Kalyan Singh Aged 35 Yrs vs Union Territory Of Jammu &
2025 Latest Caselaw 936 J&K

Jammu & Kashmir High Court

Kalyan Singh Aged 35 Yrs vs Union Territory Of Jammu & on 13 February, 2025

                                                                   S. No. 1
                                                               Page |1

     HIGH COURT OF JAMMU & KASHMIR AND
                  LADAKH
                 AT JAMMU
                                      Reserved on:       03.01.2025
                                     Pronounced on:       13.02.2025

Case:-    WP(C) No. 2190/2022

      1. Kalyan Singh aged 35 Yrs.
         S/O Late Sh. Chuni Lal,
         R/O Dharam Tehsil Gool, District
         Ramban                                       .....Petitioner(s)
      2. Sajjad Ahmed, aged 28 Yrs.
         S/O Sh. Ghulam Rasool,
         R/O parthmulla Tehsil Gool,
         District Ramban.


                Through: Mr. P. N. Raina, Sr. Adv with
                         Ms. Diksha Handoo, Adv.

              Vs
      1. Union Territory of Jammu &               ..... Respondent(s)
         Kashmir through its Financial
         Commissioner, Home
         Department, Civil Secretariat,
         Jammu/Srinagar
      2. Director General of Police J&K,
         Police Headquarters, Jammu.
      3. Deputy Inspector General of
         Police, DKR Range, Batote.
      4. Senior Superintendent of Police,
         Ramban
      5. Senior Prosecuting Officer, DPO
         Ramban.


                Through: Ms. Monika Kohil, Sr. AAG.


Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI,
       JUDGE

                            JUDGMENT

1. The petitioners in the instant petition have challenged Order bearing

no. 267 of 2022 dated 30.06.2022 issue by the respondent 4 herein, in

Page |2

terms whereof the engagement of the petitioners as Special Police

Officers (SPOs) has been terminated.

2. Facts would reveal that the petitioner 1 herein came to be engaged as a

Special Police Officer (SPO for short) vide Order No. 286 of 2006

dated 27.07.2006, whereas, Petitioner 2 as well was engaged as SPO in

the year 2014, and after having served for about 16 and 8 years

respectively as such, came to be disengaged from service on the basis

of their alleged involvement in FIRs No. 13 of 2022 registered with

police station Dharam Kund, FIR No. 104/2022 registered with police

station Batote and FIR No. 105/2022 registered with police station

Batote.

3. Petitioners claim that while working as SPOs have played a pivotal

role in fighting the terrorism in their respective districts, yet the

petitioners came to be disengaged by respondents on the basis of false

allegations unsupported by any valid evidence, moreso, on the basis of

an enquiry initiated by Respondent 4 herein in violation of the

prescribed provisions and that even the appeal preferred by the

petitioners against their disengagement order in terms of J&K Police

Rules of 1960 on 04.07.2022, was not decided by the respondent.

4. The petitioners herein while urging the grounds of challenge against

the impugned order have stated that the impugned order has been

issued in violation of and contrary to the provisions of the Police Act,

1983 (for short the Act of 1983) and Police Rules (for short the Rules)

and without holding an inquiry in terms of the Rule 359 of the Police

Rules and that the effect of the impugned order is that the petitioners

have been visited with civil consequences of jeopardizing not only their

Page |3

livelihood but also their career and livelihood of their dependents and

that the petitioners before the issuance of the impugned order were

never put to any notice of the action proposed to be taken by the

Respondents thus violated the principles of natural justice.

5. Objection to the petition have been filed by the Respondents wherein

the petition is being opposed. It is, however, being admitted that the

petitioners came to be engaged as SPOs in the year 2006 and 2014

respectively and came to be disengaged in terms of the impugned order

based on cogent and serious reasons. It is further stated that the

engagement of SPOs is purely temporary in nature and that the

petitioners came to be disengaged on account of their involvement in

criminal activities for their nexus with bovine smugglers having

assisted them for safe crossing of bovine which amount to gross

misconduct. It is further stated that an inquiry got initiated against the

petitioners although the petitioners do not have the rights of permanent

employees of the Police Department who could be terminated after due

departmental inquiry and after submission of the inquiry report on

28th of June 2022 by the Inquiry Officer the involvement of the

petitioners in various criminal activities including having nexus with

bovine smugglers got established and that detailed reports in this regard

were also called from the SHO Police Station Batote and Dharmkund,

which revealed that the Petitioner 1 is involved in FIR No. 105 of 1022

supra and FIR No. 13 of 2022 supra, whereas Petitioner 2 was found to

be involved in FIRs. 104/2022 and 13/2022 supra, and both the

petitioners have had been arrested in connection with the investigation

of the said FIR and later release on bail by the Competent Court. It is

Page |4

further stated that since the petitioners were found guilty of gross

misconduct, as such, were disengaged.

Heard learned counsel for the parties and perused the record of

inquiry.

