MOHD USMAN Vs. STATE OF J&K

JUDGEMENT

(1.) PETITIONER was appointed as constable in 1985. He was deputed for basic recruitment training course. 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 center on 1.8.1986.But, instead of examining the petitioners 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 13.3.1990 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 upto July 1986 he was removed from service twice for his "continuous/repeated absence".

(2.) 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 4thBn. 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:

(3.) 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 whether he was likely or unlikely to prove an efficient police officer.