Jammu & Kashmir High Court - Srinagar Bench
Ajit Singh vs State Of J&K; And Others on 25 October, 2017
Author: M. K. Hanjura
Bench: M. K. Hanjura
S. No. 11.
Supplementary list
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP No. 1559/2016
MP No. 01/2016
Date of Order: 25.10.2017
Ajit Singh
Vs.
State of J&K and Others
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge
Appearance:
For petitioner(s): Mr Javaid Iqbal, Advocate
For respondent(s): Mr B. A. Dar, Sr. AAG.
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
1. The facts as these emerge from the study of the file under consideration are that the petitioner was appointed as a Constable in the Police Department vide Order No 982 of 1996 dated 12.10.1996. His services were terminated in terms of order bearing No. 120 of 2006 dated 01.08.2006, for his unauthorized absence from duty. The petitioner challenged the order of termination in a petition bearing SWP No. 1480/2008, which was decided by order dated 18.03.2014, of this Court, the relevant excerpts of which read as under:
"9. Contents of the order impugned reveal that services of the petitioner have been terminated w.e.f. the date of his absence, i.e. 03.11.2005, in terms of Article 128 of the Jammu and Kashmir Civil Service Regulations, admittedly without holding any enquiry as was required in terms of Section 126 of the Constitution of Jammu and Kashmir read with Rule 359 of the Jammu and Kashmir Police Rules, 1960.
10. Learned State Counsel was asked to produce the relevant records, which he did. Perusal of the records would reveal that no enquiry in (SWP No. 1559/2016) Page 1 of 17 the matter has been initiated by the respondents before terminating the services of the petitioner.
11. The inactions of the respondents are quite apparent inasmuch as the petitioner had to file a writ petition for getting a copy of the termination order.
12. Terminating one from the rolls of employment is undoubtedly a major punishment and to have recourse to such a penalty the respondents ought to have followed the due course like issuance of show cause notice, the initiation of departmental enquiry, hearing of the petitioner etc. The termination order should have preceded by a full dressed legal and not colourable exercise.
13. Mere absence from duties does not make one liable for termination more importantly for the reason that no opportunity of being heard was afforded to him. This Court has been, consistently, issuing advisory in terms of orders issued from time to time in like matters, that providing employee an opportunity of hearing, and allowing him to come up with his defence against the charges is a very important right of an employee and the same cannot be taken away by mere assumptions of respondents.
14. Chapter X J&K Police Rules, 1960, deals with the punishment that may be imposed on a police officer subject to Police Act and the Rules made thereunder, if found guilty of misconduct. Dismissal from service in terms of Rule 334(2) is one of the punishment that may be imposed on a Police Officer. However, the punishment is to be imposed only after an enquiry is conducted into the alleged misconduct and the officer given an opportunity to project his case, refute the allegations leveled and convince the inquiry Officer and the Disciplinary Authority that the allegations leveled, are devoid of any substance.
15. A Division Bench of this Court in case reported as 2004 (II) SLJ 445, titled Mushtaq Ahmad Khan v. State of J&K and Others has held that an employee should know the accusations against him and should be given opportunity to state his case and that he should not be proceeded against on mere assumption that such employee has no defence to offer. Similarly in case titled Mohammad Ishaq Bhat v. State of J&K and Others, reported as 2000 KLJ 274, the Division Bench of this Court has held that the order of termination should be reasoned and that mere absence from duty is not perse misconduct.
16. While it is expected of every Government servant to adhere to the Rules and regulations and depict a model of discipline, the employers at the very same time cannot be allowed to be so harsh that even services are terminated on an allegation of unauthorized absence that too without asking such employee to come up with whatever defence he has against the charges. Having said so, termination of service undoubtedly amounts to snatching of a livelihood and such a precious right that has a guarantee in the Constitution of India, cannot be expected to be filched on a mere irregularity.
17. For all what has been stated hereinbefore, the writ petition succeeds and is allowed as such. Accordingly, by a writ of certiorari the impugned order of termination bearing No. 120 of 2006 dated 01.08.2006, is quashed. However, respondents are at liberty to initiate an enquiry in the matter and conclude the same within a period of (SWP No. 1559/2016) Page 2 of 17 three months from the date copy of this judgment is served upon the respondents. In case respondents choose not to conduct any enquiry then the period of absence shall qualify for pensionary benefits only and petitioner shall not be entitled to any monetary benefits".
