JUDGMENT

VINOD CHATTERJI KOUL, J. –

1. Heard. Admit.

2. Issue post admission notice, waived by Mrs. Monika Kohli, learned Sr. AAG on behalf of the respondents.

3. Learned counsel for both the parties submit that this petition can disposed of as they do not want to file further proceedings.

4. The petitioner has challenged Order No.1230 of 2019 dated 20.09.2019 ( for short ‘order impugned’) passed by respondent No. 3-Senior Superintendent of Police, Jammu whereby he has been disengaged from the roll of Special Police Officer (SPO) of the District Police Jammu.

5. The brief facts which lead to the filing of the present petition are that petitioner came to be engaged as Special Police Officer (SPO), in the respondent department in the year 2013 and the petitioner performed his duties to the best of his ability. During the course of service, on the complaint of one girl, an FIR No. 113/2019 came to be registered by Police Station, Domana Jammu for commission of offences under Sections 376/342 RPC and in pursuance to the said FIR, the respondent department disengaged the petitioner vide order dated 20.09.2019. It has been brought to the notice of this Court that in terms of the judgment dated 27.12.2021 passed by the Presiding Officer Fast Track Court Jammu, the petitioner was acquitted.

6. Learned counsel for the petitioner submits that after registration of the FIR, respondent No. 3- Senior Superintendent of Police, Jammu without holding any enquiry or giving any opportunity of being heard to the petitioner, terminated the services of the petitioner. Thereafter, the petitioner filed a representation before respondent No. 3-SSP, Jammu praying therein that he has been implicated in a false and frivolous case, therefore, his services should not be discontinued, however, the said respondent without conducting any enquiry disengaged him from the roll of SPOs of District Police Jammu with effect from 19.03.2019.

7. The impugned order dated 20.09.2019 is being challenged by the petitioner precisely, on the following grounds:-

i) That the petitioner has been disengaged from services without issuing any show-cause notice which is in gross violation of principles of natural justice. It is a trite law that nobody can be condemned unheard but in the present case the principle of Audi Alteram Partem has been done away with and the petitioner has been disengaged without issuing any show-cause.

ii) That the plain reading of disengagement order clearly reveals that the same is stigmatic, as it provides the FIR and the sections in pursuance to which the petitioner has been disengaged. It has been held in a catena of judgments that any termination order/disengagement order cannot be stigmatic in nature as it shall cause serious problems on the future prospects of the employee. In the present case the respondents have issued the disengagement order which is purely stigmatic in nature and the same is illegal;, arbitrary and in violation of the legal principles.

iii) That the petitioner challenges the disengagement order on the ground that no departmental enquiry has been conducted by the respondents and the petitioner has been disengaged without following the principles of Service Law. Section 19 of Police Act, clearly specifies that SPO who has been engaged is entitled to similar protection, powers and privileges as a regular officer of Police. Therefore the petitioner is entitled to similar protection as is granted to regular official of Police. As such the Act of respondents of disengaging the petitioner without any departmental enquiry is against the provisions of Police Act. It is furthermore relevant to submit that Rule 359 of J&K Police Rules, 1960 clearly envisages that a delinquent official must be given an opportunity to meet the charges levelled against him. In the present case, no opportunity was ever granted to the petitioner. In addition to that, no departmental enquiry was ever held and the petitioner was disengaged sans enquiry.

iv) That the disengagement of the petitioner was simply effectuated on the basis of a FIR which is contrary to the principles of law. It is relevant to bring before the Hon'ble Court that a full fledged trial had taken place on the basis of the FIR and the petitioner had been acquitted of all the charges. It is relevant to bring before the Hon'ble Court that the petitioner in pursuance to the acquittal order forwarded the representation to respondent department wherein no action has been taken by the respondents on the same.

v) That the disengagement order passed by the respondents is in total contravention to the tenets of Constitution of India particularly Article 14 and Article 16

8. The respondent No. 3 in his objections has resisted and controverted the contentions raised and grounds urged in the petition, inter alia, on the premise that none of the legal, constitutional, fundamental or statutory rights of the petitioner has been violated by the respondents. It is stated that petitioner was engaged as SPO under the Belt N0.1058/SPOJ of District Jammu and during his posting at PP Pouni Chak, absented from duties w.e.f 19.03.2019 and was found involved in case FIR No.113/2019 U/S 376/342 RPC of Police Station Domana. A report was received by the office of answering respondent from SHO Police Station Domana vide letter dated 19.03.2019, accordingly the petitioner was disengaged from the services of SPO vide DPO Jammu OB No.1230 of 2019 dated 20.09.2019.

