Jammu, Jan 21: A bench of HON’BLE DR. BHAGWAN SAHAI, MEMBER (A) HON’BLE MR. RAKESH SAGAR JAIN, MEMBER (J) in case titled Indraz Ali, Belt No. 1067/D Versus 1. State of J&K & ors ordered as:-
Hon’ble Mr. Rakesh Sagar Jain, Member (J)
1. Applicant Indraz Ali has filed the present T.A. seeking the following reliefs:-
“A. Writ of Certiorari:- i) Quashing Order No. 470 of 2010 dated 08.06.2010 as contained in Annexure: B. ii) Quashing Order No. 28 of 2014 dated 31.01.2014 as contained in Annexure-D.
B. Writ of Mandamus:- i) Commanding on respondents particularly respondent No. 6 to allow petitioner to complete training course without being influenced by the orders dated 08-06-2010 and 31-01-2014.
ii) Commanding on respondents to release all consequential benefits by treating petitioner in service even after 08-06-2010.
C. Any other order which this Hon’ble Court may deem fit and proper in the circumstances of the case may also be passed in favour of the petitioner against the respondents.”
2. Applicant has filed the present petition challenging the impugned order No. 470 of 2010 dated 08.06.2010 (Annexure B) passed by Sr. Superintendent of Police, Doda (Respondent No. 4) whereby the applicant was dismissed from J&K Police Service and No. 28 of 2014 dated 31.01.2014 (Annexure D) passed by Deputy Inspector General of Police, Hqrs. Batote (Respondent No. 3) whereby the appeal of applicant against order of S.S.P. was dismissed.
For disposal of this petition, it is not necessary to mention the facts in detail. It is suffice to mention that challenging the impugned orders, it is submitted by the learned counsel for the applicant that the respondents have not conducted the departmental enquiry and without assigning any reason as to why holding of departmental enquiry is not necessary, they have passed the impugned orders dismissing the applicant from service.
Per contra, it is submitted by the counsel for the State that in the impugned order the reasons have been assigned for holding the petitioner as a guilty and, therefore, the impugned orders passed by the respondents/State is in accordance with law.
4. Heard the learned counsel for the parties.
5. The Supreme Court in the case of O. K. Bhardwaj Vs. Union of India, (2001) 9SCC 180 has held as under :-
“3. While we agree with the first proposition of the High Court having regard to the rule position which expressly says that "withholding increments of pay with or without cumulative effect" is a minor penalty, we find it not possible to agree with the second proposition.
Even in the case of a minor penalty an opportunity has to be given to the delinquent employee to have his say or to file his explanation with respect to the charges against him.
Moreover, if the charges are factual and if they are denied by the delinquent employee, an enquiry should also be called for. This is the minimum requirement of the principle of natural justice and the said requirement cannot be dispensed with.”
6. In the present case, the ratio of case of O.K. Bhardwaj (supra) would apply with greater force since a major penalty has been imposed upon the applicant without holding a departmental enquiry.
Even so, in the case at hand, no material has been commended at to establish that the disciplinary authority, assigned any reasons for not holding the departmental enquiry.
7. Rule 359 of J&K Police Rules, 1960 lays down the procedure to be followed for imposing a major penalty upon a police official as below:- “Procedure in Departmental Enquiries:-
(1) The following procedure shall be followed in departmental enquiries:- a) The enquiry shall, whenever, possible be conducted by a Gazetted Officer empowered to inflict a major punishment upon the accused officer. Any other gazette officer or an Inspector specially empowered by the Minister I/C Police Department, to hold departmental enquiries (Vide order No. 636-C dated 27-6-1945) may be deputed to hold an enquiry or may institute an enquiry on his own initiative against an accused police officer who is directly subordinate to him, except that in the case of a complaint against a constable the enquiry may be conducted by an Inspector.
The final order, however, may be passed only by an officer empowered to inflict a major punishment upon the accused police officer.
(2) The officer conducting the enquiry shall summon the accused police officer before him and shall record and read out to him a statement summarizing the alleged misconduct in such a way as to give notice of the circumstances in regard to which evidence is to be recorded.
