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2011 DIGILAW 565 (JK)

Abdul Sattar Lone v. State of J&K & Ors.

2011-10-24

Hasnain Massodi

body2011
1. The petitioner, while posted as Head Constable/Cashier in the 8th B. JKAP, was arrested by Police Station Crime Branch, Jarnmu in case FIR No. 46/2005 under Section 409 RFC. Immediately after his arrest, the petitioner was placed under suspension vide order dated 14th December, 2005. However, the Investigating Agency was not able to conclude investigation and present the charge sheet against the petitioner within the prescribed time, paving way for his release on bail on 14th February, 2006. 2. The allegation leveled against the petitioner was that he while posted as Head Constable/Cashier in 8th Battalion JKAP fraudulently prefixed/ added digit 9 to an arrear bill in the amount of Rs. 3, 51, 563 and on the strength of forged document with-drew Rs. 93, 51, 563 from the State Treasury and misappropriated an amount of Rs. 90 lacs on 10lh March 2006. 3. Summary of allegation was served on the petitioner by Adjutant JKAP 8th Bn. Channi Himmat, Jammu—respondent No. 8 herein. The petitioner pleaded not guilty. Resultantly, the petitioner was served with the charge sheet on 11th March, 2006. Though the petitioner submitted his reply to the charge sheet, yet he questioned departmental proceedings in SWP No. 1058/ 2006 (High Court Wing, Jammu). 4. The petitioner's case was that as sum and substance of charge sheet was same as the accusation in case FIR No. 46/2005 Police Station Crime Branch, Under Section 409 RPC, the departmental proceedings were not to be taken ahead till the criminal trial was concluded. The proceedings wer stayed vide order dated 7th June, 200f till next date of hearing. 5. The respondent No. 8 vide notice No. Adjit/AP-8th/2006/8268-69 dated 17.04.2006 asked the petitioner to report at B. Headquarters and reminded the petitioner that in the event of his failure to report to the Bn., action under law would be taken against him. The petitioner did not obey the notice and continued to stay away from his office. The respondent No. 8 accordingly on 28th June, 2006, issued a summary of allegations alleging that the petitioner by misuse of Rs. 90 lacs and also remained unauthorizedly absent from Battalion Headquarter. The petitioner contested the summary of allegations on the grounds detailed in his reply. The respondents nonetheless decided to hold enquiry and vide order No. CS/8th/06/ 15488-90 dated 8th July, 2006 Appointed respondent No. 8 as an enquiry officer. 90 lacs and also remained unauthorizedly absent from Battalion Headquarter. The petitioner contested the summary of allegations on the grounds detailed in his reply. The respondents nonetheless decided to hold enquiry and vide order No. CS/8th/06/ 15488-90 dated 8th July, 2006 Appointed respondent No. 8 as an enquiry officer. The order dated 08.07.2007 was followed by fresh summary of allegations. The allegations now were restricted to "unauthorized absence" obviously for the reason that enquiry as regards alleged embezzlement was stayed in SWP No. 1058/ 2006. The petitioner was asked to give his response to the summary of allegations. The summary of allegations allegedly was not served on the petitioner in person but its copy pasted on the door of his residence. The summary of allegations was followed by formal charge sheet dated 11th July, 2006. The respondents on 4th August, 2006 and thereafter on 11th August, 2006, issued notices to the petitioner to respond to the summary of allegations in affirmative or negative and also informed that in the event response was not so filed action warranted under rules would be taken against the petitioner. 6. The petitioner approached this Court with a writ petition registered as SWP No. 1163/2006 questioning competence of respondent No. 8 to ask him to attend the office. The Writ Court on 31st August, 2006 directed notice asking the petitioner to attend office/Bn. Headquarters, to remain in abeyance. The writ petition was dismissed on 18.04.2007. The Writ Court was of the opinion that the petitioner while under suspension, though not required to attend the official work was nonetheless under duty to remain available in the office to facilitate enquiry. The Writ Court judgment dated 18.04.2007 was questioned in a Letters Patent Appeal. 7. However, while Letters Patent Appeal was pending and the Deputy Inspector General Channi Himmat, Jammu-respondent No. 5 herein, vide order No. 282/2007 dated 11.05.2007 dismissed the petitioner from service w.e.f. 14.02.2006 i.e. the date from which the petitioner allegedly remained absent from duty. 8. The petitioner assails the dismissal order on the grounds that the impugned order was in conflict with the earlier stand taken by the respondent No. 2 dated 03.04.2007, whereby the respondent No. 2 disagreed, with the suggestions made by respondent No. 3 vide order No. APHQ/Legal-pros/07/ 234 dated 25.01.2007 to terminate the petitioner's service. 