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2003 DIGILAW 366 (JK)

Mohd. Iqbal v. State Of J. &K.

2003-11-27

S.K.GUPTA

body2003
The petitioner, Mohd Iqbal, serving in 5th Battalion JKAP, was awarded punishment of stoppage of annual increments for a period of two years, on the ground of unauthorized absence, by an order dated 03/07/2002, passed by the Commandant, 5th Battalion JKAP after holding a disciplinary inquiry envisaged under the relevant provisions of Regulations contained in Jammu & Kashmir Police Manual, to serve as a corrective measure in future and the period of unauthorised absence between 05/05/2002 to 22/05/2002, 16 days, treated as earned leave which stands due to him. It is this order which has been called in question by means of this writ petition preferred under Article 226 of the Constitution of India read with Section 103 of the Constitution of J&K State. Facts giving rise to this petition may, in resume, be noticed. The petitioner was serving as Head Constable in JKAP at channi Himmat Jammu and proceeded on leave on account of the death of his mother-in-law in the Hospital Acharya Shri Chandra Sidhra, Jammu, where she was admitted. The petitioner is stated to have informed the department telegraphically about the extension of his Earned Leave. He also informed the Police Post Sidhra in this regard on 04/05/2002 and entered a report in the Daily Diary. According to the petitioner, his leave was not extended and respondents declared the period effective from 05/05/2002 to 22/05/2002 as period of unauthorized absence for 16 days. It is further submitted that the petitioner had also fallen ill and remain admitted in the Hospital Acharya Shri Chandra Sidhra, Jammu, during this period and was discharged on 22/05/2002. He was, however, called for operation on 10/06/2002. Reliance is placed on annexure `D to the writ petition. The petitioner, however, assumed his duty on 22/05/2002, when a summary of allegations was served upon him. Since the petitioner joined after unauthorized absence of 16 days and he did not plead guilty to the summary of allegations, he was, accordingly, charge-sheeted. In reply to the charge-sheet, the petitioner is stated to have clarified that his absence from duty was on account of the death of his mother-in-law, who was alone at Sidhra with no-one to perform the last rites ceremony of the deceased. The petitioner further explained in the reply that he suffered from ailment and remain admitted in the Hospital Acharya Shri Chandra Sidhra, Jammu, during the period of absence. The petitioner further explained in the reply that he suffered from ailment and remain admitted in the Hospital Acharya Shri Chandra Sidhra, Jammu, during the period of absence. According to the petitioner, no proper opportunity of being heard was afford to him. Even the grounds of absence spelled out in his reply were not considered and awarded punishment of stoppage of annual increments of two years. That the order impugned in writ petition being illegal, arbitrary and in violation of rules and regulation of the J&K Police Manual, is unsustainable in law. It is also stated that once period of unauthorized absence is treated as Earned Leave whatever due to the applicant, punishment of stoppage of annual increments of two years cannot be awarded, and on this count alone the impugned order is liable to be quashed. The stand of the respondents in their objections is that the petitioner has unauthorisedly absented himself from the Battalion and assumed duty after a period of 16 days on 22/05/2002. It is further stated that in reply to the charge-sheet, the petitioner has explained his misconduct on the ground of his mothers sister having been passed away, which is contrary to the plea taken in the writ petition with regard to the ailment, admission and ultimately sad demise of his mother-in-law in the Hospital Acharya Shri chandra Sidhra, Jammu. According to the respondents, the petitioner also did not mention in the reply to the charge-sheet with regard to the ailment and admission of his mother-in-law in the Hospital Acharya Shri Chandra Sidhra, Jammu, and instead produced Death Report of one Aja Begum, W/O Sher Mohammad, R/O Sidhra, shown to have died on 02/05/2002. That the petitioner absented himself willfully and deliberately from his duty after his application for extension of leave was not considered. It is also stated that the unauthorized absence is a gross misconduct which involves a loss of service as well. But in this case a lenient view has been taken and two years annual increments have been stopped by passing the impugned order as a corrective measure for the delinquent in future. It is also stated that while conducting a disciplinary inquiry, sufficient opportunity was granted to the petitioner and observance of principles of natural justice were taken note of besides providing all safeguards mandated by the Constitution of India. It is also stated that while conducting a disciplinary inquiry, sufficient opportunity was granted to the petitioner and observance of principles of natural justice were taken note of besides providing all safeguards mandated by the Constitution of India. The action of the respondents in recording punishment is justified from the detailed and in depth- inquiry conducted by the Inquiry Officer and the penultimate findings in this behalf. Heard and considered the rival contention of the parties. It may be pointed out at the first flush that giving of opportunity or an enquiry of course is a cheek and balance concept that no ones right be taken away without giving him/her opportunity or without enquiry in a given case or where statute require. Rule 359 of the J&K Police Manual prescribed procedure relating to the departmental enquiries is in pari materia with provisions of Section 126 of the Constitution of Jammu and Kashmir corresponding to Article 311 of the Constitution of India. Mr M. I. Sherkhan, learned counsel appearing for petitioner, submitted that the respondents neither observed the procedure in holding a disciplinary inquiry against the petitioner nor proper opportunity of being heard was provided as prescribed under