Shamim Ahmed vs Ut Of Jk And Ors
2023 Latest Caselaw 934 j&K

                                                               Sr. No. 6

    IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
                        AT JAMMU

                           WP(C) No. 2554/2021
                            CM No. 8803/2021
                                         Reserved on:   25.04.2023
                                         Pronounced on: 12.05.2023


Shamim Ahmed                                                       ...Petitioner(s)

Through: Mr. Sarfaraz Hamid Rather, Advocate

                                     Vs.

UT of JK and Ors.                                                ...Respondent(s)

Through: Ms. Monika Kohli, Sr. AAG

CORAM:
         HON'BLE THE CHIEF JUSTICE
         HON'BLE MR JUSTICE WASIM SADIQ NARGAL, JUDGE

                                ORDER

.05.2023

Per Wasim Sadiq Nargal-J

01. The petitioner in the instant petition is aggrieved of and has

assailed the Judgment and Order dated 1st July, 2021 passed

by the Central Administrative Tribunal (CAT), Jammu, (for

short "CAT") in T.A.No. 5061/2021 (SWP No. 945/2010),

by virtue of which, the T.A.(Writ Petition) filed by the

petitioner against the order of discharge has been dismissed,

as such, he seeks issuance of writ, order or direction in the

nature of:-

"i). Certiorari, quashing Judgment and Order dated 1st July, 2021, passed by the Central Administrative Tribunal (CAT) Jammu in T.A. No. 5061/2021 (SWP No. 945/2010), by virtue of which, the T.A. (writ petition) filed by the petitioner against the order of discharge has

been dismissed without following principle of natural justice.

ii) Certiorari, quashing Order No. 457/2009 dated 31st October, 2009 issued by the respondent no. 3 virtue of which, the petitioner has been discharged without enquiry and without following principle of natural justice.

iii). Mandamus, commanding the respondents to reinstate the petitioner into service retrospectively with all consequential benefits."

02. Before adverting to the grounds of challenge taken in the

instant writ petition, a brief factual matrix leading to the

filing of present writ petition is reproduced as under:-

Factual Matrix

03. The petitioner was initially appointed as Constable in the

Jammu and Kashmir Armed Police and, as per the stand of

the petitioner, he has joined his duties on 23rd February,

1993. And after more than one year of his service, while

discharging the duties, he became ill in the month of May,

1994 and, accordingly, he after informing his immediate

senior officers, left for his home to seek proper medical

treatment. The petitioner thereafter resumed his duties on

5th July, 1994 and subsequently, a departmental enquiry

was initiated against him, however, no charge sheet was

ever served upon him nor he was afforded any opportunity

of being heard, therefore, the enquiry was conducted in

flagrant violation of Rule 359 of Jammu and Kashmir

Police Rules. The further case set up by the petitioner in the

writ petition is that the said enquiry officer was, however,

made aware of the reason of absence from duty by the

petitioner, who while agreeing with those reasons

recommended that the period of absence of the petitioner be

treated as "Dies Non"

04. The further case of the petitioner is that the respondent no.

3, after receiving the recommendation of enquiry officer,

has issued the show cause against the petitioner as to why

he should not be discharged from the service. Moreover, as

the ill luck would have it, the petitioner again fell ill and

sought permission from his senior officers on 6th

September, 1994, which was ultimately granted in his

favour. Besides this, the petitioner remained under medical

treatment and resumed his duties on 7th November, 1994,

where he came to know that he had already been discharged

from services by the respondent no. 3 vide Order No. 666

of 1994 dated 2nd November, 1994.

05. Feeling aggrieved of aforesaid order of discharge, the

petitioner has filed writ petition, which was registered as

SWP No. 390/2002 and the same was disposed of by this

Court vide Order dated 22nd May, 2009. For facility of

reference, operative part of aforesaid Judgment is

reproduced as under:-

"...For the above stated reasons, this petition is allowed, the impugned Order No. 666/1994 dated 2nd November, 1994 passed by the respondent no. 3 is quashed. The respondents are given liberty to pass order either under Rule 187 of J&K Police Manual in case they so choose or they may conduct regular enquiry. It is further made clear the petitioner is not entitled to any salary from the date he was discharged till passing of this Judgment. Disposed of..."

