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2008 DIGILAW 433 (JK)

Maqsood Ahmad v. State Of J. &K.

2008-11-19

MUZAFFAR HUSSAIN ATTAR

body2008
1. With consent of learned counsel for the parties, the petition is taken up for final disposal. 2. The case of the petitioner is that by virtue of order No. 570 of 2004 dated May 17, 2004 he was transferred from Police Post Uttrasoo to DPL Anantnag. The petitioner submits that he in pursuance of this transfer order joined in District Police Lines, Anantnag. He further submits that he was falsely implicated in FIR no. 46 of 2004 of P/S Anantnag in which it was alleged that the petitioner alongwith other constables/officials of the police post of Uttrasoo without entering any report in the daily diary entered into the house of one Rashid Ahmad Khan by posing themselves as militants of LeT outfit and demanded Rs. 1.00 lac from the said person on the allegation that he is a timber smuggler. It is further alleged in the FIR that the house owner raised an alarm which caught attention of some neighbours who tried to rescue Rashid Ahmad Khan. However, one of the accused, namely, Farooq Ahmad no. 1746/A was apprehended while others managed to escape from the scene of occurrence. It is further alleged that Incharge Police Post, ASI Mohammad Yousuf no. 8721/NGO alogwith 3-4 officials came to the house of Rashid Ahmad Khan and there was a shoot out which resulted in the killing of Rashid Ahmad Khan. The accused tried to run away from the spot but ASI Mohammad Yousuf, no. 8721/NGO and constable Maqsood Ahmad No. 1462/A were apprehended by the people and were kept in custody. On this allegation respondent no. 2 passed the impugned order dismissing the petitioner alongwith some other officials from service. The petitioner alongwith other persons was arrested for commission of offences under Sections 302, 460, 120-B, 149, 323 read with Section 34 RPC. 3. Learned counsel for the petitioner submits that the petitioner after his being enlarged on bail was not permitted to resume his duties on the pretext that he has been dismissed from service. The petitioner accordingly, filed the present writ petition seeking following reliefs: "Writ of Certiorari for quashing suspension and discharge/termination orders in so far as such orders relate to the petitioner. The petitioner accordingly, filed the present writ petition seeking following reliefs: "Writ of Certiorari for quashing suspension and discharge/termination orders in so far as such orders relate to the petitioner. Appropriate Writ order or direction including a Writ of Mandamus commanding the respondents to allow the petitioner to resume his duties at DLP Anantnag, where the petitioner was posted pursuant to District Police HQ Anantnag Order no. 570/2004 dated 17.5.2004 and releasing his salary retrospectively with all consequential service benefits including seniority and promotion without any impediment." 4. In their objections respondents have re-iterated the allegations leveled against the petitioner and his co-accused in FIR no. 46 of 2004 of Police Station, Anantnag. It is further stated in the reply that the petitioner and other accused persons hatched criminal conspiracy and in pursuance of common object murdered the deceased. It has been also stated that the enquiry could not be conducted as it was not practicable in the circumstances to hold a time consumable enquiry and to let other important law and order problems unattended. 5. The petitioner has not placed on record copy of the dismissal order. However, learned Additional Advocate General, Mr. M.A. Rathore, on asking, handed over copy of the dismissal order no. 1287 of 2004 dated May 12, 2004 to the Court which reads as under: - "During the intervening night of 10/11-05-2004 at about 2345 hours 1) Constable Bashir Ahmed No. 1804/A, 2) Ct. Showkat No. 1598/A, 3) Ct. Farooq Ahmed No. 1746/A, 4) Ct. Showkat Ahmed No. 828/A 5) Ct. Mohd. Rafiq No. 1743/A of Police Post Uttersoo without entering any report in the daily diary entered into the house of one Rashid Ahmed Khan S/o Mohdullah R/o Goswani Wadder, Uttersoo. They posed themselves as militants of LET Outfit and demanded Rs. One Lakh from the said person on the pretext that he is a timber smuggler. The house owner raised an alarm and some people came for his rescue and tried to apprehend the said official. One of the constable namely Farooq Ahmed No. 1746/A was apprehended while others managed to escape from the spot. Whereas the Incharge Police Post ASI Mohd. Yousuf No. 8721/NGO alongwith 3-4 officials left for the said village and when reached the house of Rashid Ahmed Khan there was a scuffle followed by shoot out which resulted in the killing of said person. Whereas the Incharge Police Post ASI Mohd. Yousuf No. 8721/NGO alongwith 3-4 officials left for the said village and when reached the house of Rashid Ahmed Khan there was a scuffle followed by