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Judgment
Petitioner was appointed as constable in 1985. He was deputed for basic recruitment training couse. According to him he sought 8 days' leave
from 6.8.1985 but overstayed and rejoined on 24.10.1985. A charge was framed against him for having overstayed the leave leading to an inquiry
wherein he was exonerated vide order No. 125 of 1985 dated 12.12.1985. He was thereafter sent for armed police training course at Kathua. He
alleges that during his training course, his Deputy Commandant, one Anwar Khan, demanded 5kgs. of Ghee from him and on his failure to satisfy
the demand, he marked him absent on 8.10.1986 and also physically manhandled him. He thereafter filled an application before the Inspector
General of Police (Armed) who endorsed it to the Principal of the training centre on 1.8.1986.But, instead of examining the petitioner's grievance,
he was removed from service by order dated 8.8.1986. passed by respondent No.3, on the ground that he was an appointee of 1985 and was
removed from service twice for remaining absent from duty, He questioned this order in SWP No. 539/88 which was disposed of by order dated
13.3.19990 requiring respondent No. 3 to consider and dispose of his appeal on the subject matter. His appeal was, however, rejected by the
impugned order No.42 of 1992 dated 6.2.1992 on the ground that he was an appointee of 1985 and up to July 1986 he was removed from
service twice for his ""continuous/repeated absence"".
Petitioner assails this impugned order on the preliminary ground that it was passed at his back and that he was not afforded an opportunity of being
heard by the appellate authority so that he could show that he was wrongly marked absent when, in fact, he was present and that his absence
would not warrant his removal from service. It is further submitted that rule 187 of the Police Rules did not empower the disciplinary authority to
arbitrarily remove a constable within three years of his enrolment and on his assessment that he was not likely to prove an efficient police official.
In the reply filed by the respondents it is submitted that the petitioner was frequently absenting himself from duty and had absented for 70 days
during his 17 months of service. It is admitted that he was exonerated after his first spell of absence in 1985 but his second absence was indicative
of his not being interested to remain in service It is also claimed that it was not necessary for the Competent Authority to summon him for
consideration of his representation which was rejected on the basis of the record and the report of the concerned commandant of 4th Bn. In other
words, it is projected that his representation was rejected on the basis of material on record and there was no necessity or legal obligation of
affording him an opportunity of being heard.
Rule 187 of the Police Rules of 1960, provides as under:
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.
There is no dispute that the petitioner was removed from service within the prescribed three years of his enrolment. He was appointed in 1985 and
removed in 1986. But all that requires to be examined is:
Whether he could be removed from service without being provided an opportunity of being heard and on the allegation of remaining absent which
he disputed?
It has been consistent view of this court that the principles of natural justice are to be read in the provisions of Rule 187 also. Otherwise it was
bound to vest the Superintendent of Police with an arbitary power to remove a constable from service merely by taking the view that he was
unlikely the prove an ""efficient police officer"". This could not be countenanced by any norms of justice and that is why it was laid down by this
court in a number of cases while interpreting was required to put the delinquent constable on notice and to provide him an opportunity of being
heard and then to make an assessment wheather he was likely or unlikely to prove an efficient police officer.
In the present case petitioner was admittedly exonerated for his overstay on leave in the first spell and there are conflicting versions about his
absence second time. According to him, he was deliberately marked absent by the commandant concerned when, in fact, he was present. But,
according to the respondents he was frequently absenting himself and had remained absent for as good as 70 days within a span of 17 months
which suggested that he was not interested to remain in service of a disciplined force like the police.
The merit of the rival positions apart, it goes without saying that petitioner's appeal was rejected at his back without affording him an opportunity of
beibng heard. This is conceded by the respondents in their reply also wherein it is submitted that his appeal was considered on the basis of the
material available and on the report of the commandant concerned .That being so, it cannot be said or held that the principles of natural justice
were applied or observed by the respondents in discharging him from service in exercise of power under Rule 187 of the police rules or while
disposing of his appeal. In all liklihood he might have justified his alleged absence or might have shown that he was present as he claimed in the
representation, if he was afforded an opportunity to show cause. But, since his defence was blocked, he had no opportunity to present his version
or to show the circumstances in which his alleged absence was overstretched to lead to his discharge.
Viewed thus, I partly allow this petition by providing as under:
Official respondents are directed to put the petitioner on notice and afford him a reasonable opportunity of being heard regarding his alleged
absence and then proceed to pass appropriate orders in accordance with the rules.
The impugned order No. 42 of 1992 dated 6.2.1992 shall remain in abeyance till such orders are passed . In case petitioner is exonerated this
order shall stand quashed and he shall be reinstated in service prospectively and without any consequential benefits.
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