Arguments on behalf of the petitioner:-

06. Mr. Sarfaraz Ahmad Rather, learned counsel, appearing for

the petitioner, submits that after passing of the aforesaid

Judgment dated 22nd May, 2009, the matter was examined

by the respondents on their own, but the petitioner was

never associated with enquiry and finally an order came to

be passed by the respondents vide Order No. 457 of 2009

dated 31st October, 2009, by virtue of which, the petitioner

was again discharged w.e.f. 7th September, 1994 on the

ground that „the petitioner had not proved to be a good

police officer keeping in view his conduct during his

probation period.' st

07. Feeling aggrieved of aforesaid order of discharge dated 31

October, 2009, the petitioner has once again knocked the

door of this Court by way of second round of litigation and

filed writ petition, which was registered as SWP No.

945/2010 on various grounds including the ground that the

order of discharge was penal in nature and not a simpliciter

discharge, inasmuch as, the same was passed on basis of

misconduct by attaching stigma to the aforesaid order of

discharge. Learned counsel for the petitioner has

vehemently argued that the stigma was required to be

enquired into by conducting detailed enquiry and providing

an opportunity of being heard to the petitioner and in the

instant case, admittedly, no enquiry whatsoever, was

conducted before issuing the order impugned dated 31st

October, 2009.

08. Learned counsel further submits that in view of the

enactment of J&K Reorganization Act, 2019 and

subsequent establishment of Central Administrative

Tribunal, the aforesaid writ petition came to be transferred

to the CAT, Jammu Bench, vide Order dated 4th March,

2021, and, accordingly, the petition was listed before the

CAT on 1st July, 2021 at Serial No. 8, in which,

inadvertently, the name of counsel for the petitioner was

wrongly mentioned as Shri N.P.Kotwal, Advocate.

However, the fact of the matter is that petitioner has never

engaged Shri N.P.Kotwal, Advocate, as his counsel. It is

further submitted that the above named Advocate has since

passed away on 11th April, 2021. Learned counsel for the

petitioner further submits that neither the petitioner nor his

counsel was informed about the listing of case on 1st July,

2021, and on the said date the matter was heard in ex-parte

in absence of the petitioner and, accordingly, the writ

petition came to be dismissed vide Order dated 1st July,

2021, which is impugned in the present writ petition.

09. It is argued by learned counsel for the petitioner that the

Judgment impugned has been passed without affording an

opportunity of being heard to the petitioner and the same is

in violation of principles of natural justice. It is further

argued by learned counsel for the petitioner that petitioner

has been continuously contesting his case since 2nd

November, 1994, when he was discharged from his service.

However, after a long 27 years of litigation, the petitioner

was not heard when the matter was taken up for final

disposal and he has been condemned unheard due to the

inadvertent mistake on the part of Registry of the CAT and

this has caused grave prejudice to the petitioner. Learned

counsel for the petitioner has also urged that in the earlier

round of litigation, the order of discharge was held to be

bad and, accordingly, the respondents have again passed the

order of discharge by attaching stigma to the aforesaid

order and the said discharge order, as per the stand of the

petitioner, is not a discharge simipliciter, but attaching

stigma to the aforesaid order, which is penal in nature and

cannot be passed without conducting any enquiry under the

provisions of law and without affording an opportunity of

being heard to the petitioner. The further stand of the

petitioner is that no reasonable opportunity has been given

to him before passing the order impugned nor stigma

attaching to the aforesaid order has been enquired into by

the respondents, therefore, the order impugned cannot

sustain the test of law and is liable to be quashed.

