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2010 DIGILAW 204 (JK)

State Of J. &K. v. N. C. Prabhakar (Dr. )

2010-04-19

AFTAB H.SAIKIA, VIRENDER SINGH

body2010
1. Heard Mrs. Deepika Mahajan, learned State counsel representing the appellants. 2. This Letters Patent Appeal (LPA) has been directed against the judgment and order dated February 6, 2009, passed in SWP no. 293/2001, preferred by the writ petitioner/the respondent herein. 3. Having carefully scanned the impugned judgment and order as well as upon hearing the learned counsel for the State-Appellants, we propose to dispose of this appeal today itself at the admission stage. 4. The factual matrix of this case in brief is that the respondent, who was a member of the J&K Economic & Statistics (Gazetted) Service, was appointed in the Planning Department and sent on transfer in the capacity of Deputy Director, Libraries, Jammu under Rule 27 of Classification, Control and Appeal Rules, 1956 (for short "the Rules") under the Education Department and during his tenure in the Education Department, some irregularities, as regards illegal appointments, promotions, engagements, attachments etc, were alleged to have been committed by the respondent. Immediately, he was placed under suspension by the department concerned. However, the said suspension order, once challenged before the High Court, was quashed. After quashment of the suspension order of the respondent, the appellants framed charges against the respondent and referred the matter for inquiry to the Commissioner of Inquiry. 5. The Commissioner of Inquiry initiated the inquiry on the basis of charge sheet prepared by the Additional Secretary to Government, Higher Education Department. 6. The respondent was afforded all the opportunities to defend himself before the said Inquiry Officer. On conclusion of the inquiry, it was found that all the charges levelled against the respondent were proved. It was recommended by the Inquiry Officer for his punishment to withhold three increments having the effect of postponing the future increments. 7. Having considered the such recommendation as made by the Inquiry Officer, the Government of Jammu and Kashmir vide order dated January 22, 2001, imposed punishment upon the respondent withholding three increments having the effect of postponing the future increments. 8. The said Governments order of imposing punishment upon the respondent was assailed before the Writ Court. 9. 7. Having considered the such recommendation as made by the Inquiry Officer, the Government of Jammu and Kashmir vide order dated January 22, 2001, imposed punishment upon the respondent withholding three increments having the effect of postponing the future increments. 8. The said Governments order of imposing punishment upon the respondent was assailed before the Writ Court. 9. The Writ Court, having meticulously considered the impugned order, came to the conclusion that there was absolutely non-compliance of Rule 35 of the Rules which provides that, without prejudice to the provisions of rule 33, no order imposing the penalty specified in clause (i), (ii), (iii) and (v) of rule 30 (other than an order based on facts which have led to his conviction in a criminal court or by a court-martial, or an order superseding him for promotion to a higher post on the ground of his unfitness for that post) on any Government servant to whom these rules are applicable shall be passed unless he has been given an adequate opportunity of making any representation that he may desire to make and such representation, if any, has been taken into consideration before the order is passed. It was observed that no adequate opportunity was provided in terms of Rule 35 to the respondent while the above mentioned punishment was imposed upon him. 10. This LPA registers a challenge to the impugned judgment of learned Single Judge passed on February 6, 2009. 11. Mrs. Mahajan, learned counsel for the appellants has vehemently argued that the respondent was given all adequate opportunities of hearing before passing the impugned punishment and, as such, the entire action taken by the authority was in tune and also in conformity with the provisions of Rule 35 of the Rules and to buttress her submissions, she has relied upon the charge sheet as referred to herein as Annexure-B. 12. We have given our due consideration to the submissions canvassed on behalf of the State-appellants. Also carefully perused the grounds taken in the memo of appeal, including the papers made available before us as well as the counter affidavit filed on behalf of the State-appellants before the Writ Court. 13. We have given our due consideration to the submissions canvassed on behalf of the State-appellants. Also carefully perused the grounds taken in the memo of appeal, including the papers made available before us as well as the counter affidavit filed on behalf of the State-appellants before the Writ Court. 13. We do not find any such statement and contention in the official response to show that the petitioner was ever afforded any such opportunity of hearing before imposition of punishment by impugned order dated January 22, 2001 in consonance with the provisions of Rule 35 of the Rules. That goes to show apparently that there was total non-compliance of the provisions of Rule 35 of the Rules. Even no records in support of the submission of learned counsel for the appellants to the effect that the writ petitioner-respondent was given sufficient opportunity of hearing, have been placed before us. 14. In view of the above, we find no cogent or plausible ground to interfere with the impugned judgment and order. Accordingly, we are of the view that there is no merit in this appeal. 15. In the result, the appeal stands dismissed along with the connected CMP(s).