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2002 DIGILAW 329 (JK)

Mohd. Abdullah Bhat v. State Of J. &K.

2002-10-11

S.K.GUPTA

body2002
1. Petitioner, Mohd Abdullah Butt, Assistant Sub- Inspector No. 5477/NGO, in Jammu and Kashmir Police Department, was visited with order of removal from service with immediate effect by the Deputy Inspector General of Police (Respondent- 4), vide his order dated 30th December, 2000, Which reads as under: DODA UDHAMPUR RANGE POLICE HQRS, BATOTE ORDER No, 418 of 2000 DATED 30-12-2000. 2. This order deals with the departmental enquiry held against ASI Mohd Abdullah No.5477 /NGO for negligence and dereliction of duty. 3. Brief facts of the enquiry are that on 20-05-2000, a police party consisting of ASI Mohd Abdullah No 5477/NGO, HC Farooq Ahmed No. 110/D Sgct. Abdul Majid No. 525/D, Ct. Kiran Kumar No. 1891/ D, Ct Hardesh Kumar 1907/ D, Ct . Raj Kumar No. 1902/D, Ct Zahir Akhtar No. 1890/D. Ct. Anil Kumar No. 1734/D, Ct Vinod Kumar No. 1898/D, Ct Adrash Kumar 1894/D, Ex-Serviceman Mohd Shafi No. 313/ Ex-D, SPO Rakesh Kumar No. 3626, SPO Darshan Kumar No. 3025, SPO Raj Kumar No. 3624 and SPO Mohd Hafiz No 2328/ SPO were deputed to Kote Balwal Jail for collection/ escort of 10 under trials for their production before the Hon™ble Sessions Court at Bhaderwah (08 accused) and 2 before Hon™ble Addl. Sessions Court at Doda. The Police party reported back alongwith all the 10 under trials on 21-5-2000 at Doda where they stayed for the night and handed over two under trials to P/S Doda for production before Hon™ble Addl. Session Court Doda. Subsequently these 2 under trial were taken back to Kot Balwal Jail Jammu by another escort. 4. On 22-5-2000 the 8 under trials were taken to Bhaderwah where they were produced before the Hon™ble Court for hearing by the same escort party except Ct. Adrash Kumar No 1894/D who reported back in DPL Doda stating that he is suffering from some ailment and could not perform escort duties. The under trials were taken to Bhaderwah and after court attendance on 22-5-2000 were kept in Distt. Jail Bhaderwah and on 23-05-2000 again they were produced before the Hon™ble Court for hearing. After hearing they were again lodged in Distt Jail Bhaderwah but supdt. Jail Bhaderwah requested Hon™ble Sessions Court in writing for shifting of these under trials back to Jammu on the plea that the District Jail Bhaderwah was not safe for under trials militants. Jail Bhaderwah and on 23-05-2000 again they were produced before the Hon™ble Court for hearing. After hearing they were again lodged in Distt Jail Bhaderwah but supdt. Jail Bhaderwah requested Hon™ble Sessions Court in writing for shifting of these under trials back to Jammu on the plea that the District Jail Bhaderwah was not safe for under trials militants. Accordingly on 26-05-2000 a bus who was camping at Bhaderwah alongwith the police party for escorting back these under trials to Kote Balwal Jail. The vehicle reported to said ASI on 26-05-2000 at around 1200 hours and the party left Bhaderwah at 1400. The Police party stopped at Pul Doda where they reached at about 1530 hours to have meals. They left this place at about 1630 hours and reached Baggar where they got held up for about two hours due to a traffic blockade caused by an accident between army vehicle and a Truck. The party left Baggar at 1900 hours and reached Samroli at around 2130 hours where they stopped to have meals. After finishing their meals the party started boarding the bus. At that time 2 under trials namely (I) Zahoor Ahmed S/o Anayatulah R/o Jathi and (2) Irshad Ahmed S/o Mohd Amin R/o Bhorat Doda expressed the desire to urinate. Accordingly SPO Raj Kumar 3624 and SPO Darshan Kumar 3625 who were holding the handcuff, under trials took them to the road side, where both the under trials suddenly pulled the handcuffs, which slipped out of the hands of escorting SPOs and escaped in darkness towards river Tawi. The SPO raised alarm alerting the other party members who chased the militants to some distance. Being dark and due to insufficient nafri the thorough search of the area could not be conducted. On this the I/C Escort party rushed to P/S Chenani where he reported the matter to the SHO who in turn informed his senior officers and launched a search operation. He also registered case FIR No. 53/2000 u/s 224 RPC at P/S Chenani. 5. For this misconduct, indiscipline and negligence of duty on the part of the above said escort party, they were placed under suspension by SSP Doda vide his office order No. 831 dated 28-05-2000, and a departmental enquiry against them was ordered to be conducted by Addl. SP Doda. 6. 