the Rules, and as such, the punishment awarded is not legally sustainable in law. He further submitted that when the period of his unauthorized absence has been declared as period of earned leave due to him, punishment of stoppage of two years increments could not be awarded even by a corrective measure in future. Mr. Sherkhan, petitioners advocate also contended that petitioner was prevented to resume his duty on account of sad demise of his mother-in-law initially and then on account of his own ailment, admission treatment in the Hospital Acharya Shri Chandra Sidhra, Jammu during this period in respect of which he has also produced admission record of the Hospital. In this context, it may be pointed out that Police rule governing the employment of the petitioner are very much clear. An employee of the Police force is required to take treatment from Police Hospital, from an authorized medical Attendant, which means the Principal Medical Officer appointed by the Government to attend its officers in the station or district to which the member of the service is posted. An employee of the Police force is required to take treatment from Police Hospital, from an authorized medical Attendant, which means the Principal Medical Officer appointed by the Government to attend its officers in the station or district to which the member of the service is posted. In case there is no Principal Medical Officer appointed by the Government at the station at which member of the service falls ill, the Principal medical Officer shall be the officer appointed by the State Government in which the station or the district is situated as is contemplated under the rules applicable to the petitioner. The medical record placed on the file is from the Hospital Acharya Shri Chandra Sidhra, Jammu This record being not issued by an authorized officer, far from being genuine, has rightly not been considered by the competent authority. Further, the respondents have specifically stated in their objections that the petitioner in his reply to the charge-sheet stated that his mothers sister passed away which is contrary to the stand taken in the writ petition that his mother-in-law remain admitted in the Hospital Acharya Shri Chandra Sidhra, Jammu, and expired on 02/05/2002 and on this ground he applied for extension of earned leave. According to the respondents, petitioner did not make mention about the ailment of his mother-in-law and admission in the Hospital and instead produced death report of one Aja Begum, W/O Sher Mohammad, R/O Sidhra, who dies on 02/05/2002. It is further pertinent to point out that the petitioner though has taken a plea of his ailment and admission in the Hospital which came in his way in resuming the duty but no Fitness Certificate has been produced alongwith admission and treatment of the Hospital Acharya Shri Chandra Sidhra, Jammu The facts stated in the objections filed by the respondents, never came to be rebutted by the petitioner by filing a supplementary affidavit. Even the impugned order unambiguously discloses that the departmental inquiry was entrusted to the Adjutant of the Unit with regard to the unauthorized absence from the duty of head Constable, Mohd Iqbal. The petitioner was served with a Summary of Allegations by the Inquiry Officer, to which he did not plead guilty. Even the impugned order unambiguously discloses that the departmental inquiry was entrusted to the Adjutant of the Unit with regard to the unauthorized absence from the duty of head Constable, Mohd Iqbal. The petitioner was served with a Summary of Allegations by the Inquiry Officer, to which he did not plead guilty. The delinquent was charge-sheeted and after securing reply from him, the Inquiry Officer conducted a detailed inquiry and submitted a finding in recommending the stoppage of annual increments for a period of two years as a corrective measure in future and further to treat the period of unauthorized absence of 16 days between 05/05/2002 to 22/05/2002 on earned leave which stands due to him. On facts the petitioner willfully and deliberately absented unauthorizedly as is unambiguously gatherable from his conduct and did not resume duty after his application for extension of earned leave was not sanctioned. It is further envisaged from the record that an ample opportunity was afforded to the petitioner of being heard during inquiry. A contradictory plea taken in reply to the charge-sheet that his mothers sister has expired as a ground to explain his unauthorized absence is against the recital in the writ petition that his mother-in-law was admitted in the Hospital because of ailment and expired on 02/05/2002, renders the stand of the petitioner far from being genuine and satisfactory. This is in my view, an exception case of complete dereliction of duty and a pretence of having been prevented to resume duties on the ground delineated in the petition. Undoubtedly, cases are inconceivable where employees were prevented by unavoidable circumstances from joining their duties despite fanatic efforts being made in this behalf, but that situation is found to be missing in the present case vis., staying away from the duty by the petitioner is self explanatory from the contradictory plea and required no further explanation. The record clearly shows that the petitioner responded to the inquiry initiated against him on account of mis-conduct of unauthorized absence. As regards the plea taken by the petitioner that punishment of stoppage of two years increments could not be awarded since the period of unauthorized absence has been treated as period of earned leave due to him, is devoid of any substance to merit consideration. As regards the plea taken by the petitioner that punishment of stoppage of two years increments could not be awarded since the period of unauthorized absence has been treated as period of earned leave due to him, is devoid of any substance to merit consideration. On entire concatenation of facts and circumstances discussed above, there is, in my opinion, no merit in this writ petition and the same is accordingly dismissed. Under the peculiar circumstances of this case, there is no order as to costs.