9. The further stand taken is that the petitioner has submitted a representation before the office of respondent, the same was forwarded to the Additional Director General of Police, Jammu vide letter dated 22.02.2022 with a request to take up the matter with the PHQ for its re-engagement as SPO and the same shall be considered on merits.

10. Heard learned counsel for the parties and perused the material on record.

11. In the present writ petition, the petitioner has put a challenge to the order impugned dated 20.09.2019 on the ground that the same is in contravention of the rules of natural justice having been issued without holding a departmental enquiry or giving any opportunity of being heard to the petitioner to defend his position and vindicate his honour.

12. The sole basis upon which the passing of the order impugned dated 20.09.2019 came to take place against the petitioner by the Sr. Superintendent of Police (SSP), Jammu is that he was involved in case FIR No. 113/2019 registered with Police Station, Domana for commission of offences under Sections 376/342 RPC. In the said FIR, the petitioner was acquitted of the charges leveled against him vide judgment dated 27.12.2021 passed by the Presiding Officer Fast Track Court, Jammu. On being acquitted, the petitioner approached the respondents and submitted representation dated 19.02.2022, however, no action was taken on his representation. Before passing the order impugned dated 20.09.2019, the respondents were required to provide an opportunity of being heard to the petitioner, so as to defend his position and honour against the purported basis upon which the Sr. Superintendent of Police (SSP), Jammu was contemplating to disengage the petitioner from the service. But in the instant case, the respondents without affording any opportunity of being heard to the petitioner have terminated/dis-engaged the petitioner from the service which is palpably bad in the eyes of law as the order impugned has been passed in violation of the principles of natural justice.

13. The Supreme Court in case titled “Canara Bank and other Vs. Debasis Das and others”, (2003)4 SCC 557 in para13 & 15, has held as under:-

“13. Natural justice is another name for common-sense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common-sense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.

15. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta". The classic exposition of Sir Edward Coke of natural justice requires to "vocate interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of Works [1863(143) ER 414], the principle was thus stated:

"[E]ven God himself did not pass a sentence upon Adam, before he was called upon to make his defence. „Adam? (says God), "where art thou? Hast thou not eaten of the tree whereof, I commanded thee that thou shouldest not eat?".

Since then the principle has been chiselled, honed and refined enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.”

10. Thus, the order impugned No.1230 of 2019 dated 20.09.2019 passed by the Sr. Superintendent of Police (SSP), Jammu is in direct conflict with the Rules of Natural Justice and if allowed to stand would compound the injustice against the petitioner. Further, a perusal of the judgment dated 27.12.2021 transpires that the prosecution failed to prove the charges against the petitioner beyond all reasonable doubts, therefore, the order impugned falls flat as the very basis of the issuance of the order impugned is FIR which has subsequently culminated into Challan and pursuant to the trial, the petitioner stood acquitted

11. This Court in case titled Gh. Haider v. State of J&K & ors. reported as 2014 (3) JKJ 461 while dealing with a case of SPO, whose services were terminated without conducting enquiry on the ground that he has misused his official position. In paragraph no. 8 of the aforesaid judgment, this Court, held as under:-

"9. Section 19 of the Act envisages the powers of SPOs. Thus, the petitioner's services, even on need basis, cannot be terminated without affording him an opportunity of hearing, particularly, when there were specific allegations against him of misusing his official position and harassing one Din Mohammad. Rule 359 of the J&K Police Rules, 1960 envisages that the delinquent official must be given an opportunity to meet the charges leveled against him; especially Sub-Rule (11)(2) thereof provides that the official has to be given a reasonable opportunity of showing cause orally and also in writing against the proposed penalty. Thus, the petitioner was required to be afforded an opportunity of hearing before terminating his services. The action of respondents, therefore, is in violation of Articles 14 and 16 of the Constitution of India and also against the principles of natural justice."

12. From a perusal of the aforesaid judgment, it is abundantly clear that opportunity of hearing should have been granted before taking any punitive action even against an SPO. Otherwise also, the petitioner in the instant case stands acquitted of the charges on the basis of which he was disengaged.

13. For the forgoing reasons and in the light of settled legal position, the present petition is allowed and Order No.1230 of 2019 dated 20.09.2019 passed by the Sr. Superintendent of Police (SSP), Jammu thereby disengaging the petitioner as SPO is set aside. The petitioner is restored as SPO in Jammu & Kashmir Police with all consequential benefits excluding the payment of emoluments for the period with effect from the date of his disengagement till the date of restoration of his service as Special Police Officer (SPO). Compliance to be carried out within a period of three months by the Sr. Superintendent of Police (SSP), Jammu from the date a certified copy of this order is made available to him.

14. The instant writ petition is, accordingly, disposed of in the above said terms.

Petition allowed.

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