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2003 DIGILAW 132 (JK)

Rajesh Kumar v. State Of J&K Through Commissioner

2003-05-13

S.K.GUPTA

body2003
1. Petitioner has approached the Court to seek the quashing and setting aside of the order dated 10.11.2000 passed by respondent-2, whereby annual increment of the petitioner is stopped for a period of three months with effect from the date next falls due to him, to serve him as a corrective in future and period of unauthorized absence for 12 hours is treated as EL for one day in reinstating the petitioner into the service with immediate effect and leaving the suspension period to be decided separately after securing report from the L.O., DPL, Udhampur regarding his attendance, by issuance of a writ of certiorari also with a further command to the respondents to consider the petitioner for promotion to the next higher rank in issuance of a writ in the nature of mandamus. Petitioner is a Constable in the Police Department and was posted in Police Post, Mansar, in the year 2000. According to petitioner, a joint operation was launched in Mansar area on 7th May, 2000 and three foreign mercenaries were killed at Ludni Galla, Mansar and huge cache of arms/ammunition was recovered. The senior Police Officers of the Police Department appreciated the gallant and great effort of the team and cash award of Rs. 10,000 was given to the team. It is also stated that award amount was paid to Surdip Singh, Incharge, Police Post, Mansar. The petitioner alongwith others, who participated in the operation, persisted with their demand for a share in the cash award. This, however, irked the Incharge, Police Post, Surdip Singh, as he was not inclined to share the award money with the participants in the operation including the petitioner. It was on 23.5.2000, when a Selection Grade Constable Madan Lal under the influence of liquor started quarrelling with the petitioner. The said Madan Lal was medically examined, which confirmed that Madan Lal, Driver, had consumed liquor, but Surdip Singh, Sub-Inspector, however, is alleged to have made a report regarding the incident to his immediate Officer and the departmental enquiry was ordered. It was further stated that Abdul Qayoom Raina, Deputy Superintendent of Police, DAR, Udhampur, was appointed as the Inquiry Officer. The departmental enquiry was not conducted, however, in accordance with the rules, but punishment of censure came to be recommended by the Inquiry Officer. It was further stated that Abdul Qayoom Raina, Deputy Superintendent of Police, DAR, Udhampur, was appointed as the Inquiry Officer. The departmental enquiry was not conducted, however, in accordance with the rules, but punishment of censure came to be recommended by the Inquiry Officer. The disciplinary authority, however, did not agree with the recommendation of the Inquiry Officer and passed the impugned order, whereby annual increment of the petitioner for a period of three months was stopped and the alleged absence on 23.5.2000 was treated as earned leave, which became the subject matter of challenge in this writ petition. 2. The respondents were put to notice and filed detailed objections in stating therein that, in fact, both petitioner and Madan Lal, under the influence of liquor when found quarrelling, Surdip Singh, Incharge, Police Post, Mansar, sent a docket for medical examination, the petitioner disappeared from the Police Post and avoided the medical examination. He entered the report in the daily diary and its extract sent to the Deputy Superintendent of Police, Udhampur. it is also stated that both the petitioner and Madan Lal were placed under suspension and enquiry was ordered to be conducted by Deputy Superintendent of Police, DAR Udhampur, appointed for the abode purpose. it is also stated that the enquiry was held in accordance with rules, in which the petitioner was afforded all opportunities to defend himself besides leading evidence. That the petitioner never asked for an enquiry report and which was not provided to him. The prejudice, if any , has to be pleaded and established by the petitioner, to have been caused to him by having not been provided with the enquiry report. It is also stated that the disciplinary authority was well within its right to disagree with the recommendation of the Inquiry Officer with regard to the punishment awarded. It was lastly submitted by the respondents that the writ petition is not maintainable, as the petition having been filed without availing alternative remedy of appeal/revision against the impugned order, under the provisions of Jammu and Kashmir Act and Rules framed thereunder, and the petitioner is not entitled to any relief claimed thereunder. 3. I have heard the rival contentions of the learned counsel appearing for the respective parties and also perused the material on record, meticulously. 4. 3. I have heard the rival contentions of the learned counsel appearing for the respective parties and also perused the material on record, meticulously. 