Moksha Khajuria Kazmi, J
1. Through the medium of instant Letters Patent Appeal â€" LPA, the Appellants are challenging the judgment dated 23.05.2019, hereinafter for short
referred to as impugned judgment, passed by the learned Single Judge in case titled Mohammad Rafiq Najar vs. State and Ors, whereby the writ court
while allowing the writ petition has quashed the order No. 742 PHQ of 2008 dated 29.02.2008 by virtue of which the appointment of the
petitioner/respondent herein had been cancelled ab initio.
2. Before the merits of the matter are discussed, it would be proper to refer to the facts, in brief, which led to the filing of the instant appeal.
Brief Facts:
3. Appellants in terms of order No. 39 of 2008 dated 14.02.2008 appointed writ petitioner/respondent herein as Constable in IRP 12th Battalion
pursuant to his selection as such made in terms of PHQ Order No. 1500/07 dated 27.04.2007. While the petitioner/respondent herein was performing
his duties as Constable, an order bearing No. 742 PHQ of 2008 dated 29.02.2008 came to be issued by the appellants whereby the selection of the
petitioner/respondent herein was cancelled ab initio. The said order of cancellation is stated to have been issued on the ground that the APHQ J&K
vide communication No. APHQ/Legal-Opinion/2007/49296-97 dated 11.12.2007 intimated that the petitioner/respondent herein is a released Pak
Trained Militant of AlBarq Outfit having been involved in a criminal case registered as FIR No. 220/98 for the commission of offences punishable in
terms of Section 10 of the Criminal Law Act.
4. Aggrieved of the order of cancellation, the petitioner/respondent herein filed a writ petition bearing SWP No. 641/2008 before the writ court
challenging the order of cancellation inter alia on the grounds that no show cause notice was issued to him before issuance of the cancellation order,
not to speak of conducting a regular enquiry, which is violative of principles of natural justice; no opportunity of hearing was given to the
petitioner/respondent herein, the petitioner/respondent herein has falsely been implicated in case FIR No. 220/98 and the trial of the said case has also
resulted in the acquittal of the petitioner/respondent herein, the petitioner/respondent herein had not concealed anything from the authorities, as such,
the order of cancellation is bad in law.
5. The writ court, upon consideration of the matter and upon hearing learned counsel for the parties, allowed the writ petition and quashed the order of
cancellation in terms of the impugned judgment. The operative portion of the impugned judgment is taken note of herein below:
18.â€Viewing the matter in its totality, I am of the opinion that the order No. 742 PHQ of 2008 dated 29.02.2008 is bereft of any legal force and is
required to be quashed, as such is quashed accordingly. Consequently, the respondents shall allow the petitioner to join the service. However, if the
respondents feel it expedient to alter the condition of service of the petitioner or find any scope to proceed for awarding of any punishment, same shall
be done while affording an opportunity of being heard to the petitioner and in accordance with the Service Regulations governing the field.â€
6. The appellants, feeling aggrieved of the impugned judgment have filed the instant LPA to seek setting aside of the same in acceptance of the instant
appeal.
7. Upon notice, petitioner/respondent herein appeared.
8. The appellants are questioning the impugned judgment essentially on the ground that the writ court did not appreciate the fact that the antecedents
of petitioner/respondent herein were reported to be adverse, being a released PTM of AlBarq Outfit and involved in case FIR No. 220/98. It is
pleaded in the LPA that a police cop is supposed to possess a good moral character and must have a clean and unblemished integrity which the
petitioner/respondent herein does not possess and his continuation in the Police Force, as such, was unwarranted, therefore, his appointment was
cancelled.
9. We have heard learned counsel for the parties and perused the material placed before us.
10. Ms. Asifa Padroo, learned AAG, while reiterating the grounds taken in the LPA, submits that the respondent/writ petitioner was appointed
pursuant to his selection as Constable and upon having received an adverse report about him, his selection and appointment was rightly cancelled.
Learned AAG further submits that the Member of a Police Force is required to be of utmost integrity and the report vis-Ã -vis his involvement in
subversive activities cannot be compromised, particularly, when the said police official is on probation. Learned AAG further submits that being a
probationer, the respondent/writ petitioner was not entitled to any enquiry in terms of the procedure prescribed in the Police Laws in Jammu &
Kashmir. She submits that the writ court has erred in law by passing the impugned judgment in disregard of the provisions of the Police Rules.
11. On the other hand, learned counsel for the respondent submits that the respondent has been acquitted of the charges levelled against him in case
FIR No. 220/98 (by the Court of 3rd Additional Sessions Judge, Srinagar) and no other criminal case is pending against him, therefore, he cannot be
deprived of his right to get appointed in Police Department. Learned counsel further submits that the respondent at the time of his selection had
submitted all the documents for verification and it was only after proper verification that appointment order was issued in his favour, therefore, the
appellants are not justified in taking recourse to the communication on the basis whereof appointment of the respondent has been cancelled. Learned
counsel submits that in this view of the matter, the writ court has rightly quashed the cancellation order.
