Tyed ul Firdous vs UT of J&K

M A Chowdhary, J

The petitioner has invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking quashment of Order No. Estt/Dis-Eng/2018/13841-53 dated 22.10.2018, issued by respondent No. 2–SSP, Kishtwar, whereby the petitioner was disengaged from the post of Special Police Officer (SPO).

The factual matrix, as emerging from the pleadings, is that the petitioner, along with nine others, came to be engaged as a Special Police Officer (SPO) vide Order No. SPO/Eng/2014/6773-84 and was assigned Belt No. 443/SPO on 11.08.2014. After serving for about four years and two months, he was disengaged from the rolls of SPOs of District Kishtwar, with immediate effect, by the Senior Superintendent of Police, Kishtwar (respondent No. 2) vide Order No. Estt/Dis-Eng/2018/13841-53 dated 22.10.2018 (hereinafter referred to as the “impugned order”).

The case of the petitioner is that his disengagement was ordered arbitrarily, on the basis of false and frivolous allegations, and without holding any enquiry. It is submitted that no show cause notice was served upon him, therefore, the petitioner has challenged the impugned order primarily on the ground that it is violative of the principles of natural justice.

Per contra, the respondents have opposed the petition and submitted that the petitioner was disengaged from the post of SPO, on account of his prolonged and unauthorized absence from duty with effect from 15.05.2017 to 21.10.2018, a period spanning more than one and a half years. Such prolonged absence, according to the respondents, clearly demonstrates indiscipline, which cannot be tolerated, in a disciplined force.

The respondents further submit that the terms and conditions of engagement specifically stipulated that “SPOs are engaged purely on contractual basis and this order shall not confer any right for their permanent employment in Police Department and they can be disengaged from the SPO roll of District Police, Kishtwar at any time without giving any reason/justification”. It is further contended that since the petitioner has ceased to be on their rolls, he is not entitled to any benefits available to regular members of the organization.

Heard learned counsel for the parties, perused the record, and considered the matter.

Learned counsel for the parties have reiterated and argued in line with their respective stands taken in the pleadings.

The petitioner has assailed the impugned order, inter alia, on the ground that SPOs, appointed under the Police Manual, are entitled to the same powers, privileges, and protection as ordinary police officers. It is urged that even if engaged on need basis, their services cannot be terminated without affording an opportunity of hearing, particularly when allegations of absenteeism were levelled against him.

Section 19 of the Police Act, 1983, which deals with the powers, privileges, protection, and duties of SPOs, reads as under:

“Special Police Officer:- Every Special Police Officer so appointed shall have the same powers, privileges and protection and shall be liable to perform the same duties and shall be amenable to the same penalties, and be subordinate to the same authorities as the ordinary Officers of the Police.”

Rule 359 of the J&K Police Rules, 1960 provides that a delinquent official must be given an opportunity to meet the charges levelled against him. Sub-rule (11) (2) thereof specifically mandates that the official be given a reasonable opportunity to show cause, both orally and in writing, against the proposed penalty. It is submitted that the action of the respondents is in violation of Articles 14 and 16 of the Constitution of India as well as the principles of natural justice.

It is pertinent to underline that Rule 359 of J&K Police Rules, 1960 provides that a delinquent police official must be given an opportunity to meet the charges levelled against him and Clause (2) of Sub-Rule (11) of the said Rule specifically provides that said official has to be given a reasonable opportunity of showing cause orally and in writing against the proposed penalty. It reads thus:-

“359. Procedure in departmental enquiries

(1) xxxxx xxxxx

(11) (1 ) xxxxxx

(2) No police officer shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause orally and also in writing against the action proposed to be taken in regard to him, provided that this clause shall not apply:-

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which led to his conviction on a criminal charge;

(b) where an authority empowered to dismiss or remove an officer or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing it is not reasonably practicable to give to that person an opportunity of showing cause; or

(c) where the Sadar-i-Riyasat is satisfied that in the interest of the security of the State it is not expedient to give to that officer such an opportunity.”

Since an SPO enjoys the same protection as an ordinary police officer under Section 19 of the Police Act, when read in conjunction with Rule 359 of the J&K Police Rules, 1960, it is manifest that his services cannot be dispensed with unless he is provided a reasonable opportunity to show cause and to meet the allegations levelled against him.

The principle of natural justice is founded on public policy and rooted in fairness and equity, ensuring that similarly circumstanced persons are treated equally and justly. The essence of this principle lies in the right of an individual to be heard and to present his case before any decision adversely affecting him is taken. It constitutes a fundamental element of fair procedure and due process in legal and administrative actions, safeguarding individual rights and sustaining public trust in the system. It is, therefore, an integral component of Article 14 of the Constitution of India, which guarantees equality before law and equal protection of the laws.

Reverting to the present case, it is admitted by the respondents that the petitioner was disengaged from service without any enquiry or notice, relying upon the terms and conditions of his engagement order, which stipulate that “the SPOs are engaged as SPO on contractual basis and this order shall not confer any right for their permanent employment in Police Department and they can be disengaged from the SPO roll of District Police Kishtwar at any time without giving any reason/justification”. Such an action to disengage an SPO from his services, in view of the condition of engagement that his services can be dispensed with without holding an enquiry, in the considered opinion of this Court, is not legally and constitutionally permissible when his services are amenable to the J&K Police Rules, 1960, especially when no exception is carved out as provided in Clause (2) of Sub-Rule 11 of Rule 359 of the J&K Police Rules, 1960. The said action on the part of the respondents, besides being illegal and unjust, is also unconstitutional.

Having regard to the aforesaid discussion and reasons, the impugned order, having been passed without following due process of law and affording an opportunity of being heard, is found to be arbitrary and in contravention of law and the Constitution, and is liable to be quashed. As a result, the present petition is allowed and the impugned order is set aside. Consequently, the petitioner is directed to be reinstated as SPO, subject, however, to the condition that he will not be entitled to the monthly honorarium for the period he remained disengaged. The respondents shall, however, be at liberty to hold an enquiry against the petitioner, as per law. If initiated, the enquiry shall be concluded expeditiously, preferably within a period of two months from the date its order.

The petition is disposed of as allowed, along with connected application(s).