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2009 DIGILAW 197 (JK)

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

2009-04-27

MUZAFFAR HUSSAIN ATTAR

body2009
1. Petitioner is aggrieved of order No. 74/1907 dated 28th of February, 1997 which has the effect of stopping increment of the petitioner for a period of six months for dereliction of duty. The whole case hinges on the fact that whether the order No. CS/96-207-11 dated 18th of January, 1996 issued by respondent no.3 was served on the petitioner. The said order is reproduced as under: "All officers and officials of Executive Police performing duties in KPO are hereby directed to report to SSP Srinagar, on 24th of January morning in full uniform for Republic Day duties. Any deviation in this part will be viewed seriously. No leave whatsoever will be accepted if sent by any officer/official during these days." 2. The said order provides that all of officers and officials of Executive Police performing duties in KPO were directed to report to Senior Superintendent of Police, Srinagar on 24th of January, morning in full uniform for Republic Day duties. It was further provided that any deviation in this behalf will be viewed seriously. It was further directed that no leave whatsoever will be accepted if sent by any officer / official during these days. Copy of the said order was endorsed to DIG Kashmir and to all sectional heads of KPO with the remarks that they will get it noted from all concerned officials and report compliance. Senior Superintendent of Police issued order dated 22nd of January, 1996 directing the officers / Officials details whereof are mentioned in the said order to report in DPL Srinagar on 23rd of January, 1996 at 1600 hours in proper uniform in connection with special duty of Republic Day. Petitioner figures at serial no. 29 of the said order copies of which are endorsed to Inspector General of Police (Kashmir Zone Srinagar), Director Inspector General of Police (Kashmir), All SPs Srinagar, All CPOs Srinagar, Dy. SP DAR, Dy. SP Headquarters, All Branch Incharges of DPO. 3. These facts emerge from the record produced by learned counsel for State in pursuance of Court orders. 4. The allegation against the petitioner is that despite the fact he having been directed to report for duty in DPI Srinagar for performing duty on 26th of January, 1996 Republic Day he failed to report which necessitated initiation of disciplinary action against him. 4. The allegation against the petitioner is that despite the fact he having been directed to report for duty in DPI Srinagar for performing duty on 26th of January, 1996 Republic Day he failed to report which necessitated initiation of disciplinary action against him. The petitioner was ordered to be suspended by respondent no.3 vide order dated 1st of February, 1996. The Dy. SP DAR DPL, Srinagar, was appointed as enquiry officer. The enquiry officer as per respondent no. 3 failed to complete the enquiry which necessitated initiation of enquiry by respondent no.3 himself. Summary of allegation was prepared and served on the petitioner and it was alleged that despite orders from the competent authority he failed to report for duty which constituted the misconduct. The petitioner stated that he has not violated any order of the superior officers, as such not committed any misconduct. Summary of allegation was framed and statement of two witnesses were recorded, and thereafter impugned order was passed. 5. The petitioner has challenged the order impugned in the writ petition on the ground that the same has been passed without following procedure established by law and the authority has not complied with the procedure as provided under rule 359 of the Police Manual. Petitioner has placed on record a communication which has emanated from the office of the Assistant Executive Engineer Police Construction, Sub Division-1, Srinagar addressed to respondent no. 3 bearing no. PCSD-I/Sgr/1658-60 informing the Dy. Inspector General of Police, Kashmir Range, Srinagar that the officer being novice and knowing nothing about Police Rules, stated that action of placing petitioner under suspension in the fact situation is unjustified as the petitioner has not been informed regarding assignment of the special duty of 26th of January, 1996. The said communication is reproduced as under: "Shri Bashir Ahmad Sg. Const. No. 939/S attached to this office has been placed under suspension vide Order No. 43 of 1996 dated 1.2.1996 on the basis of report submitted by DYSP DAR DPL Sgr. Letter No. DAR-14/96659 dated 30.1.1996. Since I am novice regarding the Police Rules but I would like to comment that this drastic action taken against the official is unjustified, when the official has not been informed regarding the assignment of special duty on 26.01.1996. The official has in no case made non-compliance of orders of his officers which has warranted suspension. Since I am novice regarding the Police Rules but I would like to comment that this drastic action taken against the official is unjustified, when the official has not been informed regarding the assignment of special duty on 26.01.1996. The official has in no case made non-compliance of orders of his officers which has warranted suspension. Kindly take this aspect into consideration while holding enquiry against the official." 6. Petitioners further case is that he never received the information for requiring him to report in DPL Srinagar. Petitioner was not given opportunity to produce evidence in defense and enquiry report was also not provided to him. It is further pleaded that show cause notice was not also issued to him. Respondents have filed their counter affidavit. The contentions raised by the petitioner have been specifically denied by the respondents in their counter affidavit. 7. Heard learned counsel for parties. Consider the record. It is fact that petitioner belongs to a disciplined force and is duty bound to perform his duties for which the lawful orders are issued by the superior officers. If it is proved that petitioner has intentionally and knowingly violated the orders of the superiors then he has to suffer the consequences. The million dollar question which arises for consideration in this case is whether the orders of deployment of the petitioner was ever served on him and brought to his knowledge. There is a communication of Assistant Executive Engineer Police Construction Sub-Division which unambiguously states that petitioner was never informed about the assignment of the special duty which he was required to perform on 26th of January, 1996 and the record which is produced before the Court show that there is a communication of Superintendent of Police, Srinagar bearing no. Eng/97-263-64 dated 14 of July, 1997 addressed to respondent no.3 in which request was made for providing information whether petitioner was informed to report for duties or otherwise. Instead of responding to this communication providing information as to whether the petitioner was informed about the order of his deployment, respondent no.3 vide its communication no. Estt/D-15/97-587-88 dated 21st of January, 1997 informed the superintendent of Police R&H Srinagar that Dy. SP DAR has failed to complete the enquiry and further informed him that respondent no.3 has initiated departmental enquiry against the petitioner and enquiry already initiated was ordered to be closed. Estt/D-15/97-587-88 dated 21st of January, 1997 informed the superintendent of Police R&H Srinagar that Dy. SP DAR has failed to complete the enquiry and further informed him that respondent no.3 has initiated departmental enquiry against the petitioner and enquiry already initiated was ordered to be closed. The examination of the record reveals that there is no material to show or even either suggest that the petitioner has been informed that he was ordered to be deployed for performing duties of 26th of January, 1996 and for this purpose he was directed to report to District Police Line, Srinagar. A person can be punished for violation of the orders provided the orders have been served on him. If the order, disobedience of which is complained of, is never served on the official, then in fairness he in law cannot be said to have disobeyed the same. 8. This writ petition deserves to be allowed on this ground alone. The other grounds taken by the petitioner though of consequence, however, are not dealt with for the above stated reasons. This petition is accordingly allowed and the impugned order is quashed.