D.N. Patel, J. - (1.) THE present writ petition has been preferred mainly against the order passed by the Commandant, Jharkhand Armed Police -6, Jamshedpur, dated 13 July, 2007 (Annexure -3 to the memo of the petition), whereby, the services of the present petitioner has been brought to an end by patting an allegation against the present petitioner that one F.I.R. bearing Lakhisarai Police Station Case No. 95 of 2007 dated 4 March, 2007 under Sections 341, 336, 504, 307 to be read with Section 34 of the Indian Penal Code as well as Section 24 of the Arms Act is filed against the present petitioner and therefore, his services have been brought to an end. Against this order, the present petition has been preferred.
(2.) LEARNED Counsel for the petitioner submitted that the termination of the services of the present petitioner is not a termination simplicitor, but, it is a termination punitive and allegation levelled against the present petitioner, in tire impugned order, tantamounts to stigma upon the services of the present petitioner and therefore, there ought to have been a notice/charge -sheet given to the petitioner and there ought to have been departmental enquiry, against the present petitioner, but, in the facts of the present case, never such notice or enquiry has ever been conducted by the respondents. So far as the alleged F.I.R. is concerned, the petitioner has been exonerated from the competent trial court vide order dated 25 September, 2007 in Sessions Case No. 521 of 2007 passed by the Additional Sessions Judge, Fast Track Court -II, Lakhisarai (order at Annexure -2 to the memo of the petition). Thus, the very basis, which was alleged against the present petitioner, for termination of the services has been ended into an order of acquittal and no criminal appeal has been preferred by the State, against the order of acquittal. On civil side never any notice nor any hearing has been given to the petitioner and services of the petitioner has been terminated for the reason that the petitioner is involved in the F.I.R. without appreciating Rule 844 of the Jharkhand Police Manual. As per this Rule 844, whenever any criminal case is resulted into conviction or acquittal or discharge, it will be considered by the high ranking police officer. It is also submitted by the learned Counsel for the petitioner that the Rule, upon which reliance has been placed in the impugned order i.e. Rule 668 of the Jharkhand Police Manual is applicable only when the termination is simplicitor. In the facts of the present case, allegation has been levelled against the present petitioner and the petitioner has been terminated from the services and therefore, this termination is a punitive, for which, charge -sheet on civil side and an enquiry is required and therefore, the impugned order at Annexure -3 passed by the Commandant, Jharkhand Armed Police -6, Jamshedpur dated 13 July, 2007, deserves to be quashed and set aside. Learned Counsel for the petitioner has also placed reliance upon the decision rendered by this Court in the case of Shileshwar Prasad Verma and Ors. v. State of Jharkhand and Ors. as reported in, 2009(3) JLJR 437. I have heard learned Counsel appearing on behalf of the respondents, who has mainly submitted that the present petitioner was appointed on 5 December, 2006 and during the period of probation, his services have been brought to an end on 12 July, 2007 vide order dated 13 of July, 2007 at Annexure -3, mainly for the reason that against him an F.I.R has been filed at Lakhisarai Police Station bearing P.S. Case No. 95 of 2007 dated 4 March, 2007 under Sections 341, 336, 504, 307 to be read with Section 34 of the Indian Penal Code as well as Section 24 of the Arms Act and as per the Jharkhand Police Manual, Rule 668(a) respondents has power, jurisdiction or authority to terminate the services of a probationer, without giving a notice and without giving any opportunity of being heard and therefore, the impugned order is in consonance with facts, and law and therefore, the petition deserves to be dismissed. Learned Counsel for the State has also placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Delhi Administration through its Chief Secretary and Ors. v. Sushil Kumar as reported in : 1996(11) SCC 605.