8. The petitioner assails the dismissal order on the grounds that the impugned order was in conflict with the earlier stand taken by the respondent No. 2 dated 03.04.2007, whereby the respondent No. 2 disagreed, with the suggestions made by respondent No. 3 vide order No. APHQ/Legal-pros/07/ 234 dated 25.01.2007 to terminate the petitioner's service. It is pleaded that the respondent No. 2 having vide communication dated 03.04.2007, directed the respondents to get the criminal case of the petitioner, finalized for judicial determination, the respondent No. 5 was not competent to order dismissal of the petitioner. It is pleaded that the dismissal order has been passed during the pendency of SWP No. 1058/2006, wherein the Court in terms of order dated 07.06.2006 had stayed the proceedings. The impugned order, according to the petitioner has been passed arbitrarily and capriciously as evident from the fact that it has been given effect from 14lh February, 2006, unmindful of the fact that the petitioner on the said ate was in Police custody. It is next pleaded that the enquiry that in terms of J&K Police Rules 1960 is to precede, dismissal has not been conducted in accordance with Rule 359 of the said rules. The impugned order is also said to have been issued in violation of Article 311 Constitution of India and Section 126 of J&K Constitution. 9. The petitioner on the strength of averments made in the petition, seeks writ of Certiorari quashing the order No. 282/2007 dated 11.05.2007. 10. The respondents, in their reply, deny that any of the fundamental or statutory rights of the petitioner has been violated and insist that the petition does not disclose any cause of action. It is averred that the questions raised in the petition are factual in character and cannot be dealt with, while exercising writ jurisdiction. The Writ Court, while dealing with SWP No. 1058/2006 is said to have stayed departmental proceedings in case of alleged embezzlement of Government money by the petitioner and not authorized the petitioner to remain absent and avoid to hand over charge. The respondents insist that the petitioner though placed under suspension was in terms of rules to remain present and even to attend the roll call. The respondents insist that the petitioner though placed under suspension was in terms of rules to remain present and even to attend the roll call. The petitioner having failed to report to his office after his bail on 14.02.2006 and thereafter despite notice, according to the respondents justifies the departmental enquiry into the alleged un-au-thorized absence. It is pointed out that the order keeping in abeyance the notices dated 04.08.2006 and 11.08.2006 whereby the petitioner was asked to report to his office having been vacated by the Court on 18lh April, 2007, there was no impediment for holding the enquiry against the petitioner. The communication dated 03.04.2007 directing finalization of Criminal case for judicial determination, it is pleaded, was intended to retrieve Government money and not to exclude the possibility of termination of the petitioner's service, if warranted under rules. The petitioner is said to have himself flouted the Court order whereby the petitioner was asked to report to his office, by continuing to remain absent and stay away from the departmental enquiry into his un-authorized absence from his office after the petitioner was released on bail. The respondents insist that the impugned termination order has been made by a competent officer and is not to effect investigation in case FIR No. 46/2005 under Section 409 RFC. The respondents' case is that the petitioner having failed to report to his office ignoring repeated notices and even the Court direction, cannot turn around to question the impugned order on the ground that the enquiry was not conducted in accordance with rule 359 of J&K Police Rules 1960. 11. I have gone through the pleadings and the available record. I have heard learned counsel for the parties. 12. It needs to be made clear at the outset that the enquiry that resulted in the order impugned in the petition relates to the petitioner's alleged unauthorized absence from the date he was let off on the bail and his subsequent failure to respond to notice No. Adjit/AP-8th/2006/8268-69 dated 17.04.2006. It is pertinent to point out that the petitioner's challenge to the aforesaid notice in SWP No. 1163//2006 failed when the writ petition was dismissed on 18th April, 2007 and the petitioner held duty bound to attend the office so as to facilitate enquiry. It is pertinent to point out that the petitioner's challenge to the aforesaid notice in SWP No. 1163//2006 failed when the writ petition was dismissed on 18th April, 2007 and the petitioner held duty bound to attend the office so as to facilitate enquiry. The Letters patent Appeal directed against the writ Court judgment dated 18th April, 2007 met the same fate on 19th September, 2007. 13. It may be recalled that an earlier enquiry relating to alleged embezzlement of Rs. 90 lacs by the petitioner in which charge sheet was served on petitioner on 11th March, 2006, was questioned in SWP No. 1058/ 2006 in Jammu Wing of the High Court, on the grounds that misconduct in the alleged charge sheet was subject matter of investigation in case FIR No. 46/ 2005 Police Station Crime Branch, Jammu. The respondents oblivious to the nature of misconduct alleged in the charge sheet viz unauthorized absence, that lead to impugned order, in their reply harp on the charge of embezzlement - not subject matter of present enquiry. The small clarification clears decks for focus on the controversy arising out of the pleadings in the present case. 14. Chapter X J&K Police Rules 1960 deals with the punishment that may be imposed on a police officer subject to Police Act and the Rules made there under, if found guilty of misconduct. Dismissal from service in terms of Rule 334(2) is one of the punishment that may be imposed on a Police Officer. However, the punishment is to be imposed only after an enquiry is conducted into the alleged misconduct and the officer given an opportunity to project his case, refute the allegations leveled and convince the Inquiry Officer and the Disciplinary Authority c) that the allegation leveled, are devoid of any substance. 