of dismissal was converted into an order of removal from service.

See also Mohammad Abdual Salam Khan Vs. Sarfaraz Air 1975 Sc 1065. Wat was said in para 9 is reproduced below :

The expression ""dismissal"" and ""removal"" look alike for the lay man but in law they have acquired techincal meanings sanctified by long usage in

service rules. In Khem Chand Vs. Union of India 1958 SRC 1080 at page 1089 (AIR 1958 SC 300 at page 304 this court observed:

... the expression ""dismissed"". Removed"" and ""reduced in rank"" are technical words taken from the service rules where they are used to denote

the three major categories of punishment."" As has been rightly pointed out in a recent book. The civil servant under the law and the constitution by

Dr. N. Narayan Nair The Academy of legal Publications, Trivandrum1 Kerala (1973) the words ""dismissal"" and ""remoal"" have one distinction viz

that the former disqualifies from further employment while the latter does not. Likewise there is reference to this distinction in Shyamalal's case AIR

1954 SC 369 at page 374 wherein was said : ""The position therefore is that both under the rules and according to the last mentioned decision of

the Judicial Commission (I.M. Lai's case AIR 1948 PC 121) there is no distinction between a dismissal and a removal except that the former

disqualifies from further employment while the later does not... and it my safely be taken for reasons stated above, that... removal and dismissal

stand on the same footing except as to future employment. I in the sense removal is but a species of dismissal. ""Rule 49 of the civil service

(Classification, Control and Appeal) Rules 1930 provides interalia:

Removal is termination of service which does not disqualify from future employment, ""dismissals removal from service which ordinarily disqualifies

from future employment.

It follows that ""dismissal"" is removal with a prohibited superadded.

Therefore, whenever an order of dismissal is passed it entails further consequences that the persons concerned is debarred from future

employment. An order of dismissal thus has an inbuilt consequence and that consequence is that, that employee is not entitled to join another

Government service. Faced with this situation the learned counsel for the petitioner submits that the bar would be only there / qua an employment

under the union of India and not the State of Jammu and Kashmir. I am of the opinion that the above argument of the petitioner cannot be

accepted. The earlier order of dismissal would operate on the petitioner and he cannot get entry into any public service. This is more so, when he

concealed this fact while getting entry into another service.

The learned counsel for the petitioner submits that he should have been heard in the matter and the principles of natural justice should have been

complied with. For this, reliance is being placed on a decision of the Supreme Court reported as AIR 1986 SC 1108, Jagdish Parsad Vs. Sachiv

Zila Ganna committee, Muzaffarnagar and another.

In the above case, earlier order of termination was passed but this fact was not brought to the notice of second employer, when the service

were being brought to an end. The view expressed was that the petitioner should have been heard. The facts in the above case and the present one

are entirely different. In the above case, the order by which relationship of master and servant was anatched did not have inbuilt consequence of

permanent disablement from joining another government service. In view of the above the observations made by the Supreme Court in the above

case are not attracted to the facts of this case. In the present case, the petitioner stands dismissed from service. The rule of natural justice as

observed by the Supreme Court of India in the case of AIR 1994. Managing Director, ECU, Hyderabad V.B. Karunakar, are not to be made

applicable if ultimately it is found that by giving such an opportunity no useful purpose is going to be served. The relevant observations made in this

regard in the above case are being reproduced below: "". ..

The theory of reasonable opportunity and the principles of natural justice have been evolve to uphold the rule of law and to assist the individual to

vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all sundry occasions. Whether in fact, prejudice has

been caused to the employee or not on account of the denial to him of the report has to be considered on the facts and circumstances of each

case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to

permit the employee to resume duty and to get all the consequential benefit is. It amounts to rewarding the dishonest and the guilty and thus to

stretching the concept of justice to illogical and exasperating limits. It amounts to an ""unnatural expansion of natural justice"" Which in itself is

antithetical to justice.

The petitioner in the present case stands dismissed from service. As to what cause he would show in case opportunity is afforded to him is not

clear. Once there is a disqualification from joining another service, then no purpose would be served by affording an opportunity of hearing to the

petitioner an opportunity of hearing to the petitioner. This petition as such is found to be without merit and is dismissed.