Jammu & Kashmir High Court
Sharaz Hussain Shah vs State Of J&K; And Ors. on 3 August, 2018
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No. 2905/2016, IA No. 01/2016
Date of order:-03.08.2018
Sharaz Hussain Shah Vs. State of J&K and ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For the Petitioner(s) : Mr. Shafiq Chowdhary, Advocate.
For the Respondents(s) : Mr. Raman Sharma, Dy. AG.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
1. With the consents of counsel for the parties, this petition is taken for final arguments.
2. The grievance projected by the petitioner in the instant writ petition is that the he was engaged as SPO by the Inspector General of Police, Jammu Zone, Jammu, in the year 2013 and was allotted Belt No. 1353/SPOJ. Thereafter, petitioner was deployed to District Rajouri vide ZPHQ Order No.PS/SPO/AH-Trf/2012/1192-95 dated 05th June, 2013, and subsequently, he was relieved from Jammu vide District Police Head Quarters, Jammu‟s No.OSI/RLV/13/24951/62/APOJ dated 06.06.2013. It is stated that the petitioner has performed his duties with full dedication & dedication and was very active in the department while dealing with the law, order and crime against the society. As such, the name of the petitioner was also recommended by the Superintendent of Police, City North, Jammu for grant of Commendation Certificate Class-IIIrd with SWP No. 2905/2016 /w connected MP Page 1 of 9 2 reward of Rs. 100/-. This recommendation was made and the cash award has been paid to the petitioner, while he was posted with Police Station, Pacca Danga, Jammu. After deployment of the petitioner to the District Rajouri, he reported in the office of respondent No. 3 and he was allotted Belt No. 1134/SPO-R and thereafter, was directed to report to the District Police Line, Rajouri. Thereafter, from the District Police Line, Rajouri, he was deputed with the respondent No. 2 and after that, he was deployed with the Dy.SP DAR as driver. It is also averred in the instant writ petition that after performing the duties with due diligence and sincerity at the above mentioned places, the petitioner was deployed with SHO, Police Station, Manjakote as Driver. He remained with the Incharge Police Station as Driver till his disengagement.
3. Further case of the petitioner is that the petitioner along with some other officials and SPOs has been disengaged from services by the respondent No. 3, only on the sole ground of having links and communication with the bovine smugglers, which fact is farfetched and beyond the presumption of a common man, as the allegations leveled against him as well as against other officials are that these were posted at Naka Points Kaller, Salani Bridge, Khandli Bridge and Darhali Bridge. The petitioner was deployed in District Rajouri in the month of June, 2013 and was posted/deployed on the above mentioned places.
4. It is submitted that the petitioner was never ever deployed/posted on above Naka Points, about which the respondent No. 3 has mentioned in the order impugned, more so, the order impugned has been passed on the basis of telephonic conversation between the other officials enlisted in the order impugned and the bovine smugglers, whereas there is not even a single call either from the mobile telephone numbers of the petitioner (9797631286 and 7298044343) to the said bovine smugglers or from the telephones of bovine smugglers to the petitioner.
SWP No. 2905/2016 /w connected MP Page 2 of 9 35. Learned counsel for the petitioner relies upon a decision of the High Court of Orissa, rendered in case titled, "Amareswar Pradhan Vs. South Eastern Railway", reported in (2002) LIC 512 and the decision of Delhi High Court in case titled, "Union of India Vs. Rajinder Singh"., reported in (2002) 3 AD (Delhi) 91.
6. Objections have been filed on behalf of the respondents, wherein it has been stated that through the instant writ petition, petitioner seeks quashment of order bearing No. 37 of 2017 dated 23rd January, 2014, passed by the respondent No. 3, by which he has been disengaged from service and the reasons for such disengagement have been spelled out in the order impugned, which is legally justified and inconsonance with the Police Act and Rules framed thereunder and that too after conducting the detail enquiry in this regard. The challenge thrown to the order impugned fails as there is no challenge to the enquiry proceedings or enquiry, the finding of which was accepted by the Disciplinary Authority, as the enquiry has been conducted strictly inconformity with the Rule 359 of Police Rules. The misconduct of the petitioner and other incumbents has been proved in the detail departmental enquiry, which was conducted strictly as per rules and has not been called in question.
7. The petitioner has accepted the said order for almost three years without raising any grouse and now at this belated stage, the petitioner is stopped under law to question the same.
8. The petitioner along with some other SPOs has been disengaged from service by the respondent No.3 having links and communication with the bovine smugglers; that all the SPOs, who were disengaged from service found involved in facilitating the bovine smugglers especially in night hours. Though the petitioner has not remained posted at Naka Points mentioned in the petition, but he had telephonic conversation with one Constable-Shabir Ahmed posted at Naka Point and department action has SWP No. 2905/2016 /w connected MP Page 3 of 9 4 also been taken against him by the respondent. Though the petitioner has no direct telephonic conversation with bovine smuggler, yet he has telephonic conversation with Constable-Shabir Ahmed posted at Naka Darhali Bridge, who facilitated bovine smugglers.
