Srinagar, Sept. 23, KDC: Holding that an employee cannot be condemned unheard on stigmatic accusations without a show cause notice or an inquiry, the High Court of Jammu & Kashmir and Ladakh has quashed the summary disengagement of a Special Police Officer (SPO) accused of submitting a fabricated date of birth certificate, directing his immediate reinstatement into service.
Allowing a writ petition, Justice M. A. Chowdhary set aside Order No. 312 of 2023 dated December 21, 2023, issued by the Senior Superintendent of Police (SSP), Security Kashmir, which had dismissed petitioner Mohammad Amin Rather from the rolls of Security Kashmir.
The court issued a writ of mandamus directing the authorities to reinstate Rather back into service with all consequential benefits, excluding emoluments for the period between his disengagement and the restoration of his service.
The petitioner, a resident of Bonigam in Kulgam district, was originally engaged as an SPO in 2004. Following prolonged litigation before the High Court seeking absorption at par with other personnel, the Home Department issued Government Order No. 155-Home of 2022 on May 24, 2022, approving the appointment and absorption of ten SPOs, including Rather, as regular Constables.
Upon receiving the order, Rather noticed that his date of birth was erroneously recorded as March 4, 1981, instead of his actual birth date of January 1, 1973. He approached the department seeking rectification based on school records verified by the J&K Board of School Education (JKBOSE), so that his formal appointment order could be issued.
However, instead of rectifying the entry, the department took the stand that Rather was overage at the time of his initial engagement in 2004, having reached 32 years of age, and had secured entry deceitfully by suppressing his actual age. Acting on this accusation, the SSP Security Kashmir summarily issued an order disengaging him from service with immediate effect and directed him to surrender all government inventory.
Advocate Shuja-ul-Haq Tantray, appearing for Rather, contended before the High Court that the dismissal was executed in blatant disregard of the principles of natural justice, without serving any show cause notice or initiating disciplinary proceedings to allow him to present his defence.
Examining the official records, Justice M. A. Chowdhary observed that the order of disengagement contained no reference to any notice or inquiry.
“It has been consistently held by the constitutional Courts that if an employee is sought to be disengaged on whatever ground(s), he is at least entitled to a show cause notice, if not to be subjected to an enquiry under the Rules governing the subject. The issuance of a show cause notice, before issuing an order which is prejudicial to the rights and interests of an employee, is based upon the sound legal doctrine of ‘Audi Alteram Partem’, which doctrine, inter-alia, provides that no person should be condemned unheard, in that, the right to hear would mean that party must know the cause he or she has to meet and must have a reasonable opportunity to present his or her case,” the court said.
Referring to the recent Division Bench judgment in Union Territory of J&K v. Mushtaq Ahmad Shah (2026), Justice Chowdhary pointed out that even where temporary or ad hoc engagements like SPOs do not attract the full procedural rigour of Article 311 of the Constitution or Sections 18 and 19 of the Police Act, an opportunity of hearing remains an irreducible minimum requirement whenever a termination is founded on misconduct or stigmatic allegations.
“Admittedly, no show cause notice (SCN) or enquiry was held in the case of the Petitioner, before passing the impugned Order to remove him from the rolls of SPOs of Security Kashmir, for furnishing alleged fake documents of his DOB. The Respondents have, thus, proceeded against the Petitioner raising stigmatic accusation, for which he was required to be heard in his defence. Therefore, the irrefutable conclusion that could be drawn is that the Respondents indeed have violated the basic fundamental principle of natural justice, while ordering disengagement of the services of the Petitioner as SPO, thereby condemning him unheard,” the court held.
The Bench ruled that sustaining an order passed in direct violation of the rules of natural justice would compound gross injustice against the employee.
While ordering his reinstatement, the High Court granted liberty to the police department to revisit and reconsider Rather’s case regarding the alleged production of a fake date of birth certificate, strictly in accordance with due process of law and after affording him an adequate opportunity of being heard.
Advocate Shuja-ul-Haq Tantray appeared for the petitioner, while Assisting Counsel Maha Majeed appeared on behalf of Senior Additional Advocate General Mohsin-ul-Showkat Qadri for the Union Territory administration. (KDC)
