STATE OF J&K Vs. FIRDOUS AHMAD SHEIKH

JUDGEMENT

(1.) THIS Civil 2nd Appeal is directed against the Judgement and decree passed by the learned 1st Additional District Judge, Srinagar, dated 16th June, 1998 and also the judgement and decree dated 11th September, 1997 passed by the learned trial court, i. e. , Judge Small Causes Court, Srinagar decreeing the suit of the plaintiffs, namely, the respondents herein, as a consequence whereof orders bearing Nos. 154 of 1996; 150 of 1996; 151 of 1996; 152 of 1996; 159 of 1996; 158 of 1996; 149 of 1996; 148 of 1996; 156 of 1996; 157 of 1996; 155 of 1996 and 153 of 1996 dated 15th March, 1996, passed by Commandant, IRP, Ist Battalion, Zewan, Srinagar, discharging the plaintiff -respondents from service, have been declared illegal and bad in law and the plaintiff -respondents have been directed to be treated in service. The trial court held the plaintiff -respondents entitled to all the benefits, including pay, allowances, etc. and the defendant -appellants were directed to release the salary and other emoluments admissible under rules to the plaintiff -respondents. However, the 1st Appellate court, while confirming the judgement passed by the trial court, modified it to the extent of directing the plaintiff -respondents to make a representation to the defendant -appellants for their back wages to be considered by them on compassionate grounds according to rules.

(2.) IN brief, that facts are that the respondents herein were appointed as Constables in IRP, 1st Battalion, Zewan, Srinagar, put on three years probation and deputed for training at Armed Police Training College, Kathua, Jammu. They continued to receive the training till March, 1996, they were served with orders discharging them from service on the ground that their services were not required by the defendant -appellants. The plaintiffs, being aggrieved of their discharge from service be declared null and void and that they be treated in service. The case of the plaintiff -respondents before the trial court was that they have been appointed as Constables after due verification of their character antecedents by the concerned police and intelligence authorities and their work and performance had been good and the orders discharging them from service amounted to punishing them, and that too, without giving them an opportunity of hearing. They, accordingly, challenged the orders of discharge being in violation of Article 311 of the Constitution of India read with Section 126 of the Constitution of J&K. Upon notice of the suit, defendant -appellants in their written -statement submitted that the plaintiff -respondents were placed on probation for a period of three years from the date they joined the department and during that probation period they have been discharged from service. The defendant -appellants further alleged that the plaintiff -respondents were discharged from service as they were not found suitable for the post of Constable. As regards the record, on the basis of which they were found not suitable for the post, the same was not produced at the time of filing of the written -statement, but it was stated therein that the record, being confidential, would be submitted as and when directions were issued in this behalf by the court. On the basis of the pleadings of the parties, necessary issues were framed and, after the parties were given full opportunity to lead evidence, the trial court, on appreciation of the evidence led by the parties, decreed the suit. The defendant -appellants filed civil 1st. Appeal which was heard and decided by the learned 1st. Additional District Judge, Srinagar. The 1st Appellate Court, as noticed above, modified the judgement of the trial court only to the extent of directing the plaintiff -respondents to make a representation to the defendant -appellants for their back wages. The State has come in appeal against the judgement and decree passed by the 1st Appellate Court as well as that of the trial court.

(3.) THE submission of learned counsel for the defendant -appellants is that the plaintiff -respondents, while on probation, were not found suitable and fit and, accordingly, the commandant, IRP, 1st Battalion, Zewan, Srinagar, who had appointed them temporarily and put them on probation, issued the orders, discharging the plaintiff -respondents from service. Further, according to the learned counsel, the orders discharging the respondents from service are not stigmatic in nature and, therefore, not violative of Article 311 of the Constitution of India read with section 126 of the State Constitution. Learned counsel submitted that the findings of the courts -below to the contrary are erroneous in law.