4. It is not in dispute that the quarrel had taken place between the petitioner and one Madan Lal while posted at Police Post, Mansar, on 23.5.2000. It is also not in dispute that the departmental enquiry was initiated on the report of S. Surdip Singh, Incharge, Police Post, Mansar, with regard to the incident. Deputy Superintendent of Police, Abdul Qayoom Raina, was appointed as an Inquiry Officer. On the conclusion of the enquiry, the petitioner alongwith another was found guilty and recommended for the punishment of censure of be awarded to the petitioner for his negligent act, with period of absence of 12 hours to be treated on one days earned leave and his reinstatement into the service. The disciplinary authority, however, convinced with the findings but not with the recommendation of the Inquiry Officer in respect of the petitioner and, thus, passed an order dated 10.11.2000 impugned in this writ petition, by virtue of which the annual increment of the petitioner was stopped for a period of three months and treating one days absence as earned leave with further directing his reinstatement with immediate effect and that suspension period to be decided separately. This was ordered after the disciplinary authority also observed that the reply filed by the delinquent Constable was to convincing and in order to save himself, he has concocted a false story. All departmental enquiries against the Police Officials are governed by the rules and regulations provided in Jammu and Kashmir Police Manual. The main thrust of Mr. K.S. Johal, learned counsel appearing for the respondents, is that without availing the statutory remedy of the appeal, review and revision, from an order passed by the disciplinary authority imposing penalty upon the delinquent officers/officials provided under Rules 364, 374 and 375, writ petition is not maintainable and jurisdiction of the writ court cannot be invoked. It is further submitted by Mr. Johal that the finding of fact recorded and proved at the said departmental enquiry cannot be made subject matter of challenge in the writ petition; as the Court does not sit over the finding of the departmental enquiry as a Court of Appeal. It is further submitted by Mr. Johal that the finding of fact recorded and proved at the said departmental enquiry cannot be made subject matter of challenge in the writ petition; as the Court does not sit over the finding of the departmental enquiry as a Court of Appeal. He, however, further submitted that after commencing of the writ petition, a representation/review petition was made to respondent-2, which stood disposed of/rejected being time barred. This review petition was made on 29.5.2002. 5. It is settled proposition of law that where remedy of appeal/review/revision is available, absence of good grounds bye-passing remedy to appeal would entail dismissal of the petition. In other words, where alternative remedy by way of appeal is available but not availed, no writ can be issued. In the present case, the petitioner has failed to advance proper and valid reasons by not filing the statutory appeal/review/revision that was available to him against the order impugned passed by the disciplinary authority. Such a failure would itself be sufficient to deny interference under Article 226 of the Constitution. 6. The spinal question that falls for consideration is that as to when a writ can lie. When alternative remedy by way of appeal is available and not exhausted, whether extraordinary remedy of writ can be sought. An identical matter came up for consideration before this Court in Prem Nath v. Commandant Police Training School, 1976 JKLR 394 and was held that when an alternate remedy is available and has not been exhausted, no writ will be issued. Similar view was taken by the Division Bench of this Court in Dr. Shamas-ud-Din v. State of J&K & Ors., 1990 KLJ 56 and it was held: "........an appeal is provided against the order of the governing body to the State Cabinet giving a complete procedure for the redressal of the grievance of an aggrieved party against the decision of the governing body. The petitioner will only be entitled to get the relief in the writ petition after exhausting that remedy provided. We, therefore, hold the present petition as premature, which deserves dismissal on this point alone." 7. In view of the aforesaid decisions of this Court, the point is issue remains no longer res-integra. Taking stock of the facts and circumstance in its totality, the net inevitable result is that the petitioner is not entitled to any relief at this stage. We, therefore, hold the present petition as premature, which deserves dismissal on this point alone." 7. In view of the aforesaid decisions of this Court, the point is issue remains no longer res-integra. Taking stock of the facts and circumstance in its totality, the net inevitable result is that the petitioner is not entitled to any relief at this stage. The petition is, therefore, dismissed as premature.