(3) If the accused police officer at this stage admits the misconduct alleged against him the officer conducting the enquiry may proceed forth with to record a final order if it is within his power to do so or a finding to be forwarded to an officer empowered to decide the case.
Whenever a serious default is reported and the preliminary enquiry is necessary before a definite charge can be framed, this is usually best done on the spot and might be carried out by the Sub-Inspector of the particular Police Station in the case of head constables and constables serving under him or by the Inspector of the circle in the case of Sub- Inspectors within his charge.
At the same time it must be left to Superintendent of Police to select the most suitable officers for the purpose or to do it themselves when such a course appears desirable. When the preliminary enquiry indicates a criminal offence, application for permission to prosecute should at once be made to the authority competent to dismiss the officer and permission should be promptly granted if that authority agrees that there is prima facie case for prosecution.
(4) If the accused police officer does not admit that misconduct the officer conducting the enquiry shall proceed to record such evidence oral and documentary in proof of the accusation as is available and necessary to support the charge.
Whenever possible witnesses shall be examined direct and in the presence of the accused who shall be given opportunity to cross-examine them. The officer conducting the enquiry is empowered, however, to bring on to the record the statement of any witness whose presence cannot in the opinion if such officer be produced without undue delay and expense or inconvenience if he considers such statement necessary and provided that it has been recorded and attested by a Magistrate and is signed by the person making it.
The accused shall be bound to answer questions which the enquiring officer may see fit to put to him, with a view to elucidating the facts referred to in statements or documents brought on the record as herein provided. (5) When the evidence in support of the allegations has been recorded, the enquiring officer shall -
a) if he considers that such allegations are not substantiated either discharge the accused himself if he is empowered to punish him, or recommend his discharge to the Superintendent or other officer who may be so empowered, or b) proceed to frame a formal charge or charges in writing, explain them to the accused officer and call upon him to answer them.
(6) The accused officer shall be required to state the defence witnesses whom he wishes to call and may be given time in no case exceeding 48 hours to prepare a list of such witnesses together with a summary of the facts as to which they will testify.
The enquiring officer shall be empowered to refuse to hear any witnesses whose evidence he considers will be irrelevant or unnecessary in regard to the specified charge framed in which case he shall record the reason for his refusal.
He shall record the statements of those defence witnesses whom he decides to admit in the presence of the accused, who shall be allowed to address questions to them the answers to which shall be recorded, provided that the enquiring officer may cause to be recorded by any other officer not below the rank of Inspector the statement of any such witness whose presence cannot be secured without undue delay or inconvenience and may bring such statement on to the record. The accused may file documentary evidence and may for this purpose be allowed access to such files and papers except such as form part of the record of the confidential office of the Superintendent of Police as the enquiring offices. The supply of copies of documents to the accused shall be subject to the ordinary rules regarding copying fees.
(7) At the conclusion of the defence evidence or if the enquiring officer so directs at any earlier stage, following the framing of a charge the accused shall be required to state his own answer to the charge. He may be permitted to file a written statement and may be given time not exceeding one week for its preparation but shall be bound to make an oral statement in answer to all questions which the enquiring officer may see fit to put to him arising out of the charge, the recorded evidence or his own written statement.
(8) The enquiring officer shall then proceed to pass orders of acquittal or punishment if empowered to do so or to forward the case with his finding and recommendations to an officer having the necessary powers.
(9) Nothing in the foregoing rules shall debar a Superintendent of Police from making a causing to be made a preliminary investigation into the conduct of a suspected officer. Such an enquiry is not infrequently necessary to ascertain the nature and degree of misconduct which is to be formally enquired into. The suspected police officer may or may not be present at such preliminary enquiry as ordered by the Superintendent of Police or other gazette officer initiating the investigation but shall not crossexamine witnesses. The file of such a preliminary investigation shall form no part of the formal departmental record but may be used for the purposes of sub-rule (4) above.
(10) This rule shall also not apply where it is proposed to terminate the employment of a probationer whether during or at the end of the period of probation.