5. For this misconduct, indiscipline and negligence of duty on the part of the above said escort party, they were placed under suspension by SSP Doda vide his office order No. 831 dated 28-05-2000, and a departmental enquiry against them was ordered to be conducted by Addl. SP Doda. 6. The E/O after conducting the enquiry has submitted his finding in which he has recommended that ASI may be awarded compulsory retirement. SSP Doda not agreeing with the finding of the E/O has recommended that the ASI may be dismissed from the service w.e.f 28-05-2000 the date he has been placed under suspension. 7. A show case notice was issued to ASI Mohd Abdullah No. 5477/ NGO as to why he should not be dismissed from the service and his reply was obtained, which is not tenable. 8. I have gone through the enquiry file/finding of E/O recommendation of SSP Doda and reply to the show cause Notice tendered by delinquent ASI Mohd Abdullah I am of the view that the punishment proposed to ASI Mohd Abdullah by SSP Doda do commensurate with the gravity of grave misconduct i.e facilitating the escape of two dreaded militants by depleting the strength of escort by exhibiting poor command and control of the escort party and his irresponsible behavior renders him unfit to hold the post of ASI in the police Deptt. and his further retention in Deptt. in the given circumstances is not safe and he deserves to be immediately ousted from the police Deptt. As such not agreeing with the recommendation of the E/O it is hereby ordered that:- I- ASI Mohd Abdulah No. 5477/NGO is removed from the service with immediate effect. 9. The finding of the E/O will form a part of this order. 10. Petitioner approached the Court with the plea that he stands discharged without holding enquiry in accordance with the provisions of Rule 359 of the Jammu and Kashmir Police Manual; that the petitioner was not associated with the preliminary enquiry and, thus, violated the principles of natural justice. It is also stated that the witnesses were not examined in his presence nor opportunity afforded to the petitioner to cross- examine them. The petitioner was as not given an opportunity to adduce the defence evidence. It is also stated that the witnesses were not examined in his presence nor opportunity afforded to the petitioner to cross- examine them. The petitioner was as not given an opportunity to adduce the defence evidence. That the copy of the enquiry report was not provided to the petitioner so as to enable him to make reply and explain effectively to the show cause notice of the proposed order of dismissal from service and thus, therefore, order impugned was passed in violation of the provisions of Article 311 of the constitution of India and section 126 of the constitution of Jammu and Kashmir, is unsustainable in law. 11. The stand of the respondents, in controverting the plea put across by the petitioner and projected in their demurrer is that, the enquiry was held against the petitioner strictly in accordance with the procedure provided in Rule 359 of the Jammu and Kashmir Police Manual and sufficient opportunity of hearing and cross-examining of witness was provided to the petitioner. It is also stated that the petitioner had availed the opportunity of cross-examination of witnesses whomsoever he wanted to cross-examine and participated in the disciplinary enquiry. That the petitioner was Incharge of the party escorting the under trials for their production before the Sessions Court at Bhaderwah and Additional Session Judge™s Court at Doda. That the petitioner by giving permission to six members of the Force of escort party at various places to leave, the strength of the Escort party was reduced. That it was due to the remissness of the petitioner to have stopped that vehicle at an unsecured place during night and provided an opportunity to the under trials (militants) to escape. That there was neither contravention of the rules nor principles of natural Justice while holding the departmental enquiry and taking action against the petitioner. The charge sheet was framed and served upon the petitioner. He was as afforded an opportunity and asked to put up his defence, if any. The evidence was recorded in presence of the petitioner and the mandatory provisions of the rule during enquiry were fully complied with. 12. I have heard the learned counsel appearing for the respective parties and also perused the record of disciplinary enquiry produced by the respondents meticuloulsy. 13. Learned senior counsel appearing for the petitioner Mr. The evidence was recorded in presence of the petitioner and the mandatory provisions of the rule during enquiry were fully complied with. 12. I have heard the learned counsel appearing for the respective parties and also perused the record of disciplinary enquiry produced by the respondents meticuloulsy. 13. Learned senior counsel appearing for the petitioner Mr. J.S Kotwal stated at the threshold that neither departmental enquiry was conducted in accordance with the procedure laid down in Rule 359 of the Jammu and Kashmir Police Manual nor principles of natural justice were adhered to by the respondents. The petitioner was also not given an opportunity to lead evidence in defence and associated with the enquiry and thus the conclusion reached by the Enquiry Officer is without foundation and consequent order of removal of the petitioner from service unsustainable. 