shoot out which resulted in the killing of said person. The forces tried to run away but ASI Mohd. Yousuf No. 8721/NGO and Ct. Maqsood Ahmed No. 1462/A were over-powered by the people, they were beaten and kept in custody. Whereas no information was given to the concerned officers still 0600 hours and the Army informed about the incident. This act of officials of the police is beyond police working, selfish, uncalled for and unbecoming of the police officer / officials. Whereas serious law and order problem was created by the said police officials who were doing such an act which was not part of their duty. Thousands of people protested against the said officials for their illegal act which has damaged the prestigious image of the police force as a whole. Whereas it has been found that Incharge Police Post and his men were conniving with timber smugglers of the area and also carrying on such type of activities earlier. Whereas in view of facts and circumstances therein mentioned above and the information sought I am satisfied that abovementioned officials have committed grave misconduct and an act unbecoming of police officer / officials which damaged the prestigious image of police force as a whole. Therefore, 1) ASI Mohd. Yousuf No. 8721/NGO 2) Ct. Maqsood Ahmed No. 1462/A, 3) Ct. Bashir Ahmed No. 1804/A, 4) Ct. Showkat Ahmed No. 1598/A, 5) Constable Showkat Ahmad No. 828/A, 6) Ct. Farooq Ahmed No. 1746/A and 7) Ct. Mohd. Rafiq No. 1743/A are hereby dismissed from service with immediate effect." 6. Learned counsel for the petitioner submits that the petitioner is substantively holding the post of Constable in the police Department and his service rights are governed by the Constitution of J&K, Constitution of India as also by the Police Rules/Manual. His case is admittedly pending before the court of competent jurisdiction. Learned counsel has produced copy of a Single Bench decision of this Court passed in SWP no. 164/87 on May 3, 2008 in case titled Bashid Ahmad Dar v. State & others. Said Bashir Ahmad Dar is the co-accused with the petitioner in FIR no. His case is admittedly pending before the court of competent jurisdiction. Learned counsel has produced copy of a Single Bench decision of this Court passed in SWP no. 164/87 on May 3, 2008 in case titled Bashid Ahmad Dar v. State & others. Said Bashir Ahmad Dar is the co-accused with the petitioner in FIR no. 46/2004 of Police Station Achabal and his writ petition has been allowed by this Court. The order of dismissal has been set aside and respondents have been directed to proceed in the matter strictly in accordance with the rules. 7. I have heard learned counsel for the parties. Admittedly, no enquiry has been conducted before passing the order of dismissal. 8. Section 126 of the Constitution of J&K provides that no person who is a member of a civil service of the State or holds a civil post under the State shall be dismissed or removed by an authority subordinate to that by which he was appointed. Sub Section (2) of Section 126 mandates that no person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such enquiry. Exceptions made to this provision, while reading the impugned order, are not attracted because the impugned order does not refer to any of the provisos to Section 126 or Sub Section (2). Further, in terms of the Constitution of J&K, it is again constitutionally mandatory to conduct an enquiry before a penal action in the nature of dismissal, termination, reduction in rank is sought to be taken against an employee. 9. The services of the petitioner are governed by Police Rules / Manual and Rule 359 of the Police Manual mandates that in case penal action warranting dismissal or reduction in rank is to be taken then a full dressed enquiry is to be conducted against the delinquent official. There is detailed procedure provided in Rule 359 of Police Manual for conducting of such enquiry. 10. Admittedly, in the present case, no enquiry has been conducted. There is detailed procedure provided in Rule 359 of Police Manual for conducting of such enquiry. 10. Admittedly, in the present case, no enquiry has been conducted. Charge sheet has also not been framed nor any evidence recorded. The impugned order, after referring to the allegations made against the petitioner and such other persons, provides for dismissal from service of the petitioner and other persons with immediate effect. Such an order is not countenanced by law. The order violates Constitutional safeguards and statutory provisions referred to hereinabove as available to the petitioner. 11. The impugned order, in these circumstances, cannot stand and is, accordingly, quashed to the extent of the petitioner. However, it is provided that in case respondents chose to initiate disciplinary action against the petitioner they are at liberty to do the same in accordance with law and rules. The writ petition is disposed of accordingly.