2. In furtherance of the above directions extended in SWP No. 1480/2008, an inquiry was conducted in the matter as a consequence of which another order of the termination of the services of the petitioner was issued on 23.06.2014. The petitioner challenged the validity and the legality of the said order in SWP No. 1427/2014, which came to be decided by an order dated 22.03.2016, of this Court, the relevant extracts of which are detailed below:
7. Learned counsel for the petitioner submits that perusal of Charge sheet, show cause notice as also the impugned order would ex-facie suggest that the respondents have failed to adhere to the rules and regulations to which the petitioner is subjected to, namely J&K Police Manual wherein a full-fledged mechanism is prescribed for conducting and holding of departmental enquires and infliction of authorized departmental punishments.
8.Rule 359 of J&K Police Manual, provides procedure to be followed in such enquiries, it provides:
"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 gazetted officer or an Inspector specially empowered by the Minister I/C Police Department, to hold departmental enquiries (vide Order No. 636-C dated 27.06.1945) may be deputed to hold an inquiry 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 inquiry 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 inquiry 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 full 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 forthwith to record a final order if it is within his power to do so or (SWP No. 1559/2016) Page 3 of 17 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 accusations 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 of such officer be produced without undue delay and expense or inconvenience if he considers such statement necessary and provide that it has been recorded and attested by a police officer not below the rank of Inspector or 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 (SWP No. 1559/2016) Page 4 of 17 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 answer to which shall be recorded, provided that the enquiring office 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 officer deems fit. 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 State, 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 made 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 or causing to be made a preliminary investigation into the conduct of a suspected officer. Such an inquiry 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 gazetted officer initiating the investigation but shall not cross-examine witnesses. The file of such a preliminary investigation shall form not 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) 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".
9. From this rule it is evident that the procedure for imposing major penalty 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;(SWP No. 1559/2016) Page 5 of 17
(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 case on the penalty proposed;
(viii) Meaning of the order imposing penalty.
(ix) Communication of the orders.
In Jehangir Ahmad Mir v. State of J and K 1998 SLJ 134 this Court had the occasion to examine the ambit and scope of the provisions of Rule 337 and 359 of J and K Police Rules read with Section 126 of the Constitution of Jammu and Kashmir. The court held:-
"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."
10.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.
11.Under Rule 359, the enquiry officer is required to summon the delinquent officer before him and read out a statement summarizing his alleged misconduct 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 to be 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 (SWP No. 1559/2016) Page 6 of 17 submit the recommendations or topics order of acquittal or punishment, if he was competent to do so.
12. Similarly in Ghulam Mohammad v. State of J & K 1998. SLJ 273 the Court, while discussing Rule 359 held:-
"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 charge sheet 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 charge sheet depicts that a communication was sent to the petitioner 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 the 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 said 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 files a written statement in his defence after the conclusion of the evidence in defence."
13.While taking a disciplinary action against a police official/officer not only an enquiry is required to be held but there should be strict compliance to the manner and procedure laid down by Rule 359. Any deviation will render the penalty imposed as bad in law.
(SWP No. 1559/2016) Page 7 of 1714.In Ghulam Ahmad and Ors. v. Sr. Superintendent of Police 1988 JKLR 1367, though departmental enquiry was conducted into the alleged slackness in duty committed by the petitioners-who were police constables but the court found that the enquiry had not been conducted in accordance with the provisions of Rule 359 of J&K Police Manual, the Court held the order impugned imposing penalty of dismissal upon the petitioners was unconstitutional, illegal and bad in law. The court observed:-
"Rule 359 is an all comprehensive provision and gives the complete procedure for holding of departmental inquiry against a police officer. First of all the Enquiry Officer has to summon the accused police officer before him and record his statement summarizing the alleged mis-conduct in such a way as to give full notice of the circumstances, in regard to which evidence is to be recorded This statement is just like the one as recorded Under Section 242 of the Cr. Pc, when the plea of the accused is to be recorded. If he pleads guilty, he is to be punished there and then by the competent authority. If he does not plead guilty, then the evidence of the department is to be recorded against him and full opportunity of cross examination to be given. When the evidence in support of the allegations has been recorded, the enquiry officer shall discharge him if the allegations are not substantiated or recommend the same to the competent authority. If the charge stands substantiated, then he has to frame a formal charge in writing, explain them to him and call upon him to answer them. Thereafter the accused officer has to be required to state the defence witnesses whom he wishes to call and may be given time to prepare a list of such witnesses. On production of such witnesses the Enquiry officer has to record their statements. At the conclusion of the defence evidence the accused shall be required to state his own answers to the charge. He may be permitted to file a written statement. The Enquiry officer shall the proceed to pass orders of acquittal or punishment, if empowered to do so, or the forward the case with his findings and recommendations to an officer having the necessary powers.