10. Learned counsel for the petitioner submits that the

foundation of passing of the order of discharge is based on

the allegations of misconduct, as such, the respondents

were under legal obligation to have conducted a detailed

departmental enquiry, which has not been done in the

present case. In that view of the matter, the order impugned

cannot sustain the test of law and is liable to be quashed.

Arguments on behalf of respondents.

11. Per contra, the objections have been filed on behalf of

respondent no. 3, in which, a specific stand has been taken

that the petitioner has absented un-authorizedly on his own

will w.e.f. 1st May, 1994 and resumed his duties on 6th July,

1994 i.e., after remaining absent from duties for 64 days

and it is for this grave misconduct of the petitioner, a

departmental enquiry was initiated against him by the then

Coy Commander C Coy of the Unit. The further stand of

the respondent no. 3 is that the Enquiry Officer conducted

the enquiry in accordance with Rule 359 of Jammu and

Kashmir Police Mannual, therefore, the plea of the

petitioner that he was not served with charge sheet is

baseless. It is further submitted that petitioner is misleading

the Court as well as the department as he was served with

charge sheet and reply from him was also received. It is

also stated in the objections that a baseless and concocted

story has been narrated by the petitioner that he became ill

in the month of May, 1994, and after informing his

immediate senior officer he left for his home to seek

medical treatment, whereas in the reply of the charge sheet

of the instant enquiry, the petitioner has deposed that one

person resident of Nowshera came to him and informed him

that his mother was seriously ill and, accordingly, he

proceeded to his home without seeking proper permission

from his senior officer.

12. In the objections, it is further stated that after restoration of

health of mother of the petitioner, he reported back for duty

and forgot to bring the medical documents of his mother.

The Enquiry Officer after conducting the enquiry had

recommended that the period of absence of the petitioner be

treated as „Dies-Non' on the basis of no work no pay. The

further stand of the respondent no. 3 is that the

recommendation made by the Enquiry Officer does not

commensurate with the gravity of offence, as such, a show

cause notice was served upon the petitioner as to why he

should not be discharged from services and was directed to

reply the notice within a period of seven days. It is also

stated in the objections that instead of replying to the show

cause notice, the petitioner again absented unauthorizedly

on 7th September, 1994 and, accordingly, he was informed

through concerned police station to resume his duties, but

the petitioner neither resumed his duties nor he informed

the department with regard to his ailment. As per the stand

of the respondent no. 3, the petitioner did not resume his

duties up to 2nd November, 1994 and his whereabouts were

also not known and no information with regard his ailment

was ever supplied to the concerned Battalion. Accordingly,

the respondents had no other option, but to discharge the

service of the petitioner, as he was on probation and did not

prove to be a good officer during the probation period, as

such, the order impugned came to be passed against him.

Legal Analysis and discussion.

13. Heard learned counsel for the parties at length and perused

the record.

st

14. We have gone through the Order dated 1 July, 2021,

passed by the CAT as also the order of discharge, which

was subject matter before the CAT. From the perusal of the

Order dated 31st October, 2009, issued by the respondent

no. 3, vide which, the petitioner was discharged from the

services from the date he remained absent i.e., 7th

September, 1994 in terms of Rule 187 of J&K Police

Manual by attaching stigma to the aforesaid order on the

ground that he had not proved to be a good police officer.