15. Rule 359 of the Police Rules 1960 lays down the procedure to be followed in departmental enquiries. It would be advantageous to summarize the mode and manner in which the enquiry is to be conducted step by step without going to the text of Rule 359. 15. Rule 359 of the Police Rules 1960 lays down the procedure to be followed in departmental enquiries. It would be advantageous to summarize the mode and manner in which the enquiry is to be conducted step by step without going to the text of Rule 359. a) Whenever a definite complaint of misconduct is received against Police officer, the officer receiving the complaint is to immediately record statements, if any, in support of the complaint and through usual channels forward the complaint with the statements, if any, to the Superintendent of Police or other gazetted officer under whose immediate control the officer receiving the complaint, is serving, d) The police or other officer if satisfied that a prima facie case for enquiry is made out is to entrust the enquiry as far as possible to a Gazetted Officer empowered to inflict a major punishment upon the delinquent officer. b) The officer conducting the enquiry is to summon the delinquent police office, read out to him the statements summarising the alleging misconduct so as to give notice to such police officer of the circumstance in regard to which evidence is to be recorded. In case the delinquent police officer admits the misconduct alleged against him, the officer conducting enquiry may then and there record a final order if it is within his power to do so or forward the mater to an officer empowered to pass a final order. If the delinquent police officer does not admit the alleged misconduct, the enquiry officer is required to record such evidence oral and documentary in proof of accusation as is available and necessary to support the charge. Whenever possible, witnesses are to be examined in presence of the delinquent police officer and such officer given opportunity to examine the witnesses unless he is of the opinion that the presence of the witness can not be secured without undue delay and expense or inconvenience. In later case the statement of the witness recorded and attested by Magistrate, may be considered though not recorded in presence of the delinquent officer and without opportunity to cross examine the witness to such officer. When the evidence is recorded and it is found not to substantiate the accusation, the officer is to recommend his discharge to the Superintendent of Police or other officer so empowered. When the evidence is recorded and it is found not to substantiate the accusation, the officer is to recommend his discharge to the Superintendent of Police or other officer so empowered. However, if the evidence collected substantiates the accusation of misconduct, the officer is to frame a formal charge/ charges in writing explain the charges to the delinquent police officer and call upon him to answer the charge. The Inquiry officer after the charge/charges are framed in writing is to explain it to the delinquent officer, and ask the delinquent police officer to furnish list of the defence witnesses whom he wishes to call along with summary of the facts as to which such witnesses are to testify. The Inquiry office thereafter has to record the statement of the defence witnesses whom he decides to admit, in present of the delinquent police officer, who is also to be allowed address/put questions to the witnesses as he may deem fit. The delinquent police officer is also to be given opportunity to file documentary evidence and in this regard to have access to official files and papers except such as form part of the confidential record. f) The Inquiry Officer, after the defence is concluded, is to allow the delinquent police officer to make a statement in reply to the charge and if he so choose to file his written statement. The Inquiry Officer independent of the option exercised by the delinquent police official to file a written statement, would be competent to put all such questions to him which he may see fit to be put arising out of the charge. g) The Inquiry officer after the delinquent police officer closes his case files his written statement and answers questions, if any, put to him, is to pass order as may be warranted under facts and circumstances of the case or forward the case with his recommendations to an officer empowered to pass such order. However, no officer is to be dismissed or removed by an authority subordinate to that by which he was appointed. h) The punishment of dismissal, removal or reduction in rank is not to be imposed unless delinquent police officer is given a reasonable opportunity of showing cause orally and also in writing against the action proposed to be taken against him. h) The punishment of