12. We have considered the submissions made by learned counsel for the parties.
13. It appears that the appellants subsequent to issuance of PHQ order bearing No. 742 of 2008 dated 29.02.2008 cancelling the selection of
respondent, had issued one more order bearing No. 111 of 2008 dated 27.03.2008 issued by the Commandant 12th Battalion, Zewan Srinagar,
cancelling thereby appointment of the respondent. Since the petitioner/respondent herein had filed writ petition seeking quashment of order No. 742 of
2008 which pertained to his cancellation of selection only, therefore, the petitioner/respondent herein filed an amended writ petition seeking to
incorporate the relief of certiorari to the effect that order bearing No. 111 of 2008 dated 27.03.2008, whereby his appointment had been cancelled, be
also quashed.
14. The present appeal was time barred, therefore, an application seeking condonation of 693 days delay was also filed alongside the appeal which
was allowed on 25.08.2022 subject to payment of costs of Rs. 25,000/-.
15. Perusal of the impugned judgment would reveal that the writ court has found the cancellation of appointment order of the respondent as a major
punishment attaching stigma to the career prospects of the respondent, therefore, quashed the same. It further appears that writ court found the order
to have been issued in disregard of Rule 339 of Police Rules Section 126-B of the Constitution of Jammu and Kashmir (As it existed then) and Rule
33 of J&K Civil Services (Classification, Control & Appeal) Rules 1956.
16. We do not have any disagreement over the conclusion arrived at by the writ court that the order of cancellation of appointment was stigmatic and
not simpliciter. The appellants were duty bound to check the antecedents of the respondent before appointing him in the Department. There is
absolutely nothing on record to show that the verification of the character antecedents of the respondent were not verified before an order of
appointment was issued in his favour.
Therefore, the presumption is that the appellants did verify the character antecedents of the respondent pursuant to his selection and thereafter
appointed him.
17. The Hon’ble Supreme Court in case titled Avatar Singh vs. Union of India and Ors. reported as AIR 2016 SC 3598 has laid down certain
parameters which are required to be followed in termination matters.
It would be profitable to reproduce Para 30 of the said judgment herein:
30. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize our
conclusion thus:
1. Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after
entering into service must be true and there should be no suppression or false mention of required information.
2. While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special
circumstances of the case, if any, while giving such information.
3. The employer shall take into consideration the Government orders/ instructions/ rules, applicable to the employee, at the time of taking the decision.
4. In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before
filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case
may be adopted : -
a) In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed
would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false
information by condoning the lapse.
b) Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
c) If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a
case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and
may take appropriate decision as to the continuance of the employee.
5. In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents,
and cannot be compelled to appoint the candidate.
6. In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in
facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case.
7. In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an
employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases
were pending may not be proper.
8. If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing
authority would take decision after considering the seriousness of the crime.
9. In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or
dismissal on the ground of suppression or submitting false information in verification form.
10. For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was
required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same
can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of
suppression or submitting false information as to a fact which was not even asked for.
11. Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him.
18. In another case titled V.P. Ahuja vs. State of Punjab and Ors. reported as 2000 3 SCC 239, same observation has been made by Hon’ble
Supreme Court, in para Nos. 5, 7 & 8 observed as follows:
5. The observation of the High Court that:- ""The impugned order is not stigmatic and nothing at all has been urged that may detract from such an order
being passed during the currency of probation."" is surprising, to say the least. The order by which the services of the appellant were terminated has
already been quoted by us above. The order, ex facie, is stigmatic as also punitive. The order is founded on the ground that the appellant had failed in
the performance of his duties administratively and technically. It is for this reason that the services of the appellant were terminated. As pointed out
above, the order, ex facie, is stigmatic.
7. A probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services
be terminated in a punitive manner without complying with the principles of natural justice.
8. The affidavit filed by the parties before the High Court as also in this Court indicate the background in which the order, terminating the services of
the appellant, came to be passed. Such an order which, on the face of it, is stigmatic, could not have been passed without holding a regular enquiry and
giving an opportunity of hearing to the appellant.
19. In case titled Pavanendra Narayan Verma vs. SGPGI of Medical Sciences and Anr. reported as 2002 I SCC 520, the Hon’ble Supreme Court
has in para Nos. 21, 22 & 29, held as under:-
21. 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 (c) which 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.
22. The three factors are distinguishable in the following passage in Shamsher Singh v. State of Punjab (supra) where it was said:
Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or
whether he is suitable for the post. In the absence of any rules governing a probationer in this respect the authority may come to the conclusion that on
account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and
hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may
result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a
view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the
probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the
provisions of Article 311(2) he can claim protection.
