1. The petitioner, appointed as con stable in the J&K Police Department vide order No.860 of 1997 dated 13.11.1997, has been removed from service w.e.f 30.5.2007 vide order No. 173 of 2007 dated 25.6.2007 read with order No. 174 of 2007 dated 28.6.2007. The aforestated orders were questioned in appeal before Dy. Inspec tor General of Police, Police Range, Anantnag. The Appellate Authority dis missed the appeal and upheld the re moval order passed by Superintendent of Police, Awantipora. 2. The order Nos. 173 of 2007 and 174 of 2007 dated 25.6.2007 and 28.6.2007 as also order of the appellate authority dated 26.2.2008 (order 79 of 2008) are questioned in this writ petition on the grounds that the Inquiry Of ficer did not comply with the mandate of Rule 359, J&K Police rules 1960 (for short "Police Rules") and section 126 Constitution of J&K while conducting inquiry against the petitioner and that the orders impugned in the petition, resultantly were liable to be set aside. 3. The respondents opposed the writ petition on the ground that the pe titioner raised disputed question of facts that cannot be dealt with in exercise of writ jurisdiction. It is pleaded that the petitioner has suppressed material facts and is not entitled to an equitable relief. The respondents deny that any of the petitioner's Constitutional or Statutory rights has been infringed while passing impugned orders. The respondents emphatically deny that the procedure laid down under Rule 359 of the Police Rules, have not been adhered to while conducting inquiry in the mat ter. It is pleaded that the petitioner, by un-authorizedly absenting himself from duty, has lost right to continue in ser vice. 4. I have gone through the plead ings and the record available on the file. I have also heard Ld. Counsel for the parties. 5. From perusal of record it tran spires that the petitioner while posted in Police Division Kulgam, allegedly re mained unauthorizedly absent w.e.f. 1.7.2005 and was placed under suspen sion vide order No. 263 of 2005 dated 10.10.2005. A departmental enquiry was ordered and conducted by Dy. S.P. Op erations, Kulgam. The petitioner was repeatedly asked to resume his duty and a notice was also got published in a local daily. The petitioner appeared be fore the Dy.
A departmental enquiry was ordered and conducted by Dy. S.P. Op erations, Kulgam. The petitioner was repeatedly asked to resume his duty and a notice was also got published in a local daily. The petitioner appeared be fore the Dy. Inspector General of Police, Police Range Anantnag, who vide order order No.45 of 2006 dated 6.3.2006 re instated the petitioner, pending en quiry to his unauthorized absence and transferred the petitioner from Police Division Kulgam to Police Division Awantipora. The enquiry against the petitioner was entrusted to Sub Divi sional Police Officer, Awantipora. The Inquiry officer got served the Summary of Allegation on the petitioner. The pe titioner pleaded not guilty whereafter charge sheet was issued to the peti tioner and the petitioner asked to file his reply to the charge sheet. The reply was accordingly filed on 8.7.2005. The petitioner sought to explain the reasons that compelled him to stay away from his duty after he, with the permission of his immediate officer, went to his residence to deliver his monthly salary to his dependents. However, the expla nation tendered, did not find favour with the Inquiry Officer and the Inquiry Of ficer recommended the period of ab sence to be treated as dies non and annual increment to be stopped for two years and the petitioner to be asked to remain vigilant in future. The Disci plinary Authority on going through the report of the Inquiry Officer and the pre vious service record of the petitioner, did not agree with the recommenda tions made by the Inquiry Officer and instead proceeded to remove the peti tioner from the service vide order im pugned in the petition. 6. After a brief survey of back ground facts, focus is now to shift to the petitioner's case and effort to find out whether the Inquiry Officer, Disciplin ary Authority and thereafter Appellate authority have adhered to the proce dure laid down under J&K Police Rules 1960, while removing the petitioner from service. 7. Chapter X J&K Police Rules 1960 deals with the punishment that may be imposed on a police officer sub ject to Police Act and the Rules made thereunder, if found to have been guilty of misconduct. Removal from service in terms of Rule 334(2) is one of the pun ishment that may be imposed on a Po lice Officer.
7. Chapter X J&K Police Rules 1960 deals with the punishment that may be imposed on a police officer sub ject to Police Act and the Rules made thereunder, if found to have been guilty of misconduct. Removal from service in terms of Rule 334(2) is one of the pun ishment that may be imposed on a Po lice Officer. However, the punishment is to be imposed only after an enquiry is conducted into the alleged miscon duct and the officer given an opportu nity to project his case, refute the alle gations levelled and convince the In quiry Officer and the Disciplinary Au thority that the allegation levelled, are devoid of any substance. Rule 359 of the Police Rules lays down the procedure to be followed by in departmental enqui ries. It would be advantageous to summarise the mode and manner in which the enquiry is to be conducted step by step without going to the text of Rule 359. i/Whenever a definite complaint of misconduct is received against a Police officer, the officer receiv ing the complaint is to immedi ately record statements, if any, in support of the complaint and through usual channels forward the complaint with the state ments, if any, to the Superinten dent of Police or other gazette of ficer under whose immediate control the officer receiving the complaint, is serving. The police or other officer if satisfied that a prima facie case for enquiry is made out, is to entrust the en quiry as far as possible to a Gazet ted Officer empowered to inflict a major punishment upon the de linquent officer. ii) The officer conducting the en quiry is to summon the delin quent police officer, read out to him the statements summariz ing the alleged misconduct so as to give notice to such police of ficer of the circumstance in re gard to which evidence is to be recorded. In case the delinquent police officer admits the miscon duct alleged against him, the of ficer conducting enquiry may then and there record a final or der if it is within his power to do so or forward the matter to an of ficer empowered to pass a final order.