(3.) HAVING heard learned Counsel for both the sides and looking to the facts and circumstances of the case, it appears that: (i) the present petitioner was appointed as Constable on 5 December, 2006. Thereafter, he was working to the satisfaction of the respondents. Never any allegation has been levelled by the respondents against the petitioner till the order of termination dated 13 July, 2007. (ii) after the petitioner's joining, one F.I.R. is filed against the present petitioner and two other persons at Lakhisarai Police Station bearing P.S. Case No. 95 of 2007 dated 4 March, 2007 under Sections 341, 336, 504, 307 to be read with Section 34 of the Indian Penal Code as well as Section 24 of the Arms Act and as he has been involved in this F.I.R. the services of the present petitioner have brought to an end vide order dated 13 July, 2007 by the Commandant, Jharkhand Armed Police -6, Jamshedpur, vide order at Annexure -3 to the memo of the petition. Looking to this impugned order, it appears that the reason given for the termination of the services of the petitioner is involved in the F.I.R. Thus, the impugned order dated 13 July, 2007 is not a termination simplictor, but, it is a termination punitive. If the services of the petitioner is not up to the mark to the satisfaction, then during period of probation, as per the Jharkhand Police Manual Rule 668(a), his services can be terminated, but, whenever any allegation is levelled against the petitioner that he is involved in offences and therefore, his services are terminated, this type of termination, in the eyes of law, is a punitive termination. It attaches stigma to the petitioner and therefore, there ought to be a notice and enquiry against the petitioner for the charges levelled against the petitioner. There are several innocent police officers, against whom, several persons are filing F.I.Rs which ultimately results into honorable acquittal. In the facts of the present case, never such show cause notice, nor any enquiry has ever been conducted against the petitioner, nor any opportunity of being heard was given to the petitioner. Thus, there is gross violation of principles of natural justice, before passing the impugned order dated 13 July, 2007. (iii) Rule 668 of the Jharkhand Police Manual reads as under: 668. Removal or reversion of officers appointed direct or promoted on probation: The following rules shall govern first appointments and the promotion of police and ministerial officers as detailed in Appendix 41: (a) All officers shall in the first instance be appointed or promoted on probation. Where the period of probation is not otherwise provided for in the rules it shall be for a period of two years in the case of executive officers and one year in the case of ministerial officers. The authority authorised to make such appointment or promotion, may at any time during such probationary period and without the formalities laid down in Rule 828, remove an executive officer directly appointed or revert such an officer promoted who has not fulfilled the conditions of his appointment or who has shown himself unfit for such appointment or promotion. Similarly, probationary period may also be extended without any show cause. No appeal shall lie in such cases. (b) Executive Officers appointed or promoted in other than permanent vacancies are also liable to removal or reversion in the manner indicated in Clause (a) above. In view of the aforesaid Rule of the Jharkhand Police Manual, respondents are authorised to remove any police officer, during probation period: (i) who has not fulfilled the conditions of his appointment; or (ii) who has shown himself unfit for such appointment. Looking to this provision and looking to the impugned order at Annexure -3, there is no allegation against the petitioner that there is a breach of conditions of the appointment, nor there is an allegation against the petitioner that he is unfit for such appointment. This satisfaction ought to have been arrived at whenever respondents want to operate Rule 668 of the Jharkhand Police Manual or otherwise, in absence of such a satisfaction by the respondents. Rule 668 of the Jharkhand Police Manual cannot be made applicable. Rule 668 pre -supposes such type of satisfaction to be arrived at by the high ranking police officer before removal of a police officer from the services. Looking to the impugned order, no such satisfaction is being mentioned, at all, that there is a breach of the conditions of the appointment or the petitioner is unfit for such appointment. Third reason cannot be given for operating Rule 668 of the Jharkhand Police Manual. The reason, which has been given, in the impugned order is that F.I.R. has been filed against the present petitioner and therefore, his services have been terminated. This is no satisfaction in the eye of law. Thus the Rule 668(a), which has been referred in the impugned order, is not