9. On the basis of above submissions, learned State counsel has prayed for dismissal of the instant writ petition out rightly
10. Heard learned counsel for both sides and considered the law on the subject.
11. Section 126 of constitution of Jammu and Kashmir reads as under:-
"126. (1) No person who is a member of a civil service of the State or holds a civil post under the State shall be distressed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him: Provided that this sub-section shall not apply:
(a) where a person is dismissed or removed or reduced in rank on the ground of con-duct which has led to his conviction on a criminal charge;
(b) where an 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 give to that person an opportunity of showing cause; or
(c) Where the Sadar-i-Riyasat is satisfied that in the interests of the security of the State it is not expedient to give to that person such an opportunity.
(3) If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under sub-section. (4) The decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank, as the case may be, shall be final."
12. This section is para-materia to that of Article 311 of Constitution of India.
The Constitution of J&K through Section 126, thus, protects and safeguards the rights of civil servants in Government service against arbitrary dismissal, removal and reduction in rank. Such protection enables the civil servants to discharge their functions boldly, efficiently and effectively. The judicial norms and constitutional provisions are helpful to strengthen the civil service by giving civil servants sufficient SWP No. 2905/2016 /w connected MP Page 4 of 9 5 security of tenure. But there may arise instances where these protective provisions are used as a shield by civil servants to abuse their official powers without fear of being dismissed. Disciplinary proceedings initiated by Government departments against corrupt officials are time consuming. The mandate of „reasonable opportunity of being heard‟ in departmental inquiry encompasses the Principles of Natural Justice which is a wider and elastic concept to accommodate a number of norms on fair hearing. Violation of Principles of Natural Justice enable the courts to set aside the disciplinary proceedings on grounds of bias and procedural defects.
13. The petitioner was police employee and rules 334 (1), 334(2) and 359 of Police Rules deal with the subject. Rule 334(1) of Police Rules provide that no police officer shall be punished otherwise than prescribed in these Rules. Rule 334(2)(b) provides that „removal‟ of employee is one of the authorized departmental punishments.
14. Rule 359 is reproduced as under:-
"RULE 359 PROCEDURE IN DEPARTMENTAL INQUIRIES"
(1) The following procedures shall be followed in departmental inquiries:-
(a) The Inquiry 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 27.6.1945) may be deputed to hold an inquiry or may institute an inquiry 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 by 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 summarising 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 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 SWP No. 2905/2016 /w connected MP Page 5 of 9 6 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 inquiry 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 inquiry 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 inquiry 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 provided 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:
(i) 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
(ii) 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 answer to which shall be recorded, provided 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.
SWP No. 2905/2016 /w connected MP Page 6 of 9 7(7) At the conclusion of the defence evidence or if the Inquiry 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 Inquiry Officer may see fit to put to him arising out of the charge, the recorded evidence or his own written statement.
(8) The Inquiry 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 (1) As laid down in section 126 of the constitution of Jammu & 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 causes 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 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) Whether 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 (ii) above the decision thereon of the authority empowered to dismiss or remove such officer or to reduce him in rank, as the case may be, shall be final."
15. This rule provides a complete and exhaustive procedure of conducting inquiry. Any breach of this rule would amount to termination or dismissal, illegal. In terms of rule 359(11)(2) it is mandate of law that SWP No. 2905/2016 /w connected MP Page 7 of 9 8 delinquent officer has to be given reasonable opportunity of being heard before his removal.
16. Both the provisions are mandatory in nature and departure is only in cases given in clause 2 of section 126 of Constitution of State.
17. The counsel for petitioner has raised argument that no enquiry as envisaged under 126 of constitution of Jammu and Kashmir read with rule 359 of police rules was ever conducted; further petitioner has been condemned unheard. But this argument does not hold well, because as is evident from impugned order dated 23.1.2014, a detailed enquiry in terms of Rule 359 was conducted by Dy.S.P. Hqrs. Rajouri before disengaging the petitioner and other SPOs, who were found involved in facilitating bovine smuggling. This enquiry was conducted against two constables and seven SPOs including petitioner; all these police employees were found involved in facilitating the smuggling of bovine animals. All the SPOs were disengaged from service after holding of proper enquiry including the petitioner. Another argument of counsel for petitioner is that, petitioner was not engaged at Naka point, where bovine smuggling took place. But during enquiry, it was found that though petitioner was not engaged at relevant Naka point, but he was on telephonic conversation with other police persons posted at Naka Point.
18. Further petitioner was disengaged on 23.1.2014, but he has approached the Court in December 2016 after about three years . Petitioner has taken stand that he was not provided with order impugned till November 2016, so there is delay in approaching the court . But this argument is also not tenable, because except bald version there is nothing on record. This defense has been taken only to create an illusion of knowledge of impugned order, which from facts is not correct. One fact is required to be considered is that petitioner was engaged as SPO in 2013 and within 5-6 month he was found involved in heinous offence of facilitating SWP No. 2905/2016 /w connected MP Page 8 of 9 9 Bovine smuggling. I have gone through the law cited by learned counsel for the petitioner. These are not applicable in present set of circumstances as full fledged enquiry has been conducted before passing disengagement order. The facts of the cases cited are quite different to that of present case. Firstly facts are to be seen then law is to be applied.
19. In view of above, I don‟t find any merit in this petition, which is dismissed accordingly.
(Sanjay Kumar Gupta) Judge Jammu 03.08.2018.
Narinder SWP No. 2905/2016 /w connected MP Page 9 of 9