Besides, much emphasis has been laid down on the conduct

of the petitioner during his probation period in the aforesaid

order. As a matter of fact, the earlier writ petition which

was filed by the petitioner challenging the order impugned

dated 2nd November, 1994 passed by the respondent no. 3

stood quashed and the respondents were given liberty to

pass orders either under Rule 187 of J&K Police Manual in

case they so choose or conduct regular enquiry. The

respondents, in pursuance to the Judgment passed by this

Court in SWP No. 390/2002, without conducting the

detailed enquiry, discharged the petitioner from the services

w.e.f. 7th September, 1994, by relying upon the Rule 187 of

the Jammu and Kashmir Police Manual by attaching stigma

to the aforesaid order on the ground that "he had not

proved to be a good officer and his conduct did not remain

satisfactory during the probation period". Admittedly, the

petitioner was appointed as constable on 22nd February,

1993, and was on probation for a period of three years and

the said probation was to be completed in February, 1996,

and after completion of probation period, the petitioner

ought to have been confirmed as a regular constable, but

vide Order dated 2nd November, 1994, the petitioner was

discharged from the services during the probation period

w.e.f. 7th September, 1994, which order was subject matter

in SWP No. 390/2002. The said writ petition was disposed

of in terms of Order dated 22nd May, 2009, whereby, the

order of discharge dated 2nd November, 1994 passed by the

respondents stood quashed and the respondent were given

liberty to pass orders either under Rule 187 of Jammu and

Kashmir Police Manual in case they so choose or they may

conduct regular enquiry. In that view of the matter the order

impugned dated 31st October, 2009, in the instant case, is

in flagrant violation to the Judgment passed by this Court.

The respondents without application of mind and in a haste

manner, have discharged the petitioner retrospectively

w.e.f. 7th September, 1994. It is not so, even the order

impugned is not a simpliciter, but punitive in nature,

wherein the respondents have specifically mentioned the

reasons for such discharge by attaching stigma that the

petitioner had not proved to be good police officer. The

language and the expression used in the order of discharge

is stigmatic in nature and the petitioner has been

categorized as a bad police officer, which renders the

impugned discharge order bad in the eyes of law. The

rights of the petitioner are guaranteed under Article 311 of

the Constitution of India. The expression used in the

impugned order on the face of it is stigmatic and would

disentitle the petitioner to seek an employment in future.

Such type of order can be passed only, when regular

departmental enquiry is conducted. But, admittedly, in the

present case, no enquiry was conducted pursuant to the

Judgment passed by this Court in SWP No. 390/2002 and in

absence of departmental enquiry being conducted in such

type of cases, the petitioner cannot be thrown out by way of

a stigmatic order.

15. It is well settled law that right to life and personal liberty is

one of the fundamental rights guaranteed to a person under

Article 21 of the Constitution of India, which would include

right to livelihood, as such, before taking any action with a

view to put an end to the services of the petitioner, it

requires a reasonable opportunity to be given to the

petitioner to putforth his case so as to comply with the

universally accepted principles of natural justice, which has

not happened in the present case. Since, the services of the

petitioner has been brought to an end by virtue of a

stigmatic order, which can be held to be a punitive in nature

and violative of his Constitutional right and, as such, the

order can be passed only after subjecting the incumbent to a

regular enquiry. The finding recorded in the order of

discharge is based on allegation of misconduct, as such, the

respondents were under legal obligation to conduct a

regular enquiry by affording an opportunity of being heard

to the petitioner, which, in the present case, has not been

done. In that view of the matter, the order of discharge

cannot sustain the test of law.

16. The issue as to whether a probationer can be terminated or

his services can be dispensed with without conducting the

enquiry was considered by the Hon‟ble Supreme Court in

case titled Shamsher Singh vs. State of Punjab and Anr.

reported in AIR, 1994 SC 2192( 7 Judges' Bench),

wherein it was held that decisive factor in the context of

discharge of a probationer from service is the substance of

the order and not the form in determining whether the order

of discharge is stigmatic or not or whether the same formed

the motive for or foundation of the order.

17. The same view was reiterated by the Hon‟ble Supreme

Court in case titled Redhey Shyam Gupta vs. U.P. State

Agro Industries Corporation Ltd and Anr. reported in

(1992) 2 SCC 21 followed by a decision rendered in case

titled Nehru Yuva Kendra Sangathan vs. Mehbub Alam

Laskar reported in (2008) 2 SCC 479 and decision

rendered in case titled Union of India and Ors. vs.

