Failure To Retaliate On Duty Against Attack By Militants Is An Act Of Cowardice; Jammu & Kashmir and Ladakh High Court Upholds Dismissal of Constable

​The Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar observed, “The findings of fact recorded by the Tribunal that while awarding punishment of dismissal upon the respondent, the Disciplinary Authority did not take note of the provisions of Rules 336 and 337 of the Police Rules are equally fallacious and, therefore, cannot be accepted. The failure of the Police Guards on duty to retaliate an attack by the militants and surrendering their weapons without firing a single round is a serious act of cowardice bringing moral disgrace to the police force as a whole. Such acts of the police guard who is posted for the safety of the people cannot be brushed aside lightly. Rule 337 itself provides that dismissal would be justified for acts of misconduct, e.g., fraud, dishonesty, corruption and all offences involving moral disgrace. Viewed thus, it cannot even be remotely suggested that the punishment of dismissal awarded to the respondent is shockingly disproportionate to the misconduct proved.”

Senior AAG Mohsin Qadri appeared on behalf of the Appellants, whereas Advocate Hamza Prince appeared for the Respondent.

Facts of the case

An appeal was filed by the Union Territory of Jammu and Kashmir assailing the judgment passed by the Single Bench of the High Court (‘Writ Court’), whereby the Writ Court had allowed the writ petition filed by the Respondent and quashed the order passed by the Superintendent of Police, terminating the services of the respondent.

In 2016, a Constable with 24 years of service was suspended and subsequently faced disciplinary action after militants attacked his assigned picket in Kulgam, resulting in the non-resistant surrender of service weapons. Following the registration of an FIR and the issuance of a formal charge sheet, the Respondent submitted a defence denying allegations of cowardice and carelessness; however, he alleged that the Superintendent of Police issued a show-cause notice for dismissal without conducting a proper inquiry, recording witness testimony, or allowing for cross-examination. Despite the Respondent’s subsequent plea for a humanitarian resolution based on his long tenure and financial dependence on the role, the department moved forward with the proposed penalty, leading to a legal dispute regarding the procedural fairness of his removal.

Contention of the Parties

The impugned judgment was assailed by the Appellants primarily on the ground that the writ Court had failed to appreciate that an adequate opportunity of hearing was provided by the Inquiry Officer to the respondent, and that a proper show-cause notice of proposed penalty was also served before a decision was taken by the competent authority to dismiss the respondent from service.

The challenge of the Respondent before the writ Court was three-fold: one, that the Additional SP was not competent to act as an Inquiry Officer; second, that the procedure for inquiries laid down in Rule 359 was not followed scrupulously and that there was violation of the principles of natural justice; and third, that while considering the punishment, the disciplinary authority did not take into consideration the provisions of Rules 336 and 337 of the Police Rules. All three arguments have found favour with the Writ Court.

Observations of the Court

Regarding the issue of whether the inquiry of the Respondent was conducted properly, the Court said, “In the instant case, the respondent against whom the inquiry was conducted was a Selection Grade Constable. The Selection Grade Constable is nothing but a Constable given the selection grade after serving for some specified years. That apart, the inquiry in this case has been conducted by the Additional SP. It is not disputed before us that the competent authority to inflict a major penalty of dismissal in case of a Constable is the Superintendent of Police. There should be no dispute that ASP is also a Superintendent of Police and, therefore, competent to inflict the punishment of dismissal upon a Constable…Viewed thus, it cannot be said that the inquiry conducted by the ASP, Kulgam, was, in any manner, without jurisdiction.”

The Court also held, “From the above decisions and many more, it is trite law that the power of judicial review is not directed against the decision itself, but is confined to the decision-making process. The Court does not sit in judgment over the merits of the decision. The adequacy or sufficiency of the evidence led in the inquiry cannot be made the subject matter of judicial review under Article 226 of the Constitution of India. The scrutiny of the Court in exercise of its power of judicial review must be restricted to examining whether the authority which conducted the inquiry or the authority which inflicted the punishment upon conclusion of such inquiry was the competent authority to do so, and whether the rules of natural justice were violated. While examining such issues, the Court would also determine whether any infraction of the procedural rules governing departmental inquiries has caused prejudice to the delinquent or deprived him of a reasonable opportunity to defend himself.”

Conclusion

The Court concluded that the inquiry was conducted by a competent authority strictly in accordance with the procedure prescribed under the Police Rules; that the respondent was afforded full and effective opportunity of hearing at every stage of the inquiry; that the principles of natural justice were scrupulously followed; and that no procedural irregularity, much less any illegality, was demonstrated which could be said to have caused prejudice to the respondent.

Accordingly, the Court allowed the appeal and set aside the order passed by the Writ Court.

Cause Title: UT of J&K and Ors. v. Bashir Ahmad Mir [Neutral Citation:2025 JKHC-SGR: 356]

Appearances:

Appellants: Senior AAG Mohsin Qadri with Advocates Maha Majed and Nowbahar Khan

Respondent: Advocates Hamza Prince and Urba Naseer

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