Jammu & Kashmir High Court - Srinagar Bench
Ghulam Hassan Shah vs State Of Jk & Ors. on 12 October, 2017
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP No. 304/2011
MP No. 461/2011
Date of Order:12th October, 2017.
Ghulam Hassan Shah
Vs.
State of JK & Ors.
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge.
Appearance:
For the Petitioner(s): Mr Manzoor Ahmad Ganai, Advocate
For the Respondent(s): Mr B. A. Dar, Sr. AAG.
i) Whether approved for reporting in Yes/No
Law Journals etc.:
ii) Whether approved for publication
in Press: Yes/No
01. By the medium of this writ petition, the petitioner has challenged the order bearing No. 102/2005 dated 9th February, 2005, whereby he has been discharged from service by the Respondent No.6, on the grounds, inter alia, that he was never given a chance of hearing while passing the impugned order; the order is violative of the rules of natural justice and the rules governing the service conditions of the petitioner; no show cause notice was issued to him and no enquiry, whatsoever, was conducted against him in accordance with the rules; the order is based on extraneous considerations and the past conduct in the service of the petitioner. The petitioner has further pleaded that it is also not SWP No 304 of 2011 Page 1 of 14 indicated anywhere as to when the enquiry was conducted which culminated into the order aforesaid nor has the record of the enquiry been made available to the petitioner, which fact makes it amply clear that the Impugned order of discharge is not the outcome of any enquiry conducted in terms of the rules. There is also no material on record in the shape of any public notice or notices requiring the petitioner to participate in the enquiry as is discernible from the record. The petitioner further pleads that he took ill and had to undergo medical treatment in the SKIMS Medical College-Hospital, Bemina, and at other places to cure the disease with which he was suffering which had immobilized him for quite a long time as is brought to the fore from the prescriptions and the medical reports attached to the file as Annexure-C. The petitioner knocked the doors of the Respondents by filing a number of representations, but fate had it for him that these were never decided. In the premises, the petitioner has prayed that a writ of certiorari for quashing the order bearing No. 102/2005 dated 9th February, 2005, be issued or any other direction, which the Court deems just and proper under the circumstances of the case may be passed.
02. In their objections, the Respondents have resisted and controverted the claim of the petitioner by stating that no cause of action has arisen to the petitioner for maintaining the present writ petition. The petitioner has suppressed the material facts and has tried to mislead the Court. He has not approached the Court with clean hands, and is, therefore, not entitled to any relief. It has further been stated that the petitioner proceeded on 12 days leave from District Police Lines, Anantnag, and he absented himself from duties unauthorizedly on 6th November, 2004, for which he was marked absent. The petitioner was repeatedly directed to resume his duties, which he failed and finally a final notice dated 29th December, 2004, was served upon him which SWP No 304 of 2011 Page 2 of 14 was published in a local daily also. After his absence from duty from 6th November, 2004, a departmental enquiry was directed to be conducted against him for his absence from duty. The petitioner did not cooperate with the enquiry Officer. He did not resume his duties. He was served with show cause notice vide No. Estt/D-2/04/24743-45 dated 29th December, 2004, of Sr. Superintendent of Police, Anantnag, i.e. Respondent No.6 herein, whereby he was directed to resume his duties, but he failed to do so, as a consequence of which, he was discharged from service.
03. In his rejoinder affidavit, the petitioner has pleaded that it is factually incorrect to state that he had proceeded on 12 days casual leave from District Police Lines, Anantnag, and absented himself unauthorizedly from 6th November, 2004. He having proceeded on 10+2 days casual leave on 26 th October, 2004, was not fit to resume his duties because of his ailing health, as a result whereof, he applied for 15 days earned leave and after the expiry of 15+12 =27 days, he approached the Deputy Superintendent for granting him permission to resume his duties, but he came to know that he has been marked absent from the duty in the daily dairy of District Police Lines, Anantnag on 6 th November, 2004. He was not allowed to join his duties. Thereafter, he filed an application before the Deputy Superintendent of Police (DAR), explaining the reasons for his absence and seeking permission to join the duties, who in turn forwarded the same to Senior Superintendent of Police, Anantnag vide No. 7879/DPL/Ang dated 24th November, 2004, but this application of his was rejected on 29th December, 2004, without giving him an opportunity of being heard.