Mahaveer C.Singhvi reported in (2010) 8 SCC 2020. In

Mahaveer C.Singhvi‟s case cited above, a plea was taken

that the respondent had been discharged from service by a

simple order of discharge without a stigma, therefore, being

a probationer he was not entitled to protection of Article

311 (2) of the Constitution of India. The said argument was

repelled noting the fact that due to allegations only he was

discharged and the Special Leave Petition challenging the

order of the High Court was dismissed with costs of Rs.

25,000/-.

18. Admittedly, no enquiry was conducted to prove alleged

misconduct of petitioner with regard to his unauthorized

absence by the respondents. On this count also, the

stigmatic order cannot sustain the test of law and this aspect

of the matter has not been gone into in detail by the CAT,

as such, the order passed by the CAT is liable to be

quashed.

19. Reliance is placed on the Judgment passed by the Division

Bench of this Court dated 13th August, 2015 in case titled

State of J&K vs. Ramesh Lal in LPA (SW) No. 156/2005

reported in 2015(4) JK (HC) 95, wherein, the order passed

by the Single Bench by setting aside the order of discharge

was upheld by directing the appellants to implement the

same within a period of two months.

20. We are fortified by the Judgment passed by the Hon‟ble

Supreme Court dated 28th January, 2020 in Civil Appeal

No. 777/2020 reported in 2020 Latest Case Law 89 SC in

Dr. Vijaykumaran C.P.V. vs. Central University of Kerala

and Ors, wherein it was observed as under:-

".. The above decision is, in our review, a clear authority for the proposition that the material which amount to stigma need not be contained in the order of

termination of the probationer but might be contained in any document referred to in the termination order or in its annexurer. Obviously, such a document could be asked for or called for by any future employer of the probationer. In such a case, the order of termination would stand vitiated on the ground that no regular enquiry was conducted.

"...One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was

(a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld ..."

"...In such cases, a regular inquiry or departmental action as per service rules is also indispensable so as to enable the employee concerned to vindicate his position and establish his innocence..." "... We have no hesitation in concluding that the impugned termination order dated 30.11.2017 is illegal being ex-facie stigmatic as it has been issued without subjecting the appellant to a regular inquiry as per the service rules..."

21. In the present case, all the aforesaid three elements are

attracted and it can safely be concluded that the order

impugned is ex-facie stigmatic and punitive in nature,

which can be issued only after subjecting the incumbent to

a regular enquiry as per the service rules. The petitioner has

been discharged from his services by placing reliance on

Rule 187 of the Jammu and Kashmir Police Manual. For

facility of reference, the same is reproduced as under:-

"187. Discharge of inefficient:- A constable, who is found unlikely to prove an efficient police officer, may be discharged by the Superintendent at any time within three years of enrollment."

22. From the perusal of aforesaid Rule, it is manifestly clear

that by invoking Rule 187 of the J&K Police Manual,

discharge of an incumbent during probation period

obviously would mean that he is not found fit to continue in

service on the basis of materials which are available before

the authority. Therefore, a person can be discharged under

Rule 187 by way of discharge simplicitor though the motive

may be because of omission and commission on the part of

the incumbent. However, it is not necessary to mention

those omissions and commissions in the termination or

discharge order. In case any such reason is given in the

discharge order showing the deficiency in the service of the

incumbent, it would amount to be stigmatic and if such a

discharge order is put to challenge, may not sustain on the

ground being stigmatic. However, if the discharge order is

simply passed without mentioning the deficiency of an

incumbent, it would be a discharge simplicitor in which

event such a discharge order can be sustained.

