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2010 DIGILAW 288 (JK)

R. K. Zalpuri v. State

2010-05-14

Sunil Hali

body2010
1. An inquiry was initiated against the petitioner on 16.09.1996 when a memorandum of charge was served upon him. He was served with statement of article of charges along with the memorandum. The charges are stated to have been replied by the petitioner, denying all the allegations. 2. On 12.11.1996 Inquiry Officer was appointed to look into the charges leveled against the petitioner. The Inquiry Officer, after examining the allegations leveled against the petitioner, concluded that petitioner had mis-appropriated an amount of Rs. 2,68,317.00. 3. After the report was received by the respondents, a show cause notice was issued to the petitioner on 04.06.1999 whereby it was proposed to terminate his services. Petitioner was called upon to reply the show cause notice and after receiving the reply from the petitioner, impugned order dated 06.09.1999 was issued whereby dismissal of the petitioner from government service was ordered. 4. The power of the Court to interfere in the matters of departmental inquiry is confined to the decision making process involved in making such inquiries. Courts cannot substitute its decisions as an appellate authority. However, in case it is found that there is some illegality committed in complying with the rules regulating the service, the Court will have all the powers to interfere. 5. The petitioner has claimed that the show cause notice issued to him was not accompanied with the copies of the proceedings as envisaged under Rule 34 of the Jammu and Kashmir Civil Services (Classification, Control & Appeal) Rules, 1956. Article 311 is an exception to the doctrine of pleasure, as contemplated by Article 310 of the Constitution. It provides that before any order of dismissal/removal from service has to be passed against an official, he has to be given reasonable opportunity to defend himself. Reasonable opportunity envisages that rules of natural justice should have been complied with. Where the rule itself provides an opportunity of hearing, any violation of that would tantamount to denying a reasonable opportunity to the delinquent official. If the rules are silent on this issue than principles of natural justice can be invoked. 6. Non-supply of copies of the proceedings along with the show cause notice to the petitioner violates the mandate of Rule 34 of the Jammu and Kashmir Civil Services (Classification, Control & Appeal) Rules, 1956, and this tantamount to denial of reasonable opportunity to the petitioner to defend himself. 6. Non-supply of copies of the proceedings along with the show cause notice to the petitioner violates the mandate of Rule 34 of the Jammu and Kashmir Civil Services (Classification, Control & Appeal) Rules, 1956, and this tantamount to denial of reasonable opportunity to the petitioner to defend himself. Reliance is placed on a judgment of Hon’ble Supreme Court of India, delivered in Managing Director, ECIL Hyderabad v. B. Karunakar, reported as AIR 1994 SC 1074 , has held as under: - "The broad test of "reasonable opportunity" is whether in the given case the show cause notice issued to the delinquent servant contained or was accompanied by so much information as was necessary to enable him to clear himself of the guilt, if possible, even at that stage or in the alternative to show that the penalty proposed was much too harsh and disproportionate to the nature of the charge established against him................................. In Union of India v. E.Bashyan (1988) 3 SCR 209 : ( AIR 1988 SC 1000 ), the question squarely arose before a Bench of two learned Judges of this Court as to whether the failure to supply a copy of the report of the Inquiry Officer to the delinquent employee before the disciplinary authority makes up its mind and records the finding of guilt would constitute violation of Art.311(2) of the Constitution and also of the principles of natural justice. It was opined that in the event of failure to furnish the report of the Inquiry Officer, the delinquent employee is deprived of crucial, and critical material which is taken into account by the real authority which holds him guilty viz., the disciplinary authority. According to the Court, it is the real authority because the Inquiry Officer does no more than act as a delegate and furnishes the relevant material including is own assessment regarding the guilt, to assist the disciplinary authority who alone records the effective finding. The non supply of the copy of report would, therefore, constitute violation of the principles of natural justice and accordingly will tantamount to denial of reasonable opportunity within the meaning of Art.311 (2) of the Constitution." 7. For all what has been said above, the writ petition is allowed and order impugned is quashed.