dismissal, removal or reduction in rank is not to be imposed unless delinquent police officer is given a reasonable opportunity of showing cause orally and also in writing against the action proposed to be taken against him. However such right may be denied if the delinquent officer is dismissed, removed or reduced in rank on his conviction on a criminal charge or the authority is of the opinion that it is not reasonably practicable to give the delinquent police officer an opportunity of showing cause or where the Governor is satisfied that in the interest of the security of the State it is expedient to give that officer such an opportunity. i) The Authority competent to order dismissal, removal to reduction in rank, is not merely to give an opportunity to the delinquent police officer to show cause against the proposed action but provide the officer copy of the enquiry report and the record, so as to enable the delinquent police officer to exercise his right to show cause against the proposed action in a meaningful manner. 16. From perusal of the record available on the file, it transpires that the procedure mapped out under rule 359, J&K Police Rules, 1960 was not meticulously and religiously followed in the present case. In terms of Rule 359 once unauthorized absence of the petitioner was reported to his Commandant and he was of the opinion that the allegations discernible from the inputs received from him, constituted a prima facie case for enquiry. He was to follow the procedure laid down under Rule 359. In the first instance the enquiry was to be entrusted to an officer competent to hold such enquiry in terms of Rule 359 (1) (a). The Inquiry Officer so appointed was in terms of Rules required to summon the petitioner, read out to him the statement summarizing the misconduct alleged against him and thus give him notice of the circumstances in regard to which the evidence was to be recorded. Once the petitioner would not admit the alleged misconduct, the officer containing to the enquiry in terms of Rules 359 (4) was to record evidence oral and documentary in proof of accusation in presence of the petitioner with an opportunity to the petitioner to cross examine the witnesses. Once the petitioner would not admit the alleged misconduct, the officer containing to the enquiry in terms of Rules 359 (4) was to record evidence oral and documentary in proof of accusation in presence of the petitioner with an opportunity to the petitioner to cross examine the witnesses. Though there is an option available to the officer conducting the enquiry to bring on record the statement of any witnesses, whose presence cannot in his opinion, be procured without undue delay and expense or inconvenience and that the statement of such witnesses is necessary, provided such statement has been attested by a Magistrate and is duly signed by the person making it. It is only after the evidence in support of the allegation was found by the Inquiry Officer to substantiate the charge, a formal charge/ charges in writing were to be framed and explained the petitioner and petitioner afforded an opportunity to answer the charges. The petitioner thereafter was required to be asked to give particulars of defence witnesses, if any, whom he wanted to call and the summary of the facts to which the witnesses, would testify. The petitioner was to be given full opportunity to produce witnesses except such of the witnesses, whose evidence in the opinion of Inquiry officer was irrelevant or unnecessary and also any opportunity to file any documentary evidence. The Inquiry officer was in terms of Rule 359 (6) inform the petitioner that if he so desired, he may be given access to the official documents except such as form part of any confidential record. Even when the petitioner was given an opportunity to examine the witnesses and produce documents in his defence, the Inquiry officer in terms of Rule 359 (7) was to permit the petitioner to file written statement, if any, to project his over all stand as regards the charges framed and evidence adduced in support of the charges, the defence evidence-oral and documentary. Once the enquiry officer on objective perusal ol the whole record was convinced that the charges were proved against the petitioner and proposed punishment of dismissal from service to be imposed on the petitioner, the officer before making such order was in terms of Rule 359 (11) (2) to give the petitioner reasonable opportunity of showing cause oral and also in writing against his proposed dismissal, unless he was of the opinion that it was not reasonably practicable to give the petitioner such opportunity. 