1. On consideration, the petition is admitted to hearing and with the con sent of learned counsel for the parties taken up for final disposal. 2. The petitioner on the strength of averments made in the petition seeks following reliefs:- i. Writ of Certiorari quashing or der No. 121 of 2008 dated 09.07.2008 and Order No. 146 of 2008 dated 17.9.2008. ii. Writ of Mandamus commanding the respondents to release incre ment in favour of the petitioner from the date it has become due. 3. The petition has been filed against the following factual backdrops: 4. The petitioner is holding the post of Selection Grade Constable on permanent basis in Jammu and Kash mir Police Department. On 30th Janu ary, 2008 was posted as Moharir Con stable (Munshi) in Police Post, Tikri. On the aforesaid date Shri Alok Puri, Deputy Inspector General of Police, Udhampur - Reasi Range - Respondent no.3 herein made a surprise visit to Police Post, Tikri and allegedly found the petitioner absent from duty. On examining the record of the police post, the petitioner was allegedly found to have left both sides of page 97 of Daily Register (Roznamcha) blank and not have got Daily Register (Roznamcha) signed by Incharge Police Post w.e.f. 03.12.2007 i.e. the date the Daily Register (Roznamcha) was opened. The omis sions and commissions alleged to have been committed by the petitioner, re sulted in a departmental enquiry con ducted by Additional Superintendent of Police, Udhampur. The petitioner was charge sheeted on 02.04.2008 and re ply 'to the charge was filed on 05.05.2008. The petitioner's Enquiry Officer not satisfied with the reply sub mitted by the delinquent official, held the charged to have been proved and vide Letter No.877 dated 03.03.2008 submitted his enquiry report recom mending punishment of Censure against the petitioner. However, on go ing through the enquiry report, a Denovo enquiry was ordered. The Enquiry Of ficer served a fresh charge sheet on the petitioner and after recording evidence submitted his report vide No.2960 dated 02.06.2008. However, Enquiry Officer once again "keeping in view the length of service with neat and clean record and future career" recommended a lenient view to be taken against the pe titioner and suggested punishment of Censure to be imposed upon the peti tioner.
However, Enquiry Officer once again "keeping in view the length of service with neat and clean record and future career" recommended a lenient view to be taken against the pe titioner and suggested punishment of Censure to be imposed upon the peti tioner. The Deputy Inspector General of Police - respondent No.3 herein on receipt of the enquiry report issued show cause notice to the petitioner vide Letter No. Estt/3581-UR dated 11.06.2008, requiring him to show cause as to why the punishment sug gested by the Enquiry Officer may not be enhanced. The respondent no.3 ob viously did not agree with the award of minor punishment as recommended by the Enquiry Officer and proposed to im pose punishment more than that sug gested in the enquiry report. The re spondent no.3 after going through the response to the show cause notice ar rived at the conclusion that in view of the mis-conduct proved against the pe titioner, he deserved major punish ment, and accordingly, directed stop page of annual increment for a period of one year. 5. The petitioner filed a review pe tition against the order dated 09.07.2008 whereby major punishment was imposed on the petitioner. The re view petition did not find favour with the reviewing authority - respondent no.3. The respondent no.3 observing that no new facts and circumstances of the case warranting reconsideration of the im pugned order were produced and that there was no error or mistake appar ent on the face of the record, rejected the review petition vide order No. Estt/08/5201-UR dated 17.09.2008. 6. The petitioner assails the or ders dated 09.07.2008 and 17.09.2008 in the present petition on the grounds detailed in the petition. It is pleaded that enquiry was conducted by the Enquiry Officer unmindful of mandate of J&K Police Act and Rules made thereunder and that because of non adherence to the Rules, the enquiry proceedings as also the outcome of such proceedings were vitiated. 7. It is next urged that the respon dent no. 3 failed and neglected to ap pend copy of the enquiry report and other material with the show cause notice dated 11.06.2008, preventing the petitioner for making an effective rep resentation against the proposed pun ishment. 8.
