JK High Court: No Stigmatic Termination Without Thorough Enquiry And Hearing Opportunity

SRINAGAR: A Division Bench of the High Court of Jammu & Kashmir and Ladakh, comprising Chief Justice N Kotiswar Singh and Justice Wasim Sadiq Nargal, delivered a significant judgment stating that the termination of an employee cannot be carried out without conducting a thorough investigation and providing an opportunity for the employee to be heard.

The court clarified that Rule 187 of the J&K Police Manual, which grants powers to take action against a probationary employee within three years of their enrollment, cannot be applied to permanent employees. The ruling was made in response to a writ petition filed by Shamim Ahmad, a constable in the Jammu and Kashmir Armed Police. Ahmad sought to challenge a judgment and order dated July 1, 2021, issued by the Central Administrative Tribunal (CAT) Jammu, which dismissed his petition against the discharge order without adhering to the principles of natural justice. Additionally, Ahmad requested the quashing of an order dated October 31, 2009, which resulted in his discharge without any investigation or consideration of natural justice.

After hearing arguments from Advocate Sarfaraz Hamid Rather representing Ahmad, and Senior Additional Advocate General Monika Kohli representing the UT of J&K, the Division Bench concluded that Ahmad had been discharged from service on September 7, 1994, based on Rule 187 of the J&K Police Manual, which stated that he had not proven to be a good police officer and had unsatisfactory conduct during the probation period. However, the court noted that a previous writ petition had already quashed the impugned order of November 2, 1994, giving the respondents the liberty to either use Rule 187 or conduct a regular inquiry. Nonetheless, the respondents discharged Ahmad without conducting a detailed investigation and attached a stigma to the order.

The Division Bench emphasized that the impugned order was not a simple termination but a punitive one. The language used in the order categorized Ahmad as a bad police officer, which the court deemed unlawful. Such an order could only be issued following a proper departmental inquiry. The court emphasized the right to life and personal liberty, including the right to livelihood, as guaranteed by Article 21 of the Constitution of India. It stated that before taking any action to terminate an employee’s services, a reasonable opportunity must be given to the employee to present their case and comply with the principles of natural justice, which had not been followed in Ahmad’s case.

The court further noted that the order of discharge was based on allegations of misconduct, requiring the respondents to conduct a regular inquiry and provide an opportunity for Ahmad to be heard, as per their legal obligation. The court clarified that a discharge order could be issued under Rule 187, even if it was motivated by the incumbent’s omissions or commissions. However, such deficiencies should not be mentioned in the termination or discharge order, as it would render the order stigmatic and legally unsustainable. If the discharge order was issued without mentioning any deficiencies, it could be considered a simple discharge and upheld.

The Division Bench ruled that the power under Rule 187 could not be invoked to pass a stigmatic discharge order without conducting an inquiry. Furthermore, the court specified that Rule 187 could only be used against probationary employees within the first three years of their appointment, not against permanent employees after a 15-year period from their appointment, as was the case with Ahmad.

Considering that Ahmad’s service was protected under Article 311(2) of the Constitution of India, the court held that the constitutional procedure, including providing an opportunity to be heard and issuing a show-cause notice, should have been followed. Consequently, the court allowed the petition, quashed the impugned order dated July 1, 2021, issued by the Central Administrative Tribunal (CAT)


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