28. The procedure mentioned above is to be followed in every departmental inquiry against a police officer, as it is mandatory in character. As this procedure has not been followed in the case in hand, it vitiates the whole proceedings before the Enquiring officer and also the proceedings taken by the S. S. P. the result is that the order impugned passed by the S. S. P. is unconstitutional, illegal and bad in law."
3. Since by order supra, the respondents were given the liberty to initiate an enquiry in the matter with the stipulation that the same shall be concluded in terms of the judgment passed in SWP No. 1480/2008 dated 18.03.2014, the (SWP No. 1559/2016) Page 8 of 17 respondents conducted the enquiry which culminated into an order bearing No. 85 of 2016 dated 30.09.2016, the operative portion of which reads as under:
"Taking the entirety of the situation and after careful examination, I am of the opinion that the charges having been fully proved, needs to be dealt sternly and, therefore, I , I. A.A. Malik, posted as SSP Police Transport Workshop, Srinagar and being the disciplinary authority, in exercise of powers under rules, hereby order that the delinquent i.e. Ajit Singh S/o Beant Singh R/o Mehjoor Nagar, Srinagar is dismissed from service with immediate effect. Since the delinquent has been proved guilty, the period of unauthorized absence shall be treated as under:
(i) w.e.f. 03.11.2005 to 11.07.2016, as "Dies-non", on the principle of "no work, no pay";
(ii) w.e.f. 12.07.2016, to till date as on half pay leave, as although the delinquent remained present, to face the D.E., no Govt.
work could be taken from him because of his own misdeeds, directly attributable to him.
This order consists of 04 (four) leaves and all the papers of enquiry, interlinking correspondence etc., mentioned inter-alia, shall form a part of this order".
4. Aggrieved by the aforesaid order, the petitioner challenged the same before this Court on the grounds, inter-alia, that the Charge Sheet, Show Cause Notice as also the impugned order would, ex-facie, suggest that the respondents have failed to adhere to the rules and regulations to which the petitioner is subject to, namely, J&K Police Manual, wherein a full-fledged mechanism is prescribed for conducting and holding of departmental enquiries. Rule 334 of the Police Manual provides that no police officer shall be departmentally punished otherwise than as prescribed in these rules. In terms of sub-rule (2) of Rule 334, dismissal (bar to re-employment in Government service) has been held to be a major punishment. Rule 337 envisages that dismissal shall be awarded only for the acts of misconduct, for example, fraud, dishonesty, corruption and all the offences involving moral disgrace as the cumulative effect of the continued misconduct proving incorrigibility and complete unfitness of police service. Rule 359 which is of fundamental importance in the controversy, provides the procedure for holding of departmental inquiries. Perusal of the entire material referred to in the petition qua the issuance of charge sheet, show cause notice as also the impugned order read with rules in general and Rule 359 in particular (SWP No. 1559/2016) Page 9 of 17 would suggest that the respondents have miserably failed to follow and adhere to the aforesaid rules. It is evident that the respondents have conducted the so- called departmental enquiry before the issuance of the charge sheet and the impugned so-called enquiry, charge sheet, show cause notice as also the impugned order are liable to be set aside on this score alone.
5. That assuming though not admitting that the enquiry in question was conducted by the respondent No.4 in line and in tune with the provisions of Police Manual, yet the perusal of the order impugned would on the face of it demonstrate that the same has been issued mechanically, without application of mind and in breach and violation of the rules and regulations occupying the field. Therefore, the so-called enquiry, charge sheet, show cause notice also the impugned order on this count are also liable to be set aside.