04. Heard and considered.
SWP No 304 of 2011 Page 3 of 1405. From the perusal of the record, which has been made available to this Court, it can be seen from a naked eye that no enquiry, whatsoever, as provided under the rules, appears to have been conducted in the matter. The petitioner has been thrown out by an order of discharge without following the due procedure of law, with a premeditated design to divest him of his right to participate in the enquiry. The petitioner appears to have made all attempts to persuade the authorities that his absence from duty was not wilful and deliberate, but was motivated by the reasons spelt out by him in his rejoinder. This representation of his has not been given any consideration nor did it have any impact on the authorities concerned. An opportunity of being heard is the 'sine-qua-non' of every enquiry and in case of any departure, reasons justifying so have to be spelt out. The principles of natural justice appear to have been violated with impunity in this case. The defence of the petitioner has been shut by deception and the conduct of a full dressed enquiry has been given a complete go by.
06. Justice is not only law and its administration, but is, in most cases, above law and is done to safeguard an individual from whatever he/she seeks protection. Our country generally and our State in particular aims at the goal of achieving a welfare State where everyone is/ has to be, as far as possible, looked after. The principles of natural justice are imbibed from the Constitution itself. These are of paramount importance and nobody can be condemned unheard.
07. In 'AIR 2005 SC 2090', Canara Bank v. V. K. Awasthy, the Hon'ble Apex Court, while dealing with the extent and scope of the principles of natural justice, held as under:
"10. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These SWP No 304 of 2011 Page 4 of 14 principles are well settled. The first and foremost principle is what commonly known as audi alter am par tem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta". The classic exposition of Sir Edward Coke of natural justice requires to "vacate interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of Works, [1963] 413 ER 414, the principle was thus stated:
"Even God did not pass a sentence upon Adam, before he was called upon to make his defence. "Adam", says God, "where art thou has thou not eaten of the tree whereof I commanded thee that though should not eat".
Since then the principle has been chiseled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond."
08. In the counter affidavit filed by the State, what has been stated is that the show cause notice was issued to the petitioner on 29 th December, 2004, and on the same date, a final notice was issued against him for discharge of his services, meaning thereby that the rules relating to reasonableness, good faith, justice, equity and good conscience, which are a part of law and relate to administration of justice and fairness, have been followed in breach and, resultantly, it has caused miscarriage of justice.
09. Since the show cause notice and the final notice in the case originated on the same day, therefore, it can be said that no breathing time has been given to SWP No 304 of 2011 Page 5 of 14 the petitioner. Adequate time to seek the response of the petitioner has not been provided to him and the Rules of natural justice have been made a casualty.
10. Rule 359 of the Jammu and Kashmir Police Manual, running under the head Procedure in Departmental Enquiries, provides as under:
"359. 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.
SWP No 304 of 2011 Page 6 of 14When 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 SWP No 304 of 2011 Page 7 of 14 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 cross-examine 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 :-
SWP No 304 of 2011 Page 8 of 14a) 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."
What comes to the fore from the above rule is that the procedure for imposing the major penalty, i.e. the order of discharge here in this case, involves:
i. The delivery of a charge sheet;
ii. Appointment of an enquiry officer;
iii. Providing opportunity to the delinquent official to submit his defence and to
be heard;
iv. The enquiry where oral and documentary evidence is produced by both
sides;
v. The preparation of a report after the conclusion of the enquiry and
forwarding of the same to the disciplinary authority (where the disciplinary authority is not itself the enquiring Authority);
vi. Action on the enquiry report by the Disciplinary Authority; vii. Notice to the delinquent official to show cause on the penalty proposed;
viii. Meaning of the order imposing penalty; and
ix. Communication of the orders.
11. In the case titled 'Jehangir Ahmad Mir v. State of J&K', reported in '1998 SLJ 134', this Court had the occasion to examine the range, limits and the scope of Rules 337 and 359 of the Jammu and Kashmir Police Rules read SWP No 304 of 2011 Page 9 of 14 with Section 126 of the Constitution of Jammu and Kashmir and Article 311 of the Indian Constitution and it held as under:
"It is a matter of common knowledge by now that no member of a State service or a person holding post under the State can be removed from service save otherwise in accordance with the requirements of Section 126(2) of the State Constitution read with Article 311 of the Indian Constitution which contemplates conveying the specific charges to the delinquent and providing him a reasonable and adequate opportunity of being heard and then his removal from service after an enquiry. Section 126(2) of the State Constitution provides for an additional safeguard of a second show cause notice regarding the proposed punishment to be imposed.
This position is supplemented by the police Rules, Rule 359 whereof prescribes procedure for conducting departmental enquiry against police personnel. Similarly Rule 336 lays emphasis on the suitability of punishment and cautions the Authority to be careful by taking in regard the character of the delinquent and his past service. Similarly Rule 337 places a constraint on the exercise of the power of dismissal and illustrates the cases though not exhaustively wherein this power was exercised, regard being had to the length of service of the offender and his claim to pension. All this pointed to the checks imposed by law for exercise of the power of dismissal against a delinquent police employee.