In case the delinquent police officer admits the miscon duct alleged against him, the of ficer conducting enquiry may then and there record a final or der if it is within his power to do so or forward the matter to an of ficer empowered to pass a final order. iii) If the delinquent police officer does not admit the alleged mis conduct the enquiry officer is re quired 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 exam ine the witnesses unless he is of the opinion that the presence of the witness cannot be secured without undue delay and expense or inconvenience. In later case the statement of the witness re corded and attested by Magis trate, may be considered though not recorded in presence of the delinquent officer and without opportunity to cross-examine the witness to such officer. iv) When the evidence is recorded and it is found not to substanti ate the accusation or recommend his discharge to the Superinten dent of Police or other officer so empowered. However, if the evi dence collected substantiate the accusation of misconduct, the of ficer is to frame a formal charge/charges in writing explain the charges to the delinquent police officer and call upon him to an swer the charge. v) The enquiry officer after the charge/charges are framed in writing explain it to the delin quent officer, ask the delinquent police officer to furnish list of the defence witnesses whom he wishes to call alongwith sum mary of the facts as to which such witnesses are testified. The en quiry officer thereafter has to record the statement of the de fence witnesses whom he decides to admit in presence of the delin quent police officer who is also to be allowed to address/put ques tions to the witnesses as he may deem fit. The delinquent police officer is also to be given opportu nity to file documentary evidence and in this regard to have access to official files and papers except such as from part of the confiden tial record.
The delinquent police officer is also to be given opportu nity to file documentary evidence and in this regard to have access to official files and papers except such as from part of the confiden tial record. The Inquiry Officer has to allow the delinquent police officer to make a statement in reply to the charge and if he so chooses to file his written state ment, 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 ques tions to him which he may see fit to be put arising out of the charge. vi) The Inquiry Officer after the de linquent police officer closes his case and answers questions, if any, put by the Inquiry Officer, shall pass order as may be war ranted under facts and circum stances 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. vii) The punishment of dismissal, removal or reduction in rank is not to be imposed unless a delin quent police officer has been given a reasonable opportunity of showing cause orally and also in writing against the action pro posed to be taken against him unless he is dismissed, removed or reduced in rank of his convict ing of criminal charge or the au thority is of the opinion that it is reasonably practicable to give the delinquent police officer an oppor tunity of showing cause or were the Governor is satisfied that in the interest of the security of the State it is not expedient to give that officer such an opportunity. viii) The authority competent to or der dismissal, removal or reduce in rank, the delinquent police officer is not merely to give an op portunity 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 exer cise his right to show cause against the proposed action in a meaningful manner. 8. In the case in hand, perusal of record reveals that the procedure en visaged under Rule 359 of Police Rules was ignored with impunity and observed in breach.
8. In the case in hand, perusal of record reveals that the procedure en visaged under Rule 359 of Police Rules was ignored with impunity and observed in breach. The record does not indicate that the Dy. S.P. Operations Kulgam and thereafter Sub Divisional Police Officer, Awantipora recorded the evidence in presence of the petitioner or afforded the petitioner an opportunity to cross exam ine the witness. True that the Inquiry Officer is not under statutory obliga tions invariably to record statements of witnesses in presence of the delinquent police officer or allow such officer to cross examine each and every witness, yet in case the Inquiry Officer decided to depart from usual procedure least that is expected to him, is to record rea sons in support of such decision. The record also does not indicate that the petitioner after the charges were framed by Sub Divisional Police Officer Awantipora vide No. SDPO/06/Enq/766 dated 1.7.2006 asked the petitioner to furnish list of defence witnesses whom the petitioner proposes to call or did as a matter of fact record statement of any witnesses. The petitioner was not also informed that he was free to file docu mentary evidence, if any, in his de fence or that he was competent to make a statement in reply to the charge im mediately after the charges were framed or after the defence evidence was concluded. The record also does not reveal that the disciplinary authority while serving final show cause notice vide No. Estt/13194 dated 4.10.2006 fur nished the petitioner a copy of the en quiry report or copies of relevant docu ments, so as to enable the petitioner to convince the disciplinary authority that the punishment proposed, was unwar ranted, disproportionate and uncalled for in the facts and circumstances of the case. The duty to provide copy of the enquiry report and other relevant ma terial to the petitioner was more oner ous in the present case in as much as the Inquiry Officer did not recommend petitioner's removal from service and the Disciplinary Authority ignoring the recommendations made by the Inquiry Officer, decided to impose major pun ishment on the petitioner.
The duty to provide copy of the enquiry report and other relevant ma terial to the petitioner was more oner ous in the present case in as much as the Inquiry Officer did not recommend petitioner's removal from service and the Disciplinary Authority ignoring the recommendations made by the Inquiry Officer, decided to impose major pun ishment on the petitioner. The peti tioner in case he was provided copy of the enquiry report and copies of relevant material, would have been in a better position to persuade the Disciplinary Authority to agree that the Inquiry Of ficer was in better position to appreci ate the material collected during the enquiry and his recommendations de served to be accepted. 9. For the reasons discussed, nei ther the enquiry has been conducted in accordance with Rule 359 J&K Po lice Rules nor do the orders impugned in the writ petition outcome of the en quiry conducted, stand legal scrutiny. 10. So viewed, the petition is al lowed and the order No. 173 of 2007 dated 25.6.2007 and order No. 174 of 2007 dated 28.6.2007 quashed. Resultantly the respondents shall permit the peti tioner to resume his duty. Needless to mention the respondents would be at liberty to initiate fresh enquiry in the alleged misconduct in accordance with the Rules. The period w.e.f. the date of impugned removal order till the peti tioner is allowed to resume his duty, shall be dealt with having regard to the outcome of enquiry, if any, conducted and subject to rules. 11. Disposed of.