6. The perusal of the aforesaid facts and circumstances would reveal that the entire process and exercise undertaken by the respondents beginning from the issuance of charge sheet up to the issuance of impugned order of dismissal has been undertaken illegally. The respondents, in fact, have arrogated unto themselves a power during the enquiry process which did not vest in them in terms of the rules governing and regulating to the service conditions of the petitioner. The respondents having directed themselves in a manner contrary to the one envisaged under rules have acted illegally and in breach of the legal, statutory and fundamental rights of the petitioner.
7. The Charge Sheet, Show Cause Notice as also the impugned order would reveal and suggest that the charges if at all framed validity and legally by the respondent No. 4 have not been proved against the petitioner. No legal evidence worth the name has been produced or adduced by the respondents in support of the charge. The respondent No. 4, in essence has himself acted as a presenting officer, defending officer and as an enquiry officer in the matter. The entire exercise appears to be a one man show which in the facts and circumstances is not sustainable.
(SWP No. 1559/2016) Page 10 of 178. It is pleaded in the reply filed by the respondent No. 4, that the petitioner was unauthorizedly absent from his duties w.e.f. 27.06.2005 to 06.08.2005 and, accordingly, a Departmental Enquiry was conducted under rules. The period of unauthorized absence was treated as "Dies-non' vide SSP PTWs, Srinagar's order No. 102 of 2005 dated 17.09.2005. Subsequently, the petitioner again absented himself unauthorizedly from duty w.e.f. 03.11.2005. Several communications and notices in this regard were served on the petitioner asking him to resume his duties but he did not respond to them. A show cause notice was also published in "Daily Kashmir Monitor", "Indian Times" and "Aftab" on the dates 28.03.20016, 29.03.2006 and 30.03.2006 respectively. After the expiry of the time specified in the notice, SSP, PTWS, Srinagar, dismissed the petitioner vide his OB No. 120 of 2006 dated 01.08.2006.
9. The respondent has further pleaded that in furtherance of the directions of the Hon'ble High Court expanded in SWP No. 1480/2008, a Departmental Enquiry was ordered to be conducted by respondent No. 3 ( then posted as Staff Officer to IGP Technical Services) in the instant case. The Enquiry Officer, accordingly, in accordance with the procedure prescribed in the Police Manual, issued a summary of allegations to the petitioner to which he pleaded not guilty. The documents on which the enquiry officer relied and the statements of the witnesses recorded in presence of the petitioner were provided to the petitioner. He was also given a chance to cross examine them. On the basis of documentary evidence and the statements of witnesses, the Enquiry Officer, derived satisfaction on the count that prima facie acts of misconduct and indiscipline appear to have been made out against the petitioner.
10.It is further pleaded that in terms of the Judgment passed by this Court in SWP No. 1427/2017 dated 22.03.2016, the petitioner was reinstated and allowed to join vide SSP PTWS, Srinagar's order No. 50 of 2016 dated 08.07.2016. Thereafter, the petitioner was asked to face the enquiry and for that purpose the petitioner was ordered to remain under suspension (under rules) w.e.f. the date (SWP No. 1559/2016) Page 11 of 17 he reports at PTWS, Srinagar. Subsequently, the petitioner submitted his joining report at PTWS, Srinagar on 12.07.2016 AN. The process of Departmental Enquiry was initiated by the respondent No. 4 (being the disciplinary authority). A summary of allegations' was served upon the petitioner to which the petitioner pleaded "Not Guilty". Accordingly, the documents on which the Enquiry Officer relied were provided to the petitioner and the statements of witnesses were recorded in presence of the petitioner. He was also given a chance to cross-examine them. On the basis of the documents and the statements of the witnesses, the Enquiry Officer concluded that the acts of misconduct and indiscipline appear to have been made out against the petitioner. A charge sheet was framed and served on the petitioner against a proper receipt and acknowledgement, alongwith all supporting, documents. After going through the reply filed by the petitioner in answer to the charge sheet and the records of Departmental Enquiry and convinced by the petitioner's culpability, a show cause notice was served upon the petitioner on 30.08.2016, in strict compliance with the rules governing the subject. The petitioner was also provided an opportunity to present himself before the Enquiry Officer. The petitioner did not submit any reply within the prescribed period and, accordingly, the petitioner was again directed to submit the written reply to which also the petitioner did not respond. The petitioner was then called by the Enquiry Officer for a personal hearing where the petitioner stated that he has already filed his reply to the charge sheet served upon him and he has nothing to say in defence.