Under Rule 359, the enquiry officer is required to summon the delinquent officer before him and read out a statement summarizing his alleged mis-conduct in such a way as to give him full notice of the circumstances in regard to which evidence was required to be recorded in the matter. Thereafter depending upon the denial if any made by the delinquent, the enquiry officer was required to proceed to record such evidence as would be available and necessary to support the charge. The witnesses were required to be examined in presence of the delinquent and after this he was granted an opportunity to lead his defence evidence or to file his documentary evidence and to state his own answer to the charge. The enquiry officer was then to submit the recommendations or topics order of acquittal or punishment, if he was competent to do so."
12. An almost the same view has been repeated and reiterated by this Court in the case of 'Ghulam Mohammad v. State of J&K', reported in '1998 SLJ SWP No 304 of 2011 Page 10 of 14 273', the relevant excerpts of which are reproduced below, verbatim et literatim:
"Rule 359 of Police Rules postulates two-fold stages of the enquiry, one preliminary and another after framing the charge. As regards preliminary enquiry, the Enquiry Officer is required to follow the procedure as laid down under sub-rules (1) to (5) of Rule 359 of Police Rules. Perusal of the chargesheet does not depict the names of the witnesses who have been examined during the preliminary enquiry, so much so it does not even depict as to whether he was ever summoned, recording and reading out a statement of summary of allegations, is therefore, ruled-out. The chargesheet depicts that a communication was sent to the petitioner and was provided an opportunity to question the witnesses which he did not but it does not indicate that the basic requirement was observed which makes it obligatory upon the enquiry officer to summon the petitioner and read out the statement of summary of allegations to him and after observing the said requirement question, of recording evidence would arise. Having failed to follow the mandate of rule, the preliminary enquiry vitiates, for, same has not been in accordance with the mandate of Rule 359 of Police Rules and on this count the impugned order is liable to be set aside.
The procedure which the Enquiry Officer has to follow after framing the charge is envisaged in sub-rules 6 and 7 of Rule 359 of Police Rules. Sub rule 6 makes it obligatory upon the enquiry officer to provide an opportunity to the accused official to give a list of such witnesses whom he would like to produce in defence and record their statements. It further provides that the statements of such witnesses can be recorded even at the places of their availability, of course, for the reasons detailed in the sub-rules. The said sub-rule further provides that even access to the files, excepting the confidential record, can also be permitted and the object is to allow sufficient opportunity of defence to the delinquent official/ officer.
After receiving the evidence, oral and documentary, yet another opportunity is to be made available to the delinquent official at conclusion of the defence evidence under sub-rule 7 to make a statement in reply for the charge, so much so the delinquent official can seek permission to file a written statement in his defence after the conclusion of the evidence in defence."SWP No 304 of 2011 Page 11 of 14
13. 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 in its letter and spirit and any deviation thereof will render the order imposing penalty bad and liable to be set aside.
14. 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.
15. In 'Syed Hussain v. State of J&K & Ors.', 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.SWP No 304 of 2011 Page 12 of 14
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."
16. The record placed by the Respondents before this Court does not provide even an inkling of how and in what manner the enquiry was conducted into the matter of the unauthorized absence of the petitioner. The show cause notice and the final notice have been issued on the same day which knocks the bottom out of the contention of the Respondents that due procedure of law was followed in the instant case. There is no evidence on record to state and show that the statement summarizing the alleged misconduct on the part of the petitioner was read over and explained to him. Not even a murmur has been made to state that any evidence was recorded in the case. The procedure laid down for conducting the enquiry as laid down in the rules cited above does not appear to have been followed at any stage, as a consequence of which, the order of discharge cannot survive and sustain in the eyes of law.
17. Viewed in the above context, the penalty imposed upon the petitioner, being contrary to the law and reason, cannot be upheld, as a corollary to which, the impugned order bearing No. 102/2005 dated 9th February, 2005, is quashed.
18. The Respondents shall, however, be free to hold a regular enquiry against the petitioner strictly in accordance with the provisions of the Jammu and Kashmir Police Manual. However, since a lot of water has flown down the Jehlum, since the date of passing of the order of the discharge of the petitioner, therefore, if the Respondents decide to hold any enquiry, the same shall be initiated and brought to its logical conclusion, as far as practical, within a period of two months from the date the copy of this order is served on them. The quashment of the impugned order as above shall not entitle the petitioner to SWP No 304 of 2011 Page 13 of 14 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 enquiry is received by them and shall decide the same in view of the conclusions drawn by the enquiry Officer.
19. The writ petition alongwith connected MP(s) is disposed of as above.
(M. K. Hanjura) Judge SRINAGAR October 12th, 2017 "TAHIR"
SWP No 304 of 2011 Page 14 of 14