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2011 DIGILAW 264 (JK)

Abdul Rehman Wani & Ors. v. State of J&K & Ors.

2011-05-19

MANSOOR AHMAD MIR

body2011
1. Petitioners were discharged from service was the subject matter of writ petition (SWP) No. 1809/99, came to be allowed vide order dated23.03.2005-was questioned by the medium of LPA No. 120/2006 which was dismissed vide order dated 24th of September, 2007. Respondents reinstated the petitioners and allowed them to perform their duties and respondent No. 5 was appointed as Enquiry Officer vide order No. 728 of 2007 dated 13.12.2007. After conducting enquiry, respondents have passed impugned orders whereby the petitioners 1 to 3 were exonerated vide orders contained in annexures-B, C and D. The operative part of all the three impugned orders being same is reproduced as under: "I have gone through the findings of the enquiry officer, other related material on file and come to the conclusion that the occurrence has not taken place during the duty hours of said official and the guard remained un-attended due to another guard personnel on duty and nothing on account of negligence, carelessness and dereliction of duty on said date has been proved against the said official, therefore, partially agreeing with the recommendations of the enquiry officer, it is hereby ordered that:- 1. The official is exonerated from the charges leveled against him. 2. That period of suspension w.e.f. 12-08-1999 to 29.09.1999 is treated as on duty as the official has remained present in DPL Baramulla. 3. The period of Discharge from service w.e.f. 30.09.1999 to 13.12.2007 is treated as Diesnon, on the basis of "NO WORK NO WAGES". The findings of the enquiry officer shall form a part of this order." 2. Petitioner No.4 was held liable vide the impugned order. It is apt to reproduce the relevant portion of the order herein: "I have gone through the findings of the enquiry officer, other related material on file and come to the conclusion that the occurrence has taken place due to carelessness, negligence and dereliction of duty of said consta­ble. Delinquent constable was served with show cause notice vide this office No. Estt/28455-56 dated 10.11.2009 and was given personal hearing on 25.11.2009 but he could not satisfactorily depose any thing in his defence. Therefore, agreeing with the recommendation of the enquiry officer (ASP Baramulla) it is hereby ordered that:- 1. Annual increment of Constable Ab. Rashid No. 948/B is forfeited for a period of two years w.e.f. the date next follows due to him. 2. Therefore, agreeing with the recommendation of the enquiry officer (ASP Baramulla) it is hereby ordered that:- 1. Annual increment of Constable Ab. Rashid No. 948/B is forfeited for a period of two years w.e.f. the date next follows due to him. 2. Period of suspension w.e.f. 12-08-1999 to 29-091999 is treated as on duty. 3. Period of discharge w.e.f. 30.09.1999 to 13.12.2007 is treated as on Diesnon on the principles of NO WORK NO PAY. The findings of the enquiry officer shall form a part of this order." 3. The respondents have resisted the petition on the grounds taken in the counter. Admittedly, the petitioners 1 to 3 came to be exonerated but the period from date of discharge from service w.e.f. 30.09.1999 to 13.12.2007 was treated as dies non. The grievance'projected by petitioners 1 to 3 is that they came to be discharged from service by an illegal order which was set-aside by this Court and thereafter respondents conducted enquiry and exonerated petitioners from the charges leveled against him and how the said period came to be treated as dies-non. 4. Learned counsel for the petitioners argued that petitioners are entitled to full wages and cited a judgment delivered by this court in SWP No. 287/2006 titled Sonaullah Bhat v. State of J & K & Ors., dated 3rd of December, 2008 and prayed that respondents be directed to treat the period as on duty. It is apt to reproduce last para of the said judgment herein: "On consideration of the matter, I find the authority relied upon by the learned counsel for the petitioner squarely applies to the facts of the present case. On the basis of these principles I find the petitioner's period of absence is to be treated as duty and he is, therefore, entitled to the relief as prayed by him." 5. In the given circumstances, the judgment (supra) covers this case also in so far as petitioners 1 to 3 are concerned. Accordingly, the impugned order is set-aside and respondents are directed to treat the period of absence as on duty and grant all consequential benefits to petitioners 1 to 3. 6. Sub-Rule 2 of Regulation 359 of J & K Police Regulations, provides giving of second notice before inflicting punishment. Accordingly, the impugned order is set-aside and respondents are directed to treat the period of absence as on duty and grant all consequential benefits to petitioners 1 to 3. 6. Sub-Rule 2 of Regulation 359 of J & K Police Regulations, provides giving of second notice before inflicting punishment. It is apt to reproduce the said rule herein: "(2) The officer conducting the inquiry shall summon the accused police officer before him and shall record and read out to him a statement summarizing the alleged misconduct in such a way as to give full notice of the circumstances in regard to which evidence is to be recorded." 7. Respondent No. 4. SSP has not followed the said Regulation, thus, the impugned order governing the petitioner No. 4 merits to be quashed. Accordingly, the impugned order so far as it relates to the petitioner is set-aside and respondents are at liberty to proceed ahead with the inquiry from that stage and pass appropriate orders within two months after providing sufficient opportunity to petitioner NO.4. Writ petition is accordingly disposed of along with all connected CMPs.