17. In the case in hand, the Inquiry officer did not summon the petitioner to acquaint him with the particulars of alleged misconduct against him as required under Rule 359 (2), did not record statement of witnesses in his presence or permit the petitioner to cross examine the witnesses as required under rule 359 (4), before framing the charge sheet on 11th July 2006. It is not in the circumstances surprising that the charge sheet dated 11th July, 2006 was a repetition of summary of allegations. Even it the stand taken by the respondents that the petitioner did not appear before the Inquiry officer and did not remain present when the evidence was recorded by the Inquiry officer, still nothing prevented the Inquiry officer, once he was satisfied that the evidence recorded substantiated the allegation of misconduct and charge was required to be framed, to call upon the petitioner to furnish the list of witnesses, he proposed to examine in his defence. The record does not indicate that the Inquiry officer after the charge sheet dated 11th July, 2006 was served on the petitioner, called upon the petitioner to furnish such list in compliance of Rule 359 (6) or to inform the petitioner that he was well within his rights to adduce any documentary evidence and may be given access to the official record if he so desired. The record also does not indicate that the Inquiry officer informed the petitioner that he may file his written statement to given an overview the case set up by him in opposition to the charge sheet. The dismissal order impugned in the petition does not reveal that procedure embodied in rule 359 was followed during the enquiry conducted against the petitioner. The dismissal order impugned in the petition does not reveal that procedure embodied in rule 359 was followed during the enquiry conducted against the petitioner. As regard the requirement to afford the petitioner an opportunity to show cause against his proposed dismissal in terms of Rule 359 (11) (2) admitted stand of the respondents is that no such opportunity was given to the petitioner. 18. The respondents insist that the case fell within proviso (b) to Rule 359 (11) (2) in as much as the authority empowered to order dismissal was satisfied, that it was not reasonably practicable to give the petitioner an opportunity- of showing cause against the proposed punishment. The stand taken by the respondents makes it necessary to give a closer look to the impugned order to see whether the matter falls within the aforesaid proviso. The impugned order after pointing out that the petitioner did not respond to the previous notices concludes as under:- "There is no need to serve any more notices to the delinquent official, which can be of no use and it will not be reasonable/practicable to embark upon regular departmental enquiry and the post of delinquent official cannot be kept vacant for indefinite period". The reason detailed in the impugned order to avoid grant of reasonable opportunity of showing cause oral and also in writing against the action proposed are not as contemplated by proviso (b) to Rule 359 (11) (2). It is pertinent to point out that deviation from Rule 359 (11) (2) is permitted only when in the opinion of the concerned authority, it is not "reasonably practicable" to give the delinquent official such opportunity. The Deputy Inspector General of Police Armed Forces - respondent No. 5 in the present case has not found it necessary to afford the petitioner a reasonable opportunity to show cause against his dismissal because he finds it "of no use" and "to be not reasonable/ practicable". The reasons spelt out in the order do not fall within the ambit of proviso (b) to Rule 359 (11) (2). So viewed the respondents by not affording the petitioner an opportunity to show cause against his dismissal, have violated rights available to the petitioner under Rule 359 (11) (2). The dismissal order thus offends the aforesaid rule. 19. The reasons spelt out in the order do not fall within the ambit of proviso (b) to Rule 359 (11) (2). So viewed the respondents by not affording the petitioner an opportunity to show cause against his dismissal, have violated rights available to the petitioner under Rule 359 (11) (2). The dismissal order thus offends the aforesaid rule. 19. This apart the petitioner impugned the notice No. Adjit/AP-8th/ 2006/8268-69 dated 17.04.2006 in SWP No. 1163/2006 and the notice was stayed on 31st August 2006. The Writ Court dismissed the writ petition on 18th April, 2007 and asked the petitioner to attend the office and facilitate enquiry. The Writ Court order was questioned in Letters Patent Appeal (LPA No. 129/2007) filed on 20.06.2007 and dismissed on 19.09.2007. The substantial part of the departmental enquiry into unauthorized absence of the petitioner was conducted during the period the notices requiring the petitioner to report to the office were in abeyance in wake of writ Court order dated 31st August, 2006. It is highly doubtful whether action of the Inquiry officer is conducting inquiry at the back of the petitioner would be justifiable during the period writ Court order dated 31st August 2006 was in force. The right course for the inquiry officer was to kept his hands of the inquiry till the writ petition and the Letters Patent Appeal arising out of the writ petition was dismissed and petitioner asked to attend the office and facilitate the inquiry. 20. For the reasons discussed above, the writ petition is allowed and order No. 282/2007 dated 11.05.2007 is set aside. Resultantly the petitioner be allowed to resume his duty in accordance with rules unless petitioner has been visited with/imposed any punishment in connection with inquiry directed into alleged embezzlement, on 11.03.2006 or any other inquiry that does not permit his reinstatement. The respondents however, would be at liberty to initiate fresh enquiry into the matter in accordance with rules. The period w.e.f. 14.02.2006 till the petitioner resumes duty shall be dealt with in accordance with rules and having regard to the outcome of the enquiry, if any, initiated against the petitioner.