6. Before proceeding to advert to the issues involved in the instant

petition, it would be advantageous and appropriate to refer hereunder to

Sections 18, 19 and 30 of the Police Act Samvat 1983 (1927 A.D)

being relevant herein:-

18. Special Police officers.-

When it shall appear that any unlawful assembly, or riot or disturbance of the peace has taken place, or may be reasonably apprehended, and that the Police force ordinarily employed for preserving the peace is not sufficient for its preservation and for the protection of the inhabitants and the security of property in the place where such unlawful assembly or riot or disturbance of the peace has occurred, or is apprehended, it shall be lawful for any Police officer not below the rank of Inspector to apply to the nearest Magistrate to appoint so many of the residents of the neighborhood as such Police officer may require to act as Special Police officers for such time and within such limits as he shall deem necessary and the Magistrate to whom such application is made shall unless he see cause to the contrary comply with the application.

19. Powers of Special Police Officers.

Every special Police Officer so appointed shall have the same powers, privileges and protection, and shall be liable to perform the same duties and shall be amenable to the same penalties, and be subordinate to the same authorities as the ordinary officers of Police.

30. Penalties for neglect of duty, etc

Every Police Officer who shall be guilty of any violation of duty or willful breach or neglect of any rule or regulation or lawful order made by competent authority, or who shall withdraw from the duties of his office without permission, or without having given previous notice for the period of two months, or who, being

Page |5

absent on leave, shall fail, without reasonable cause, to report himself for duty on the expiration of such leave, or who shall engage without authority in any employment other than his police duty, shall be guilty of cowardice, or shall offer any unwarrantable personal violence to any person in his custody, shall be liable, on conviction before a Judicial Magistrate, to a penalty not exceeding three months' pay, or to imprisonment for a period not exceeding three months, or to both.

7. Insofar as application of the provisions of Rule 359 of the Rule supra to

a Special Police Officer is concerned, a Division Bench of this Court in

case titled as "State of J&K and Ors vs. Mohamad Iqbal Mallah"

reported in 2014 SCC online J&K 58, has held that there is no

requirement of law to hold an inquiry against an SPO for complying

with the rules of principles of natural justice, as SPO is not holding a

post much less a civil post. However, since the respondents according

to their own showing have ordered an inquiry against the petitioners for

their alleged involvement in the FIR's supra and consequently

disengaged the petitioners on the basis of report of said enquiry, the

respondents cannot now contend that no enquiry was required to be

held against the petitioners prior to their disengagement. The

respondents cannot approbate and reprobate in the matter and take a

stand of their choice in the matter.

Even otherwise also since under Section 30 supra of the Act of

1983, prosecution have had been launched against the petitioners for

their alleged acts of omission and commission, as such, the respondents

could not have simultaneously proceeded to have held an inquiry

against the petitioners and consequently disengaged them on the basis

thereof, in that, such an inquiry could have been conducted against the

petitioners, if such, prosecution would have failed on some technical

Page |6

grounds. The said view has been expressed by this Court in case titled

as "Gh. Nabi Teli vs Superintendent of Police Baramulla & Ors"

reported in 1986 KLJ 388.

8. Besides above position obtaining in the matter, record available on the

file as also the record of inquiry reveals that the respondents have

grossly erred while holding the inquiry in question against the

petitioners and has been conducted in a mechanical manner and cannot

by any stretch of imagination said to be a fair inquiry held by the

respondents against the petitioners, in that, holding of such an inquiry

envisages in law a proper mechanism and procedure to be followed.

Once the respondent had chosen to hold an inquiry against the

petitioners in the matter, even if no such inquiry was required to be

held against the petitioners, yet, such an inquiry could not have been

conducted mechanically in the manner by the respondents. A reference

here to the judgment of the Apex Court passed in case titled as

"Basudeo Tiwary vs. Sido Kanhu University & Others", reported in

AIR 1988 SC 3261, would be relevant, wherein, it has been held at

Para 9 as under:-

9. The law is settled that non-arbitrariness is an essential facet of Article 14 pervading the entire realm of State action governed by Article 14. It has come to be established, as a further corollary, that the audi alteram partem facet of natural justice is also a requirement of Article 14, for natural justice is the antithesis of arbitrariness. In the sphere of public employment, it is well settled that any action taken by the employer against an employee must d be fair, just and reasonable which are the components of fair treatment. The conferment of absolute power to

Page |7

terminate the services of an employee is an antithesis to fair, just and reasonable treatment. This aspect was exhaustively considered by a Constitution Bench of this Court in Delhi Transport Corpn. v. D.T.C. Mazdoor Congress¹.

9. For what has been observed, considered and analyzed hereinabove, the

instant petition succeeds, as a consequence whereof, impugned order

No. 267 of 2022 dated 30.06.2022, issued by Respondent 4, is quashed

and respondents, accordingly, are commanded to reinstate the

petitioners as SPOs and extend them all service benefits to which they

are entitled thereto minus the monetary benefits for the period

petitioners have remained out of service.

10.The record of inquiry produced by the counsel for respondents be

returned back.

(JAVED IQBAL WANI) JUDGE JAMMU 13.02.2025 Hilal Ahmad

Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No