applicable, looking to the facts of the present case. (iv) the alleged F.I.R filed against the present petitioner at Lakhisarai Police Station bearing P.S. Case No. 95 of 2007 has resulted into an acquittal by the order passed by the Additional Sessions Judge, Fast Track Court -II, Lakhisarai dated 25 September, 2007 in Sessions Case No. 521 of 2007 (Annexure -2 to the memo of the petition). Thus, the competent trial court has acquitted the present petitioner and it is submitted by both the Counsels that the State has not preferred any acquittal appeal against the order of Additional Sessions Judge, Lakhisarai. Thus, the State has accepted the order of acquittal passed in favour of the present petitioner. (v) the learned Counsel for the petitioner has also relied upon the Rule 844 of the Jharkhand Police Manual, which is falling within Chapter 25 under the heading of 'Punishments'. Rule 844 of the Jharkhand Police Manual reads as under: 844. Superintendent to examine records of cases against police officers: The Superintendent shall go through the record of every case brought against a Police Officer in the courts, and shall take/initiate departmental cognizance of every criminal case in which a Police Officer is convicted or acquitted or discharged (except when the case is declared false) and record and order in writing (See Rule 843). In view of the aforesaid Rule, it is incumbent upon the high ranking officer, whenever any criminal case is resulted into conviction or acquittal or discharge to see the record of the case and thereafter, to take or initiate departmental cognizance. Thus, even if there Ls an acquittal in criminal case, there can be a departmental proceedings against the present petitioner, but, that charge -sheet and an enquiry ought to be conducted and an opportunity of being heard ought to be given to the petitioner. In the facts of the present case, never such type of notice or any opportunity of being heard was ever given to the petitioner. Bare filing of F.I.R. is of no help to the respondents for terminating the services of any police officer, unless a show cause notice and at least, an opportunity of being heard is given to the petitioner, and in the facts of the present case, the case registered against the present petitioner has been resulted into an acquittal. (vi) the learned Counsel for the respondents has relied upon the decision rendered by the Hon'ble Supreme Court in the case of Delhi Administration through its Chief Secretary and Ors. v. Sushil Kumar as reported in : 1996 (11) SCC 605. Looking to the facts of this reported case, it appears that there was suppression of material fact by that petitioner, who was though involved in the case, but, had not revealed these facts in his application and upon verification, his antecedents were found out. The facts of the present case are absolutely different. The alleged F.I.R. has been filed after the petitioner joined the services. In the facts of the present case, there is no suppression of any facts by the petitioner and therefore, the aforesaid decision is not applicable to the facts of the present case. (vii) It has been held by this Court in the case of Shileshwar Prasad Verma and Ors. v. State of Jharkhand and Ors. as reported in, 2009(3) JLJR 437, especially in paragraph 3, which reads as under: Having heard learned Counsel far both the sides and looking to the facts and circumstances of the case, it appears that: (i) Before passing order of termination of the set vices of the petitioners dated 7 March, 2009 by respondent No. 7, no notices were served to the petitioners and no opportunity of hearing were ever given to the petitioners. Thus, there is violation of principles of natural justice. (ii) Looking to the termination order at Annexure -3, it appears that respondent No. 7 has presumed the proof of charge, but, no charge -sheet of departmental inquiry was ever served to the petitioners. Thus, charges have been levelled orally, they are presumed to have been proved and punishment has been inflicted dated 7 March, 2009 Annexure -3 to the memo of the present petition. All the three things namely charge -sheet, inquiry and punishment can not be completed in one order dated 7 March, 2009 at Annexure -3 to the memo of the present petition, without serving any notice and without giving any opportunity of being heard to the petitioners and, therefore, I hereby quash and set aside the order passed by respondent No. 7 dated 7 Match, 2009 Annexure -3 to the memo of the present petition. Nonetheless, liberty is reserved, with the respondents to initiate action, if necessary, against the present petitioners in accordance with law and at least after following the principles of natural justice. Thus, in absence of any opportunity of being heard to the petitioner, and on the basis of allegation of filing of an F.I.R., services of the petitioner cannot be terminated because it is a punitive in nature.;