14. Rule 359 of the police Rules prescribes the procedure to be followed in the departmental enquiry. The enquiry in this case was conducted by Additional Superintendent of Police, Doda. He has strictly adhered to the rules as shall presently noted. For facility of reference, the relevant Sub-Rules are reproduced as under:- 359. PROCEDURE IN DEPARTMENTAL ENQUIRIES:- (1) The following procedure shall be followed in departmental enquiries:- x x x x x x (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 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 incovenience 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 found to answer question 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 (4) When the evidence in support of the allegations has been recorded, the enquiring officer shall:- (a) if he consider that such allegation 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. 15. On going through the record of the disciplinary proceedings, it is clearly gatherable that Shri S.D Singh Jamwal, Additional Superintendent of Police, Doda had summoned the delinquent officer and informed him in writing of the alleged misconduct as required him in writing of the alleged misconduct as required under Sub-Rule (2). The other words, summary of the allegations was given to the delinquent officer, the receipt of which is found on record. So, there is a compliance of Sub-Rule (2). Since the delinquent several legal pleas, officers conducting the enquiry preceded under Sub-Rule (4) and recorded the statements of the witnesses, namely, Kiran Kumar, Suman Gupta and Bashmir Ahmed. It is aso discernible from the record of the disciplinary enquiry that the evidence of witnesses were recorded in presence of delinquent officer and he was given full opportunity to cross-examine the witness. The delinquent officer cross-examined the witness whomsoever he desired and left the other without cross-examination. This clearly proves the participation of the delinquent officer in the enquiry. Thereafter, he framed definite charge against the accused on the strength of the evidence collected by him. The formal charge was framed in writing and was also explained to the delinquent officer and asked him to submit his detailed reply aongwith defence, if any, within a period specified and indicated in the charge sheet. This charge sheet was served on the delinquent officer and received by him on 24-6-2000. Reply to the charge sheet was given by delinquent officer on 24-6-2000. The Enquiry officer had given the delinquent officer opportunity to adduce his evidence in his defence, but he did not choose to do so. This charge sheet was served on the delinquent officer and received by him on 24-6-2000. Reply to the charge sheet was given by delinquent officer on 24-6-2000. The Enquiry officer had given the delinquent officer opportunity to adduce his evidence in his defence, but he did not choose to do so. The Enquiry officer accordingly recorded his conclusion and found the petitioner guilty of negligence while performing official duties, as a result of which two dreaded militants managed to escape, who may in future put many innocence lives in danger besides carrying other militant related to anti-national activities. He accordingly recommended compulsory retirement in terms of Sub-Rule (11) of Rule 359 of the Jammu and Kashmir Police manual and which reads as under: (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 rocorded 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 there of the authority empowered to dismiss or remove such officer or to reduce him in rank, as the case may be, shall be final. 16. In compliance to the aforesaid mandatory provisions of the statutory rules, the show cause notice was given by respondent-4 calling upon the delinquent officer to explain as to why he should not be dismissed from service. 16. In compliance to the aforesaid mandatory provisions of the statutory rules, the show cause notice was given by respondent-4 calling upon the delinquent officer to explain as to why he should not be dismissed from service. The petitioner was also required to submit the reply within seven days from the date of the receipt of the notice. In response to the show cause notice, a detailed reply was filed by the delinquent officer. In para No 3 of the reply, it is stated that show cause notice was not accompanied by the report of the Enquiry Officer, which came in his way to file effective reply to the said show cause notice. It is however apt to point out that despite the plea of non-supply of the report of the enquiry, the petitioner , had filed the detailed reply touching all the issues recited in the petition. That apart, there is an application from petitioner, Mohd. Abdullah Bhat, ASI found on the record of the disciplinary proceedings, addressed to DIG intimating that he does not require the copy of the finding of the Enquiry. This manifestly shows that no prejudice has been occasioned to the petitioner in making a reply to the show cause notice of the proposed punishment of dismissal from the service nor there is a contravention of the principle of natural Justice. 