P a g e | 1 WP(C) No. 2190/2022 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 2. Sajjad Ahmed, aged 28 Yrs. S/O Sh. Ghulam Rasool, R/O parthmulla Tehsil Gool, District Ramban. …..Petitioner(s) Through: Mr. P. N. Raina, Sr. Adv with Ms. Diksha Handoo, Adv. Vs 1. Union Territory of Jammu & 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. .…. Respondent(s) 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 S. No. 1 P a g e | 2 WP(C) No. 2190/2022 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 P a g e | 3 WP(C) No. 2190/2022 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 P a g e | 4 WP(C) No. 2190/2022 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 P a g e | 5 WP(C) No. 2190/2022 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 P a g e | 6 WP(C) No. 2190/2022 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 P a g e | 7 WP(C) No. 2190/2022 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