(11) (1) As laid down in Section 126 of the Constitution of Jammu and Kashmir, no officer shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No police officer shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause orally and also in writing against the action proposed to be taken in regard to him, provided that this clause shall not apply :-
a) where a person is dismissed or removed or reduced in rank on the ground of conduct which led to his conviction on a criminal charge, b) where an authority empowered to dismiss or remove an officer or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing it is not reasonably practicable to give to that person an opportunity of showing cause; or c) where the Sadar-i-Riyasat is satisfied that in the interest of the security of the State it is not expedient to give to that officer such an opportunity.
(3) If any question arises whether it is reasonably practicable to give to any officer an opportunity of showing cause under clause (2) above, the decision thereon of the authority empowered to dismiss or remove such officer to reduce him in rank, as the case may be, shall be final.” & other rules were also quoted in the order......................
11. In view of the aforesaid enunciations of law, the condition precedent for initiating a disciplinary action against a police officer/ official is not only the conduct of an enquiry, but it should also appear that due adherence and strict compliance to the manner and procedure as laid down under Rules 337 and 359 has been followed.
Any deviation thereof will render the order imposing penalty bad and liable to be set aside.
12. In Ghulam Ahmad & Ors. v. Sr. Superintendent of Police, reported in 1988 JKLR 1367, although a departmental enquiry was conducted into the alleged callousness in duty on the part of the petitioners, who were Police Constables, yet the Court came to the conclusion that the provisions of Rule 359 of the Jammu and Kashmir Police Manual had not been complied with while conducting the enquiry and, therefore, the Court opined that the impugned order imposing penalty of dismissal upon the petitioners was unconstitutional, illegal and bad in law.
In Syed Hussain v. State of J & K reported in 1988 JKLR 1047, where a Head Constable had been removed from services after conducting an enquiry, but without issuing the show cause notice to him against the proposed punishment, the Court came to the following conclusion:-
“10. From the reading of this rule petitioner was to be given an opportunity of showing cause against the proposed action against him. This course can be dispensed with if he was found guilty on a criminal charge which led to his conviction or the officer competent to punish him could have recorded in writing that it was not reasonable to give the person an opportunity of showing cause or when it is not practicable for the security and interest of the state.
11. In the instant case petitioner was not convicted by a criminal court nor had the punishing authority recorded his reasons as to why he did not give show cause notice against the proposed punishment nor was it mentioned that it is not in the interest and the security of the state.
Therefore, he was entitled to be given a show cause notice against the proposed punishment under Rule 359 (11) (2) of the J&K Police Manual Vol. II that has not been given.
As such order of dismissal suffers from serious infirmity and cannot be sustained in the present form.”
14. Looking at the instant petition from the perspective of the law evolved on the subject no record has been placed by the respondents before this Court to show and suggest that any inquiry was conducted into the matter in accordance with the rules governing the field.
Not even a murmur has been made to state that any evidence was recorded in the case. The procedure laid down to conduct an enquiry in the rules cited above does not appear to have been followed at any stage, as a consequence of which, the impugned order of dismissal and the appellate order cannot survive and sustain in the eyes of law.
The impugned orders cited above is a sequel to the fact that they have been issued in a rough shod manner and no enquiry has been conducted into the matter.
No charge sheet appears to have been framed against the petitioner. What is the evidence that has formed the base line of the order of the dismissal of the applicant has not come forward. The rules appear to have been flouted with impurity.
15. Viewed in the above context, the penalty imposed upon the petitioner, being contrary to the law and reason, cannot be upheld, as a consequence of which, the impugned orders bearing No. 470 of 2010 dated 08.06.2010 and No. 28 of 2014 dated 31.01.2014 are quashed.
16. The respondents shall, however, be free to hold a regular enquiry against the applicant strictly in accordance with the provisions of the Jammu and Kashmir Police Manual.
However, looking to the long passage of time since the date of passing of the order of dismissal of the applicant, therefore, if the Respondents decide to hold any enquiry, the same shall be initiated and brought to its logical conclusion, within a period of two months from the date the copy of this order is served on them.
The quashment of the impugned orders above shall not entitle the applicant to claim any salary/ remuneration or wages during the period he was out of service.
The Respondents shall deal with this issue after the final report of the enquiry is received by them and shall decide the same in view of the conclusions drawn by the Enquiry Officer and the appellate order, if any.
17. The T.A. is disposed of as above.
No order as to costs.
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