7. It is next urged that the respon dent no. 3 failed and neglected to ap pend copy of the enquiry report and other material with the show cause notice dated 11.06.2008, preventing the petitioner for making an effective rep resentation against the proposed pun ishment. 8. Chapter XI of J&K Police Rules, 1960 deals with the punishment that may be imposed on a police officer and also the procedure to be followed while awarding such punishment. Section 340 identifies "withholding of increment(s) as one of the punish ments that may be inflicted departmentally on a police officer". Rule 359 lays down procedure i.e. necessarily to be followed in departmental enquiries, pre ceding imposition of the punishment. The procedure prescribed is elaborate and comprehensive. Rule 359 comprises of as many as eleven Sub Rules and deals with all aspects of enquiry from the stage a definite complaint is re ceived against police officer till the of ficer is exonerated or punished in ac cordance with rules. It would be appro priate to summarize hereunder:- 1) Whenever a definite complaint of misconduct is received against an Police officer, the officer re ceiving the complaint is to imme diately 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. 2) The officer conducting the en quiry is to summon the delin quent police officer, read out to him the statements summariz ing the alleging 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. 3) If the delinquent police officer does not admit the alleged mis conduct, the enquiry officer is required to record such evidence oral and documentary in proof of acquisition 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 op portunity to cross examine the witness to such officer. 4) When the evidence is recorded and it is found not to substanti ate the acquisition or recom mended his discharge to the Su perintendent of Police or other officer so empowered. However, if the evidence collected substanti ate the acquisition of miscon duct, the officer is to frame a for mal charge/charges in writing explain the charges to the delin quent police officer and call upon him to answer the charge. 5) The Inquiry officer after the charge/charges are framed in writing is to explain the charge/charges to the delinquent officer, ask the delinquent police officer to furnish list of the defence wit nesses whom he wishes to call alongwith summary of the facts as to which such witnesses are to testify. The Inquiry officer thereafter has to record the state ment of the defence witnesses whom he decides to admit in presence of the delinquent police officer who is also to be allowed to address/put questions to the wit nesses as he may deem fit. The delinquent police officer is also to be given opportunity to file documentary evidence and in this re gard to have access to official files and papers except such as form part of the confidential record.
The delinquent police officer is also to be given opportunity to file documentary evidence and in this re gard to have access to official files and papers except such as form part of the confidential 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 statement. The Inquiry Officer independent of the option exercised by the delin quent police official to file a writ ten statement, would be compe tent to put all such questions to him which he may see fit to be put arising out of the charge. 6) The Inquiry Officer after the de linquent police officer closes his case and answers questions, if any, put by the Inquiry officer, is to pass order as may be warranted under facts and circumstances of the case or forward the case with his recommendations to an of ficer empowered to pass such or der. However, no officer is to be dismissed or removed by an au thority subordinate to that by which he was appointed. 7) 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 after his con victed of 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 satis fied that in the interest of the security of the State it is not ex pedient to give that officer such an opportunity. 9. In the present case, the proce dure prescribed under rules for a depart mental enquiry has been observed in breach. Reply filed by the respondents and the record available on the file does not indicate that the petitioner was af forded an opportunity to cross examine the witness. 10. The most serious breach com mitted by the respondent no.3, while awarding punishment is failure to fur nish copy of the enquiry report with other material documents to the peti tioner. Once the respondent no. 3 pro posed to inflict punishment on the pe titioner, respondent no.
10. The most serious breach com mitted by the respondent no.3, while awarding punishment is failure to fur nish copy of the enquiry report with other material documents to the peti tioner. Once the respondent no. 3 pro posed to inflict punishment on the pe titioner, respondent no. 3 did not indi cate the punishment he proposed to inflict, in the show cause notice dated 11.6.2008 and merely informed the pe titioner that he proposed to enhance the punishment suggested by the Enquiry Officer. The respondent no.3 errone ously presupposed that the petitioner was given opportunity to show cause against the punishment of Censure pro posed by the Enquiry Officer, and that now what he was only required to be asked, was whether he had any cause to show against enhancement of the punishment. Least was it realised that the petitioner was not at all given op portunity to show cause against the punishment as recommended by the Enquiry Officer. In order to make the right to show cause against the proposed amendment meaningful the petitioner was not only to be asked to show cause but to be given the copy of the enquiry report and the copies of material docu ments so that the petitioner could con vince the disciplinary authority that the proposed punishment was unwar ranted and disproportionate to the mis conduct attributed to him. The duty to provide the petitioner copy of the en quiry report and documents connected therewith was necessarily to be ob served in the present case as the dis ciplinary authority proposed to make a departure from the recommendation made by the Enquiry Officer. 11. For the reasons mentioned, the writ petition is allowed and orders im pugned in the writ petition No. 121 of 2008 dated 09.07.2008 and Order No. 146 of 2008 dated 17.9.2008 are quashed. 12. Resultantly, the withheld incre ment shall be released in favour of the petitioner unless the respondents pro pose to hold fresh enquiry in accordance with rules.