In the present case, the authorities apparently invoked

Rule 187 which entitles the authority to discharge a

constable who is found and is likely to prove an inefficient

officer yet if the said reason is mentioned in the discharge

order, which otherwise is not required to be mentioned for

the purposes of issuing the discharge order, such a

discharge order qualified by the deficiencies would be

stigmatic even if invoked under Rule 187, and cannot be

sustained in law.

nd

23. The respondents by virtue of order dated 2 November

1994, has discharged the petitioner from services, which

was quashed by this Court in the earlier round of litigation

in SWP No. 390 of 2002. The respondents have invoked

the provisions of Rule 187 of Jammu and Kashmir Police

Manual and in the aforesaid order a finding was recorded to

the effect that petitioner was absconding. It was specific

stand of the petitioner before the writ court in the earlier

round of litigation that such finding can only be recorded

after thorough enquiry. This argument of the petitioner was

accepted by the writ court and accordingly, quashed the

impugned discharge order with liberty to the respondents to

pass order either under Rule 187 of J&K Police Manual in

case they so choose or they may conduct regular enquiry.

However, the respondents have exercised the first option

and passed the impugned order on the same ground which

was rejected by this Court in the earlier round of litigation.

Rule 187 can be invoked only if the department does not

intend to stigmatize the concerned person, such power can

be exercised within a period of three years i.e., from the

date of enrollment and not otherwise. Admittedly, in the

present case the reliance has been placed by the respondents

on Rule 187 of Jammu and Kashmir Police Manual, which

is not applicable to the case of petitioner as the aforesaid

rule can be applied only within 3 years of enrolment and

not after 15 years. This aspect of the matter has not been

correctly appreciated by the CAT and has dismissed the

TA. No. 5601/2021 by holding that the respondents have

simply discharged the petitioner from the services without

attaching any stigma to him.

24. No doubt under Rule 187 of the Jammu and Kashmir

Police Manual, a Superintendent of Police has powers to

discharge the probationer within a period of three years of

enrolment, if he is of the view that the incumbent does not

prove himself to be a good police officer. Since the finding

recorded in the order impugned casts a stigma on the career

of the constable and there would be an impediment for the

petitioner to secure his future employment, therefore, the

provisions of Article 311 of the Constitution of India are

attracted in the present case. The discharge order should

have been passed by affording an opportunity of being

heard to the petitioner and also by issuing a show cause

notice against him, which, in the present case has not

happened and, accordingly, the order impugned cannot

sustain the test of law.

25. In the similar facts and circumstances, the Hon‟ble

Supreme Court in para 3 of the Judgment reported in AIR

1995 SC 984 has been pleased to observe as under:-

"It would thus be clear from the order of discharge that it is not an order of discharge simpliciter. On the other hand, the S.P. Considered the record and found him to be habitual absentee, negligent to his duty and indisciplined. The findings of habitual absence and indiscipline necessarily cast stigma on his career and they would be an impediment for any of future employment elsewhere. Under those circumstances, the principles of natural justice do require that he should be given an opportunity to explain the grounds on which the S.P. Proposes to pass an order of discharge and then to consider the explanation submitted by the police officer. Then the S.P. is competent to pass appropriate orders according to the rules. Since this part of the procedure had not been adopted, the order of discharge is vitiated by manifest error of law.

7. It shall be quite relevant to quote under as to what has been held in the judgment captioned Kulbir Singh Sanina v. State of JK and Anr. reported in SlJ 1989 J&K page

43. "Rule 187 of the Police Rules does not give an arbitrary power to the appointing authority to remove any employee of the police without observing the principles of natural justice, which is minimal requirement to hold an employee liable for removal from service, who has been appointed on a clear vacancy and has been put on probation of three years from the date of appointment."

26. The ratio laid down in the aforesaid referred Judgment is

that when the order of discharge is stigmatic, then without

enquiry, the same cannot be passed even against the

probationer by invoking the power under Rule 187 of the

Jammu and Kashmir Police Manual. Since the allegation of

misconduct constitute the foundation of the action taken in

the present case, the decision taken by the competent

Authority can be nullified on the ground of violation of

Rules of natural justice. We are also fortified by the

observations of Division Bench Judgment of this Court

rendered in case titled Kuljeet Singh vs. State of JK and

Ors. reported in 2014 (1) JKJ 382. The relevant para of

the Judgment is taken note of:-

"However, if the allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation of the rules of natural justice."