11.Heard and considered.
12.The record relating to the enquiry produced by the learned Additional Advocate General has also been perused by me.
13.Analyzing the import and impact of the order dated 30.09.2016, what needs to be probed is whether it was within the domain and power of the disciplinary authority to impose the penalty of dismissal on the petitioner taking into (SWP No. 1559/2016) Page 12 of 17 consideration the acts of omission and commission attributed to him. Rules 336 and 337 of the Jammu and Kashmir Police Rules, 1960, assume significance in the context of finding an answer to this question and these are reproduced below verbatim et literatim:
Suitability of Punishment: The suitability of a punishment should be carefully considered. Punishment should fit the default and be deterrent without being harsh. In inflicting punishment, the general character of the officer affected and his past services should be taken into consideration
337. Dismissal: Dismissal shall be awarded only for the acts of misconduct e.g. fraud and dishonesty, corruption and all offences involving moral disgrace as the cumulative effect of continue misconduct proving incorrigibility and complete unfitness for Police service. In making such an award regard shall be had to the length of service of the offender. In making such an award regard shall be had to the length of service of the offender and his claims to pension.
14.Rule 336 of the Police Rules detailed herein before emphasizes the need to discover the suitably of punishment and it provides that it should be carefully considered. It provides that the punishment should be commensurate to the default and although it may be deterrent but it should not be harsh. It also provides that due regard shall be had to the character and the antecedents of the officer. Rule 337 of the aforesaid Rules envisages a situation where an order of dismissal can be passed. It states in unequivocal terms that dismissal can be ordered only in cases of fraud, dishonesty, corruption and all offences involving moral disgrace. Fraud has been defined as a knowing misrepresentation of the truth or concealment of material fact to induce another to act to his or her detriment. Dishonesty is a conduct involving bad faith, lack of integrity or moral turpitude. The word "corruption" indicates impurity or debasement and when found in the criminal law, it means depravity or gross impropriety. Moral disgrace is a conduct that is contrary to justice, honesty or morality. The general meaning of it is shameful, wickedness or extreme departure from ordinary standards of honest, good morals, justice or ethics as to be shocking to the moral sense of the community. The case of the petitioner does not fall within the length, breadth and the contours of Rule 337, of the Jammu and Kashmir Police (SWP No. 1559/2016) Page 13 of 17 Rules. The petitioner having been found absent unauthorizedly could not have been dismissed from services as per the Construction of Rule 337 of the Jammu and Kashmir Police Rules. Unauthorized absence does not fall within the ambit, scope and the definition of Rule 337 (Supra). The disciplinary authority appears to have been oblivious of this provision contained in the Jammu and Kashmir Police Rules. The disciplinary Authority has disregarded the mandate of the rule aforesaid while awarding the penalty of dismissal of service against the petitioner. The disciplinary authority has failed to note that the misconduct attributed to the petitioner does not fall within the purview of Rule 337 of the Police Rules. This is an infraction of law and the punishment awarded to the petitioner deserves to be set aside on this score alone.
15.Looking at the instant case from another perspective by order dated 22.03.2016, the writ petition of the petitioner herein this case was allowed as a consequence of which the impugned order of terminating him from the services was quashed with the direction that the respondents shall be at liberty to conduct an inquiry in the matter and conclude the same within a period of three months from the date the copy of the judgment is served upon them.