17. Mr. J.S kotwal learned senior counsel appearing for the petitioner however, submitted that non-furnishing of the enquiry report to the delinquent officer would be violative of the principles of natural justice and rendered the finding invalid. Mr.Kotwal however, relied upon the judgement of the Apex Court in Managing Director ECIL Hyderabad and others Versus B. Karunakar and others; (1993) 4 SCC 727, to support his contention. While dealing with the contentious issue elaborately the Supreme Court held as under:- (v) The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from services and the inquiry is set aside because the report is non-furnished to him, in some cases the non furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an unnatural expansion of natural justice which in itself is antithetical to justice. 31. Hence in all cases where the enquiry officer™s report is not furnished to the delinquent employee in the disciplinary proceeding the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the court/Tribunals and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the court Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given the Court/ Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/ Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. 18. It is therefore pellucid from the ratio of the afforesaid judgement that unless the court after application of the judicial mind, finds that non-furnishing of the report would have made a difference to the result of the case, then and only then judicial review is permissible. In the present case, no prejudice has been specifically pleaded by the petitioner in reply to the show cause notice served upon him in respect of the proposed punishment of dismissal by respondent-4. The petitioner, however, made every thing explicit in his reply giving details and sequence of events, which stands fully described in the petition. The petitioner has also by filing a separate application before DIG unambiguousy stated that the report/findings of the Enquiry Officer is not required by him. This makes it abundantly clear that furnishing of the report would not have made any difference to the result in the case. I do not, therefore find any substance in the contention raised by the petitioner™s counsel. 19. It was next submitted by the petitioner advocate that he was not associated with the enquiry and not provided opportunity to cross-examine the witnesses and thus violated the principles of natural justice. This submission of the learned councel appearing for the petitioner stands traversed from the record of the enquiry proceedings. Summary of allegations in writing was given and read out to the petitioner after he was summoned by the Enquiry Officer. It is further disclosed from the enquiry preceding that the evidence was recorded in his presence and petitioner was given full opportunity to cross-examine. The petitioner had cross-examined. Summary of allegations in writing was given and read out to the petitioner after he was summoned by the Enquiry Officer. It is further disclosed from the enquiry preceding that the evidence was recorded in his presence and petitioner was given full opportunity to cross-examine. The petitioner had cross-examined. There had been a full dressed enquiry conducted by the Enquiry Officer according to the mode, method, tone, & tenor and manner, as is provided under Rule 359 of the J&K Police Rules. In view of the aforesaid, it cannot be said that the petitioner has been punished without holding an enquiry or that punished for lapse, which is not attributable to him. It has been seen that a detailed enquiry was held. This court, however, cannot interfere with the finding of the fact in exercise of its jurisdiction under Article 226 of the constitution. The petitioner has been found negligent and remiss in the discharge of his duty on account of which, two under trials managed to escape. The impugned order has been passed by respondent-4 after going through the record of the enquiry officer and reply to show cause notice submitted by the delinquent officer. The punishment of removal from service is in commensuration with the gravity of the charge of misconduct in facilitating the escape of two dreaded militants in exhibiting remissness in the discharge of his duty. 20. Considering the matter on the strength of the aforesaid facts and circumstances, there is, in my opinion no merit in this writ petition and is accordingly dismissed. Under the peculiar circumstance there will be no order as to costs.