27. Thus, in the light of aforesaid analysis and discussion,

we conclude as under:-

a. That Rule 187 of the Jammu and Kashmir

Police Manual can be pressed into service only in

the eventuality when a constable is found unlikely to

prove an efficient police officer and can be

discharged by the Superintendent at any time within

three years of enrolment and not otherwise.

Admittedly, the respondents have placed reliance on

the aforesaid Rule after expiry of the aforesaid

period of three years. Accordingly, Rule 187 of the

Jammu and Kashmir Police Manual was not

applicable to the case of the petitioner.

b. The powers under Rule 187 can be invoked

only against a probationer within a period of

probation i.e., three years from the date of

enrolment and not to a permanent employee after a

period of 15 years from the date of his

appointment. It cannot be assumed that after 15

years the petitioner continued to be a probationer

and can be discharged by invoking the powers

under Rule 187 of the Jammu and Kashmir Police

Manual, as the petitioner has since become a

regular constable on the establishment of the police

department after completion of probation period.

c. The services of petitioner is protected under

Article 311(2) of the Constitution of India and the

procedure as envisaged under the aforesaid

Constitutional provision was required to be followed

by giving an opportunity of being heard to the

petitioner and also by issuing show cause notice to

him, which, in the present case has not happened and

thus, the order impugned cannot sustain the test of

law.

d. The petitioner has been discharged by virtue

of order impugned by way of a stigmatic order by

incorporating that "he had not proved to be a good

officer and his conduct did not remain satisfactory

during the probation period" and the stigma was

required to be enquired into by conducting a detailed

enquiry and providing an opportunity of being heard

to the petitioner. In absence of any enquiry being

conducted or providing an opportunity of being

heard to the petitioner, the order impugned cannot

sustain the test of law as the stigma attached to the

aforesaid order will haunt the petitioner for all times

to come for his future employment.

e. The order impugned is in flagrant violation

of the direction issued by this Court in the earlier

round of litigation in SWP No. 390/2002, wherein

the stigmatic order of discharge was quashed by this

Court by giving liberty to the respondents to pass

orders either under Rule 187 of J&K Police Manual

in case they so choose or conduct regular enquiry.

The respondents without conducting the enquiry

have invoked the provisions of Rule 187 of J&K

Police Manual, which was not applicable to the case

of the petitioner. Thus, the action of the respondents

in issuing the order impugned is contemptuous and

the same is in flagrant violation of Order/Judgment

passed by this Court in the earlier round of litigation

in SWP No.390/2002.

 f.     The     punishment     of   discharging     the

petitioner from services       is   major   7and    not

commensurate to the gravity of the allegations

leveled against him and the major punishment being

disproportionate to the allegations leveled against

the petitioner by way of order impugned, cannot

sustain the test of law.

Conclusion.

28. For the forgoing reasons and in view of the discussions

made above, we find merit in this petition and the same is,

accordingly, allowed. The impugned order dated 1st July,

2021, passed by the Central Administrative Tribunal

(CAT), Jammu is set-aside/quashed, as a necessary

corollary whereof, the order of discharge dated 31st

September, 2009 issued by the respondent no. 3 shall also

stand quashed/set aside. The respondents are directed to

reinstate the petitioner with immediate effect. The

petitioner is also held entitled to all the consequential

benefits minus monetary benefits retrospectively from the

date he joined his services i.e., w.e.f., 23rd February, 1993,

as this Court is not aware whether the petitioner during the

intervening period was gainfully employed elsewhere or

not.

 (WASIM SADIQ NARGAL)                          (N.KOTISWAR SINGH)
               JUDGE                               CHIEF JUSTICE

SRINAGAR
12.05.2023
"Shamim Dar"

Whether the Judgment is speaking? Yes/No. Whether the Judgment is reportable? Yes/No