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2008 DIGILAW 231 (JK)

Feroz Ahmad Bhat v. State Of J. &K.

2008-06-03

MANSOOR AHMAD MIR

body2008
1. Petitioner-police constable questioned the dismissal order No.655 of 2001 dated 06.09.2001 passed by S.S.P., Kupwara, by the medium of this writ petition. Writ petition came to be admitted vide order dated 11th of November, 2005. 2. Respondents have filed counter. Petitioner has not filed any rejoinder. 3. It appears that departmental enquiry was initiated against HC Ali Mohammad No.427/KP, Sgct.Gh. Rasool No.506/KP, Sgct.Hilal Ahmad No.432/KP and Const.Feroz Ahmad No.971/KP. Deputy Superintendent of Police came to be appointed as Enquiry Officer who conducted enquiry and made recommendation as indicated in the impugned order. It is apt to reproduce the relevant portion of the impugned order herein:- "The enquiry officer has recommended the following quantum of punishment against the above mentioned erring police personnel:- 1. HC Ali Mohammad No.427/KP, 2. Sgct.Gh. Rasool No.506/KP, 3. Sgct.HilalAhmadNo.432/KP, 4. Const.Feroz Ahmad No.971/KP. The periodical/ yearly increment of the delinquent official may be forfeited for a period of ten years to serve him as corrective in his service" 4. The Superintendent of Police, Kupwara, without, giving details, hearing the petitioner and, following procedure dismissed the petitioner from service. It is also apt to reproduce the relevant portion of the impugned order herein as under: "I do not agree with the enquiry officer, as he ha been very lienant in awarding punishment to the delinquent police officials. For the circumstances explicated above, it is hereby, ordered that;- All the four officials named above are hereby dismissed from services w.e.f 27.5.2001, as their services are no more required in the police force. As regards SPOs and Exman, they have already been disengaged vide this office order No.410 of 2001 dated 27.5.2001. The enquiry is accordingly disposed-off and findings of enquiry officer will form a part of this order." 5. Mr. Rathore, was asked to explain whether the impugned order dismissing the petitioner is legally correct? He was not able to make a proper answer. In terms of Regulation 359 of Police Regulations, competent authority/ disciplinary authority has to hear the official if it propose to inflict a major punishment or more punishment than proposed by the Enquiry Officer. Even otherwise, in terms of Regulation 359(2) before passing punishment of dismissal second show cause notice was to be given to the petitioner. Only on this count, the impugned order in so far as it relates to petitioner needs to be quashed. 6. Even otherwise, in terms of Regulation 359(2) before passing punishment of dismissal second show cause notice was to be given to the petitioner. Only on this count, the impugned order in so far as it relates to petitioner needs to be quashed. 6. In the given circumstances, the writ petition is allowed and impugned order No. 655 of 2001 dated 06.09.2001 passed by S.S.P., Kupwara, in so far as it relates to the dismissal of the petitioner is quashed with liberty to the respondents to pass fresh orders in terms of the rules occupying the field within three months. The period of dismissal till today is kept subject to enquiry. It goes without saying that in case the enquiry is not conducted in terms of directions (supra) the petitioner is not entitled to any salary/ wages from that date till today but the period is to be counted only for other service benefits. Writ petition allowed.