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2008 DIGILAW 496 (JK)

Ab. Rashid Lone v. State Of J. &K.

2008-12-18

MANSOOR AHMAD MIR

body2008
1. I propose to dispose of these petitions by a common judgement as identical questions of fact and law are involved in all these petitions. 2. It appears that writ petitioners were manning the Guard Post at Dangam bridge (Shopian). On 6-1-2004 at about 19.30 hours, militants entered the Guard Post and after disarming the petitioners, ran away with the entire arms and ammunition along with bullet proof jackets. FIR No. 5/2004 under sections 395, 121 RPC and 7/25 Indian Arms Act came to be registered in Police Station Shopian. The petitioners came to be arrested and preliminary enquiry came to be conducted. The enquiry officer conducted enquiry and there-after the competent authority passed the impugned orders of termination/discharge against them. Deputy Inspector General of Police passed termination order against HC Abdul Rashid Lone No. 28/PL which is impugned in SWP No. 649/2004 and SSP Pulwama passed termination / discharge orders against other five writ petitioners namely Abass Ahmad Malik, Fayaz Ahmad Bhat, Manzoor Ahmad Lone, Abdul Qayoom Turk and Bashir Ahmad Dar. 3. Admittedly the writ petitioners were in custody at the relevant point of time i.e. from 6-1-2004 till passing of the impugned orders and came to be admitted to bail by learned Chief Judicial Magistrate, Shopian, vide order dated3-3-2004, as per photostat copy of the docket annexed with the petition. There is nothing on file to suggest the fact that they were ever produced before the enquiry officer. When they were heard, when they were asked to participate in the enquiry proceedings, when and how they cross examined the witnesses and when they were asked to examine the witnesses in defence. If enquiry officer would have provided an opportunity to the petitioners of participating in the enquiry proceedings, then he would have sought permission from the court for their production, because admittedly they were in the Judicial lockup at the relevant point of time. The so-called enquiry appears to have been conducted at the back of the petitioners. 4. Perusal of the relevant record produced by the respondents at the time of hearing of the petitions, reveal that no enquiry was conducted in presence of the writ petitioners. It is astonishing to note that in five cases, two types of record came to be produced. 5. 4. Perusal of the relevant record produced by the respondents at the time of hearing of the petitions, reveal that no enquiry was conducted in presence of the writ petitioners. It is astonishing to note that in five cases, two types of record came to be produced. 5. The writ petitioners also placed on record copy of judgement which came to be passed by learned Chief Judicial Magistrate, Shopian, whereby all the writ petitioners came to be acquitted of all the charges leveled against them. Thus the police /State has failed to prove the charges before the court of law against the writ petitioners. It is apt to mention here that State has not filed any appeal against the said judgement of learned CJM Shopian and it has attained finality. Viewed thus the petitioners are deemed to be innocent. 6. Regulation 359 of the J&K Police Manual mandates how to conduct enquiry. While going through the said provision of law, it is crystal clear that respondents the competent authority has observed the said regulation in breach. 7. Principals of natural justice also demand that when accused is in custody, he is to be given fair chance to face enquiry. Admittedly the petitioners were in custody when the impugned orders came to be passed. They have gone through mental agony and were suffering from so many odds of life, but despite of that, there is nothing on file, as discussed hereinabove, that they were called from jail during their custody to participate in the enquiry. 8. For the foregoing reasons, these petitions are allowed and the impugned orders of discharge/termination are quashed with liberty to the respondents to conduct fresh enquiry into the matter within a period of three months in accordance with law. The period of three months shall commence from the date copy of this order is served by the petitioners on the respondents against proper receipt. It is made clear that if no enquiry is conducted within the period allowed hereinabove, the petitioners shall not be entitled to any salary right from the date of their arrest till to-date. However, said period shall qualify for purposes of other service benefits including seniority etc. It is also in place to mention here that if any suspension allowance has been paid during the period of suspension to the petitioners, that is not recoverable. However, said period shall qualify for purposes of other service benefits including seniority etc. It is also in place to mention here that if any suspension allowance has been paid during the period of suspension to the petitioners, that is not recoverable. Copy of this judgement be placed on each file. 9. Record produced by Mr. Rathore be returned back to him by the Registry.