16.The enquiry appears to have been conducted by the respondents in a roughshod manner without following the procedure as envisaged under the rules. A brief resume of how and in what manner the Enquiry Officer has proceeded in the matter after passing of the order dated 22.03.2016, in the writ petition bearing No. 1427/2014, requires enumeration. By order bearing No. 50 of 2016 dated 08.07.2016, the petitioner was re-instated, pending departmental enquiry, against him with the direction that he shall report, within a week of the receipt of the order, at PTWS, Srinagar. The summary of allegations appears to have been read over and explained to the petitioner on 18.07.2016, in which he pleaded not guilty. On 29.07.2016, a charge sheet appears to have been served on him. The petitioner submitted his reply on 04.08.2016. A show cause notice appears to have been issued to the petitioner on 30.08.2016, in which he was (SWP No. 1559/2016) Page 14 of 17 directed to submit his written reply within a period of seven days positively as also to produce the evidence in defence, if any, with a further condition that if he fails to do so, it shall be presumed that he is nothing to say in his defence and further action under rules shall follow without any intimation to the petitioner. This followed the order dated 30.09.2016, by which the petitioner has been dismissed from services with immediate effect.
17.The petitioner as can be seen from the above was dismissed from service on the ground of unauthorized absence. Section 126 (2) of the Constitution of Jammu and Kashmir read with Article 311 Constitution of India contemplate conveying of specific charges to the delinquent and to provide him a reasonable and adequate opportunity of being heard in consonance with the provisions of the Constitution of India and his removal from the service can be directed after holding an enquiry in the matter. Section 126 (2) of the Constitution of India, provides an additional safeguard to the delinquent in the shape of the service of show cause notice to him regarding the proposed punishment to be imposed and the said section is reproduced below for the convenience of the ready reference:
"126(2): No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such enquiry;
Provided that this sub-section shall not apply-
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person 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 hold such inquiry; or
(c) where the Governor is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry.
18.The procedure as envisaged under section 126 (2) of the Constitution of the Jammu and Kashmir has not been followed. It provides that a reasonable (SWP No. 1559/2016) Page 15 of 17 opportunity of making a representation on the penalty proposed is to be given to the delinquent in cases where dismissal, reduction or removal is directed. Regulation 359 (2) supra, makes it mandatory to issue a show cause notice to the delinquent officer on the penalty proposed. This procedure has been followed in complete breach. It has been given a complete go by. The second show cause notice specifying the proposed penalty to be imposed on the petitioner has not been issued in the matter so as to enable the petitioner to make an effective representation in terms of Section 126 (2) of the Constitution of Jammu and Kashmir and the Regulation aforesaid. The impugned order on this count alone is liable to be quashed.
19.It will be pertinent to note that the procedure laid down by Regulation 359 of the Jammu and Kashmir Police Manual has to be followed both in rigor and vigor in every departmental enquiry initiated against a police officer as it is mandatory in character. One of the limbs of this procedure is that the enquiry officer has to record the statement of the delinquent officer, summarize the alleged misconduct in such a way as to give full notice of the circumstances to the delinquent in regard to which the evidence is to be recorded and if the delinquent does not plead guilty then the evidence of department has to be recorded in which the delinquent has to be given a full and fair opportunity of the cross-examination of the witnesses. No evidence to substantiate the charge has been recorded by the Enquiry Officer as gets revealed from the perusal of the record produced before this Court by the learned Additional Advocate General appearing for the respondents. There is not even an iota of evidence on record as would reveal that the charge against the petitioner has been proved by the established mechanism laid down under the rules or by any amount of evidence. The contention of the respondents that the statements of the witnesses were recorded in the matter and the petitioner was given an opportunity to cross-examine them does not hold any water as the record runs contrary to this assertion. This infraction cuts at the every root of the matter and, therefore, on (SWP No. 1559/2016) Page 16 of 17 this count also the order of the dismissal of the petitioner is liable to be set aside.
20.Viewed in the context of what has been said and done above, I find that the penalty imposed upon the petitioner, cannot stand. The conduct of a denovo enquiry under the facts and circumstances of the case where a lot of water has flown down the Jhelum and the Sword of Damocles has been kept hanging high on the head of the petitioner during the period spreading over a decade by now will not serve any purpose. Therefore, the order of the dismissal of the petitioner dated 30.09.2016, issued by the respondents No. 4, is quashed, as a consequence of which the petitioner is directed to be reinstated and taken into service.
21.The writ petition is, accordingly, disposed of alongwith the connected MP(s).
22.The record shall be returned to the learned Senior Additional Advocate General.
(M. K. Hanjura) Judge Srinagar 25.10.2017 "Manzoor"
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