29. Before considering the facts of the case before us one further, seemingly intractable, area relating to the first test needs to be cleared viz. what
language in a termination order would amount to a stigma? Generally speaking when a probationers appointment is terminated it means that the
probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although
strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is
implicit in every order of termination of a probationers appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier,
also do not hold so. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the
job.
20. In Canara Bank v. V. K. Awasthy, reported as AIR 2005 SC 2090, Hon’ble Apex Court, while dealing with the extent and scope of the
principles of natural justice, held as under:-
“10. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body
embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well
settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard.
Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet.
Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such
reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any
adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The
concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of
this principle found its way into the ``Magna Carta''. The classic exposition of Sir Edward Coke of natural justice requires to ``vocate interrogate and
adjudicate''. In the celebrated case of Cooper v. Wandsworth Board of Works, (1963) 143 ER 414, the principle was thus stated:
Even God did not pass a sentence upon Adam, before he was called upon to make his defence. ``Adam'' says God, ``where art thou has thou not
eaten of the tree whereof I commanded thee that though should not eat''.
Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept,
like polishing of a diamond.
21. Applying the ratio laid down in the judgments supra of the Hon’ble Apex Court to the instant case, it becomes quite clear that the appellants
have not only violated the procedure as taken note of by the writ court, but also the principles of natural justice. Admittedly, the respondent has not at
all been provided an opportunity of being heard before an order of cancellation of his appointment was issued.
22. The order of cancellation of appointment, on the face of it, appears to be an order of removal from service which is a major punishment in terms
of the relevant provisions of law and could not have been issued unless the incumbent was provided an opportunity of being heard, irrespective of him
being a probationer or a regular police personnel.
23. The appellants in the very first paragraph of their LPA have stated that respondent came to be selected as Constable in J&K Armed Police in the
month of April, 2007 subject to certain departmental formalities. Accordingly, his character antecedents were verified through CID organisation, who
intimated that respondent is a released PTM of AlBarq Outfit and case FIR No. 220/98 stands registered against him. The appellants further
continues to state that since the report was adverse against the respondent, therefore, the case was referred for further orders/opinion and on receipt
of such opinion from the APHQ, J&K, formal appointment order was issued in favour of the respondent vide order bearing No. 111 of 2008 dated
27.03.2008. It becomes, thus, quite explicit that the appointment of the respondent was made after the CID authorities furnished an adverse report
against him. Even otherwise, the appellants have very clearly mentioned in PHQ order No. 742 of 2008 dated 29.02.2008, by virtue of which the
selection of respondent was cancelled, that IGP Armed vide letter No. APHQ/Legal-opinion/2007/49296-97 dated 11.12.2007 has communicated that
the respondent has been reported adversely by CID and, as such, his selection was cancelled. However, the fact remains that the respondent’s
appointment itself was made in the year 2008 much later in time to the communication taken recourse of for cancellation of respondent’s
selection/appointment. For this reason also, the order of cancellation of selection and appointment is legally untenable, as such, cannot withstand the
test of law. It further appears that the communication taken recourse of by the appellants in cancelling the selection and appointment of the
respondent is issued by the IGP Armed in terms of letter No. APHQ/Legal-Opinion/2007/49296-97 dated 11.12.2007. While as, the letter issued by
the same authority bearing No. APHQ/Legal/Opinion/2008/622-26 dated 10.01.2008 reflects that there is nothing adverse against the respondent. The
two conflicting letters have been issued by the same authority and the appellants appear to have given effect to the one issued in January, 2008 while
appointing the petitioner/respondent herein and the letter dated 11.12.2007 issued much earlier while cancelling the selection and appointment of the
respondent. It depicts total non-application of mind on the part of appellants, as in normal course the letter issued in December, 2007 reflecting the
respondent as PTM of AlBarq Outfit ought to have been taken recourse of at the time of the appointment of the respondent which was not done and
subsequently when the letter dated 10th January, 2008 was issued by the IGP Armed, the appellants appointed the respondent and allowed him to
perform his duties for some time and then took recourse to the letter dated 11.12.2007 which is an after-thought and is absolutely uncalled for.
24.It would be apt to mention here that the respondent has earned a clean and an honourable acquittal in the criminal case on the basis whereof his
selection and appointment had been cancelled.
25. Having regard to what has been said hereinbefore, the impugned order does not appear to be suffering from any legal infirmity which requires
interference from this Court. Accordingly, the appeal is held to be without any merit, therefore, dismissed. The impugned judgment dated 23.05.2019
passed in SWP No. 641/2008, as such, is maintained. Since the writ court has left the order bearing No. 111 of 2008 dated 27.03.2008 untouched,
although there are findings recorded by the writ court in respect of the same being legally unsustainable, therefore, the said order of cancellation of
appointment shall also be deemed to have been quashed by a writ of certiorari.
26. There shall, however, be no order as to costs.
